Docket Nos. 104022, 104035 cons.
IN THE
SUPREME COURT
OF
THE STATE OF ILLINOIS
In re MARRIAGE OF LENORA ANN MILLER, Appellant, and
HAROLD E. MILLER (H.E. Miller, Sr., Appellee; Lisa Madigan,
Attorney General, Appellant).
Opinion filed November 29, 2007.
JUSTICE FITZGERALD delivered the judgment of the court,
with opinion.
Chief Justice Thomas and Justices Freeman, Kilbride, Garman,
Karmeier, and Burke concurred in the judgment and opinion.
OPINION
At issue in this appeal is whether the penalty provision contained
in section 35(a) of the Income Withholding for Support Act
(Withholding Act) (750 ILCS 28/35 (West 2004)), as applied to an
employer who knowingly failed to turn over child support payments
withheld from his employee’s wages in a timely manner, violates the
employer’s substantive due process rights. The circuit court of Cook
County rejected the employer’s constitutional challenge and applied
the statutory $100-per-day penalty, entering judgment against the
employer in the amount of $1,172,100. The appellate court reversed
the judgment of the circuit court, holding that the statutory penalty,
as applied in this case, was unconstitutionally severe. 369 Ill. App. 3d
46, 51.
We reverse the judgment of the appellate court and affirm the
judgment of the circuit court.
BACKGROUND
On May 1, 2001, the circuit court of Cook County entered a
judgment dissolving the marriage of Lenora Ann Miller and Harold E.
Miller. The judgment incorporated the parties’ marital settlement
agreement under which Lenora was granted custody of the couple’s
only child and Harold was required to pay child support. The support
order, entered the same day, set child support in the amount of $82
per week. In accordance with the support order, a “Notice to
Withhold Income” issued immediately to Harold’s employer–his
father, H.E. Miller, Sr., an architect. The notice, which was delivered
by certified mail to Miller on May 8, 2001, advised Miller that he was
required by law to deduct $82 from Harold’s weekly income and
forward the same, within seven business days of the pay date, to the
State Disbursement Unit (SDU) in Wheaton, Illinois. The reverse side
of the notice contained additional information in several numbered
paragraphs. Relevant here is paragraph 6:
“LIABILITY: If you fail to withhold income as the
NOTICE directs, you are liable for both the accumulated
amount you should have wit hheld fr om the
employee’s/obligor’s income and any other penalties set by
State law. You may be found liable for the total amount which
you fail to withhold or pay over and fines up to $100.00 per
day for each day after the 7 day grace period.”
Although Miller withheld the required support from Harold’s
wages, Miller did not timely forward the same to the SDU. Thus, on
October 12, 2001, Lenora’s attorney sent a letter to Miller regarding
19 missing support payments totaling $1,558. The letter reminded
Miller of the statutory penalty for late payments, quoting the relevant
statutory provision, and further stated, “While it is not the intent of my
client to pursue penalties at this time, she does require this money to
live. Therefore, timely payments are mandatory. I must require that
you bring the payments current by way of immediate payment of
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$1,558.00 to Lenore [sic] Miller.” Miller eventually turned over the
missing payments, but failed to stay current.
On February 28, 2002, Lenora filed a motion in the circuit court
seeking to add Miller as a third-party defendant in the dissolution of
marriage proceeding. The circuit court granted the motion on March
28, 2002, and on the same date, Lenora filed a complaint against
Miller for unpaid child support and statutory penalties. According to
the complaint, Miller had failed to pay over to the SDU 25 weeks of
child support totaling $2,050. Miller was personally served the
complaint on April 12, 2002, but failed to file an answer or otherwise
plead. Sixteen months later, on Lenora’s motion, the circuit court
found Miller in default and set the matter for prove-up on August 28,
2003. On that date, Miller’s counsel filed his appearance. The circuit
court allowed Miller 30 days to answer the complaint. No answer was
filed.
The parties next appeared in court on November 5, 2003. The
circuit court granted Miller leave to file his answer on before January
7, 2004. The circuit court also ordered Miller “to remain current in his
payment of child support withholding.” Miller did not file an answer
and did not bring the child support payments up to date.
On January 16, 2004, Lenora filed a petition for rule to show
cause. Lenora alleged that Miller, in violation of the court’s order of
November 5, 2003, failed and refused to submit child support
withholding payments to the SDU for the 12-week period beginning
October 27, 2003. Lenora sought payment of the arrearage ($984), as
well as statutory penalties ($39,500).
