dissenting:
I respectfully dissent because I do not believe that Congress intended to create an implied exemption from garnishment for GSL funds when it could have done so through the simple expedient of an express exemption.1
I agree with the majority that this is a matter of federal law. Because a plain reading of the Higher Education Act of 1965, §§ 1071-97 (1978 & 1988 Supp.) (Act) does not decide whether a creditor may garnish GSL funds under Colorado law, a review of the Act’s legislative history is necessary to determine the intention of Congress.
It is significant that § 1082(a)(2) of the Act expressly exempts the Secretary of Education as well as property under his or her control from “attachment, injunction, garnishment, or other similar process,” while no section of the Act expressly exempts GSL funds from garnishment. Express exemption from state law is a common device used by Congress to preempt state law. Congress has for example created an express exemption for social security disability payments by providing that “none of the moneys paid or payable or rights existing under this subchapter shall be subject to execution, levy, attachment, garnishment, or other legal process, or to the operation of any bankruptcy or insolvency law.” 42 U.S.C. § 407 (1983). The Colorado General Assembly likewise has created express exemptions for money, personal property, and benefits of judgment debtors. See § 10-14-122, 4A C.R.S. (1987) (“No money or other benefit ... to be paid, provided, or rendered by any [fraternal benefit] society shall be liable to attachment, garnishment, or other process....”); § 8-52-107(1), 3B C.R.S. (1986) (worker’s compensation benefits “shall be exempt from all claims of creditors and from levy, execution, and attachment or other remedy or recovery or collection of a debt, which exemption may not be waived”); *1064§ 8-80-103, 3B C.R.S. (1986) (unemployment compensation benefits “shall be exempt from levy, execution, attachment, or any other remedy as provided for the collection of debt” except as provided in the Colorado Child Support Enforcement Procedures Act); § 13-54-102(1), 6A C.R.S. (1987) (under Uniform Enforcement of Foreign Judgments Act, certain listed personal property “is exempt from levy and sale under writ of attachment or writ of execution”); § 24-51-212, 10B C.R.S. (1988) (with limited exceptions, “none of the moneys, trust funds, reserves, accounts, or benefits [accrued to the Public Employees’ Retirement Association] shall be assignable ... or be subject to execution, levy, attachment, garnishment, bankruptcy proceedings, or other legal process”); § 26-2-131, 11 C.R.S. (1982) (“[N]one of the money paid or payable [as public assistance benefits] shall be subject to execution, levy, attachment, garnishment, or other legal process or to the operation of any bankruptcy or insolvency law.”). In this case, the district court properly held that $572 in Schaerrer’s bank account was exempt from garnishment by Westman because of the express exemption for social security disability funds under 42 U.S.C. § 407.
That the Act expressly exempted property under the Secretary of Education’s control from garnishment by third parties but made no such provision for GSL funds leads me to conclude that Congress did not intend to create such an exemption for GSL funds in the first place. The Colorado General Assembly also failed to create an express exemption from garnishment for GSL funds under the Colorado Student Loan Program. I would affirm the judgment of the court of appeals and refuse to recognize an implied exemption from garnishment for GSL funds against claims of third party creditors, preferring to leave that function to the legislative branch of government.
I am authorized to say that Justice RO-YIRA joins in this dissent.
. I believe the majority misinterprets the oversight committee’s observation that amendment to the Higher Education Act was necessary to prevent the "siphoning off' of GSL funds for such non-educational purposes as "payments to non-students for non-educational services.” Maj. op. at 1062. While not entirely clear, the oversight committee’s comments appear to be directed at preventing the student from voluntarily paying non-students for non-educational purposes rather than preventing non-students from enforcing legal judgments to obtain involuntary payments from the student. See S.Rep. No. 882, 94th Cong., 2d Sess. 23, reprinted in 1976 Code Cong. & Admin.News 4713, 4735. My view of the oversight committee’s comments is reinforced by the language of 20 U.S.C. § 1097(a), which provides criminal penalties for any person who "knowingly and willfully embezzles, misapplies, steals, or obtains” GSL funds "by fraud, false statement or forgery,” but provides no criminal penalty for creditors who use the courts to enforce a legal judgment against the student's GSL funds.