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                                   Appellate Court                           Date: 2018.02.01
                                                                             16:30:06 -06'00'




             Martinez v. Cook County Sheriff’s Office, 2017 IL App (3d) 160514



Appellate Court        DENISE J. MARTINEZ, Plaintiff-Appellant, v. THE COOK
Caption                COUNTY SHERIFF’S OFFICE and COOK COUNTY, ILLINOIS,
                       Defendants-Appellees.



District & No.         Third District
                       Docket No. 3-16-0514



Filed                  October 6, 2017



Decision Under         Appeal from the Circuit Court of Will County, No. 16-L-19; the Hon.
Review                 John C. Anderson, Judge, presiding.



Judgment               Affirmed.


Counsel on             Anne M. Riegle, of Naperville, for appellant.
Appeal
                       Kimberly M. Foxx, State’s Attorney, of Chicago (Paul L. Fangman,
                       Assistant State’s Attorney, of counsel), for appellees.



Panel                  JUSTICE CARTER delivered the judgment of the court, with opinion.
                       Presiding Justice Holdridge and Justice Wright concurred in the
                       judgment and opinion.
                                             OPINION

¶1       Plaintiff, Denise J. Martinez, brought an action under the Income Withholding for Support
     Act (Withholding Act) (750 ILCS 28/35 (West 2014)) against defendants, the Cook County
     sheriff’s office and Cook County, to obtain a money judgment of over $50,000 for defendants’
     failure to withhold approximately $1600 in maintenance from plaintiff’s ex-husband’s
     paychecks. Defendants filed a section 2-619(a)(9) (735 ILCS 5/2-619(a)(9) (West 2014))
     motion to dismiss the complaint, alleging that plaintiff was not entitled to the money judgment
     requested because (1) the failure to withhold maintenance was the result of an innocent
     mistake on the part of one of defendants’ employees and was not knowingly done and (2) the
     claim for a money judgment was barred by the Local Governmental and Governmental
     Employees Tort Immunity Act (Tort Immunity Act) (745 ILCS 10/2-102 (West 2014)). After a
     hearing, the trial court agreed with defendants’ contentions and granted defendants’ motion to
     dismiss. Plaintiff appeals. We affirm the trial court’s judgment.

¶2                                               FACTS
¶3       Plaintiff was married to Salomon Martinez. Salomon was employed by Cook County and
     worked for the sheriff’s office. Plaintiff and Salomon were divorced in May 2014. Pursuant to
     the judgment for dissolution of marriage that was entered, Salomon was ordered to pay child
     support for the parties’ two minor children and maintenance of $500 per month.
¶4       In May 2015, an amended support order was entered, terminating the child support
     payments but continuing the maintenance payment of $500 per month. The maintenance
     payment was to be automatically deducted from Salomon’s paycheck by his employer and sent
     directly to the Illinois State Disbursement Unit.
¶5       In June 2015, Salomon faxed a notice of the change in withholding to the Cook County
     comptroller’s office. The notice consisted of several pages. The first page of the notice was a
     fax coversheet from Salomon, indicating that the documents he was sending to the comptroller
     were in regard to “[t]ermination of child support.” The second page of the notice was a letter
     from Salomon’s attorney, stating that Salomon’s child support payments had been terminated
     by the court in May 2015 (the May 2015 court date) and directing the comptroller’s office to
     “cease any current withholdings.” The third page of the notice was a one-page court order,
     which had been entered on the May 2015 court date. The text of the order was hand-printed and
     continued the underlying case to a date in June 2015 for a status hearing on plaintiff’s petition
     for postjudgment relief. The fourth and fifth pages of the notice were a two-page court order
     that had also been entered on the May 2015 court date. The text of the order was handwritten in
     cursive, was somewhat difficult to read, and stated, among other things, that child support for
     the two children was terminated. The order made no mention of Salomon’s maintenance
     obligation. The sixth through eleventh pages of the notice were an amended income
     withholding order for support from the same May 2015 court date. The order indicated that the
     amount to be withheld from Salomon’s paychecks for spousal maintenance was $500 per
     month ($230.77 biweekly) and that the child support for the two children had been terminated.
¶6       The faxed notice was received by comptroller wage garnishment clerk Laura Murray.
     Murray promptly acted upon the information and terminated the withholding from Salomon’s
     paycheck for child support. In addition, however, Murray erroneously terminated the
     withholding from Salomon’s paycheck for spousal maintenance. As a result of the error,

