In re MARRIAGE OF LAPPE, No. 81605.
NOTICE: Under Supreme Court Rule 367 a party has 21 days after the filing of the opinion
to request a rehearing. Also, opinions are subject to modification, correction or withdrawal at
anytime prior to issuance of the mandate by the Clerk of the Court. Therefore, because the
following slip opinion is being made available prior to the Court's final action in this matter,
it cannot be considered the final decision of the Court. The official copy of the following
opinion will be published by the Supreme Court's Reporter of Decisions in the Official
Reports advance sheets following final action by the Court.
Docket No. 81605--Agenda 15--January 1997.
In re MARRIAGE OF LARRY LAPPE and LYNN LAPPE, Appellee (The
Illinois Department of Public Aid, Appellant).
Opinion filed May 1, 1997.
JUSTICE BILANDIC delivered the opinion of the court:
The appellant, the Illinois Department of Public Aid (the
Department), filed a motion to intervene in a dissolution action
pending between Larry and Lynn Lappe in the circuit court of
Madison County. The Department sought to intervene on behalf of
Larry Lappe, the custodial parent of the divorced couple's
unemancipated minor child, pursuant to sections 10--1 and 10--10 of
the Public Aid Code (305 ILCS 5/10--1, 10--10 (West 1994)). The
Department also filed a petition on Larry's behalf to establish a
child support obligation on the part of the appellee, Lynn Lappe.
Lynn filed objections to the Department's motion to intervene,
arguing that sections 10--1 and 10--10 of the Public Aid Code were
unconstitutional in that they violated the Illinois Constitution's
mandate that public funds be used only for public purposes. Ill.
Const. 1970, art. VIII, §1. The circuit court ultimately denied the
Department's motion to intervene, finding that the application of
these sections to allow intervention by the Department in this case
would constitute an unconstitutional use of public funds for a
purely private purpose. The Department appealed to the appellate
court and the appellate court transferred the appeal to this court
pursuant to Supreme Court Rule 302(a)(1) (134 Ill. 2d R.
302(a)(1)).
FACTS
Larry and Lynn Lappe were married on October 18, 1969. The
couple had two children, Chad and Nicholas. In 1989, both Lynn and
Larry filed petitions for dissolution of the marriage in the
circuit court of Madison County. On August 21, 1989, the circuit
court entered an order dissolving the marriage. The record reveals
that Larry filed for bankruptcy pursuant to chapter 7 of the United
States Bankruptcy Code on February 12, 1990. According to Larry's
bankruptcy schedules, he was then employed as the United States
Postmaster of Sorento, Illinois, and had gross earnings of $33,600
in 1989.
On July 13, 1990, the circuit court entered a judgment of
dissolution of marriage which incorporated a marital settlement
agreement, a joint parenting order, and a qualified domestic
relations order regarding the division of Larry's interest in the
Civil Service Retirement System Pension Plan. The marital
settlement agreement stated that Larry would pay $523.22 per month
in child support, which amount would be adjusted if necessary. The
joint parenting order stated that the parties would have joint
custody of the two children, with Lynn having primary residential
custody.
On February 8, 1991, the circuit court entered an order,
pursuant to an agreement of the parties, increasing Larry's child
support payments to $546.93 per month. Larry's child support
payments were again increased by agreement on February 5, 1992, to
$567.89 per month, based on a salary increase. On July 30, 1992, a
stipulated order was entered modifying Larry's child support
obligation to $504.83 per month, because of the emancipation of the
couple's older child, Chad.
On March 16, 1993, the circuit court entered an order
modifying the judgment of dissolution of marriage, pursuant to the
parties' stipulation. This stipulated order provided that the
principal place of residence for the couple's minor child,
Nicholas, was changed from Lynn to Larry, commencing on March 1,
1993. The order provided that Larry's obligation to pay child
support to Lynn would cease, and that Lynn would not be obligated
to pay child support to Larry.
On July 26, 1995, the Illinois Department of Public Aid, by
the Madison County State's Attorney, filed a motion to intervene on
behalf of Larry in the Lappe dissolution action. As grounds for
intervention, the Department stated that the Department "is
authorized to institute legal action on behalf of [Larry] for
judicial enforcement of [Lynn's] support liability, pursuant to 305
ILCS 5/10--10 and 5/10--3.1." On that same date, the Department
filed a petition to establish an obligation on the part of Lynn to
pay child support for Nicholas. On August 1, 1995, the circuit
court granted the Department's motion to intervene.
On August 9, 1995, Lynn filed an objection to the Department's
motion to intervene. Lynn argued that the Department's motion
should be denied because she "believed" that Larry was not a
recipient of public aid and that he had a "large and sufficient
income (approximately $41,000.00 per year)." On August 29, 1995,
Lynn filed an amended objection to the Department's motion to
intervene. The amended objection argued that sections 10--1 and 10-
-10 of the Public Aid Code, from which the Department derived its
authority to intervene in this case, were unconstitutional. Lynn
contended that these provisions violated the separation of powers
doctrine contained in section 1 of article II of the Illinois
Constitution of 1970, and the mandate that public funds may be used
only for public purposes contained in section 1 of article VIII of
the Illinois Constitution of 1970.
On April 3, 1996, the circuit court entered an order setting
aside its previous order granting the Department leave to intervene
and denied the Department leave to intervene. The circuit court
determined that the relevant statutory provisions authorized the
Department to intervene on behalf of Larry. The court found,
however, that the provisions violated the constitutional mandate
that public funds be used only for public purposes. The court
determined that there was no proper public purpose in the
Department's providing child support enforcement services to Larry
because Larry made $40,000 per year and was therefore able to
pursue child support from Lynn without the Department's assistance.
