because that and i represent the aptly cook county that's right we've allocated fifteen minutes apiece but we don't have anything after you so if we get overly loquacious we probably won't give you any grief say some time for rebuttal the microphones evidence needed to rebut the statutory presumption in the income withholding support in this particular case the trial court denied everything cell was request for the statutory penalty perscribe within that act of finding what i had termed the i made a mistake argument sufficient to rebut the presumption the figure it's withhold was knowing in this particular case contacted providence to inquire as to these what was to be determined a second check the june check d g williams indicated in that phone conversation in the record that at the time that both we turn the third time but at least in december of twenty ten or january twenty a lab and when that paycheck was issued that they probably had failed to withhold because they brought to our attention but the record in the code but then it never produce any tackling taishan the code was actually changed so we don't know really what happened with those two paychecks we do know and this is my my  in this case the presumption has a strong public policy backing it was created in one nine hundred ninety three is the quote well knows it was in response to the clinton administration the federal government saying clean up your child support penalty with respect to employers they didn't have to do that in the public policy behind that was because we had a serious crisis with delinquent child support and so because the public policy of this act of the penalty and that creates is so strong it creates the need for clear and convincing evidence to rebut the presumptions all presumptions related to the public policy that mons where there were three ok the the world will feel is going to be fun the statue we have in the statute is knowingly and so the question is whether they knowingly fail to withhold when the employee wasn't working at all because they're so cognizant of their obligation in their case where the employee works one day they actually withheld seventy seven valuers and actually took the check to the attorney's office in their case the only to check an issue was a case they mailed to the state dispersement it it came back because it was to the wrong paid and they made me correct it all the sections were done prior to the filing my point in this case is that in that at least in december of twenty ten when gigi rose testified i questioned why the money didn't come out of dr selma's check which is a remarkable and eleven why it wasn't held out there shows that there was knowledge that there was something wrong now we have to read that along with the time that factor selling comes in right after the withholding order  r and he sits down with the williams and says there's been a mistake here you're withholding too much and at that point she reviewed it and she corrected the mistake that back to solomon had brought to her attention in this case she had an and i could be something that people could do the happens from time to time it just so happened here but it's that she only failed to withholds she didn't go if she went into the system and changed it so he picked the first time in twenty ten this is she found out you know in december the summer twenty nine twenty ten which is the third paycheck in december they didn't pay that and so we brought it to their apparently she did because it happened again we did he say it was there any evidence that she deliberately did not remedy that she knowingly did something to live the gravity well my contention is that when she knew that so i think actually be x almost allows you based upon the presumption that you get one strike and you're ok you know so i don't think it's one strike and you're out  persuasion where i just took the scales because her testimony was i probably entered the code despite having seventeen months between the time of filing and the type of hearing it ever produced any kind of documents ation which indicated or cooperated that they actually entered the code that way that she was put on notice at least a third or fourth time with the two paychecks are missing and did nothing until we call and so my contention is that's not clear and convincing evidence with which to rebut the presumption no case deals with what the standard is for but the presumption in the case directly addresses that i would suggest that the data if you case is the closest address that because they say when they reversed the trial court and found a knowing violation of the data you fourth district case said there was no compelling evidence presented by the defendant as to why they failed to withhold if if the trial court believes that the bureaucratic mistake was in putting up the wrong code to take out twenty four page sets of a twenty six yes but i i think at the point in december twenty ten inches twenty a weapon at that point when there's now it's once again i'm going to mistake was made and there there there is the triggering of the that case my client would likely moves but i think in this case when when essentially after she said she informed the wrong code that or sally comes in and once again shows her the notice with her which clearly but the trouble today which is once again they don't they don't serve the purpose of the course of nature of of the penalty and the reason right it's similar to let's say  children then in this world it's payments into that these kind of things certainly have an effect now let's read the public policy of the two acts together because i think you know the argument that somehow they contradict each other and that's why the controls i think is wrong first of all i think we have to assume that the legislature when they drafted and passed the nine hundred ninety three income withholding  we have the legislature indicating in their definition of come income from they list all the different government agencies so they were included within the scope of the act so i don't think they made a mistake with this  because they have control over and it's only after they destroy their applications under the yakked there's a penalty and now what's interesting is the twenty twelve twenty twelve amendments actually added another duty the ad would be to notify the employer if they believe that they have not received the proper child obligation in this case the child the person receives child support but the public policy behind the th in the income with only an actor the same it's to protect the taxpayers so the statues can be read together with the same kind of public policy concerns they think especially we have to rock that illinois storied history with respect to how it treats children of divorce and i out for them and i think there were some to send to the decision this panel had that in mind when going thinking about the case i'd rather was you know some difference of opinion in that but it's a special kind of situation but i just you know once again with respect to the be straight for better and so i think it's very similar to the strength of evidence needed with respect ultimately even though they found they were way they did go into it in a ways and make a determination considering it sure sounds weird ok payroll service failed to process five child support checks in the same just like in this case where there were three pay periods in a month the morning unity