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       plaintiff did not receive her spousal maintenance payments for the following seven dates in
       2015: June 5, June 19, July 3, July 17, July 31, August 14, and August 28.
¶7         Toward the end of August 2015, plaintiff’s attorney faxed a letter to the Cook County
       sheriff’s office to notify them that plaintiff had not been receiving her spousal maintenance
       payments and that the attorney had filed a petition for rule to show cause in the underlying
       case. A copy of the amended income withholding order from the May 2015 court date was
       attached to the letter. The letter was apparently forwarded to the comptroller’s office and was
       received by the comptroller’s office shortly thereafter in September 2015.
¶8         Upon receiving the letter from the plaintiff’s attorney, comptroller clerk Murray promptly
       corrected the error that she had made and immediately reinstated the withholding from
       Salomon’s paycheck for monthly spousal maintenance. The withholding went into effect as of
       the next pay period. Salomon later paid to plaintiff the entire amount of spousal maintenance
       that the comptroller’s office had failed to withhold from his paychecks.
¶9         In January 2016, plaintiff filed the instant action against defendants, alleging that
       defendants had knowingly failed to withhold the seven monthly maintenance payments and
       seeking the assessment of a statutory penalty against defendants of over $50,000 under section
       35(a) of the Withholding Act (see 750 ILCS 28/35(a) (West 2014) (providing for the
       imposition of a $100-per-day penalty on any payor who knowingly fails to follow a
       withholding order)).
¶ 10       In April 2016, defendants filed a section 2-619(a)(9) motion to dismiss the complaint,
       alleging that dismissal was warranted because defendants had not knowingly violated the
       statute and because plaintiff’s claim was barred by the Tort Immunity Act. Attached to the
       motion were various supporting documents, including (1) the faxed notice that the
       comptroller’s office had received from Salomon and his attorney in June 2015, (2) the faxed
       letter that the comptroller’s office had received from plaintiff’s attorney in September 2015,
       and (3) an affidavit of comptroller clerk Laura Murray. In her affidavit, Murray attested to
       many of the facts set forth above. In addition to those facts and in explanation of how the error
       occurred, Murray stated further in her affidavit that as she reviewed the notice from Salomon
       and his attorney (1) she read on the cover page that the notice pertained to termination of child
       support, (2) she read the letter from Salomon’s attorney on the second page of the notice,
       which stated that Salomon’s obligation to pay child support was terminated by the May 2015
       court order and specifically requested that Murray “cease any current withholdings”, (3) she
       reviewed the court orders contained in the notice, (4) on the one court order, which was
       handwritten (in cursive) and difficult to read, she underlined the phrase “terminated,” (5) she
       stopped reviewing the notice at that point because she had come across the court order that
       Salomon and his attorney had both mentioned in the first two pages of the notice, and (6) she
       then changed the withholding amount for Salomon’s paycheck to zero. Murray also stated that
       (1) as soon as she received notice of the error from plaintiff’s attorney, she corrected the error,
       (2) the failure to withhold spousal maintenance was the result of a mistake and was not
       intentional, and (3) she reviewed and acted on the June 2015 notice to the best of her abilities,
       given the clear direction by Salomon’s attorney to “cease all withholdings,” which was
       supported by the cover page and the handwritten court order.
¶ 11       Plaintiff filed a response and opposed the motion to dismiss, and defendants filed a reply to
       that response. In July 2016, a hearing was held on the motion. After listening to the arguments
       of the attorneys, the trial court took the motion under advisement. The trial court later issued a

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       written order granting defendants’ section 2-619(a)(9) motion to dismiss “for the reasons
       asserted in the motion itself,” and adopting “the rationale [and] arguments of the [defendants].”
       Plaintiff appealed.

