                             2014 IL App (2d) 121253
                                  No. 2-12-1253
                            Opinion filed June 11, 2014
______________________________________________________________________________

                                            IN THE

                             APPELLATE COURT OF ILLINOIS

                              SECOND DISTRICT
______________________________________________________________________________

In re MARRIAGE OF                        ) Appeal from the Circuit Court
JESSICA A. MURRAY,                       ) of McHenry County.
                                         )
      Petitioner and Plaintiff-Appellee  )
      and Cross-Appellant,               )
                                         )
and                                      ) No. 03-DV-1080
                                         )
JEFFREY C. MURRAY,                       )
                                         )
      Respondent                         )
                                         ) Honorable
(McHenry County Conservation District,   ) Gerald M. Zopp,
Defendant-Appellant and Cross-Appellee). ) Judge, Presiding.
______________________________________________________________________________

       PRESIDING JUSTICE BURKE delivered the judgment of the court, with opinion.
       Justices Zenoff and Schostok concurred in the judgment and opinion.

                                          OPINION

¶1     As part of a marriage dissolution judgment, the trial court ordered respondent, Jeffrey C.

Murray, to pay child support to petitioner, Jessica A. Murray. To facilitate the payments, the

court ordered Jeffrey’s employer, the McHenry County conservation district (Conservation

District), to withhold and forward the payments from Jeffrey’s paychecks pursuant to the Income

Withholding for Support Act (Withholding Act) (750 ILCS 28/1 et seq. (West 2010)). The

Conservation District’s payroll vendor failed to process the child support payments for five of

Jeffrey’s paychecks. Jessica filed a complaint against the Conservation District, seeking a
2014 IL App (2d) 121253


$1,086.90 arrearage as well as a statutory penalty that ultimately grew to $407,700. See 750

ILCS 28/35(a) (West 2010) ($100-per-day penalty for each violation).

¶2     The Conservation District moved for dismissal, arguing that the statutory penalty is

tantamount to a punitive award, which is barred by section 2-102 of the Local Governmental and

Governmental Employees Tort Immunity Act (Tort Immunity Act) (745 ILCS 10/2-102 (West

2012)). The trial court denied the motion without comment.

¶3     The Conservation District paid the arrearage to stop the accrual of the statutory penalty.

Following a bench trial, the court entered judgment for Jessica on the statutory penalty claim, but

capped the award at $50,000 based on a recent amendment to section 35 of the Withholding Act

that limits such penalties to $10,000 per violation.

¶4     The Conservation District appeals the penalty, arguing that (1) it is punitive, and

therefore section 2-102 of the Tort Immunity Act confers immunity; (2) the evidence shows that

the Conservation District did not “knowingly” fail to process the child support under section 35

of the Withholding Act, because the Conservation District did not learn of the nonpayment until

Jessica filed suit; and (3) even if the Conservation District knowingly failed to correct the

processing errors after Jessica filed suit, no penalty is owed, because such penalty was stayed by

an order entered in a separate action that has since been dismissed. Jessica cross-appeals,

arguing that the court erred in capping the penalty at $10,000 per violation. We hold that,

although the Conservation District is subject to the requirements of section 35 of the

Withholding Act, section 2-102 of the Tort Immunity Act confers immunity from the $100-per-

day penalty because the penalty is “punitive.” We reverse.

¶5                                      I. BACKGROUND

¶6                              A. Child Support Processing Errors



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¶7     Although the matter proceeded to a bench trial, most of the facts are undisputed. On

April 16, 2004, the trial court entered a judgment for dissolution of marriage and an order

directing Jeffrey’s employer to withhold a portion of his income for child support. At the time,

Jeffrey was an employee of the Conservation District.

¶8     In May 2004, the Conservation District received notice of the withholding order entered

in the marriage dissolution case. The Conservation District was ordered to deduct $217.38 from

each of Jeffrey’s biweekly (i.e., every other week) paychecks and pay that amount to the Illinois

State Disbursement Unit (SDU), which would forward that amount to Jessica to satisfy Jeffrey’s

child support obligation. In 2004, the Conservation District outsourced its payroll functions to

Advantage Payroll Services. Beginning on January 1, 2005, Ceridian replaced Advantage as the

Conservation District’s payroll vendor.

