SECOND DIVISION
FILED: December 12, 2006
No. 1-05-0243
IN RE MARRIAGE OF: ) APPEAL FROM THE
LENORA ANN MILLER, ) CIRCUIT COURT OF
Petitioner, ) COOK COUNTY
)
v. )
)
HAROLD MILLER, )
Respondent. )
)
------------------------------------------ ) 01 D5 30291
)
LENORA ANN MILLER, )
Plaintiff-Appellee, )
)
v. )
) THE HONORABLE
H.E. MILLER, SR., ) DANIEL RILEY,
Defendant-Appellant. ) JUDGE PRESIDING.
JUSTICE HOFFMAN delivered the opinion of the court:
The defendant, H.E. Miller, Sr., appeals from a judgment of
the circuit court ordering him to pay a $1,172,100 penalty to the
plaintiff, Lenora Miller, for knowingly failing to timely remit
child support payments withheld from his employee’s wages. For
the foregoing reasons, we reverse and remand.
On May 1, 2001, a judgment was entered dissolving the
marriage of the plaintiff and Harold Miller. Pursuant to that
judgment, Harold was obligated to pay the plaintiff $82 per week
in child support.
On May 8, 2001, an income withholding notice was served upon
the defendant pursuant to section 35 of the Income Withholding
for Support Act (Act) (750 ILCS 28/35 (West 2004)). Section 35
of the Act requires an employer, upon receipt of an income
1-05-0243
withholding notice, to deduct child support payments from an
employee's wages. 750 ILCS 28/35 (West 2004). The employer must
remit the amount withheld to the State Disbursement Unit within
seven days of the employee's pay period. 750 ILCS 28/35 (West
2004). Section 35 of the Act also contains the following penalty
provision:
"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." 750
ILCS 28/35(a) (West 2004).
In this case, the defendant was required to withhold $82 per week
from Harold’s wages and forward that amount to the State
Disbursement Unit.
-2-
1-05-0243
On October 12, 2001, the plaintiff’s attorney sent the
defendant a letter asserting that the defendant had failed to
remit 19 weekly payments of $82. The letter, in relevant part,
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."
On March 28, 2002, the plaintiff filed a complaint against
the defendant, seeking 25 weeks of child support payments that
the defendant allegedly withheld, but failed to timely remit.
The plaintiff also sought a statutory penalty of $100 per day
pursuant to section 35 of the Act.
In his answer, the defendant raised the affirmative defenses
of laches and the unconstitutionality of the Act. The plaintiff
filed a motion to strike the defendant's affirmative defenses
pursuant to section 2-615 of the Code of Civil Procedure (735
ILCS 5/2-615 (West 2004)). The circuit court granted the motion
in part and struck the defendant’s affirmative defense of the
unconstitutionality of the Act. The circuit court also struck
the affirmative defense of laches for the period after the
plaintiff filed her complaint.
On October 26, 2004, the plaintiff and the defendant entered
into a stipulation of facts. The parties agreed that, between
-3-
1-05-0243
April 15, 2002, and October 4, 2004, the defendant withheld 128
child support payments from Harold's wages, but failed to timely
remit the payments to the State Disbursement Unit. The parties
also agreed that the penalties for the defendant's delay equaled
$1,172,100. The circuit court entered a judgment against the
defendant for $1,172,100 in statutory penalties pursuant to
section 35 of the Act. This appeal followed.
Initially, we address the defendant’s argument that the
circuit court erred in not applying the doctrine of laches for
the period after the plaintiff filed her complaint. Because this
matter was disposed of at the trial level in response to the
defendant's motion to strike pursuant to section 2-615, the
question before this court is whether the defendant's affirmative
defense of laches alleged facts sufficient to constitute a
legally cognizable defense. Vermeil v. Jefferson Trust & Savings
Bank, 176 Ill. App. 3d 556, 566, 532 N.E.2d 288 (1988). The
issue presented is a question of law, and, consequently, our
review is de novo. Bogner v. Villiger, 343 Ill. App. 3d 264,
268, 796 N.E.2d 679 (2003).