¶ 12                                            ANALYSIS
¶ 13       On appeal, plaintiff argues that the trial court erred in granting defendants’ section 2-619
       motion to dismiss plaintiff’s complaint for money judgment (for the assessment of a section 35
       statutory penalty against defendants). Plaintiff asserts that the motion to dismiss should not
       have been granted because (1) defendants’ claim that the violation of the Withholding Act was
       not knowingly done was merely a negation of one of the elements of a violation of the statute
       and was not a proper affirmative matter to warrant dismissal under section 2-619(a)(9), (2)
       defendants failed to show that no set of facts could be proved that would entitle plaintiff to
       recover, as defendants were required to show to obtain a section 2-619 dismissal, (3) several
       material questions of fact existed, which should have prevented defendants from prevailing on
       their section 2-619 motion to dismiss, (4) Murray’s affidavit, which merely set forth the
       evidence that defendants would expect to present to contest the facts alleged in the plaintiff’s
       complaint (to show that the failure to withhold was not knowingly done) was insufficient to
       support a dismissal under section 2-619(a)(9), and (5) the Tort Immunity Act should not apply
       in this case to shield defendants from liability for the assessment of a statutory penalty under
       section 35 of the Withholding Act, since the task performed by Murray was not “official” or
       “discretionary” in nature, Murray’s conduct in failing to carefully review the documents that
       she had received constituted willful and wanton conduct, the penalty under section 35 of the
       Withholding Act is not punitive in nature, and there are several important public policy reasons
       for not applying the Tort Immunity Act in this context. For all the reasons stated, plaintiff asks
       that we reverse the trial court’s order granting defendants’ section 2-619 motion to dismiss the
       plaintiff’s complaint for money judgment and that we remand this case for further proceedings.
¶ 14       Defendants argue that the trial court’s ruling was proper and should be upheld. In support
       of that argument, defendants assert that (1) plaintiff did not state a claim for the assessment of
       a penalty against defendants under section 35 of the Withholding Act, since plaintiff did not
       (and could not) establish that a knowing failure to withhold maintenance had occurred, (2)
       although the evidence in this case gave rise to the statutory presumption of a knowing failure to
       withhold maintenance, defendants rebutted that presumption with Murray’s affidavit and
       showed that defendants had not knowingly failed to withhold maintenance, (3) the failure to
       withhold maintenance in this case was not knowingly or intentionally done but, rather, was the
       result of an unintentional and honest mistake, which occurred due to the multiple and
       conflicting documents that Murray had received from plaintiff’s ex-husband and his attorney
       and the direction that Murray had received from plaintiff’s ex-husband’s attorney to “cease any
       current withholdings”, (4) Murray acted promptly upon the notice that she had received from
       plaintiff’s ex-husband and his attorney to change the withholding initially and, upon receiving
       notice from plaintiff of the mistake, acted promptly to correct it, (5) case law supports the trial
       court’s conclusion that a statutory penalty under section 35 of the Withholding Act is not
       warranted in a situation, such as this, where the employer did not knowingly violate the
       Withholding Act, (6) no person interpreting the facts in this case could reasonably conclude
       that the actions of Murray constituted a purposeful disregard of the trial court’s withholding
       order, (7) Murray’s affidavit and the supporting documents do not contest any facts in the


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       plaintiff’s complaint but, instead, provide additional sworn testimony and documentary
       evidence to rebut the statutory presumption of a knowing failure to withhold maintenance, (8)
       defendants’ claim that the violation was not knowingly done and the evidence presented in
       support of that claim were entirely appropriate and justify the trial court’s dismissal of the
       complaint under section 2-619(a)(9), (9) Murray was a public employee, not a public official,
       and was not involved in policymaking or the exercise of discretion, and plaintiff’s assertions of
       that nature should be disregarded, since defendants never claimed that immunity applied on
       that basis, (10) the assessment of a section 35 statutory penalty is punitive in nature, and the
       imposition of such a penalty against a public entity is barred by the Tort Immunity Act, (11)
       plaintiff’s characterization of Murray’s conduct as willful and wanton is misplaced and legally
       groundless and was asserted by plaintiff primarily to get around a possible defense that
       defendants have never asserted, and (12) although plaintiff claims that questions of material
       fact remain, there is no dispute as to the documents that Murray received in the June 2015
       faxed notice. For all of the reasons stated, defendants ask that we affirm the trial court’s grant
       of defendants’ section 2-619 motion to dismiss plaintiff’s complaint for money judgment.
¶ 15        Section 2-619 of the Code of Civil Procedure allows a litigant to obtain an involuntary
       dismissal of an action or claim based upon certain defects or defenses. See 735 ILCS 5/2-619
       (West 2014). The statute’s purpose is to provide litigants with a method for disposing of issues
       of law and easily proven issues of fact early in a case, often before discovery has been
       conducted. See Van Meter v. Darien Park District, 207 Ill. 2d 359, 367 (2003); Advocate
       Health & Hospitals Corp. v. Bank One, N.A., 348 Ill. App. 3d 755, 759 (2004). In a section
       2-619 proceeding, the moving party admits the legal sufficiency of the complaint, but asserts
       an affirmative defense or other matter to defeat the nonmoving party’s claim. Van Meter, 207
       Ill. 2d at 367. Section 2-619 lists several different grounds for which an involuntary dismissal
       may be granted. See 735 ILCS 5/2-619(a)(1) to (a)(9) (West 2014). Under subsection (a)(9),
       the subsection that applies in this case, a litigant may obtain an involuntary dismissal of a claim
       asserted against him if the claim is barred by other affirmative matter, which avoids the legal
       effect of or defeats the claim. 735 ILCS 5/2-619(a)(9) (West 2014). An “affirmative matter” is
       something in the nature of a defense that negates the cause of action completely. Van Meter,
       207 Ill. 2d at 367. In ruling upon a section 2-619 motion to dismiss, the court must construe all
       of the pleadings and supporting documents in the light most favorable to the nonmoving party.
       Id. at 367-68. On appeal, a dismissal pursuant to section 2-619 is reviewed de novo. Id. at 368.
       When de novo review applies, the appellate court performs the same analysis that the trial
       court would perform. Direct Auto Insurance Co. v. Beltran, 2013 IL App (1st) 121128, ¶ 43. A
       trial court’s grant of a motion to dismiss a complaint may be affirmed on any basis supported
       by the record. Board of Trustees of Community College, District No. 508 v. Coopers &
       Lybrand LLP, 296 Ill. App. 3d 538, 543 (1998).