On January 29, 2004, the circuit court granted Miller a 60-day
extension to March 30, 2004, to answer Lenora’s complaint and again
ordered Miller to remain current with child support withholding
payments.
Miller filed his answer on April 1, 2004, two years after Lenora
had filed her complaint. In his answer, Miller admitted that he
withheld $82 per week from Harold’s paycheck, and that he “fell
behind on sending in the child support payments from the very
beginning in May, 2001.” Although Miller claimed, in his answer, that
he was then current with child support payments, an agreed stipulation
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later entered by the parties demonstrates that this was not the case and
that Miller was actually 10 weeks in arrears.
In his answer, Miller raised two affirmative defenses. He argued
first that Lenora was guilty of laches in enforcing the statutory
penalties, i.e., that she was dilatory in filing her complaint. Miller also
claimed that the October 12, 2001, letter from Lenora’s counsel,
stating that it was not his client’s intention to pursue penalties at that
time, “lulled” him into a “sense of security.” Miller stated that, in
reliance on that letter, he continued to make lump-sum payments
rather than weekly payments, believing that Lenora would never
attempt to enforce any statutory penalties against him.1
As his second affirmative defense, Miller argued that the
Withholding Act was unconstitutional as applied to him, depriving him
of his due process rights under both the federal and state constitutions
(U.S. Const., amend. XIV; Ill. Const. 1970, art. I, §2). Miller claimed
the statute was confiscatory because the penalty is not commensurate
with the offense and not related in any way to the dollar amounts
withheld for child support. Miller noted that, as of March 31, 2004,
the total support withheld was $12,382, but that Lenora was
attempting to collect a penalty from him of over $1 million.
Lenora moved to strike Miller’s affirmative defenses. As to the
laches defense, Lenora argued that no reasonable person would have
believed the October 12, 2001, letter indicated an intent never to seek
statutory penalties, but that any misapprehension would have
dissolved when Miller was served with the summons and complaint.
Lenora noted that over $700,000 of the penalties she sought accrued
after service of summons, and that additional penalties accrued even
after the circuit court ordered Miller to remain current. Lenora also
argued that she diligently pursued her claim against Miller, filing her
complaint less than 11 months after the original child support order
was entered. Finally, Lenora argued that the court should consider the
family relationship–Miller is Lenora’s former father-in-law, and the
1
To the extent Miller’s answer suggests that he made regular lump-sum
payments, the record indicates otherwise. Miller’s lump-sum payments were
sporadic, covering periods as short as 4 weeks and as long as 40 weeks.
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child support withholding is for the support of Miller’s own
granddaughter–and the consequent hesitation to litigate.
As to Miller’s constitutional challenge to the statute, Lenora
argued that the $100-per-day penalty bears a reasonable relationship
to a proper legislative purpose and is not harsh because it applies only
to knowing violations of the statute. Lenora also argued that the
burden to Miller under the statute was slight, and the magnitude of the
penalty was the result solely of Miller’s own outrageous and
indefensible conduct.
Prior to resolution of Lenora’s motion to strike, Lenora filed a
second petition for rule to show cause. Lenora claimed that, in
disregard of the court’s orders of November 5, 2003, and January 29,
2004, Miller failed to remit any child support withholding for the
period beginning May 3, 2004, to the date of her petition, July 15,
2004.
On August 12, 2004, the circuit court granted Lenora’s motion to
strike Miller’s affirmative defense challenging the constitutionality of
the statute. The circuit court also struck Miller’s laches defense, but
only for the period following the filing of Lenora’s complaint.
Thereafter, the matter was continued from time to time for prove-up
of the statutory penalties claimed by Lenora.
On October 4, 2004, Lenora and Miller filed an agreed stipulation
of facts. The parties stipulated that for the period from April 15, 2002
(after Miller was served with the complaint), to October 4, 2004, the
amount of penalties which accrued to Miller due to his delinquency in
forwarding withheld child support payments to the SDU was
$1,172,100. The parties also stipulated to the accuracy of an attached
spreadsheet which details the date each withholding payment was due;
whether the payment was mailed to the SDU and, if so, the date of
mailing; and the number of days, if any, each payment was overdue.