¶9     The Conservation District provided each payroll vendor with information to be entered

into the vendor’s system.     Each vendor then administered all payroll functions for the

Conservation District, including preparing and electronically signing paychecks and calculating

and deducting amounts from an employee’s pay for taxes, union dues, health insurance

premiums, child support, wage garnishments, and other obligations paid directly from the

employee’s paycheck.

¶ 10   The Conservation District paid Jeffrey by direct deposit into his checking account. For

more than three years, the child support payments were deducted from his paycheck, transferred

to the SDU, and then directly deposited by the SDU into Jessica’s checking account at McHenry

State Bank.

¶ 11   In five instances, however, Ceridian failed to process Jeffrey’s child support payments.

The errors corresponded with Jeffrey’s paychecks on August 31, 2007, February 29, 2008,



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2014 IL App (2d) 121253


January 30, 2009, July 31, 2009, and December 30, 2009. Each time, the child support payment

was paid by direct deposit into Jeffrey’s account rather than to the SDU, and Jessica did not

receive a payment. Each error occurred when three paychecks were issued within a month.

During those months, Ceridian’s system processed the child support payments for the first two

pay periods but not the third.

¶ 12   On January 1, 2010, Auto Data Processing (ADP) replaced Ceridian as the Conservation

District’s payroll vendor.       ADP processed the first paychecks on January 15, 2010.          The

Conservation District audited the first payroll period, to confirm that ADP had handled the

checks properly, and discovered that a child support payment had not been deducted from

Jeffrey’s paycheck. On January 21, 2010, the Conservation District sent a check to the SDU for

the missed payment. The Conservation District was reimbursed from Jeffrey’s next paycheck on

January 29, 2010.

¶ 13                                     B. Withholding Act

¶ 14   On August 2, 2010, Jessica filed a complaint against the Conservation District in the

marriage dissolution proceeding, seeking payment of $1,086.90 in past-due child support.

Jessica also asserted a claim for a penalty under section 35 of the Withholding Act.1 750 ILCS

       1
           Earlier, on June 7, 2010, Jessica filed a separate action for the arrearage and penalty in

case No. 10-LA-209 in the law division of the circuit court. On July 12, 2010, the court granted

the Conservation District a temporary stay on the accrual of a penalty. Then, on August 3, 2010,

the day after Jessica filed her complaint in the dissolution proceeding, the court granted the

Conservation District a permanent stay, granted Jessica’s motion to voluntarily dismiss the

action, and entered a written finding under Illinois Supreme Court Rule 304(a) (eff. Feb. 26,

2010) that the order was immediately appealable. No appeal was taken from the order.



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2014 IL App (2d) 121253


28/35 (West 2010). The Conservation District was served with a motion to add it as a necessary

party in the dissolution proceeding, and the Conservation District filed an appearance.

¶ 15   Section 35(a) of the Withholding Act sets forth the obligations of employers, like the

Conservation District, that have been served with an income-withholding notice. The parties

correctly agree that the Conservation District owed a duty to process Jeffrey’s “income” under

section 35. See 750 ILCS 28/15(d) (West 2010) (“ ‘Income’ means any form of periodic

payment to an individual, regardless of source, *** made by any person, private entity, federal or

state government, any unit of local government, school district or any entity created by Public

Act ***.”). The version of section 35(a) that was in effect when Jessica filed her claim states in

relevant part as follows:

       “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



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2014 IL App (2d) 121253


       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 ***.” (Emphases added.) 750 ILCS 28/35(a) (West 2010).

¶ 16   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.’ ” In re Marriage of Miller, 227 Ill. 2d 185, 194 (2007)

(quoting Grams v. Autozone, Inc., 319 Ill. App. 3d 567, 571 (2001)).