¶ 16                    I. Application of Section 2-102 of the Tort Immunity Act
¶ 17       In ruling on this appeal, we will address first whether section 2-102 of the Tort Immunity
       Act bars the imposition of a statutory penalty against defendants under section 35 of the
       Withholding Act because that determination completely resolves this appeal. In making that
       determination, for the sake of argument, we will assume that defendants’ failure to withhold
       the designated amount from Salomon’s paychecks was done knowingly. With that assumption
       in place, we consider the relevant statutory provisions.


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¶ 18        Section 35 of the Withholding Act provides for the imposition of a $100-per-day penalty
       on any payor who knowingly fails to follow a withholding order. See 750 ILCS 28/35(a) (West
       2014). The purpose of the penalty provision is to punish parties that violate the Withholding
       Act and to discourage future violations. See In re Marriage of Murray, 2014 IL App (2d)
       121253, ¶ 47. The failure of a payor, on more than one occasion, to remit the amount withheld
       to the State Disbursement Unit within seven business days after the date the amount would
       have been paid or credited to the obligor creates a rebuttable presumption that the payor
       knowingly failed to pay over the amounts. See 750 ILCS 28/35(a) (West 2014); In re Marriage
       of Solomon, 2015 IL App (1st) 133048, ¶ 32. A separate violation of the Withholding Act
       occurs each time a payor knowingly fails to withhold the amount designated in the income
       withholding notice or fails to remit the amount withheld, and a statutory penalty under section
       35 is to be assessed for each violation. Murray, 2014 IL App (2d) 121253, ¶ 16. The statutory
       penalty per violation, however, may not exceed $10,000. 750 ILCS 28/35(a) (West 2014). The
       section 35 statutory penalty may be collected by the recipient by bringing a civil action against
       the payor. See id.; Murray, 2014 IL App (2d) 121253, ¶ 15.
¶ 19        The Tort Immunity Act’s purpose is to protect local public entities and public employees
       from liability arising from the operation of government. 745 ILCS 10/1-101.1 (West 2014);
       Murray, 2014 IL App (2d) 121253, ¶ 36. “By providing immunity, the legislature sought to
       prevent public funds from being diverted from their intended purpose to the payment of
       damages claims.” Murray, 2014 IL App (2d) 121253, ¶ 36. In keeping with that legislative
       goal, section 2-102 of the Tort Immunity Act provides that:
               “Notwithstanding any other provision of law, a local public entity is not liable to pay
               punitive or exemplary damages in any action brought directly or indirectly against it by
               the injured party or a third party. In addition, no public official is liable to pay punitive
               or exemplary damages in any action arising out of an act or omission made by the
               public official while serving in an official executive, legislative, quasi-legislative or
               quasi-judicial capacity, brought directly or indirectly against him by the injured party
               or a third party.” 745 ILCS 10/2-102 (West 2014).
       Thus, under section 2-102, punitive damages may generally not be assessed against a local
       public entity, such as the county in the instant case (although plaintiff sued both the sheriff’s
       office and the county, the county is the actual payor and is the true party defendant in this case).
       See 745 ILCS 10/1-206, 2-102 (West 2014). Punitive damages are not awarded as
       compensation but, rather, serve to punish the offender and to deter the offender and others from
       committing similar acts of wrongdoing in the future. Murray, 2014 IL App (2d) 121253, ¶ 45
       (citing Paulson v. County of De Kalb, 268 Ill. App. 3d 78, 80 (1994)).
¶ 20        To our knowledge, there are only a few Illinois appellate court cases that have determined
       whether the statutory penalty under section 35 of the Withholding Act constitutes punitive
       damages for the purposes of the Tort Immunity Act. In the Murray case, cited above, the
       Second District of the Appellate Court found that the section 35 statutory penalty was punitive
       in nature and constituted punitive damages. Id. ¶ 47. The Murray court noted that the obvious
       purpose of allowing a plaintiff to recover the $100-per-day penalty for each knowing violation
       was to punish parties that violated the Withholding Act and to discourage future violations. Id.
       The Murray court commented that while actual damages recoverable under section 35 were
       intended to make the plaintiff whole again, the $100-per-day penalty served to increase the
       award beyond merely compensation. Id. Finding that the section 35 statutory penalty