The spreadsheet indicates that for the 128 weeks at issue, Miller
mailed the withheld child support in a timely fashion on only three
occasions, and that, as of October 4, 2004, Miller was 15 weeks in
arrears. The spreadsheet also indicates that payments were mailed
anywhere from a day late to as many as 299 days late.
On October 26, 2004, the circuit court entered judgment in favor
of Lenora and against Miller in the stipulated penalty amount of
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$1,172,100 based on Miller’s “knowing failure to forward withheld
child support payments.” The circuit court denied Miller’s motion for
rehearing and to vacate the judgment. Miller appealed.
The appellate court, with dissent, reversed the judgment of the
circuit court. 369 Ill. App. 3d 46. The majority acknowledged that the
$100-per-day penalty, on its face, rationally advances the state’s
legitimate interest in encouraging the prompt payment of child
support, but nonetheless concluded that the penalty imposed against
Miller violated his substantive due process rights. The appellate court
explained that the gross disparity between the judgment here and the
$25,000 maximum fine for a parent’s willful failure to pay child
support (see 750 ILCS 16/15(d) (West 2004)) demonstrates that the
$1,172,100 penalty is wholly disproportionate to Miller’s offense and
obviously unreasonable. 369 Ill. App. 3d at 51. Although the appellate
court reversed the circuit court judgment, the appellate court
recognized that Miller’s conduct was “hardly exemplary” and justified
a penalty. 369 Ill. App. 3d at 51. Thus, the appellate court remanded
the matter to the circuit court with directions to hold a hearing to
determine an appropriate penalty. 369 Ill. App. 3d at 51. The appellate
court gave no further direction to the circuit court as to how the
penalty should be computed.
The dissenting justice agreed that the penalty was harsh, but noted
that “Miller invited it by his indifference to his legal obligations. He
virtually created his own due process issue.” 369 Ill. App. 3d at 54
(Wolfson, P.J., dissenting). The dissenting justice also disagreed that
the circuit court could, under the statute, fashion a different penalty.
369 Ill. App. 3d at 53 (Wolfson, P.J., dissenting).
We allowed the Attorney General of Illinois leave to intervene,
and allowed the petitions for leave to appeal filed by Lenora and the
Attorney General (collectively, petitioners). 210 Ill. 2d R. 317. Their
petitions have been consolidated for review.
ANALYSIS
Section 35(a) of the Withholding Act (750 ILCS 28/35(a) (West
2004)) sets forth the obligations of employers, like Miller, who have
been served with an income-withholding notice, and states in relevant
part:
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“It shall be the duty of any payor who has been served
with an income withholding notice to deduct and pay over
income as provided in this Section. The payor shall deduct the
amount designated in the income withholding notice, ***
beginning no later than the next payment of income which is
payable or creditable to the obligor that occurs 14 days
following the date the income withholding notice was mailed
***. The payor shall pay the amount withheld to the State
Disbursement Unit within 7 business days after the date the
amount would (but for the duty to withhold income) have
been paid or credited to the obligor. If the payor knowingly
fails to withhold the amount designated in the income
withholding notice or to pay any amount withheld to the State
Disbursement Unit within 7 business days after the date the
amount would have been paid or credited to the obligor, then
the payor shall pay a penalty of $100 for each day that the
amount designated in the income withholding notice (whether
or not withheld by the payor) is not paid to the State
Disbursement Unit after the period of 7 business days has
expired. The failure of a payor, on more than one occasion, to
pay amounts withheld to the State Disbursement Unit within
7 business days after the date the amount would have been
paid or credited to the obligor creates a presumption that the
payor knowingly failed to pay over the amounts. This penalty
may be collected in a civil action which may be brought
against the payor in favor of the obligee or public office. ***
For purposes of this Act, a withheld amount shall be
considered paid by a payor on the date it is mailed by the
payor ***.” (Emphasis added.) 750 ILCS 28/35(a) (West
2004).
The $100-per-day penalty is assessed for each violation of the
Withholding Act. “A separate violation occurs each time an employer
knowingly fails to remit an amount that it has withheld from an
employee’s paycheck.” Grams v. Autozone, Inc., 319 Ill. App. 3d 567,
571 (2001). To illustrate: If an employee is paid weekly, and the
employer fails to remit child support withheld from the employee’s
paycheck in week one, the employer is subject to a penalty at the rate
of $100 per day. If the employer also fails to remit the next support
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payment withheld in week two, and the first payment is still
outstanding, the employer is subject to two $100 penalties each day
that both payments remain outstanding. See Grams, 319 Ill. App. 3d
at 571. Here, because Miller was frequently several weeks in arrears,
he was subject to numerous $100 penalties on any given day–one for
each support payment he had failed to remit. This explains how, over
the course of 2½ years, Miller was able to accumulate 11,721
penalties, ultimately resulting in a judgment against him in the amount
of $1,172,100.