¶ 17   On November 10, 2010, the Conservation District filed a combined motion to dismiss the

complaint under section 2-615 and section 2-619 of the Code of Civil Procedure (Code) (735

ILCS 5/2-615, 2-619, 2-619.1 (West 2012)).          The Conservation District argued that the

complaint must be dismissed because (1) section 2-102 of the Tort Immunity Act is affirmative

matter defeating the penalty claim (see 745 ILCS 10/2-102 (West 2012); 735 ILCS 5/2-619(a)(9)

(West 2012)); (2) the complaint is time-barred by section 8-101 of the Tort Immunity Act (see

745 ILCS 10/8-101 (West 2012); 735 ILCS 5/2-619(a)(5) (West 2012)); (3) the Conservation

District did not “knowingly” fail to process the payments (see 750 ILCS 28/35(a) (West 2010);

735 ILCS 5/2-619(a)(9) (West 2012)); (4) the Withholding Act is unconstitutional as applied to

the Conservation District (see 735 ILCS 5/2-615 (West 2012)); and (5) laches bars the claim (see

735 ILCS 5/2-619(a)(9) (West 2012)). On March 7, 2011, the trial court denied the motion

without comment, and the matter proceeded to a bench trial on mostly stipulated facts.



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2014 IL App (2d) 121253


¶ 18                                  C. Trial Court’s Ruling

¶ 19   On October 16, 2012, the trial court entered a judgment for Jessica on her penalty claim

based on the Conservation District’s failure to process the five child support payments of

$217.38 each.       The court noted that the Conservation District already had paid the SDU

$1,086.90 to satisfy the arrearage, but the court did not enter judgment regarding that payment.

¶ 20   The court continued as follows. Jeffrey was paid biweekly. By failing to withhold and

remit child support from his paycheck on August 31, 2007, the Conservation District was subject

to a penalty at the rate of $100 per day. When the Conservation District also failed to withhold

and remit the support payment from his paycheck on February 29, 2008, and the first payment

was still outstanding, the Conservation District was subject to two $100 penalties for each day

that both payments remained outstanding. Because the Conservation District failed to process

five support payments, corresponding with Jeffrey’s paychecks on August 31, 2007, February

29, 2008, January 30, 2009, July 31, 2009, and December 30, 2009, the Conservation District

was subject to multiple $100 penalties until the arrearage was paid.

¶ 21   On February 25, 2011, the Conservation District paid the SDU $1,086.90, which was

equal to the five missing child support payments, after the trial court denied a stay on the accrual

of the penalty. The trial court ruled that the Conservation District’s payment terminated the

accrual of an additional penalty and would not constitute a judicial admission of any allegations

in the complaint.

¶ 22   Counting the number of days from each violation to February 25, 2011, when the

Conservation District paid the arrearage, the court calculated the five penalty periods as follows:

(1) 1,266 days, (2) 1,084 days, (3) 748 days, (4) 565 days, and (5) 414 days. This explains how

the Conservation District accumulated 4,077 penalties in less than 2½ years and why Jessica



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2014 IL App (2d) 121253


argues that she is entitled to a judgment in the amount of $407,700. See Miller, 227 Ill. 2d at

194.

¶ 23   The court found that the Conservation District knew of its obligation to withhold the sum

of $217.38 from each of Jeffrey’s paychecks and remit the payments to the SDU within seven

business days of the date the funds would have been paid to Jeffrey but for the withholding

obligation. The court also found that the Conservation District was aware of the penalties that

would apply for noncompliance with the withholding order. The Conservation District admitted

receipt of the notice to withhold, and its action in withholding and remitting child support to the

SDU sufficiently established the receipt without a further finding by the court.

¶ 24   As to the five processing errors, the court found that the Conservation District, knowing

of its obligation to withhold and remit child support, did not audit its payroll vendors to ensure

compliance with the law until January 2010. As such, the Conservation District knowingly

failed to withhold Jeffrey’s child support payments and relied on third parties to do so without

confirming that the vendors were acting properly on the Conservation District’s behalf. The

court determined that the five errors created a statutory presumption of the Conservation

District’s knowing failure to process the payments and that the Conservation District failed to

rebut that presumption.