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       constituted punitive damages, the Murray court went on to conclude that section 2-102 of the
       Tort Immunity Act and section 35 of the Withholding Act could be read together harmoniously
       and that, pursuant to section 2-102 of the Tort Immunity Act, a section 35 statutory penalty
       could not be assessed against a local public entity. Id. ¶¶ 48, 54-55. In reaching that
       conclusion, the Murray court stated further that it would not disregard the phrase,
       “notwithstanding any other provision of law,” contained in section 2-102 of the Tort Immunity
       Act; that it was declining to read a limitation into section 2-102 that the legislature did not set
       forth in the statute; and that if the legislature had intended to deny governmental entities
       immunity for claims provided for in section 35 of the Withholding Act, the legislature could
       have explicitly stated as much. Id. ¶ 49. In addition, the Murray court distinguished an earlier
       ruling that the Second District Appellate Court had made in In re Marriage of Chen, 354 Ill.
       App. 3d 1004, 1022 (2004), in which the Second District declined to apply the due process
       criteria used for common law punitive damage claims to a statutory penalty assessed against an
       employer under section 35 of the Withholding Act and stated that the case before it involved a
       statutory penalty, rather than an award of punitive damages. Murray, 2014 IL App (2d)
       121253, ¶¶ 51-53. Commenting on the decision in Chen, the Murray court stated that the fact
       that the amount of common law punitive damages was uncertain and the amount of the section
       35 statutory penalty was definite did not render the former punitive and the latter
       compensatory for the purposes of section 2-102 of the Tort Immunity Act; rather, the overall
       character of both was punitive. Id. ¶ 53.
¶ 21       Another Illinois Appellate Court case that determined whether the section 35 statutory
       penalty constituted punitive damages is the Solomon case, cited above. See Solomon, 2015 IL
       App (1st) 133048, ¶ 26. In Solomon, the First District Appellate Court disagreed with the
       Second District’s conclusion in Murray and stated that the section 35 statutory penalty did not
       constitute punitive damages. Id. In reaching that conclusion, the Solomon court cited the
       statement made by the Second District Appellate Court in the earlier case of Chen, that the
       section 35 penalty was a statutory penalty and not an award of punitive damages. Id. The
       Solomon court went on to find, however, that section 2-102 immunity did not apply in that case
       because the defendant’s actions were ministerial in nature and not discretionary. Id. ¶ 30.
       Nevertheless, the Solomon court upheld the trial court’s refusal to impose a section 35 statutory
       penalty because the defendant’s failure to comply with the support order in that case resulted
       from an unintentional and honest mistake and not a knowing violation. Id. ¶¶ 34-35.
¶ 22       Having reviewed Murray, Solomon, and Chen, we find the reasoning in Murray to be the
       most persuasive on this issue. The purpose of the section 35 statutory penalty is clearly to
       punish those who violate the Withholding Act and to deter future violations—not to
       compensate the recipient of support for the payments that he or she did not receive. See
       Murray, 2014 IL App (2d) 121253, ¶ 47. We must conclude, therefore, as the Murray court
       did, that the section 35 statutory penalty constitutes punitive damages for the purposes of
       section 2-102 of the Tort Immunity Act. See id.; see also Paulson, 268 Ill. App. 3d at 83
       (reaching a similar conclusion as to a portion of a treble damages provision under a different
       statute). It follows, then, that defendants have immunity under section 2-102 of the Tort
       Immunity Act from the section 35 statutory penalty in this case. See 745 ILCS 10/1-206, 2-102
       (West 2014); Murray, 2014 IL App (2d) 121253, ¶¶ 54-55. The trial court, therefore, properly
       granted defendants’ section 2-619 motion to dismiss plaintiff’s complaint for a money
       judgment as the money judgment was barred by section 2-102 of the Tort Immunity Act. See