Petitioners argue that, notwithstanding the size of the judgment,
application of the statutory penalty to Miller does not violate his due
process rights. Petitioners note that Miller alone was responsible for
the extent of any penalties, and maintain that the judgment was
reasonable and proportional to Miller’s conduct. Petitioners further
argue that the appellate court erred by focusing on the judgment
amount, rather than the daily penalty amount of $100, and that the
appellate court judgment undermines the purpose of the statutory
penalty–to ensure timely payment of child support obligations.
Our analysis is guided by the following well-settled principles. All
statutes carry a strong presumption of constitutionality. In re Rodney
H., 223 Ill. 2d 510, 516 (2006); Wickham v. Byrne, 199 Ill. 2d 309,
316 (2002). Accordingly, this court will uphold a statute if reasonably
possible to do so (Allen v. Woodfield Chevrolet, Inc., 208 Ill. 2d 12,
21 (2003); Wickham, 199 Ill. 2d at 316), and will “resolve all doubts
in favor of constitutional validity” (People ex rel. Sheppard v. Money,
124 Ill. 2d 265, 272 (1988)). The party challenging the statute–here,
Miller–bears the burden of rebutting the presumption by clearly
demonstrating the statute’s constitutional infirmity. Rodney H., 223
Ill. 2d at 516; Allen, 208 Ill. 2d at 21. Whether a statute is
unconstitutional is a question of law, and thus our review proceeds de
novo. Rodney H., 223 Ill. 2d at 516; Allen, 208 Ill. 2d at 21.
Preliminarily, we note that although Miller claimed a violation of
his due process rights under both the federal and state constitutions,
he advanced no argument and cited no authority for the proposition
that our state due process clause provides him greater protection than
its federal counterpart. The appellate court did not distinguish the
federal due process clause and the state due process clause in its
opinion. 369 Ill. App. 3d at 50-51. Because we discern no reason to
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construe our due process clause differently than the federal due
process clause on the specific issue before us, we will treat the two
clauses as coextensive and will be guided by federal precedent. See
People v. Molnar, 222 Ill. 2d 495, 510 (2006); Lewis E. v. Spagnolo,
186 Ill. 2d 198, 226-27 (1999).
No question exists that our General Assembly possesses the
authority to establish a civil penalty for an employer’s violation of the
Withholding Act. See Missouri Pacific Ry. Co. v. Humes, 115 U.S.
512, 523, 29 L. Ed. 463, 466, 6 S. Ct. 110, 114 (1885) (“The power
of the State to impose fines and penalties for a violation of its
statutory requirements is coeval with government”); Knox County ex
rel. Masterson v. The Highlands, L.L.C., 188 Ill. 2d 546, 559 (1999)
(pursuant to its police power, “ ‘the legislature has broad discretion
to determine not only what the public interest and welfare require, but
to determine the measures needed to secure such interest’ ”), quoting
Chicago National League Ball Club, Inc. v. Thompson, 108 Ill. 2d
357, 364 (1985); People v. P.H., 145 Ill. 2d 209, 233 (1991) (“Under
the State’s police power, the legislature has discretion to prescribe
penalties for defined offenses”); 19 Ill. L. & Prac. Fines, Forfeitures,
& Penalties §3, at 410 (1991) (“The legislature has the authority to
set the nature and extent of penalties”).