A motion to strike an affirmative defense concedes all well-
pleaded facts constituting the defense, together with all
reasonable inferences which may be drawn therefrom. In re Estate
of Davis, 225 Ill. App. 3d 998, 1000, 589 N.E.2d 154 (1992). An
affirmative defense should not be stricken where the well-pleaded
-4-
1-05-0243
facts raise the possibility that the party asserting the defense
will prevail. International Insurance Co. v. Sargent & Lundy,
242 Ill. App. 3d 614, 631, 609 N.E.2d 842 (1993).
For the affirmative defense of laches to apply, the
defendant must allege sufficient facts to establish: (1) lack of
diligence by the party asserting the claim; and (2) prejudice to
the opposing party resulting from the delay. McDunn v. Williams,
156 Ill. 2d 288, 330-31, 620 N.E.2d 385 (1993). Even assuming a
lack of diligence by the plaintiff in asserting her claim, the
facts alleged by the defendant do not support his contention that
he was prejudiced by any such delay.
In his answer, the defendant alleged that he was "lulled ***
into a sense of security" by: (1) the plaintiff's delay in
filing her complaint for approximately one year; and (2) the
statement in the October 12, 2001, letter that the plaintiff
would not pursue civil penalties "at this time." The defendant
claimed that the plaintiff's actions caused him to believe that
the plaintiff would never seek statutory penalties.
Contrary to the defendant's contentions, however, the
$1,172,100 penalty imposed in this case was not caused by the
plaintiff's delay in filing suit or the statement in the October
12, 2001, letter that civil penalties would not be pursued "at
this time." Rather, the penalty accrued because the defendant
knowingly failed to remit child support withholdings in a timely
-5-
1-05-0243
fashion. See 750 ILCS 28/35(a) (West 2004). The defendant, and
not the plaintiff, controlled the extent of the penalty. See In
re Marriage of Chen, 354 Ill. App. 3d 1004, 1022, 820 N.E.2d 1136
(2004). We, therefore, conclude that defendant failed to allege
sufficient facts to raise the affirmative defense of laches for
the period after the complaint was filed. Accordingly, the
circuit court properly struck the defendant's affirmative defense
of laches for that period.
Next, the defendant contends that section 35 of the Act is
unconstitutional. He argues that the $1,172,100 penalty imposed
pursuant to this section of the Act deprived him of his property
without due process of the law. The defendant does not assert
that the $100-per-day penalty provision provided for under
section 35 of the Act is unconstitutional on its face, but only
maintains that Act is invalid as applied to him. Therefore, we
consider whether the $100-per-day penalty provision, as applied
to the facts of this case, violates due process.
Statutes carry a strong presumption of constitutionality,
and the party challenging the validity of a statute has the
burden of clearly establishing that it is unconstitutional. In
re Marriage of DeBates, 212 Ill. 2d 489, 509, 819 N.E.2d 714
(2004). Whenever reasonably possible, the constitutionality of a
statute must be upheld. Ill. State Chamber of Commerce v. Filan,
216 Ill. 2d 653, 661, 837 N.E.2d 922 (2005). We review the
-6-
1-05-0243
constitutionality of a statute de novo. People ex rel. Sherman
v. Cryns, 203 Ill. 2d 264, 290, 786 N.E.2d 139 (2003).
Under the United States and Illinois constitutions, a person
cannot be deprived of property without due process of law. U.S.
Const., amend. XIV, § 1; Ill. Const. 1970, art. I, § 2. Although
the legislature has broad discretion in prescribing the penalties
for violations of its laws, (Missouri Pacific Railway Co. v.
Humes, 115 U.S. 512, 523, 29 L. Ed. 463, 6 S. Ct. 110 (1885)),
the legislature's power to fix penalties is subject to the
requirements of due process. (Waters-Pierce Oil Co. v. Texas,
212 U.S. 86, 111, 53 L. Ed. 417, 29 S. Ct. 220 (1909)). A
statutory penalty will survive a substantive due process
challenge if it bears a rational relationship to a legitimate
government purpose. People v. Farmer, 165 Ill. 2d 194, 207-08,
650 N.E.2d 1006 (1995); Heimgaertner v. Benjamin Electric
Manufacturing Co., 6 Ill. 2d 152, 159, 128 N.E.2d 691 (1955).
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,
123 S. Ct. 1513 (2003). Accordingly, the due process clause
prohibits the legislature from imposing a statutorily created
civil penalty "so severe and oppressive as to be wholly
disproportioned to the offense and obviously unreasonable." St.
-7-
1-05-0243
Louis, Iron Mountain & Southern Railway Co. v. Williams, 251 U.S.
