Judge Jeffrey R. Hughes, writing for the U.S. Bankruptcy Court for the Western District of Michigan, has held a Michigan exemption law that applies only in federal bankruptcy proceedings to be unconstitutional. In re Wallace, 2006 WL 2347807 (Bankr. W.D. Mich. Aug. 9, 2006) (to be published). The Bankruptcy Code authorizes states to opt out of the Code’s exemption scheme. As a general matter, then, debtors from opt-out states may only exempt property from their bankruptcy estates pursuant to state-provided exemptions and nonbankruptcy federal exemptions. 11 U.S.C. § 522(b)(2), (3)(A). In this regard, the Bankruptcy Code recognizes and defers to nonbankruptcy entitlements. A state exemption law that applies only in federal bankruptcy proceedings (a “bankruptcy-specific exemption”) raises the issue of whether the recognition of and deference to nonbankruptcy entitlements translates into a congressionally-delegated authority for states to create bankruptcy entitlements. Within the exemption context, the Wallace court has answered “no.” States do not have such authority, thus rendering a state-created bankruptcy-specific exemption unconstitutional.
The court in Wallace referenced a 2000 decision issued by the U.S. Bankruptcy Court for the Northern District of Indiana, In re Cross, 255 B.R. 25 (Bankr. N.D. Ind. 2000), which found that an Indiana bankruptcy-specific exemption regarding entireties property was unconstitutional. Aside from these two decisions, I know of no others that address this issue. This is curious as Delaware, Georgia, Iowa, Kentucky, New York, Ohio, and West Virginia have all enacted bankruptcy-specific exemptions in one form or another—some allowing debtors in bankruptcy to claim more exempt property than they otherwise could outside of bankruptcy and others providing the opposite. I wonder whether courts and/or legislatures in these jurisdictions will take notice of the Wallace decision. Perhaps there are more constitutional challenges or even statutory amendments on the horizon. Stay tuned.