¶ 25   Emphasizing that the Conservation District owed a duty to audit the withholding and

remittance of child support, the court found that the information or knowledge was in the

Conservation District’s total control even though it passed the responsibility to a third party. At

the very least, the Conservation District had knowledge of an error when it audited ADP in

January 2010, but the Conservation District took no remedial action until served with a summons

and complaint.



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2014 IL App (2d) 121253


¶ 26   The court found that, as early as July 6, 2010, when the Conservation District was served

with a complaint in case No. 10-LA-209, the Conservation District had notice of the five

processing errors. However, the Conservation District failed to correct the processing errors

until February 25, 2011.

¶ 27   The court held that the Conservation District’s failure to pay the delinquent amounts after

receipt of the complaint in case No. 10-LA-209, coupled with the lack of any audit, proves that it

knowingly failed to comply with the withholding order. The court agreed with Jessica that any

purported stay issued in case No. 10-LA-209 ran contrary to the statute and, being a temporary

order, terminated upon the dismissal of that action. Therefore, the court concluded, the stay had

no effect on the accrual of the penalty.

¶ 28   The court further held that the penalty of section 35 of the Withholding Act does not

violate the Conservation District’s due process rights and that the doctrine of laches does not bar

Jessica’s claim. Finally, the statute of limitations did not run on the first two missed payments,

because they remained outstanding and continued to accrue penalty days, preventing the

limitations period from commencing.        The Conservation District learned of the processing

problem no later than during the audit of ADP in January 2010. The court also ruled that “[t]he

discovery rule should apply to this case to prevent the statute of limitations from accruing

because [Jessica] was not aware of the missed payments until January 2010 and could not

determine the missed payments as she did not have the factual information from which to

determine the missed payments until March 2010.”

¶ 29   The court concluded that, although Jessica is entitled to the maximum statutory penalty

for all five missed payments, section 35, as amended, capped the penalty at $10,000 for each




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violation and created new duties. Accordingly, the court granted Jessica a judgment of $50,000.

The Conservation District appeals, and Jessica cross-appeals.

¶ 30                                      II. ANALYSIS

¶ 31                                   A. Tort Immunity Act

¶ 32      The Conservation District filed a combined motion to dismiss Jessica’s complaint,

pursuant to sections 2-615 and 2-619 of the Code (735 ILCS 5/2-615, 2-619, 2-619.1 (West

2012)).     On appeal, the Conservation District argues that Jessica’s penalty claim must be

dismissed under section 2-619(a)(9) of the Code because section 2-102 of the Tort Immunity Act

(745 ILCS 10/2-102 (West 2012)) immunizes the Conservation District from the penalty

prescribed for failing to process child support payments according to section 35 of the

Withholding Act.

¶ 33      Section 2-619(a)(9) of the Code provides that an action may be dismissed when “the

claim asserted against defendant is barred by other affirmative matter avoiding the legal effect of

or defeating the claim.” 735 ILCS 5/2-619(a)(9) (West 2012). A ruling on a section 2-619

motion must “ ‘interpret all pleadings and supporting documents in the light most favorable to

the nonmoving party.’ ” Van Meter v. Darien Park District, 207 Ill. 2d 359, 367-68 (2003)

(quoting In re Chicago Flood Litigation, 176 Ill. 2d 179, 189 (1997)). However, conclusions of

law or fact unsupported by specific factual allegations are not to be taken as true. Collins v.

Bartlett Park District, 2013 IL App (2d) 130006, ¶ 52.

