                                                     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
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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.




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      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



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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



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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



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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



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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.



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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



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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.




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     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




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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




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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.



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     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,



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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.



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