The legislature’s authority to set a statutory penalty is, however,
limited by the requirements of due process. St. Louis, Iron Mountain,
& Southern Ry. Co. v. Williams, 251 U.S. 63, 66, 64 L. Ed. 139, 141,
40 S. Ct. 71, 73 (1919); see also Opyt’s Amoco, Inc. v. Village of
South Holland, 149 Ill. 2d 265, 270 (1992) (“Due process
requirements prevent the arbitrary and unreasonable exercise of the
police power”); Heimgaertner v. Benjamin Electric Manufacturing
Co., 6 Ill. 2d 152, 158-59 (1955) (“The police power, however, while
paramount to the rights of the individual, is still restrained by the
fundamental principles of justice connoted by the phrase, due process
of law”). Whereas procedural due process governs the procedures
employed to deny a person’s life, liberty or property interest,
substantive due process limits the state’s ability to act, irrespective of
the procedural protections provided. Collins v. City of Harker
Heights, 503 U.S. 115, 125, 117 L. Ed. 2d 261, 273, 112 S. Ct. 1061,
1068 (1992). The case at bar presents a substantive due process claim.
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Where the statute at issue does not implicate a fundamental
constitutional right, courts employ the rational basis test to determine
whether the statute satisfies substantive due process. Under this test,
the statute need only bear a reasonable relationship to a legitimate
state interest. Washington v. Glucksberg, 521 U.S. 702, 722, 138 L.
Ed. 2d 772, 788-89, 117 S. Ct. 2258, 2268 (1997); In re J.W., 204 Ill.
2d 50, 67 (2003). Miller does not claim an infringement of a
fundamental constitutional right and does not challenge the appellate
court’s conclusion that, “[o]n its face, the $100-per-day penalty
provision rationally advances the State’s legitimate interest in
encouraging the prompt payment of child support.” 369 Ill. App. 3d
at 51. Indeed, as this court has acknowledged, “it is difficult to
imagine a more compelling State interest than the support of
children.” Sheppard, 124 Ill. 2d at 277. The “needs of the custodial
parents and their children for swift establishment and rapid
enforcement of support obligations” is “obvious.” Sheppard, 124 Ill.
2d at 276. The legislature’s adoption of the penalty provision in
section 35(a) of the Withholding Act was clearly intended as an
enforcement measure to ensure employer compliance with the statute
and “to help combat the crisis of child support delinquency.” Dunahee
v. Chenoa Welding & Fabrication, Inc., 273 Ill. App. 3d 201, 206
(1995). Employers who are subject to withholding notices have
innumerable opportunities to violate the statute. In the absence of a
penalty provision, an employer might be inclined to retain the withheld
support payments for its own use. That is, the “longer a withheld child
support check is not mailed to the obligee, the longer those funds are
available for the employer to use to its own advantage.” Dunahee, 273
Ill. App. 3d at 208-09.
We note, too, that the harm suffered by custodial parents and their
children where payments are not received on a regular and timely basis
is not necessarily susceptible of precise measurement, and that the
eventual receipt of a child support payment may not adequately
compensate the family for the delay. See Dunahee, 273 Ill. App. 3d at
208 (recognizing that an employer’s noncompliance with its support
obligation may force the custodial parent to postpone purchasing
essentials such as food or medicine). Thus, the need for uniform
adherence to the Withholding Act is paramount.
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Although inferentially conceding that the statute is constitutional
on its face, Miller maintains that the statutory penalty, as applied to
him, is grossly exaggerated and out of proportion to the severity of his
conduct and the amount of child support involved. Miller likens the
penalty here to the imposition of a life sentence for a series of
speeding tickets. In short, “the punishment does not fit the crime.”
We agree with Miller that a statutory penalty which is “so severe
and oppressive as to be wholly disproportioned to the offense and
obviously unreasonable” will run afoul of the due process clause.
Williams, 251 U.S. at 67, 64 L. Ed. at 141, 40 S. Ct. at 73. Such a
penalty, the appellate court correctly recognized, “does not further a
legitimate government purpose” (369 Ill. App. 3d at 50), and thus fails
the rational basis test. We disagree, however, that the penalty at issue
here should be so characterized. In reaching this conclusion, we are
guided by the United States Supreme Court’s opinion in Williams.
In Williams, the Supreme Court considered a due process
challenge to an Arkansas statute which regulated passenger rail rates
within the state. Under the statute, any railroad company that
demanded or collected a rate higher than that prescribed by the statute
was subjected, for each offense, to a penalty of not less than $50 nor
more than $300, plus the costs of suit and a reasonable attorney fee.
A railroad company demanded and collected $0.66 more than the
prescribed fare from two passengers, who subsequently brought suit
under the statute. Each passenger obtained a judgment for the
overcharge, a penalty of $75, an attorney fee of $25, and the costs of
suit. The Arkansas Supreme Court affirmed the judgment, and the
case proceeded to the United States Supreme Court.