¶ 34      A ruling on a motion to dismiss pursuant to section 2-619(a)(9) is reviewed de novo. Van

Meter, 207 Ill. 2d at 368. In reviewing a ruling on a motion to dismiss under section 2-619(a)(9),

the relevant inquiry is “ ‘whether the existence of a genuine issue of material fact should have

precluded the dismissal or, absent such an issue of fact, whether dismissal is proper as a matter



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2014 IL App (2d) 121253


of law.’ ” Sandholm v. Kuecker, 2012 IL 111443, ¶ 55 (quoting Kedzie & 103rd Currency

Exchange, Inc. v. Hodge, 156 Ill. 2d 112, 116-17 (1993)).

¶ 35   Jessica argues that, because there is no dispute that the Conservation District breached its

duties under the Withholding Act, we would improperly “tinker” with the statute by granting

immunity. Jessica conflates the principles of statutory duties and immunity.

¶ 36   The purpose of the Tort Immunity Act is to protect local public entities and public

employees from liability arising from the operation of government. By providing immunity, the

legislature sought to prevent public funds from being diverted from their intended purpose to the

payment of damages claims. The Tort Immunity Act grants only immunities and defenses; it

does not create duties. Rather, the Tort Immunity Act merely codifies existing common-law

duties, to which the delineated immunities apply. Arteman v. Clinton Community Unit School

District No. 15, 198 Ill. 2d 475, 479 (2002); Village of Bloomingdale v. CDG Enterprises, Inc.,

196 Ill. 2d 484, 490 (2001). Therefore, whether a local public entity owed a duty and whether

that entity enjoyed immunity are separate issues. Once a court determines that a duty exists, it

then addresses whether the Tort Immunity Act applies. Arteman, 198 Ill. 2d at 480; Village of

Bloomingdale, 196 Ill. 2d at 490.

¶ 37   In resolving whether section 2-102 of the Tort Immunity Act confers immunity from the

penalty provision of section 35 of the Withholding Act, we note that the cardinal rule of statutory

construction is to ascertain and give effect to the legislature’s intent. Paszkowski v. Metropolitan

Water Reclamation District of Greater Chicago, 213 Ill. 2d 1, 6 (2004). Our analysis begins

with the statutory language, which is the best indication of the legislature’s intent. Metzger v.

DaRosa, 209 Ill. 2d 30, 34-35 (2004). The language must be afforded its plain, ordinary, and

popularly understood meaning. People ex rel. Sherman v. Cryns, 203 Ill. 2d 264, 279 (2003).



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When the language is unambiguous, the statute must be applied as written without resort to other

aids of construction. Lawrence v. Regent Realty Group, Inc., 197 Ill. 2d 1, 10 (2001).

¶ 38      Neither Jessica nor the Conservation District argues that section 35 or section 2-102 is

ambiguous. Moreover, the Conservation District concedes that section 35 created a duty to

process Jeffrey’s child support payments according to the withholding order.             Section 35

provides that, when a payor knowingly fails to follow a withholding order, the payor shall pay a

penalty of $100 for each day that the amount is not paid. 750 ILCS 28/35 (West 2010).

¶ 39      However, section 2-102 provides in relevant part that “[n]otwithstanding 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.” (Emphases

added.)     745 ILCS 10/2-102 (West 2012).         Section 2-102 immunizes against “punitive or

exemplary damages” assessed against agencies like the Conservation District, because counties

are local public entities under the Tort Immunity Act. See 745 ILCS 10/1-206 (West 2012).

¶ 40      We reject Jessica’s claim that, because her penalty claim was not brought in tort, the Tort

Immunity Act does not apply. Section 2-101 excludes certain claims from immunity under the

Tort Immunity Act:

          “Nothing in this Act affects the right to obtain relief other than damages against a local

          public entity or public employee. Nothing in this Act affects the liability, if any, of a

          local public entity or public employee, based on:

                 a). Contract;

                 b). Operation as a common carrier; and this Act does not apply to any entity

          organized under or subject to the ‘Metropolitan Transit Authority Act’, approved April

          12, 1945, as amended;



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                c). The ‘Workers’ Compensation Act’, approved July 9, 1951, as heretofore or

       hereafter amended;

                d). The ‘Workers’ Occupational Diseases Act’, approved July 9, 1951, as

       heretofore or hereafter amended;

                e). Section 1-4-7 of the ‘Illinois Municipal Code’, approved May 29, 1961, as

       heretofore or hereafter amended[; and]

                f). The ‘Illinois Uniform Conviction Information Act’, enacted by the 85th

       General Assembly, as heretofore or hereafter amended.” 745 ILCS 10/2-101 (West

       2012).

