Page 2 - John Hundley 2008

That extreme ratio between the penalties affirmed and the amount of support arrearages at issue
raises questions as to whether the principles of proportionality, which the U.S. Supreme Court has applied
to assessments of punitive damages by juries (see, e.g., State Farm Mut. Auto. Ins. Co. v. Campbell, 538
U.S. 408, 424-28 (2003); BMW of N. Am., Inc. v. Gore, 517 U.S. 559, 580-83 (1996)), also apply to civil
penalties imposed by statute. Miller holds “no”, and that due process merely requires that the statute
imposing the penalty “only bear a reasonable relationship to a legitimate state interest”. Given the
importance of child support to both private and public interests, the court said that test was met. See also
In re Marriage of Chen, 354 Ill.App.3d 1004, 820 N.E.2d 1136 (2d Dist. 2004). Whether the U.S. Supreme
Court would agree can be debated.

Miller underscores the often-overlooked fact that withholding for support is no longer a purely
private matter. Ever since the federal welfare reform legislation of 1996, and in some instances even
before that legislation, (a) when the state provides public aid to persons who should be receiving child
support, the state is assigned that person’s right to collect from the absent parent; (b) support obligations
generally can be changed only by the court; (c) support generally must be paid through the state
disbursement unit; and (d) public support for child support collection is available even if no one is on
welfare. Collecting on overdue support is seen as a way of reducing welfare costs – and enforcing
support orders for persons not on welfare is seen as a way of avoiding them going onto welfare.
Whether the employer or employee believes the ex-spouse needs or deserves the payment, or that there
is some equitable set-off or informal excuse of a payment, are all largely irrelevant, and employers
respond to such considerations at their peril.

Moreover, the Income Withholding for Support Act does not apply only to dissolved marriages – it can
apply to support obligations established on a temporary basis, or on the basis of paternity out of wedlock.
See 750 ILCS 28/5, 28/15(a).

It is significant that the civil penalty goes to the private party (not the state) and that the employer
penalty provision has been construed as mandatory. See Dunahee v. Chenoa Welding & Fabrication,
273 Ill.App.3d 201, 652 N.E.2d 438 (4th Dist. 1995). This means that if the employer has a history of
violations, a motion for penalties under the statute can provide an important source of funds for
compensation of an attorney for the custodial parent, who often cannot pay an attorney otherwise.
Moreover, unlike most motions to collect fees in domestic relations matters, this method of compensation
is not dependent on the wealth of the absent parent, nor, apparently, on the court’s discretion.

While having an employee who is subject to a support order thus poses a number of risks,
employers cannot avoid those risks by firing, refusing to hire or otherwise discriminating against
such persons. 750 ILCS 28/35(d).

Employers who face penalty motions would be well advised to consult counsel at the earliest
opportunity. Often the paperwork related to imposition of the support order or of the withholding order is
not perfect, and defects may provide a ground for challenging the penalty motion. And employers not
facing such motions should use Miller as an opportunity to review their payroll procedures and to educate
their payroll staff on the duties the Act imposes. Few companies can afford the significant costs which
sloppy handling of support orders may cause.

John \Sharp Thinking\#3.doc
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