The circuit court rejected the contention that these provisions
violated the separation of powers doctrine. The circuit court's
order concluded as follows:
"It is therefore ordered, that the statutory provisions
relied upon and cited herein, while not unconstitutional
in the absolute sense, would lead to an unconstitutional
result in the instant case, and accordingly the Order of
August 1, 1995 granting the State's Attorney leave to
intervene is set aside, and said Motion for Leave to
Intervene is denied."
The circuit court subsequently entered an order finding that there
was no just reason for delaying the appeal of its April 3, 1996,
order.
The Department filed a notice of appeal to the appellate
court. The Department thereafter filed a motion in the appellate
court to transfer the appeal to this court pursuant to Supreme
Court Rule 302(a)(1), because the circuit court had held a
statutory provision unconstitutional. Lynn objected to the motion
to transfer. On August 9, 1996, the appellate court entered an
order transferring the appeal to this court.
ANALYSIS
Jurisdiction
Lynn challenges this court's jurisdiction over this appeal.
The Department argues that jurisdiction is proper in this court
pursuant to Supreme Court Rule 302(a)(1), because the circuit court
held that a state statute was unconstitutional. Supreme Court Rule
302(a)(1) provides for appeals to be taken directly to this court
from final judgments of circuit courts "in cases in which a statute
of the United States or of this State has been held invalid." 134
Ill. 2d R. 302(a). Lynn contends that the circuit court's order in
this case did not hold a statute unconstitutional but, rather, held
only that the statute was unconstitutional as applied in this case.
Lynn relies on this court's decision in Rehg v. Illinois Department
of Revenue, 152 Ill. 2d 504, 509 (1992), in which we noted that a
lower court order that "simply declares that application of [a]
statute would violate a particular defendant's constitutional
rights" is not directly appealable to this court pursuant to Rule
302(a).
A narrow reading of the circuit court's order in this case
supports Lynn's argument. The order states that the statutory
provisions "would lead to an unconstitutional result in the instant
case." We must look, however, to the effect of the circuit court's
order to determine whether the order actually declared the
statutory provisions unconstitutional on their face. See Doe v.
Gainer, 162 Ill. 2d 15, 18 (1994). If the effect of the circuit
court's order was to declare a statute unconstitutional on its
face, this court has jurisdiction under Rule 302(a)(1). See Doe,
162 Ill. 2d at 18 (although circuit court's order stated that
statute was unconstitutional "as applied" to the plaintiff, effect
of order was to declare provision unconstitutional on its face and
jurisdiction under Rule 302(a)(1) was proper); First of America
Bank, Rockford, N.A. v. Netsch, 166 Ill. 2d 165, 169 (1995) (this
court assumed jurisdiction under Rule 302(a)(1) of appeal from
circuit court order which held that certain statutory provisions
were unconstitutional "as applied" to the plaintiff); People v.
Roos, 118 Ill. 2d 203 (1987) (this court assumed jurisdiction under
Rule 302(a)(1) of appeal from circuit court order which held that
a statute was unconstitutional "as applied" to the practice of
acupuncture); Miller v. Lockett, 98 Ill. 2d 478, 479-80 (1983)
(this court held that jurisdiction was proper under Rule 302(a)(1)
even though the circuit court did not directly state that the
statute was unconstitutional because it appeared from the order
that the circuit court found the statute invalid); Sommer v.
Village of Glenview, 79 Ill. 2d 383, 385-86 (1980) (this court held
that it had jurisdiction under Rule 302(a)(1) of appeal from
circuit court order which stated only that a particular statutory
provision could not be applied to home rule units because, in
effect, the circuit court order necessarily held that the statutory
provision was unconstitutional as applied to home rule units).
The Department asserts that the effect of the circuit court's
order was to declare sections 10--1 and 10--10 of the Public Aid
Code, in part, unconstitutional on their face. We agree. The
circuit court ruled that sections 10--1 and 10--10 of the Public
Aid Code were unconstitutional as applied to Larry because, in the
court's opinion, Larry earned $40,000 per year and therefore was
capable of pursuing child support enforcement services without the
Department's assistance. As we discuss in detail later in this
opinion, however, sections 10--1 and 10--10 clearly grant the
Department the discretion to provide child support enforcement
services to any individual who applies for them, regardless of that
individual's financial capability to pursue enforcement privately.
Thus, Larry is within the class of recipients contemplated by the
statutory provisions. The trial court's ruling that the provisions
are unconstitutional as applied to Larry is therefore, in effect,
a ruling that the provisions are unconstitutional to the extent
they allow application to Larry and others who are "financially
capable." In effect, the circuit court declared portions of
sections 10--1 and 10--10 unconstitutional on their face. We
therefore have jurisdiction pursuant to Rule 302(a)(1).
Constitutionality
We now turn to the substantive issue in this case: whether
sections 10--1 and 10--10 of the Public Aid Code, in allowing the
Department the discretion to provide child support enforcement
services to an individual who may be financially capable of
pursuing enforcement privately, serve a public purpose within the
meaning of article VIII, section 1, of the Illinois Constitution.
The argument that these provisions violate the separation of powers
doctrine has not been raised in this court.
It is well established that legislative enactments enjoy a
heavy presumption of constitutionality. People ex rel. Sheppard v.
Money, 124 Ill. 2d 265, 272 (1988); County of Kane v. Carlson, 116
Ill. 2d 186, 216 (1987). The party challenging the
constitutionality of a statute has the burden of clearly
establishing its invalidity. People v. Adams, 149 Ill. 2d 331, 338
(1992); Bernier v. Burris, 113 Ill. 2d 219, 227 (1986). Courts have
a duty to sustain legislation whenever possible and resolve all
doubts in favor of constitutional validity. Adams, 149 Ill. 2d at
338; Sheppard, 124 Ill. 2d at 272.