63, 66-67, 64 L. Ed. 139, 40 S. Ct. 71 (1919). In determining
whether a civil penalty is disproportionate and unreasonable, the
penalty is not compared to the actual damages sustained by a
private party but, rather, to the public wrong the statute at
issue is designed to remedy. St. Louis, Iron Mountain & Southern
Railway Co., 251 U.S. at 66.
In enacting section 35 of the Act, the legislature sought to
provide a simple and speedy method of obtaining payments from the
wages of employees owing child support. Dunahee v. Chenoa
Welding & Fabrication, Inc., 273 Ill. App. 3d 201, 205, 652
N.E.2d 438 (1995). To ensure compliance, section 35 of the Act
imposes a daily penalty of $100 when an employer knowingly fails
to timely withhold or remit a child support payment. Dunahee,
273 Ill. App. 3d at 206. On its face, the $100-per-day penalty
provision rationally advances the State's legitimate interest in
encouraging the prompt payment of child support. However, when
compared to the other penalties provided by the legislature for
similar misconduct, we cannot conclude that the $1,172,100
penalty imposed in this case is constitutional.
Under the Non-Support Punishment Act, the legislature has
authorized a maximum fine of $25,000 for the criminal offense of
a spouse's willful failure to pay child support. See 750 ILCS
16/15(d) (West 2004). Thus, the $1,172,100 penalty imposed
-8-
1-05-0243
against the defendant in this case is approximately 47 times
greater than the maximum criminal fine the legislature has found
necessary to ensure a spouse's compliance with a child support
obligation. The gross disparity between the penalty applied in
this case and the maximum criminal fine demonstrates that the
$1,172,100 penalty is wholly disproportionate to the defendant's
offense and obviously unreasonable. See St. Louis, Iron Mountain
& Southern Railway Co., 251 U.S. at 66-67. Consequently, we
conclude that section 35 of the Act is unconstitutional as
applied to this case.
The defendant's failure to timely remit 128 weekly child
support payments over a two-and-a-half year period is hardly
exemplary and justifies a penalty. However, the $1,172,100
penalty imposed in this case is unconstitutionally severe.
Accordingly, we remand this cause with directions to the circuit
court that it hold a hearing to determine an appropriate penalty.
See Hale v. Morgan, 22 Cal. 3d 388, 407, 584 P.2d 512 (Cal.
1978).
For the foregoing reasons we reverse the judgment of the
circuit court and remand this cause for further proceedings.
Reversed and remanded.
SOUTH, J., concurs.
WOLFSON, P.J., dissenting.
-9-
1-05-0243
PRESIDING JUSTICE WOLFSON, dissenting:
This case reminds me of the story about the man who kills
his parents and then asks for leniency because he is an orphan.
Yes, $1,172,100 is a severe penalty. Then, again, Miller
brought it on himself. I do not agree the penalty violated his
right to due process of law. Nor do I agree the trial judge, on
remand, has the power to reduce the amount of the penalty.
There is one issue in this case. Miller does not deny he
knowingly violated section 35 of the Act. He does not claim he
did not know about the penalty, something that would be difficult
to claim since the statute was printed on the other side of his
income withholding notice. He does not deny that he simply chose
to ignore the payment requirement, even though he did withhold
the required amounts on occasion. He does not argue the trial
judge had discretion to do anything other than what he did or
that the amount of the penalty was not mandated by the statute.
Nor does he claim he did not have adequate notice of the trial
court proceeding or that he was denied the right to challenge the
-10-
1-05-0243
imposition of the penalty. He simply says it is too much money
to survive a due process challenge.
It is a mistake to give short shrift to the societal
interests at stake in this case. Illinois has a strong interest
in preserving and promoting the welfare of children. "Indeed, it
is difficult to imagine a more compelling State interest than the
support of children." People ex rel. Sheppard v. Money, 124 Ill.
2d 265, 227, 529 N.E.2d 542 (1988).
The $100-per-day penalty provision was enacted to ensure a
speedy and simply method of withholding wages "in response to the
nationwide crisis of delinquent child support." Dunahee v.
Chenoa Welding & Fabrication, Inc., 273 Ill. App. 3d 201, 205,
652 N.E.2d 438 (1995). The legislature's purpose in enacting a
mandatory penalty was to ensure the employer's cooperation with
the withholding mechanism. See Dunahee, 273 Ill. App. 3d at 206-
08.
