system and then on an annual out on a regular basis for each paycheck additional adjustments were made clear if somebody had some sort of reimbursement for a car or spencers or had an  additional reimbursement for something that they were entitled to or the general deduction the district would provide additional information but the basic information and could be and it is situation of geoffrey murphy the amount of two hundred seventy dollars and thirty eight cents was a programmed into the system to be deducted from every one of his paychecks that's just an audit counsel would think and found this even though this was spread out over a number of years didn't the district ha duty on it well not under the more the withholding statutes based on what it requires for the pay for the assessment of penalties we can say had a duty to buy it we can sustain their burden of proof but the issue in this case is did it meet the standard of unknowing failure to pay and that's a high standard that the statue poses as should be a high standard because this is a devastating  penalty that could be put in place the interesting thing about this case is that no one knew anything of all these non payments not the district's employees not their executive director not jeffrey m liability our position is that what the district court did is the district court reduced the i mean the circuit court reduce the burden of proof in this case to if the district knew it had the obligation to withhold that  and we say the presumption does not apply in this instance and i believe that we have set forth in our brief compelling arguments for why the presumption does not apply in this case and i think that if you if you look at  statutory interpretation which has to focus on the way in which language is absolutely clear that the presumption applies only when the employer withholds and doesn't pay not when the employer doesn't is it is his very carefully defined in our in our case law as to when presumptions are appropriate and when they're not at the general assembly consciously made that distinction if you don't withhold and you don't pay the presumption doesn't apply  only applies when you're holyhead money if you're holding the money then you should know you've got that's why the presumption would apply if you're not withholding that money for that presumption is not valid i also would submit that we were but in the presumption if the court finds that the principle behind it is been decided over and over again that governments are generally harming not susceptible to statutory penalties to punitive damages to finds all of these all of these types of assessments  that constitute punishment and the reason is very clear it punishes the wrong people who gets punished when these statutory penalties assessed against the government it's the ten taxpayers it's not the person who made the mistake  the statutory penalty did not apply to a government that was the pulse in case of it involved when the nursing home care it had this truck trouble that it tripled the amount of actual damages it to governments when when they when they wrote the provision regarding penalties they didn't apply that to the government they didn't specifically say applies to governments that is contrary to standard story i mean it would be contrary to statutory interpretation  that the high standard of unknowing nonpayment was not met in this case that the court basically reduced it to the negligence or strict liability standard i'll close with one point and i want to make sure i save enough time to respond because investigate it seems very unusual that this claim could have any substance to it they want to look into why it happened what happened was there some possible collusion between them and the marines here they didn't really know that so they is the the potential that if there is called a shim between the government and these some recently and there are criminal prosecutions that could be brought there is certainly the public pressure to maybe the statute doesn't preclude it that's not at issue here was no album argument made of any consequential damages she didn't even realize she didn't get the money she balanced her checkbook somewhat regularly  and didn't miss that money at all so there certainly was no consequential damages when your client was aware of this these amounts were not withheld and also people were recognize that there was going to be no stay recognized by the court you cases where there are been some very large judgments entered against employers under the statute and what the court will always say is we don't have any sympathy because you could have stopped the cessation of this judgment of the growth of this penalty at any time by making the pa individual regardless of source made by state government or any unit of local government the center section thirty five million governs duties of a or there is no ambiguity here seeking damages associated with an injury there is no injury to petitioning already directly related to the healthy our legislature has structured the wa unity act is not designed to negate the liability of the government on the whole it creates exceptions to liability we are here with a statutory see my understanding he has operating expenses in excess of seven million dollars per year now and this is not a small operation and it the individual impact of n c c d's is certainly employees we have multitudes of families who rely on child support the government certainly should be subject to this penalty to ensure that these families are taken care of penalty this is not an action for injury or relation to those damages so we have to view these as distinct issues and they're also really the recipient of the withholding order is in control of that those facts now five payments were missed through the end of two thousand and nine zero or a six year period well the payments were not initially met payments were being made up until august of two certainly were pains made on the third paycheck throughout this time period and just because these happen to be the third paychecks of the month that reflects the lack of monitoring there  was a head in the sand approach to delegation of withholding of duties now it didn't point whoever brought it to their attention lo with reference to these immediate wri she the person who was getting the monies into her count living on it if she didn't realize it would it be a stretch to think they didn't realize