The statutory provisions at issue in this case govern the
Department's provision of child support enforcement services to
individuals who are not receiving public aid. These provisions are
part of a larger statutory scheme for the enforcement of child
support obligations, and a review of that statutory framework is
necessary to provide a proper context for these provisions. We
begin with the pertinent provisions of the federal Social Security
Act. 42 U.S.C. §301 et seq. (1994).
Social Security Act
The federal welfare program known as Aid to Families with
Dependent Children (AFDC), contained in Title IV-A of the Social
Security Act, established a scheme under which the federal
government would reimburse states for a percentage of the funds
that states distributed to needy families with children. 42 U.S.C.
§601 et seq. (1994). States were not required to participate in the
AFDC program, but if a state chose to participate in the program,
it had to comply with the requirements of the Social Security Act
and the regulations promulgated thereunder. 42 U.S.C. §602 (1994);
King v. Bradley, 829 F. Supp. 989, 991 (N.D. Ill. 1993). Title IV-A
set out, in considerable detail, the elements which must be
included in a state AFDC plan. 42 U.S.C. §602 (1994). If a state
AFDC plan met with federal approval, the state was entitled to
reimbursement from the federal government of a substantial
percentage of the state funds it expended in AFDC payments. 42
U.S.C. §603(a) (1994).
In 1974, Congress amended the Social Security Act by adding
Title IV-D. 42 U.S.C. §651 et seq. (Supp. 1975). Title IV-D
established a Child Support Enforcement Program, "[f]or the purpose
of enforcing the support obligations owed by absent parents to
their children." 42 U.S.C. §651 (1994). At the same time, Title IV-
A was amended to require states, as a condition of receiving
federal AFDC funds, to adopt child support enforcement programs
that complied with Title IV-D. 42 U.S.C. §602(a)(27) (1994).
Accordingly, in order for a state to obtain federal funding for its
AFDC program, the state was required to operate a child support
enforcement program in compliance with Title IV-D. 42 U.S.C.
§§602(a)(27), 603(h) (1994); see also People v. Sheppard, 124 Ill.
2d 265, 270 (1988); King v. Bradley, 829 F. Supp. 989, 991 (N.D.
Ill. 1993); Carelli v. Howser, 923 F.2d 1208, 1210 (6th Cir. 1991).
A state program under Title IV-D must provide a variety of
services including establishment of paternity, establishment and
enforcement of support obligations, and parent locator services. 42
U.S.C. §652(a)(1) (1994); 45 C.F.R. §§303.3, 303.4, 303.5, 303.6
(1994). By operating a program of child support enforcement
services in compliance with Title IV-D, a state not only would
receive federal AFDC funding, but it would also be reimbursed by
the federal government for a large percentage, ranging from 66% to
90%, of the state funds it expends in connection with the Title IV-
D program. 42 U.S.C. §655 (1994). In addition, Title IV-D provides
for states to be paid incentive payments to "encourage and reward"
states which operate efficient enforcement programs. 42 U.S.C.
§658(b) (1994). The incentive payments will generally equal 6% of
the state's support collections in AFDC cases and 6% of the state's
support collections in non-AFDC cases in a particular year. 42
U.S.C. §658(b) (1994).
Title IV-D provides detailed requirements with which a state
plan must comply in order for the state to be entitled to federal
funding. 42 U.S.C. §654 (1994). One of the requirements of Title
IV-D is that the state must make the same child support enforcement
services available to both families receiving AFDC and families who
are not receiving AFDC. 42 U.S.C. §654(6) (1994). The version of
section 654(6) applicable to this case provides, in pertinent
part,:
"A State plan for child and spousal support must--
* * *
(6) provide that (A) the child support collection or
paternity determination services established under the
plan shall be made available to any individual not
otherwise eligible for such services upon application
filed by such individual with the State, *** (B) an
application fee for furnishing such services shall be
imposed, which shall be paid by the individual applying
for such services, or recovered from the absent parent,
or paid by the State out of its own funds, *** the amount
of which (i) will not exceed $25 (or such higher or lower
amount (which shall be uniform for all States) as the
Secretary may determine to be appropriate for any fiscal
year ***." 42 U.S.C. §654(6) (1994).
The Office of Child Support Enforcement (OCSE), the federal
agency charged with administering the AFDC program, has promulgated
regulations to carry out the Title IV-D program. 45 C.F.R. §301 et
seq. (1994). In accordance with Title IV-D, the OCSE regulations
provide that states must make child support enforcement services
available to non-AFDC recipients. Regulation 302.33 provides, in
relevant part:
"Services to individuals not receiving AFDC or title
IV-E foster care assistance.
(a) Availability of Services. (1) The State plan
must provide that the services established under the plan
shall be made available to any individual who:
(i) Files an application for the services with the
IV-D agency." 45 C.F.R. §302.33 (a)(1)(i) (1994).
We note, for clarification purposes, that in late 1996,
Congress enacted the Personal Responsibility and Work Opportunity
Reconciliation Act of 1996, Pub. L. 104--193, 110 Stat. 2105
(Personal Responsibility Act). The Personal Responsibility Act
replaced the federal AFDC program contained in Title IV-A with a
program of block grants to states for Temporary Assistance for
Needy Families (TANF). Pub. L. 104--193, 110 Stat. 2112-13. TANF,
like AFDC, provides the states participating in the program with
federal funding for the states' programs of public assistance to
families with dependent children. Pub. L. 104--193, 110 Stat. 2134.
In order to be eligible for a block grant under the TANF program,
a state must still operate a child support enforcement program in
compliance with Title IV-D. Pub. L. 104--193, 110 Stat. 2114, 2198-
2200. The Personal Responsibility Act also amended some portions of
Title IV-D. However, Title IV-D still requires that a state program
must provide child support enforcement services to "any *** child,
if an individual applies for such services with respect to the
child." Pub. L. 104--193, 110 Stat. 2199.