Applying the penalty provision provides an incentive to
withhold and send the child support payment in a timely manner,
preventing the employer from using the funds for its own
financial advantage. In re Marriage of Chen, 354 Ill. App. 3d
1004, 1016-17, 820 N.E.2d 1136 (2004); Dunahee, 273 Ill. App. 3d
at 208-09. That is, the mandatory penalty serves to compensate
the plaintiff for any hardship and would deter future
-11-
1-05-0243
noncompliance by the employer. Thomas v. Diener, 351 Ill. App.
3d 645, 651, 814 N.E.2d 187 (2004).
It is important to note the penalty is triggered only by a
knowing failure to withhold the funds or to pay them to the State
Disbursement Unit. In Chen, the knowledge requirement was held
to justify a $90,600 penalty challenged on due process grounds.
See Chen, 354 Ill. App. 3d at 1023. I agree with the statement
in Chen: "***it is the employer that controls the extent of the
fine." Chen, 354 Ill. App. 3d at 1022.
To support its finding that due process was violated here,
the majority cites two United Supreme Court opinions--State Farm
Mutual Automobile Insurance Co. v. Campbell, 538 U.S. 408, 123 S.
Ct. 1513, 155 L. Ed. 2d 585 (2003); and St. Louis, I.M. & S. Ry.
Co. v. Williams, 251 U.S. 63, 40 S. Ct. 71, 64 L. Ed. 139 (1919).
State Farm Mutual concerned a successful claim that a jury
award of punitive damages in a bad faith failure to settle case
was so excessive that it violated State Farm's right to due
process. The case before us is not a tort action for damages.
It involves a predictable and knowable statutory penalty. The
interests at stake are different. The methods for assessing
penalties are different. These distinctions were made in Chen,
where the court rejected the defendant's argument that State Farm
Mutual supported its claim of deprivation of due process. See
Chen, 354 Ill. App. 3d at 1022.
-12-
1-05-0243
In St. Louis, I.M. & S. Ry. Co., the railroad claimed an
excessive penalty for its rate violation had been imposed. The
Supreme Court rejected the railroad's claim that the penalty was
unconstitutionally severe and excessive "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..."
St. Louis, I.M. & S. Ry. Co., 251 U.S. at 67, 40 S. Ct. at 73, 64
L. Ed. 2d at 141.
The majority, in what sounds more like an equal protection
argument, observes that the Non-Support Punishment Act (750 ILCS
16/15(d) (West 2004)) authorizes a maximum $25,000 fine for the
criminal offense of a parent's willful failure to pay child
support. True, but the point eludes me for two reasons. First,
the statute also provides jail sentences for violation of its
provisions, establishing a Class A misdemeanor and a Class 4
felony, depending on the circumstances. Second, it makes good
sense not to impose a large fine on the parent when the first
priority is to obtain funds for the support of the child.
The majority remands this case with instructions that the
trial court hold a hearing to determine an appropriate penalty.
I have sympathy for the trial court. How is it going to change
the terms of a mandatory statute? It cannot. Nor can we. See
Michigan Avenue National Bank v. County of Cook, 191 Ill. 2d 493,
-13-
1-05-0243
522, 732 N.E.2d 528 (2000). Certainly the majority offers no
guidance. The citation to an appellate decision in California is
not helpful. In Hale v. Morgan, 22 Cal. 3d 388, 584, P.2d 512
(Cal. 1978), the court did direct a trial judge to relitigate the
amount a landlord had to pay as a result of wilfully depriving a
tenant of utility services. The statute appeared to be
mandatory, but the court noted the trial judge could consider the
extent to which the tenant was deprived of utility services. The
statute in the instant case is mandatory and not subject to such
tinkering.
If the majority is correct about the due process violation
and if reducing the penalty is not permissible, the statute is
compromised. All an employer would have to do to evade any
penalty is nothing, as Miller did here. It could pile up the
non-payments and, when called to account under the penalty
provisions, contend it cannot be required to pay because the
mandatory penalty is unconstitutionally excessive. That is,
Miller would have to pay no penalty.
I agree the penalty in this case is harsh. But Miller
invited it by his indifference to his legal obligations. He
virtually created his own due process issue. I don't think we
should play into it. I think we should consider that life can be
harsh for children who do not receive the financial support they
require. I respectfully dissent.
-14-