2017 IL App (3d) 160514
Ill. App. Ct.2018Background
- Denise Martinez obtained a May 2015 amended order: child support terminated but $500/month spousal maintenance to be withheld from her ex-husband Salomon Martinez’s Cook County pay and sent to the State Disbursement Unit.
- In June 2015 Salomon (and his attorney) faxed multiple documents to the Cook County comptroller’s office; the packet included a coversheet mentioning termination of child support, letters requesting cessation of withholdings, handwritten court orders, and an amended income-withholding order that nonetheless specified $500/month maintenance.
- Comptroller clerk Laura Murray acted on the fax by terminating child-support withholding and, mistakenly, the spousal-maintenance withholding; Martinez missed seven maintenance payments between June and August 2015.
- After Martinez’s counsel notified the sheriff’s office/comptroller in late August/September 2015, Murray promptly reinstated the withholding; Salomon later paid the missed amounts to Martinez.
- Martinez sued Cook County and the Cook County Sheriff’s Office under the Income Withholding for Support Act, seeking a statutory $100-per-day penalty for each knowing failure to withhold (over $50,000). Defendants moved to dismiss under section 2-619(a)(9), arguing the penalty is barred by the Tort Immunity Act and that the failure was an innocent mistake.
- The trial court granted the 2-619 dismissal; the appellate court affirmed, holding the section 35 statutory penalty is punitive and barred against a local public entity by section 2-102 of the Tort Immunity Act.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the §35 statutory penalty is punitive (thus barred by Tort Immunity Act §2-102) | Martinez: §35 penalty is a statutory remedy, not punitive, so immunity shouldn’t bar recovery | County: §35 penalty is punitive in character; §2-102 bars punitive/exemplary damages against local public entities | Held: §35 penalty is punitive; §2-102 bars assessing it against Cook County, so dismissal proper |
| Whether defendants could obtain 2-619(a)(9) dismissal by asserting affirmative matter that defeats the claim | Martinez: Defendants’ claim that the violation wasn’t knowing merely negates an element and is improper for 2-619; factual issues remain | County: Affirmative matter (Tort Immunity Act) bars recovery; Murray’s affidavit rebuts statutory presumption and supports dismissal | Held: Court disposed of the case on immunity grounds (affirmative matter); other 2-619 arguments unnecessary to decide |
| Whether the failure to withhold was a "knowing" violation (statutory presumption and rebuttal) | Martinez: Presumption of knowing failure applies and material questions of fact exist | County: Presumption was rebutted by Murray’s affidavit showing an honest mistake and prompt correction | Held: Court did not decide the knowing-violation question (no need after immunity ruling) |
| Whether public-employee conduct (discretionary/ministerial/willful) affects immunity here | Martinez: Murray’s conduct was ministerial or willful/wanton so immunity shouldn’t shield the county | County: Immunity issue is about the payor (county), not the clerk; discretionary/ministerial inquiry irrelevant here | Held: Court found those employee-capacity arguments irrelevant to the county’s §2-102 immunity; did not reach willful/wanton claim |
Key Cases Cited
- Abruzzo v. City of Park Ridge, 231 Ill. 2d 324 (2008) (recognizes Tort Immunity Act immunity as proper basis for 2-619(a)(9) dismissal)
- Paulson v. County of De Kalb, 268 Ill. App. 3d 78 (1994) (statutory penalty can be punitive in character)
- In re Marriage of Chen, 354 Ill. App. 3d 1004 (2004) (treats §35 penalty as statutory penalty distinct from common-law punitive damages)
- Van Meter v. Darien Park District, 207 Ill. 2d 359 (2003) (describing purpose and scope of section 2-619 dismissals)
- Board of Trustees of Community College, Dist. No. 508 v. Coopers & Lybrand LLP, 296 Ill. App. 3d 538 (1998) (affirmance on any record-supported basis; context for affirming dismissals)