Illinois Public Aid Code
Illinois chose to participate in the federal AFDC program and
thereby receive federal funding for its public aid program. 305
ILCS 5/12--4.5 (West 1994); 89 Ill. Adm. Code §160.10(a) (1994);
see also King v. Bradley, 829 F. Supp. 989, 991 (N.D. Ill. 1993).
As a result, Illinois is required to operate a child support
enforcement program that complies with Title IV-D. 42 U.S.C.
§602(a)(27) (1994). Illinois' Title IV-D program is contained in
article X of the Public Aid Code and part 160 of the Department's
regulations. 305 ILCS 5/10--1 et seq. (West 1994); 89 Ill. Adm.
Code §160.1 et seq. (1994).
Article X of the Public Aid Code states that its purpose is
to provide for locating an absent parent, for determining his or
her financial circumstances, and for enforcing his or her legal
obligation of support. 305 ILCS 5/10--1 (West 1994). The services
available under article X include (1) identifying and locating an
absent parent, (2) establishing parentage, (3) establishing support
obligations, (4) enforcing and collecting support, (5) receiving
and distributing support payments, and (6) maintaining accurate
records of location and support activities. 89 Ill. Adm. Code
§160.10(c) (1994). The Department may provide these services though
the use of either the administrative process or the court system.
305 ILCS 5/10--10, 10--11 (West 1994); 89 Ill. Adm. Code §160.10(d)
(1994). To establish a support obligation where a court has
previously acquired jurisdiction in a case, the Department refers
the case to the Attorney General or State's Attorney for judicial
action, which includes the preparation of petitions to intervene,
petitions to establish support obligations, and petitions to
modify. 305 ILCS 5/10--10, 10--3.1 (West 1994); 89 Ill. Adm. Code
§§160.60(e)(1), (e)(2) (1994).
The provisions at issue in this case are contained in article
X and pertain to the provision of child support enforcement
services to non-AFDC recipients. In accordance with the federal
mandate of Title IV-D, article X provides that the child support
enforcement services provided thereunder shall be available to both
AFDC families and non-AFDC families. Section 10--1 provides, in
pertinent part:
"At the discretion of the Illinois Department of
Public Aid, the child and spouse support services
established under this Article may also be furnished in
behalf of spouses and dependent children who are not
applicants for or recipients of financial aid under this
Code. The Department may limit eligibility of these
persons to designated income classes. If non-applicants
and non-recipients are included, the Department may
establish a schedule of reasonable fees, to be paid for
the services provided and may deduct a collection fee,
not to exceed 10% of the amount collected, from such
collection. The Illinois Department of Public Aid shall
cause to be published and distributed publications
reasonably calculated to inform the public that
individuals who are not recipients of or applicants for
public aid under this Code are eligible for the child and
spouse support services under this Article X." 305 ILCS
5/10--1 (West 1994).
Section 10--10 specifically refers to the use of the court system
to provide child support enforcement services. In relevant part,
section 10--10 provides:
"Actions may also be brought under this Section in
behalf of any person who is in need of support from
responsible relatives, *** who is not an applicant for or
recipient of financial aid under this Code." 305 ILCS
5/10--10 (West 1994).
In the present case, the circuit court determined that
sections 10--1 and 10--10 authorized the Department to intervene
and file a petition to establish child support on behalf of Larry.
The court ruled, however, that, in so doing, the statutory
provisions violated the Illinois Constitution's mandate that public
funds be used only for public purposes. The circuit court found
that there was no public purpose in the "use of State funds to
provide a lawyer for a parent making $40,000 a year."
We first note that the circuit court was correct in concluding
that the pertinent provisions of sections 10--1 and 10--10
authorize the Department to intervene on behalf of Larry in this
case. These provisions grant the Department the discretion to
provide child support enforcement services to any individual who
applies for such services, without regard to his or her financial
status. Section 10--1 states that the Department "may" limit
eligibility to designated income groups. 305 ILCS 5/10--1 (West
1994). Implicit in that statement is that the Department may choose
not to limit eligibility based on income. The Department
regulations state that, in accordance with Title IV-D, child
support enforcement services are available to "persons not
receiving [public aid], upon application to the Department for such
services." 89 Ill. Adm. Code §160.10(a)(9) (1996). The Department
regulations do not contain any provision limiting eligibility based
on income, and the parties do not direct our attention to any other
source for such limitation. The legislative history of section 10--
10 further supports the conclusion that the Department is granted
the discretion to provide child support enforcement services to any
individual, regardless of financial need. Prior to 1975, section
10--10 stated that actions for child support enforcement could be
brought by the Department "in behalf of any person in necessitous
circumstances who is in need of support from responsible
relatives." (Emphasis added.) Ill. Rev. Stat. 1973, ch. 23, §10--
10. When section 10--10 was amended in 1975, the phrase "in
necessitous circumstances" was deleted from that sentence, so that
the section would read, as it presently does, that actions could be
brought in behalf of "any person who is in need of support from
responsible relatives." The legislature deliberately omitted
financial need of the applicant as a restriction on the
Department's authority. Thus, the pertinent provisions of sections
10--1 and 10--10 clearly authorize the Department to intervene and
petition to establish child support on behalf of Larry.
We must therefore determine whether the provision of child
support enforcement services to a non-aid recipient who may be
financially capable of pursuing such enforcement privately is a
public purpose within the meaning of article VIII, section 1, of
our state constitution. We agree with the Department that Lynn
failed to meet her burden of establishing that no public purpose is
served by the Department's provision of child support enforcement
services in this case.