The Supreme Court initially noted that enforcement of the
statutory penalty in a suit by a private party, as opposed to state
action, is a matter of legislative discretion. The Supreme Court also
observed that the penalty need not be confined or proportioned to the
passenger’s loss or damages. Williams, 251 U.S. at 66, 64 L. Ed. at
140-41, 40 S. Ct. at 73. Because the penalty is imposed “as a
punishment for the violation of a public law, the legislature may adjust
its amount to the public wrong rather than the private injury, just as
if it were going to the State.” Williams, 251 U.S. at 66, 64 L. Ed. at
141, 40 S. Ct. at 73.
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In determining the ultimate question of whether the statutory
penalty conflicted with the due process clause, the Supreme Court
acknowledged the “wide latitude of discretion” states possess in
prescribing penalties for violations of their laws, and opined that a
statutory penalty will transcend the limits of that discretion “only
where the penalty prescribed is so severe and oppressive as to be
wholly disproportioned to the offense and obviously unreasonable.”
Williams, 251 U.S. at 66-67, 64 L. Ed. at 141, 40 S. Ct. at 73. Based
on these principles, the Supreme Court upheld the penalty against the
railroad company’s due process challenge:
“When the penalty is contrasted with the overcharge
possible in any instance it of course seems large, but, as we
have said, its validity is not to be tested in that way. When it
is considered with due regard for the interests of the public,
the numberless opportunities for committing the offense, and
the need for securing uniform adherence to established
passenger rates, we think it properly cannot be said to be so
severe and oppressive as to be wholly disproportioned to the
offense or obviously unreasonable.” Williams, 251 U.S. at 67,
64 L. Ed. at 141, 40 S. Ct. at 73.
The principles underlying the Williams decision still have vitality
today. In Texas v. American Blastfax, Inc., 121 F. Supp. 2d 1085
(W.D. Tex. 2000), a federal district court applied the Williams
holding in rejecting a substantive due process challenge to the federal
Telephone Consumer Protection Act of 1991 (TCPA) (47 U.S.C.
§227 (2000)). The TCPA, which prohibits the sending of any
unsolicited advertisement to a telephone facsimile machine (47 U.S.C.
§227(b)(1)(C) (2000)), provides minimum statutory damages of $500
for each violation (47 U.S.C. §227(f)(1) (2000)). In a suit brought by
the Texas Attorney General, the defendant argued that the TCPA
violates due process because the minimum statutory damages are
grossly disproportionate to any actual harm suffered by the recipients
of the unsolicited faxes. The federal district court rejected this
argument:
“Congress identified two legitimate public harms addressed by
the TCPA’s ban on junk faxes: (1) unsolicited fax
advertisements can substantially interfere with a business or
residence because fax machines generally can handle only one
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message at a time, at the exclusion of other messages; and (2)
junk faxes shift nearly all of the advertiser’s printing costs to
the recipient of the advertisement. [Citations.] *** [T]he
TCPA’s $500 minimum damages provision, when measured
against the overall harms of unsolicited fax advertising and the
public interest in deterring such conduct, is not ‘so severe and
oppressive as to be wholly disproportioned to the offense or
obviously unreasonable.’ ” Blastfax, 121 F. Supp. 2d at 1091,
quoting Williams, 251 U.S. at 67, 64 L. Ed. at 141, 40 S. Ct.
at 73.
See also Native American Arts, Inc. v. Bundy-Howard, Inc., 168 F.
Supp. 2d 905, 914-15 (N.D. Ill. 2001) (where the district court relied
on Williams to reject a due process challenge to the Indian Arts and
Crafts Act, under which a plaintiff may recover the greater of treble
damages or $1,000 per day for each day that a product which falsely
suggests it is Indian-made is offered for sale or sold).
Application of the Williams principles to the facts of this case
persuades us that section 35(a) of the Withholding Act, as applied to
Miller, does not conflict with the due process clause.
During the 2½-year period relevant to this litigation, Miller, by his
own admission, violated the Withholding Act on 11,721 separate
occasions. This figure does not include the thousands of violations
Miller allegedly committed prior to Lenora filing suit. Although Miller
continuously withheld the required support from Harold’s weekly
wages, Miller waited five weeks after suit was filed before mailing
another child support payment to the SDU, and failed to mail any
further payments for another 20 weeks. A 10-month delay preceded
the next payment. In all, during the 128 weeks at issue, Miller mailed
the weekly support on only 11 occasions. His sporadic payment
practice resulted in the payment of child support which was, on
average, 90 days late, and as much as 10 months late.