that it is their obligation to monitor this  monitoring that have been the asian are responsible for the withholding in january two thousand and ten and c c d have changed agents and a t v became gauge and a hour a paycheck was lost on a desk job in dealing with the questions at play here you have an ongoing obligation to see to it that this is a minister acknowledges that all the information for payroll was being downloaded it was readily accessible for it in a payroll register file this was available in her office payroll and internally she had access to all of this information and certainly had an obligation under the withholding act to see to it that it would hold the order was followed in history appropriately again the question should not fall into the head in the sand approach to with ministry withholding orders in structuring a was such a way to provide for the intent of the penalty we must consider going in connection with that policy now the legislature has been very clear for the purposes of the penalty and there are of course have considered this question there is the knowledge of the underlying i don't see in the knowledge of the duty to withhold which is clearly conveyed in the withholding order itself now we have an ongoing obligation to see to it that this is taken care of merely delegating that and then forgetting about it as though this withholding order does not create do ease in the recipient it's certainly quite clear the court has to apply the penalty provision only perspective so i hadn't sure that we've arrived at this secondary question relative to piecemeal application of retroactive and is the analysis but even if we get beyond section four we we must look at how the court of why the statutory amendments and in resolving this question look at what the amendments were the court did not apply the one year statute of limitations the court did not apply this obligation to provide a letter notifying with failure withhold and allow fourteen day window connection of the post cabin case law we can't simply fall back into the pre k i mean questions under retroactive impact and substantive rights kevin shifted the yahoo being its decision i apologize for my pronunciation the court declined to adopt a piece of the application is looking at procedure on substantive changes now at play in this case certainly is a substantive change so we must maintain the distinction between a substantive right of vested right and the substantive setting relative to the withholding and penalty mera if we treat a basic concepts of procedure here the penalty certainly is not procedural so we must first start with an eye toward what constitutes a procedural change it's merely because something is not reflecting  question in that case was whether this is the u s supreme court's process analysis for a statutory for a period damages applies to the statutory penalty under the act and the court found that penalties and punitive damages to governments is that punishes the room person is not the purpose of punitive damages or penalties to the purpose is to deter bad conduct and to punish the part they keep talking about the obligation to monitor and and their conflating this with the same thing as knowledge and knowledge is a completely different standard from some obligation to monitor they keep talking about the you know this is the the district took a head in the sand approach but it remember the head what the head in the sand approach the ostrich argument this the ostrich argument generally is where he have either an employer or supervisor or somebody who who knows somebody is doing something wrong and doesn't want to have tension to it i didn't i didn't have it so i took my head in the sand the ostrich approach but there has to be some basic knowledge that this supervisor or this employer knows that something is going wrong you don't have that here that's not what if that was the case that we have a different case but that's not the same ones he did counsel mention that at the district they are the ones who entered the information into the computer with regard to that list of things that they should know because they actually had for years well should have known is different from knowing should have not i don't have any concern about the substance of the affidavit but the affidavit is not part of the record because the only reason we submitted that was for the summary judgment part of the case and it was done to establish the computer generated records the foundation for i establish the the business records exception to the hearsay rule that's the only reason that's in the record but i'll deal with the substance of it because it doesn't say anything more than if the district head gone in and  and then we didn't ask the circuit court to apply the statue limitations or the notice requirement or any of that we didn't ask them to do that because those events would have already taken place and it and i doesn't matter we can talk about the legislative intent are vested rights approach the procedural substantive approach the statute on statutes they all produce the same result the intent of the legislature was that this became effect purpose that entire statute was meant to ameliorate some of the harsh effects of this of this of this pull the next everything it did it softened some of the impact of it as justice burke said because of some of the outcome stripped that the cases show so if anything the legislature did not intend that the remedy provision which it would not be precluded from being applied in mediately based on any other type of constitutional provision there is nothing in the statute about that but on their land grant commonwealth office and it still is applied it's still something the court looks at there were no vested rights affected by the application of the of the amendment to the judged in this case to do to the county judgment of two thousand and twelve the position that in the absence of language and indicating temporal reach or of evolution of language that it will become effective  in this case was pending before the statutory amendment was made the legislature passed a statute post capital absent that language continue to receive the child support and it is quite clear that despite the writing on the wall as you see the still fail to enter this child support appropriately with with a motion for stay in the l a case despite the lack of statute torrie authority relative to a stay and then again