Public Purpose
Article VIII, section 1, of the Illinois Constitution of 1970
provides that "[p]ublic funds, property or credit shall be used
only for public purposes." Ill. Const. 1970, art. VIII, §1. This
court has long recognized that what is for the public good and what
are public purposes are questions which the legislature must in the
first instance decide. People ex rel. City of Salem v. McMackin, 53
Ill. 2d 347, 355 (1972); Cremer v. Peoria Housing Authority, 399
Ill. 579, 588 (1948). In making this determination, the legislature
is vested with a broad discretion, and the judgment of the
legislature is to be accepted in the absence of a clear showing
that the purported public purpose is but an evasion and that the
purpose is, in fact, private. Salem, 53 Ill. 2d at 355; People ex
rel. McDavid v. Barrett, 370 Ill. 478, 482 (1939); Hagler v. Small,
307 Ill. 460, 474 (1923). In the words of Justice Holmes, "a
declaration by a legislature concerning public conditions that by
necessity and duty it must know, is entitled at least to great
respect." Block v. Hirsh, 256 U.S. 135, 154, 65 L. Ed. 865, 870, 41
S. Ct. 458, 459 (1921).
This court has previously set forth guidelines for this
inquiry:
"In deciding whether such purpose is public or private,
courts must be largely influenced by the course and usage
of the government, the object for which taxes and
appropriations have been customarily and by long course
of legislation levied and made, and what objects have
been considered necessary to the support and for the
proper use of the government. Whatever lawfully pertains
to this purpose and is sanctioned by time and the
acquiescence of the people may well be said to be a
public purpose and proper for the maintenance of good
government." Hagler, 307 Ill. at 474.
What is a "public purpose" is not a static concept, but is flexible
and capable of expansion to meet the changing conditions of a
complex society. People ex rel. Adamowski v. Chicago R.R. Terminal
Authority, 14 Ill. 2d 230, 236 (1958); People v. Chicago Transit
Authority, 392 Ill. 77, 86 (1945). Moreover, " `[t]he power of the
State to expend public moneys for public purposes is not to be
limited, alone, to the narrow lines of necessity, but the
principles of wise statesmanship demand that those things which
subserve the general wellbeing of society and the happiness and
prosperity of the people shall meet the consideration of the
legislative body of the State, though they ofttimes call for the
expenditure of public money.' " Salem, 53 Ill. 2d at 357-58,
quoting Hagler, 307 Ill. at 475. The consensus of modern
legislative and judicial thinking is to broaden the scope of
activities which may be classified as involving a public purpose.
Salem, 53 Ill. 2d at 356; see also Marshall Field & Co. v. Village
of South Barrington, 92 Ill. App. 3d 360, 366 (1981).
The Department argues that the pertinent portions of sections
10--1 and 10--10 serve a public purpose by advancing the welfare of
children. We agree. The provision of child support enforcement
services on behalf of all dependent children serves a public
purpose by promoting the right of children to be supported by their
parents, fostering parental responsibility and involvement, and
preventing families from becoming dependent on welfare.
This court has recognized that Illinois has a strong interest
in preserving and promoting the welfare of children. People ex rel.
Sheppard v. Money, 124 Ill. 2d 265, 277 (1988). In this regard,
this court has noted that "[a] parent's duty to support his or her
minor child is among the oldest principles of law." Sheppard, 124
Ill. 2d at 269-70, citing 1 W. Blackstone, Commentaries *446-47.
"Indeed, it is difficult to imagine a more compelling State
interest than the support of children." Sheppard, 124 Ill. 2d at
277. As described above, the Illinois child support enforcement
program provides assistance to custodial parents in locating absent
parents, establishing parentage, and establishing, enforcing and
collecting support obligations. The provision of these services
clearly serves the public purpose of advancing the welfare of
children by enforcing a child's right to be supported by his
parents, fostering parental responsibility and parental involvement
with the child, and preventing the child and custodial parent from
having to turn to welfare.
This public purpose is served by the extension of these
services to all children, regardless of the financial circumstances
of their custodial parents. All children have the right to be
supported by their parents, and are benefitted, both financially
and otherwise, when an absent parent provides support. The
legislature could rightly determine that a public purpose is served
by providing an effective program of child support enforcement that
is available on behalf of all children with an absent parent. The
focus of this legislation is on effective enforcement. The
provisions simply create a mechanism whereby custodial parents of
dependent children can, with minimal time and expense, obtain
assistance with the paperwork involved in child support
enforcement, with locating the person obligated to pay support and
with taking the necessary steps, including judicial action, to
ensure that the proper amount of money is collected. As one article
describes it, "with the help of IDPA potentially available in
virtually all cases, custodial parents can tap various resources
that allow for effective enforcement." D. Bergbreiter & A. McKay,
Child Support Enforcement and the Illinois Department of Public
Aid, 81 Ill. B.J. 638, 643 (1993).
Our precedent supports the conclusion that a public purpose is
served by the legislation challenged in this case. In Board of
Education, School District No. 142 v. Bakalis, 54 Ill. 2d 448
(1973), this court found that a public purpose was served by a
provision of the School Code which required school boards to
provide free transportation to school to nonpublic school students.
The plaintiff challenged the statute, arguing that it violated
article VIII, section 1, of the Illinois Constitution of 1970
because it constituted the use of public funds for a nonpublic
purpose. This court rejected that argument, finding that the
transportation of school children, public or nonpublic, is a public
purpose. Bakalis, 54 Ill. 2d at 466. The enforcement of a child's
legal right to support from their parent must be considered at
least as beneficial to the public good as the transportation of
children to school.
In addition, it is important to note that these provisions
were included in our Public Aid Code in order to comply with Title
IV-D of the Social Security Act. It is appropriate to look at the
purposes sought to be achieved by Congress in requiring that states
include these provisions. One purpose of Title IV-D was to decrease
welfare costs by collecting child support owed by noncustodial
parents whose dependent children were receiving public aid. See S.