Significantly, Miller was aware of his statutory obligations, and
equally aware of the $100-per-day penalty, as set forth in the
withholding notice delivered to him in May 2001. Miller was reminded
of his obligations and the statutory penalty by Lenora’s counsel in his
October 2001 letter. Nonetheless, Miller repeatedly and knowingly
violated the statute and his noncompliance continued, as indicated
above, even after suit was filed. Miller’s disregard of the Withholding
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Act persisted even after the circuit court twice ordered him to stay
current, and even after Lenora filed two petitions for rule to show
cause.
We recognize that the individual daily penalties amassed by Miller
produce a weighty sum when aggregated. Miller, however, could have
avoided the imposition of any penalties simply by complying with his
statutory obligation upon service of the withholding notice or at least
after suit was filed. Miller chose to do otherwise. Because Miller
controlled the extent of the penalty, he cannot now complain that the
penalty is harsh when compared to the amount of child support at
issue. See In re Marriage of Chen, 354 Ill. App. 3d 1004, 1022
(2004) (rejecting employer’s claim that $36,100 penalty under the
Withholding Act, which was adjusted to $90,600 on appeal, was
excessive compared to the amount actually owed because “it is the
employer that controls the extent of the fine”); Express Valet, Inc. v.
City of Chicago, 373 Ill. App. 3d 838, 857 (2007) (rejecting
defendant’s argument that $135,825 fine imposed under the Municipal
Code was excessive because defendant’s argument “ignores that
almost all of that amount is based on a [$100] per-offense penalty and
that it was [defendant] who controlled the extent of those fines”).
Miller alludes to the dire financial consequences to him if the
circuit court’s judgment is upheld, but he offered no evidence on this
issue in the trial court. This aside, we decline to judge the
constitutionality of the penalty here with reference to Miller’s assets.
Our lawmakers are under no obligation to make unlawful conduct
affordable, particularly where multiple statutory violations are at issue.
See United States of America ex rel. Tyson v. Amerigroup Illinois,
Inc., 488 F. Supp. 2d 719, 747 (N.D. Ill. 2007) (declining to conduct
economic analysis of defendants’ excessiveness challenge to statutory
penalty because excessiveness determination “should turn on the
nature of the Defendants’ conduct, not the state of his coffers”).
Accord Dunahee, 273 Ill. App. 3d at 208 (rejecting employer’s
argument that $12,000 penalty under the Withholding Act is unjust as
applied to a small business and would cause hardship).
Based on the important societal interests at stake and the
concomitant need for adherence to the Withholding Act, coupled with
the egregiousness of Miller’s conduct, we cannot say that the statute
is unconstitutional as applied to Miller. Were we to hold otherwise,
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then “[a]ll an employer would have to do to evade any penalty is
nothing, as Miller did here. It could pile up the nonpayments and,
when called to account under the penalty provisions, contend it cannot
be required to pay because the mandatory penalty is unconstitutionally
excessive.” 369 Ill. App. 3d at 54 (Wolfson, P.J., dissenting).
The appellate court, in concluding that the statute violated Miller’s
due process rights, focused on what the court called the “gross
disparity” between the million dollar judgment here and the $25,000
maximum fine imposed by the Non-Support Punishment Act on a
parent who willfully fails to pay child support (750 ILCS 16/15(d)
(West 2004)). The appellate court reasoned that the judgment against
Miller is approximately 47 times greater than the maximum fine the
legislature found necessary to ensure a parent’s compliance with a
child support obligation and is thus unconstitutionally severe. 369 Ill.
App. 3d at 51. We agree with petitioners that the appellate court’s
comparison of the two statutes is not an apt one and provides an
insufficient basis for holding section 35(a) of the Withholding Act
unconstitutional as applied to Miller.
In contrast to the Withholding Act, which imposes a $100-per-day
civil penalty (750 ILCS 28/35(a) (West 2004)), the Non-Support
Punishment Act imposes criminal liability. Depending upon the
circumstances, a parent convicted under the Non-Support Punishment
Act is subject to a fine not to exceed $25,000 and, in addition thereto,
may be sentenced to a term of imprisonment. A repeat offender, for
example, is guilty of a Class 4 felony and may be imprisoned for up to
three years. See 750 ILCS 16/15(b), (d) (West 2004) (setting forth the
applicable sentences and fines); 730 ILCS 5/5–8–1(a)(7) (West 2004)
(“for a Class 4 felony, the sentence shall be not less then 1 year and
not more than 3 years”).