¶ 41   Neither general actions for statutory penalties nor claims under the Withholding Act are

explicitly excluded from immunity pursuant to section 2-101 of the Tort Immunity Act.

Furthermore, section 8-101 of the Tort Immunity Act, which establishes the statute of limitations

for civil actions against local governments, includes “any action, whether based upon the

common law or statutes or Constitution of this State.” 745 ILCS 10/8-101 (West 2012). The

plain and ordinary meaning of the language used in sections 2-101, 2-102, and 8-101 suggests

that a claim for a statutory penalty under the Withholding Act is not excluded from immunity

conferred by the Tort Immunity Act.

¶ 42   In Raintree Homes, Inc. v. Village of Long Grove, 335 Ill. App. 3d 317, 320 (2002), this

court stated that “the Tort Immunity Act *** applies only to actions in tort.” However, the

matter advanced to the supreme court, which stated that “we do not adopt or approve of the

appellate court’s reasoning that the Tort Immunity Act categorically excludes actions that do not

sound in tort.” Raintree Homes, Inc. v. Village of Long Grove, 209 Ill. 2d 248, 261 (2004).




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¶ 43   Furthermore, in Village of Bloomingdale, the supreme court applied the Tort Immunity

Act to a nontort claim based in quasi-contract. A land developer filed a rezoning petition and

paid the required fee, and later it filed a counterclaim against the village for breaching its duty to

process the petition in good faith. Village of Bloomingdale, 196 Ill. 2d at 500. The developer

labeled its claim “quasi-contract[ual]” to avail itself of the tort immunity exclusion of section 2-

101(a), which states that the Tort Immunity Act does not affect liability based on contract.

Village of Bloomingdale, 196 Ill. 2d at 500. The supreme court ruled that the developer’s “quasi-

contract” claim was not excluded under section 2-101 and that the village was immune from

liability under section 2-104. Village of Bloomingdale, 196 Ill. 2d at 500-01. By considering the

application of section 2-104 to the quasi-contractual claim, the supreme court demonstrated that

tort immunity potentially applies to nontort claims that are not excluded by section 2-101 of the

Tort Immunity Act. Village of Bloomingdale, 196 Ill. 2d at 501. Consistent with Village of

Bloomingdale, we consider the application of section 2-102 to Jessica’s claim for a penalty under

the Withholding Act, because her claim is not excluded under section 2-101 of the Tort

Immunity Act. As in Village of Bloomingdale, this matter is a civil action for damages brought

against a governmental entity that allegedly breached its duty according to a legislative

enactment.

¶ 44   Relying on Paulson v. County of De Kalb, 268 Ill. App. 3d 78, 80 (1994), the

Conservation District argues that the penalty prescribed by section 35 of the Withholding Act

qualifies as “ ‘punitive or exemplary damages’ ” under section 2-102 of the Tort Immunity Act.

In Paulson, the plaintiff sued a county-run nursing home and sought to treble the damages

pursuant to section 3-602 of the Nursing Home Care Act (210 ILCS 45/3-602 (West 1994)). The

county claimed that section 3-602 was a punitive-damages provision that did not apply, because



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section 2-102 of the Tort Immunity Act (745 ILCS 10/2-102 (West 1994)) prohibited the

assessment of punitive damages against a governmental entity.