Rep. No. 93--1356, 93d Cong., 2d Sess., reprinted in 1974
U.S.C.C.A.N. 8133, 8145-47. Title IV-D, however, expressly requires
that child support enforcement services be provided to non-AFDC
families who make application for such services. The legislative
history of Title IV-D reveals dual purposes behind the extension of
child support enforcement services to non-AFDC families. One
purpose was to reduce welfare costs by preventing families from
becoming dependent on public aid as a result of unpaid child
support. S. Rep. No. 93--1356, 93d Cong., 2d Sess., reprinted in
1974 U.S.C.C.A.N. 8133, 8145-47. The legislative history, however,
reveals that Title IV-D was also aimed at the broader goal of
assuring that all children will obtain assistance in securing child
support regardless of their circumstances.
In recommending passage of Title IV-D in 1974, the Senate
finance committee noted that "the enforcement of child support
obligations is not an area of jurisprudence about which this
country can be proud," and that Title IV-D was designed to help
"all children" receive the support from absent parents that was
their right. S. Rep. No. 93--1356, 93d Cong., 2d Sess., reprinted
in 1974 U.S.C.C.A.N. 8133, 8145-46. Further, in 1984, Congress
amended Title IV-D to strengthen the effectiveness of the program
and to clarify that its purpose was to provide assistance in
securing child support to all children "regardless of their
circumstances." S. Rep. No. 98--387, 98th Cong., 2d Sess.,
reprinted in 1984 U.S.C.C.A.N. 2397, 2397. To that end, the 1984
amendments added language to the purpose clause of Title IV-D so
that it would specifically state that its purpose was to assure
assistance in obtaining support "to all children *** for whom such
assistance is requested." 42 U.S.C. §651 (1994). This purpose was
also emphasized in the recent amendments to Title IV-D made by the
Personal Responsibility Act of 1996. In explaining the amendments
to Title IV-D, the House report stated that:
"because millions of families are at risk of needing
public welfare unless noncustodial parents provide child
support, and because additional millions of families are
not receiving the financial support that is their legal
right from noncustodial parents, States must provide
child support services to nonwelfare families that
request such services." (Emphasis added.) H.R. Rep. No.
104--651, 104th Cong., 2d Sess., reprinted in 1996
U.S.C.C.A.N. 2380, 2456.
In addition, we note that other states have enacted statutes
which provide, in accordance with Title IV-D, that the same child
support enforcement services must be provided to both AFDC families
and non-AFDC families. See Cabinet for Human Resources v. Houck,
908 S.W.2d 673 (Ky. 1995); Thaysen v. Thaysen, 583 So. 2d 663 (Fla.
1991); Worth v. Superior Court, 207 Cal. App. 3d 1150, 255 Cal.
Rptr. 304 (1989); Jeske v. Jeske, 144 Wis. 2d 364, 424 N.W.2d 196
(1988); Krogstad v. Krogstad, 388 N.W.2d 376 (Minn. 1986); Carter
v. Morrow, 562 F. Supp. 311 (W.D.N.C. 1983). Several courts in
other states have addressed the issue of whether it is a violation
of Title IV-D for a state to limit eligibility for child support
enforcement services to non-AFDC recipients who are financially
incapable of pursuing enforcement privately. Those courts have held
that Title IV-D requires that states provide child support
enforcement services to all custodial parents who apply for such
services, regardless of the parent's financial circumstances. See
State v. Wagner, 136 Wis. 2d 1, 400 N.W.2d 519 (1986); Thurman v.
Commonwealth of Kentucky, Cabinet for Human Resources, 828 S.W.2d
368 (Ky. 1992); South Carolina Department of Social Services v.
Deglman, 290 S.C. 542, 351 S.E.2d 864 (1986).
Further, the legislation challenged here has been in existence
in this state for over 20 years. In determining whether a statute
serves a public purpose, a court "may take into consideration a
long course of legislation and usage of the government." Barrett,
370 Ill. at 485; Hagler, 307 Ill. at 474. The pertinent portions of
sections 10--1 and 10--10 have been in effect, in substantially
their present form, since 1975. Thus, for over 20 years, the
Department has possessed the authority to provide child support
enforcement services to non-AFDC families, regardless of their
financial circumstances. A Department report indicates that since
the Department began enforcing child support orders in 1976, the
Department has collected more than $1.4 billion for the children of
Illinois. Illinois Department of Public Aid Biennial Report, Fiscal
Years 1993-1994, at 10. Department reports also indicate that in
fiscal year 1995, the Department's child support enforcement
program had an active client caseload of 495,833 clients, of which
243,551 were non-AFDC clients, and the Department collected a total
of $241 million in support, with $164.6 million coming from non-
AFDC case collections. Illinois Department of Public Aid Human
Services Plan, Fiscal Years 1994, 1995, 1996, at 109. For fiscal
year 1996, it was estimated that total support collections would
equal $270.5 million, with $185.5 million coming from non-AFDC
cases. Illinois Department of Public Aid Human Services Plan,
Fiscal Years 1994, 1995, 1996, at 109.
In view of the foregoing, it is clear that our legislature,
the legislatures of other states, and Congress have all determined
that the provision of effective child support enforcement services
on behalf of all children, regardless of the financial
circumstances of their parents, is an important governmental goal.
It is uniquely within the province of these legislative bodies to
make these determinations of governmental policy. Hagler, 307 Ill.
at 474. Our only permissible inquiry is whether the legislature's
determination is constitutionally permissible. We find no
constitutional basis for overturning the judgment of our
legislature on this issue.
Lynn contends, however, that the legislation challenged here
does not serve any public purpose, but serves only to provide a
private benefit to Larry in the form of free legal services. This
is not an accurate characterization. The Department's child support
enforcement services are being provided for the benefit of the
Lappes' dependent child, not the custodial parent. Child support
payments are intended to go directly for the benefit of the child.