The appellate court did not consider the possibility of
imprisonment, which the legislature must have concluded was
necessary, in addition to a criminal fine, to ensure a parent’s
compliance with his or her support obligations. Thus, even if we were
inclined to focus on Miller’s accumulated penalty, as the appellate
court did, rather than the $100 daily penalty, the differences between
the Withholding Act and the Non-Support Punishment Act prevent
any meaningful comparison.
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We note that the appellate court, during the course of its analysis,
cited favorably to State Farm Mutual Automobile Insurance Co. v.
Campbell, 538 U.S. 408, 155 L. Ed. 2d 585, 123 S. Ct. 1513 (2003).
369 Ill. App. 3d at 50. In State Farm, the Supreme Court reiterated
the three guideposts, first identified in BMW of North America, Inc.
v. Gore, 517 U.S. 559, 134 L. Ed. 2d 809, 116 S. Ct. 1589 (1996),
that courts should use in determining whether a punitive damage
award is unconstitutionally excessive. State Farm, 538 U.S. at 418,
155 L. Ed. 2d at 601, 123 S. Ct. at 1520, citing Gore, 517 U.S. at
575, 134 L. Ed. 2d at 826, 116 S. Ct. at 1598-99. The appellate court
here did not mention, much less apply, the Gore guideposts in this
case. The appellate court cited State Farm only for the limited
proposition that, “If a penalty is grossly excessive, it does not further
a legitimate government purpose and constitutes an arbitrary
deprivation of property. See State Farm Mutual Automobile
Insurance Co. v. Campbell, 538 U.S. 408, 417, 155 L. Ed. 2d 585,
600, 123 S. Ct. 1513, 1520 (2003).” 369 Ill. App. 3d at 50.
Nonetheless, prompted by the appellate court’s citation to State Farm,
the Attorney General argues that the excessiveness test applicable to
jury awards of punitive damages at issue in State Farm has no
relevance to the calculation of the statutory penalty at issue here. The
Attorney General notes that our appellate court has so held. See
Chen, 354 Ill. App. 3d at 1022.
In Chen, an employer who was subject to a $90,600 penalty under
the Withholding Act argued that the penalty was grossly excessive and
violated its due process rights. The employer urged the appellate court
to resolve its due process claim by looking to the punitive damage
cases decided by the United States Supreme Court and applying the
criteria identified in Gore and State Farm. The appellate court
declined to do so:
“Because this case involves a statutory penalty rather than
an award of punitive damages, we decline to resolve [the
employer’s] due process claim based on the above [Gore]
criteria. Simply stated, the concerns over the imprecise manner
in which punitive damages systems are administered are not
present here. Unlike the inherent uncertainty associated with
punitive damages, section 35 of the [Withholding] Act
provides employers with exact notice of the $100-per-day
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penalty they will face for failing to comply with a support
order. Indeed, employers receive personal notice of their
duties to withhold and pay over income, as well as the penalty
for failing to do so, through service of the income withholding
order.” Chen, 354 Ill. App. 3d at 1022.
See also Express Valet, 373 Ill. App. 3d at 858 (following Chen and
declining to apply the Gore criteria to determine whether $135,825
fine imposed under the Municipal Code was excessive); Native
American Arts, 168 F. Supp. 2d at 914 (declining to apply the Gore
criteria to determine whether the $1,000-per-day statutory damages
applicable under the Indian Arts and Crafts Act violated the
defendant’s substantive due process rights).
In response to the Attorney General’s argument, Miller states that
the Gore guideposts directly apply to this case. We note that Miller
did not advance this argument in the trial court or the appellate court,
and that he cites no supporting authority in his brief before this court.
Moreover, Miller makes no attempt to distinguish or discredit the
Chen case. In light of the foregoing circumstances, we find it
unnecessary to address the matter further.
CONCLUSION
For the reasons discussed, we reverse the judgment of the
appellate court and affirm the judgment of the circuit court.
Appellate court judgment reversed;
circuit court judgment affirmed.
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