¶ 45      Explaining that “[p]unitive damages are not awarded as compensation but instead serve

to punish the offender and to deter that party and others from committing similar acts of

wrongdoing,” this court concluded that two-thirds of the treble damages awarded pursuant to

section 3-602 of the Nursing Home Care Act are considered “punitive” for purposes of immunity

under section 2-102. Paulson, 268 Ill. App. 3d at 80. We held that, although section 3-602 of

the Nursing Home Care Act was enacted primarily to encourage private enforcement of the

statute and to compensate residents for violations of their rights, section 3-602 is punitive

because “ ‘[t]he obvious purpose of allowing plaintiffs to recover three times their actual

damages, apart from encouraging utilization of the remedy, is to punish violators and to

discourage future violations.’ ” Paulson, 268 Ill. App. 3d at 80 (quoting Harris v. Manor

Healthcare Corp., 111 Ill. 2d 350, 361 (1986)). Because “ ‘ “actual damages” ’ are intended to

make the plaintiff whole, any multiplication of the amount of actual damages serves to increase

the award beyond the merely compensatory. *** ‘ “The remedy provided is not solely civil; two

thirds of the recovery is not remedial and inevitably presupposes a punitive purpose.” ’ ”

Paulson, 268 Ill. App. 3d at 81 (quoting People ex rel. Fahner v. Climatemp, Inc., 101 Ill. App.

3d 1077, 1080 (1981), quoting Lyons v. Westinghouse Electric Corp., 222 F.2d 184, 189 (2d Cir.

1955)).

¶ 46      The plaintiff in Paulson argued that, for purposes of section 2-102 of the Tort Immunity

Act, treble damages bear no similarity to punitive damages, which, unlike treble damages, can be

much higher, are generally jury questions, and are based in part upon the net worth of the

defendant. Paulson, 268 Ill. App. 3d at 81. We disagreed, emphasizing that “there is no



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ignoring that two-thirds of the recovery that section 3-602 authorizes cannot be characterized as

merely compensatory.” Paulson, 268 Ill. App. 3d at 81. “Although treble damages are not

identical in all respects to traditional common-law punitive damages, their overall character is

punitive.” Paulson, 268 Ill. App. 3d at 81. Based on the distinction between compensatory and

punitive damages, this court concluded that two-thirds of the statutory treble damages constituted

punitive damages and that therefore the county-run nursing home had immunity from that

portion of the award.

¶ 47   Like the treble damages provision of section 3-602 of the Nursing Home Care Act, the

overall character of the penalty provision of section 35 of the Withholding Act is punitive. Apart

from encouraging utilization of the remedy for an employer’s failure to follow a withholding

order, the obvious purpose of allowing plaintiffs like Jessica to recover $100 per day for each

knowing violation of section 35 is to punish violators like the Conservation District and to

discourage future violations. See Paulson, 268 Ill. App. 3d at 80. Actual damages recoverable

under section 35 are intended to make the plaintiff whole, but the $100-per-day penalty serves to

increase the award beyond the merely compensatory. 750 ILCS 28/35 (West 2010) (“This

penalty may be collected in a civil action which may be brought against the payor in favor of the

obligee or public office.”). The penalty provision of section 35 is not remedial and presupposes

a punitive purpose. See Paulson, 268 Ill. App. 3d at 81 (citing Fahner, 101 Ill. App. 3d at 1080).

¶ 48   Section 2-102 of the Tort Immunity Act and section 35 of the Withholding Act can be

read together harmoniously. Section 2-102 contains the prefatory phrase “notwithstanding any

other provision of law,” which was intended to clarify the relationship between the Tort

Immunity Act, which prohibits the assessment of punitive damages against a local public entity,

and all other statutory or common-law actions that allow the assessment of punitive damages in



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certain circumstances. Paulson, 268 Ill. App. 3d at 82. The general regulatory provisions of

section 35 apply to local public entities, affording an obligee a cause of action to recover an

arrearage when the employer fails to perform according to the withholding order. Here, even

though the punitive penalty provision does not apply, section 35 imposed on the Conservation

District a duty to withhold and forward Jeffrey’s child support payments, giving Jessica a cause

of action to recover those payments when the Conservation District failed to do so. See 750

ILCS 28/35 (West 2010).