In re Marriage of Pihaly, 258 Ill. App. 3d 851, 856 (1994).
Moreover, article X specifically negates the contention that the
purpose of these provisions is to provide free legal representation
to custodial parents. Section 10--3.1 provides that "[a]n attorney
who provides representation pursuant to this Section shall
represent the Illinois Department exclusively *** [and] an
attorney-client relationship does not exist *** between that
attorney and *** an applicant for or recipient of child and spouse
support services ***." 305 ILCS 5/10--3.1 (West 1994). The fact
that Larry may be incidentally benefitted by the provision of these
services does not destroy the public nature of the legislation.
This court has recognized that "[t]he execution of a public purpose
which involves the expenditure of money is usually attended with
private benefits." Hagler, 307 Ill. at 473. If the principal
purpose of the enactment is public in nature, it is irrelevant that
there will be an incidental benefit to private interests. Salem, 53
Ill. 2d at 355; Adamowski, 14 Ill. 2d at 236.
Lynn also takes the position that non-AFDC individuals should
be charged a fee for the enforcement services provided under this
legislation and that, absent such a fee, the provisions are
unconstitutional. We note first that the Department regulations
require that non-AFDC applicants for services pay an application
processing fee not to exceed $25. 89 Ill. Adm. Code §160.15 (1994).
Although the record is silent on this issue, we assume that this
fee was charged to Larry, as he was required, under the
regulations, to file an application with the Department to obtain
these services. 89 Ill. Adm. Code §160.10(a)(9) (1996). Apparently
then, Lynn's contention is that fees in addition to the application
fee are required to be charged to Larry if the statutory provisions
are to be constitutional.
Section 10--10.1 of our Code directs that, where services are
provided on behalf of a non-aid recipient, under certain
circumstances a collection fee shall be collected from the person
who owes the support obligation. 305 ILCS 5/10--10.1 (West 1994).
Further, section 10--1 of the Code grants the Department discretion
to establish a reasonable schedule of fees and to deduct a
collection fee, not to exceed 10% of the amount collected, from the
support collected. 305 ILCS 5/10--1 (West 1994). Other than the
application processing fee, the Department regulations do not set
forth a plan for additional fees or other cost recovery from the
applicant for services. The parties do not direct our attention to
any other source for such additional fees to be recovered from the
applicant. Thus, our statutory scheme does not provide for the
imposition of a fee, beyond the application processing fee, to be
imposed upon non-AFDC applicants for support enforcement services.
Nevertheless, we fail to see how the Department's decision whether
to impose a fee for the services provided impacts on whether the
legislation serves a public purpose.
Lynn also urges this court to affirm the circuit court because
the parties had, two years earlier, stipulated that Lynn would not
pay child support, the court entered an order pursuant to that
stipulation, and there is no claim that there has been any change
in circumstances warranting that Lynn now be ordered to pay child
support. All of these circumstances, however, pertain to the merits
of the petition to establish a child support obligation on the part
of Lynn. Due to the circuit court's denial of the motion to
intervene, the merits of that petition were never reached. The only
issue before this court is whether the circuit court erred in
denying the Department leave to intervene, and none of these
circumstances are relevant to that issue.
In conclusion, we find no reason to overturn the legislature's
determination that a public purpose is served by the provision of
child support enforcement services on behalf of all children,
regardless of the financial circumstances of their custodial
parent. Child support enforcement in this country has, in the past,
been a national disgrace, due both to the lack of effective
enforcement programs and the failure to implement those programs by
the officials charged with enforcement. See S. Rep. No. 93--1356,
93d Cong., 2d Sess., reprinted in 1974 U.S.C.C.A.N. 8133, 8145-49;
People v. Sheppard, 124 Ill. 2d 265, 270 (1988). It was the
legislature's province to assess this crisis and determine whether,
and how, to respond. We are not persuaded that the legislature
exceeded the bounds of its discretion in enacting the legislation
here challenged.
CONCLUSION
For the foregoing reasons, we reverse the circuit court's
order which held sections 10--1 and 10--10 of the Public Aid Code
unconstitutional and denied the Department's motion to intervene.
This cause is remanded to the circuit court for further proceedings
not inconsistent with this opinion.
Reversed and remanded.
JUSTICE FREEMAN, dissenting:
Jurisdiction is the cornerstone of the entire judicial
process; without it, courts have no power to decide the merits of
a controversy. The absence of jurisdiction is so serious that it is
one of the few defects which cannot be waived even by consent of
all the parties. As a result, courts themselves, at every level,
have an obligation to raise the lack of jurisdiction sua sponte and
to dismiss a pending action whenever it becomes apparent that
jurisdiction does not exist. Accordingly, jurisdiction is not a
fiction which can be created out of whole cloth. It cannot be
manufactured, nor can its limitations be circumvented merely to
suit the exigencies of the moment. Yet that is precisely what the
majority does today. Because I cannot concur in my colleagues'
invocation of jurisdiction in this case, I must respectfully
dissent.
This court has long recognized the distinction between a
statute which is unconstitutional on its face and a statute which
is unconstitutional as applied. In the former situation, the
provision itself is invalid from its inception and has no force and
effect upon any person or entity. In contrast, when a statute is
deemed unconstitutional as applied, the statute itself is not
invalid, but is simply not applied to a particular case because to
do so would violate some superior constitutional right. This
distinction is critical, particularly with respect to this court's
authority to entertain an appeal under Supreme Court Rule 302(a)
(134 Ill. 2d R. 302(a)). That rule specifically limits our direct
appellate jurisdiction to only those cases in which "a statute of
the United States or of this State has been held invalid."