applies to discretionary you're talking about a ministerial because it's clear famed i live if and say because it's an exception to the common law tort liability of a government yes we have to strictly construe it and saw the act government's going to be liable except in discretionary cases if the government has a ministerial duty to err and they violated their libel and tort just like anybody else right i believe it goes to the relationship between the toward immunity act and the assessment of the punitive damages against i guess my point is if a government actor violates a ministerial duty they don't act when they have an undeniable obligation to do their they can be assessed the government entity can be assessed punitive damages that sort of media just doesn't apply i think in the case where there is a mistake your honor the court relationship between the two and immunity at prohibiting the assessment of punitive damages against a local public entity and all other states a tory or common law damages against a local public entity in certain circumstances so you believe section two one zero two means that a government here can never be assessed punitive damages period no i think when you're looking  states that the failure to pay or and more than one occasion to pay amounts with how to this state dispersed mean you net within seven business days after the date the amount would have been paid or credited to the a applying all the facts in the case law that was argued and that exist where employers have been penalize demonstrates that the county provided the state's a trade presumption we're talking about something different the presumption and i believe counsel was haggling that it's the done he case i just want to correct the record i believe we were talking about dunn he versus mistake made by the employer as happened in the thomas case it's a totality of the circumstances that the court is looking at to determine whether the employee for me the employer's mistake was where i think there's some mischaracterization of the record here but the chairman's case goes to fair is to say that even the negligence of an employer is net does it rise to the level of knowing so that the courts are clearly looking at how many payments are missed right how many times did the employer miss making a child support payment was it withheld from the re ms williams in july or august of two thousand and ten yes to one payment of the revenue hundred dollars was withheld she testified she corrected the amount and the answer record volume seven pages sixty and sixty five her testimony says she corrected the i corrected the amount i mistakenly did not corrected my monthly code so big she absolutely does not know that she made a mistake and the trial court accepted their way back to the first paycheck to december twenty ninth two thousand and ten and if you look and i'll find a cite for you the reason it is there's no imputation of mallets to ms williams the reasons that she goes on to where there were three p p areas so she knows that if we miss the june twenty ninth two thousand and eleven payment that we are ready missed the december twenty ninth two thousand and ten dance when she realizes that year is  during the conversation so it's heard it's counsels for petitioners telephone call and if you look it's a record by him seven pm to sixty six through sixty eight ms williams testifies during the a telephone conversation she informed petitioner's counsel of the missing two thousand and ten child support payments and then she goes and she explained that the reason for that is because she knows they are at those are the months where there are three pay period so we missed one in a fiscal year and she knows that it's the second one but it's not told the phone call of august second two thousand and  that ms williams no miles that there's a problem and what does she do unlike chan and the other cases where the court where the pros are the supreme court miller ms williams immediately looks and the screen sees that we've made a mistake and she issues a check for both missing child support payments and she includes and there's a third week for the child support that's out so there's a check for approximately three thousand  she within two business days she corrects the other it's not the circumstances of the other a poet cases there's multiple withholdings from employees chats from the non custodial parent checks by an employer in the employer purposely to snatch her nose over for a very very long period of telling months and the employers i notice that you don't dig the either the custodial parent sometimes or the that now in some of these cases has come in and and contacted the employer so the employer it goes through very specs specific cases and in this case it's very clear that miss williams entered the order incorrectly she made a mistake when it was when she input so she inputs the it's the june twenty ninth two thousand and ten child support order and she received it so why her testimony is that she received it july seventh two thousand and ten so it's imploded and her about you know on her swear they him writing said above one hundred and she circle that it's in miss williams this morning it's also in her handwriting and i believe that the letter refers to twenty two hundred dollars per month so she she c made that mistake at that time and she clearly testifies to that so the next contact the time line here is dr solomon comes in in july or august of two thousand and ten the next kinds he she has with petitioner to even give her a chance to know that she's made an error is is august second of two thousand and eleven when she's pennsic to by petitioners counsel and the knew that she made a mistake to be acting in july two thousand and ten when she answered the order it's she clearly testifies that she knew made because there were three that was december two thousand and ten was a month with three papers so if there's a month with prepaid periods she knows the structure of about a monthly order is not to pay and  disarray and he i think they were using a p c as a payroll processor there was a second's piece there for a period of months and then there's a second payroll processor testifies that she finds a check for nine hundred thirty three dollars  uphold the public policy of making sure that the employers do love the law and withhold correctly and i think the totality of the circumstances in this answer correct question now your mistress called you this or question it and at that time it's true that you had said to miss masters but i question whether dr selman should be being withheld through his third paycheck at that time did you recall saying it's her on the answer was yes so next to you you infer from which she questioned in december correct because if she takes a cold call from the attorney said i think my client missed a payment and the response is i did question that at the time then i do i think it can be inferred that at the time of a june of twenty eleven that she did question  clearly said ten fifteen thirty eight by weekly she had a second opportunity one month later when dr salving came in and we can only imagine i mean there are certain power dynamics if you world factor comes into it a minister says look you're over withholding and so she then again reviews the order which says ten fifteen thirty eight every two weeks by weekly and then again in december questions in june questions that i think that shows you know