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       745 ILCS 10/1-206, 2-102 (West 2014); Murray, 2014 IL App (2d) 121253, ¶¶ 54-55; Abruzzo
       v. City of Park Ridge, 231 Ill. 2d 324, 331-32 (2008) (recognizing that immunity under the Tort
       Immunity Act is a proper basis for a section 2-619(a)(9) dismissal).
¶ 23       In reaching that conclusion, we must take a moment to comment upon some of the
       assertions to the contrary made by plaintiff in this appeal. From a statutory interpretation
       standpoint, neither statute at issue in this case (section 35 and section 2-102) is ambiguous, and
       we agree with the Murray court that the two statutes can be read together harmoniously,
       especially in light of the prefatory “notwithstanding any other provision of law” language in
       section 2-102. See Murray, 2014 IL App (2d) 121253, ¶ 48. Thus, there is no reason for us to
       weigh the different policy interests supporting each statute or to determine which policy
       interests should be deemed more important.
¶ 24       In addition, we believe that plaintiff’s assertions regarding whether the wage garnishment
       clerk’s actions were done in an official capacity, whether the clerk’s conduct was discretionary
       or ministerial in nature, and whether the clerk’s actions constituted willful and wanton conduct
       are misplaced. Section 35 of the Withholding Act allows the recipient to bring a civil action
       against the payor to try to obtain the assessment of the statutory penalty for knowingly failing
       to withhold or remit support. 750 ILCS 28/35(a) (West 2014). The payor in this case is Cook
       County, a local public entity for the purposes of the Tort Immunity Act. See 745 ILCS
       10/1-206 (West 2014). Defendants asserted in a section 2-619(a)(9) motion to dismiss local
       public entity immunity under section 2-102 of the Tort Immunity Act as other affirmative
       matter that defeats plaintiff’s claim for a section 35 statutory penalty. Although the factual
       circumstances in this case involve the conduct of a public employee, who is a wage
       garnishment clerk for the county comptroller’s office, this case does not involve a suit brought
       against that public employee or any public official, as they are not the payor of support.
       Defendants, therefore, did not assert public official or public employee immunity as other
       affirmative matter defeating plaintiff’s claim as there was no reason for them to do so. Thus,
       questions as to whether the wage garnishment clerk’s actions were made while serving in an
       official capacity, whether they were discretionary or ministerial, or whether they constituted
       willful and wanton conduct have no relevance to our determination here. See, e.g., District No.
       508, 296 Ill. App. 3d at 544 (stating that the critical question to consider when application of
       the doctrine of public official immunity is asserted is whether the official’s or employee’s
       conduct was discretionary or merely ministerial).

¶ 25                             II. Other Assertions Made by the Parties
¶ 26       Because we have determined that plaintiff’s claim for the assessment of a section 35
       statutory penalty against defendants was barred by section 2-102 of the Tort Immunity Act and
       that defendants’ section 2-619(a)(9) motion to dismiss was properly granted on that basis, we
       need not address the other assertions made by the parties in support of their arguments on
       appeal. Most notably, we do not decide, and take no position on, the question of whether the
       failure to withhold maintenance in this case was done knowingly for purposes of the section 35
       statutory penalty or the question of whether the lack of a knowing violation may properly be
       raised as other affirmative matter in a section 2-619(a)(9) motion to dismiss.




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¶ 27                                    CONCLUSION
¶ 28   For the foregoing reasons, we affirm the judgment of the circuit court of Will County.

¶ 29   Affirmed.




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