(Emphasis added.) 134 Ill. 2d R. 302(a). It is precisely because
Rule 302(a) speaks in terms of invalidity, as opposed to
application, that this court will not ordinarily entertain direct
appeals in cases involving an "as applied" determination. Thus, in
Rehg v. Illinois Department of Revenue, 152 Ill. 2d 504, 508-09
(1992), we held that an appeal from an order which does not declare
a statute unconstitutional on its face, but simply declares that
the application of the statute would violate a particular
defendant's constitutional right, "is properly brought in the
appellate court pursuant to Rule 301." Rehg, 152 Ill. 2d at 509. In
support of that conclusion, we stressed that "[s]uch an [as
applied] order does not declare a statute unconstitutional," nor
does it "invalidate" the statute for purposes of Rule 302(a). Rehg,
152 Ill. 2d at 509. We ultimately reached the merits of the
controversy in Rehg under Rule 302(a), but only because the circuit
court had also declared the Tax Act "unconstitutional on its face."
Rehg, 152 Ill. 2d at 509. The circuit court did not make such a
ruling in this case.
In the present case, the circuit court declared sections 10--1
and 10--10 of the Public Aid Code unconstitutional as applied.
Specifically, the circuit court held:
"It is therefore ordered, that the statutory
provisions relied upon and cited herein, while not
unconstitutional in the absolute sense, would lead to an
unconstitutional result in the instant case, and
accordingly the Order of August 1, 1995 granting the
State's Attorney leave to intervene is set aside, and
said Motion for Leave to Intervene is denied."
Consequently, because the circuit court did not find sections 10--1
and 10--10 facially unconstitutional, but only found that the
provisions would, in some way, lead to an "unconstitutional result"
as applied, this court lacks direct appellate jurisdiction under
Rule 302(a), as interpreted in Rehg.
Notwithstanding the above, the majority declares that it "must
look, however, to the effect of the circuit court's order to
determine whether the order actually declared the statutory
provisions unconstitutional on their face" for "[i]f the effect of
the circuit court's order was to declare a statute unconstitutional
on its face, this court has jurisdiction under Rule 302(a)(1)."
Slip op. at 4. Applying this rationale, the majority concludes that
sections 10--1 and 10--10 were, "in effect," unconstitutional on
their face despite the fact that the circuit court had clearly
ruled that they were unconstitutional as applied. Slip op. at 6. My
colleagues reach this conclusion because, in their view, the
circuit court's order could be applied to any person "financially
capable" of pursuing child support without the assistance of the
Department. Slip op. at 6. I find this conclusion untenable.
I recognize, of course, that a determination that a statute is
"unconstitutional as applied" may, under certain rare
circumstances, be deemed a "de facto" declaration of the statute's
invalidity for purposes of Rule 302(a). That situation, however,
occurs only when the "as applied" ruling--although nominally
pertaining to a particular person or set of persons--has the effect
of rendering the statute unconstitutional as to all persons under
all circumstances. For example, in Doe v. Gainer, 162 Ill. 2d 15
(1994), we entertained a direct appeal under Rule 302(a) from an
order declaring certain sections of the Uniform Code of Corrections
unconstitutional as applied to a particular inmate. We did so
because that particular inmate was representative of all inmates
who could be affected by the statute in question. Thus, the "as
applied" ruling was, for all intents and purposes, the functional
equivalent of a ruling that the statute was facially
unconstitutional. In contrast to Doe, the circuit court's ruling in
this case is only applicable to those individuals "financially
capable" of pursuing child support without assistance from the
Department. It is not applicable, however, to individuals who are
"financially incapable" of pursuing such support. In fact, those
persons may still receive Department assistance under sections 10--
1 and 10--10, which remained valid as to them. Hence, because the
provisions at issue remained valid as to some people, rather than
"invalid" as to all people, we do not have direct appellate
jurisdiction under Rule 302(a).
Significantly, the majority today fails to explain how an "as
applied" ruling which is applicable to less than 100% of the
persons contemplated by the statute constitutes the functional
equivalent of facial declaration of invalidity. The majority also
fails to explain what percentage of those persons must be so
characterized in order for the circuit court's ruling to be viewed
as "in effect" a declaration of unconstitutionality on its face.
Nor does the majority explain how this court (or the appellate
court, for that matter) will ever be able to determine when that
number is great enough to warrant this court's direct appellate
review. Indeed, I simply cannot fathom how such a determination can
be undertaken--short of requiring parties in future cases to supply
the reviewing court with statistical data which can establish the
number of citizens potentially impacted by the "as applied"
determination.
In view of these uncertainties, I am troubled by what I
perceive to be the majority's nonchalant invocation of jurisdiction
in this case. As I noted at the outset of this dissent,
jurisdiction is not a matter of judicial convenience, but the very
basis of a court's authority to decide the merits of a case. The
majority offers little analysis in support of its decision to
convert the circuit court's "as applied" order in this case into a
de facto declaration of invalidity for purposes of Rule 302(a). It
offers even less guidance for determining when circumstances exist
which justify making such a conversion. In fact, in failing to
recognize this shortcoming, my colleagues have unnecessarily
blurred the critical distinction between an "as applied"
determination and a facial determination.
Finally, I view today's interpretation of Rule 302(a) as not
only unfortunate, but unnecessary as well. We are not confronted
here with a situation where the controversy might remain unresolved
absent action by this court. Jurisdiction to hear this appeal
remains with the appellate court pursuant to Supreme Court Rule 301
(155 Ill. 2d R. 301). Furthermore, once the appellate court issues
its decision, this court may grant further review under Supreme
Court Rule 315 (155 Ill. 2d R. 315). The appellate court could even
certify the matter for our review pursuant to Supreme Court Rule
316 (155 Ill. 2d R. 316). In view of these potentialities, I
consider the majority's decision, with all its attendant
consequences, to be both unwarranted and improvident.
For all of the foregoing reasons, I respectfully dissent.
JUSTICE McMORROW joins in this dissent.