¶ 49   If the legislature had intended to deny governmental entities immunity for claims brought

under section 35 of the Withholding Act, it could have explicitly stated so. We will not read

such a limitation into section 2-102 of the Tort Immunity Act or disregard the phrase

“notwithstanding any other provision of law” contained therein.           See Shields v. Judges’

Retirement System of Illinois, 204 Ill. 2d 488, 497 (2003) (it is the dominion of the legislature to

enact laws and the courts to construe them, and we can neither restrict nor enlarge the meaning

of an unambiguous statute); Paulson, 268 Ill. App. 3d at 82-83.

¶ 50   Further, denying the Conservation District immunity from a penalty under section 35 of

the Withholding Act would contravene the well-established policy of section 2-102 of the Tort

Immunity Act by holding taxpayers responsible for the agency’s violation of the law. See

Paulson, 268 Ill. App. 3d at 83. Requiring local public entities to compensate persons such as

Jessica for the injuries they have sustained serves a salutary purpose, but it is unsound public

policy to punish local taxpayers for the misconduct of employees over whom the taxpayers have

no control. Paulson, 268 Ill. App. 3d at 83. Imposing any damages award greater than that

required to compensate Jessica would serve primarily to punish local taxpayers.




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¶ 51   Jessica cites In re Marriage of Chen, 354 Ill. App. 3d 1004 (2004), for the proposition

that the penalty prescribed by section 35 of the Withholding Act is not “punitive” for purposes of

immunity. In Chen, an employer who was subject to a $90,600 penalty under section 35 argued

that the penalty was grossly excessive and violated its due process rights. The employer urged

this court to resolve its due process claim by looking to the punitive damages cases decided by

the United States Supreme Court and applying the criteria identified in BMW of North America,

Inc. v. Gore, 517 U.S. 559, 574-585 (1996), and State Farm Mutual Automobile Insurance Co. v.

Campbell, 538 U.S. 408, 418 (2003). This 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 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.

¶ 52   Thus, the Chen court distinguished common-law punitive damages, which are uncertain,

from the section 35 penalty, where “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. While “punitive damages pose an acute

danger of arbitrary deprivation of property, and jury instructions typically afford the jury wide

discretion in choosing amounts,” section 35 sets the penalty at $100 per day, putting the



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employer in control of the extent of the fine. The Chen court relied on this distinction solely as

support for holding that the due process scrutiny afforded common-law punitive damages awards

does not apply to section 35 penalties.

¶ 53   Common-law punitive damages are uncertain while the penalty prescribed by section 35

is definite, but contrary to Jessica’s assertion, their relative predictability does not render the

former punitive and the latter compensatory for purposes of section 2-102 of the Tort Immunity

Act. The overall character of both is punitive. Chen does not compel this court to deviate from

the rationale of Paulson.

¶ 54   The Paulson court held that section 2-102 of the Tort Immunity Act excludes two-thirds

of a treble damages award prescribed by section 3-602 of the Nursing Home Care Act.

Consistent with Paulson, we hold that section 2-102 affords the Conservation District immunity

from the $100-per-day penalty provision that otherwise might have applied to the five violations

of section 35 of the Withholding Act.

¶ 55   We determine that section 2-102 confers immunity from the penalty prescribed by section

35 of the Withholding Act. Our holding obviates the need to address the Conservation District’s

remaining arguments, that it did not “knowingly” fail to perform according to section 35 and

that, even if it did, any potential penalty stopped accruing after the stay order was entered in case

No. 10-LA-209. We also need not consider Jessica’s cross-appeal, in which she argues that the

court erred in capping the penalty at $10,000 per violation.

¶ 56                                      III. CONCLUSION

¶ 57   For the preceding reasons, we reverse the judgment imposing a $50,000 penalty on the

Conservation District for the five violations of section 35 of the Withholding Act. The parties do




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not dispute that the Conservation District paid $1,086.90 on February 25, 2011, to remedy its

failure to perform under the withholding order.

¶ 58   Reversed.




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