Aurora Nat. Bank v. Simpson

• Decision Date: 30 September 1983
• Docket Number: No. 82-973,82-973
• Citation: 454 N.E.2d 1132,73 Ill.Dec. 883,118 Ill. App. 3d 392
• Parties: , 73 Ill.Dec. 883 AURORA NATIONAL BANK, Plaintiff-Appellee, v. James M. SIMPSON, Defendant, and Human Relations Commission, Garnishee-Defendant-Appellant.
• Court: United States Appellate Court of Illinois

Page 1132

454 N.E.2d 1132

118 Ill.App.3d 392, 73 Ill.Dec. 883

AURORA NATIONAL BANK, Plaintiff-Appellee, v.James M. SIMPSON, Defendant and Human Relations Commission, Garnishee-Defendant-Appellant.

No. 82-973.

Appellate Court of Illinois Second District.

Sept. 30, 1983.

Neil F. Hartigan, Atty. Gen., Richard J. Puchalski, Sp. Asst. Atty. Gen., Chicago, for garnishee-defendant-appellant.

Tyler, Solomon & Hughes, Gordon R. Hughes, Jr., Aurora, for plaintiff-appellee.

HOPF, Justice:

The Human Relations Commission(Commission), garnishee-defendant, appeals pursuant to Supreme Court Rule 308(87 Ill.2d R. 308) from a Kane County circuit court order denying its motion to dismiss a garnishment proceeding seeking a conditional judgment against it.This court granted the Commission's application for leave to appeal on January 20, 1983.The question certified by the trial court as the basis for this appeal is "Whether section 12-807 of the Code of Civil Procedure[Ill.Rev.Stat.1981, ch. 110, par. 12-807(a) ] controls and permits the Court to require the garnishee-defendant to show cause why a conditional judgment should not be made final because the garnishee-defendant failed to answer the wage interrogatories or withhold funds pursuant to paragraph 12-801 et seq. notwithstanding the employer is the State of Illinois."

The Commission is a State agency created under section 8-101 et seq. of the Illinois Human Rights Act(Ill.Rev.Stat.1981, ch. 68, par. 8-101 et seq.).Although it concedes that it is not immune from garnishment proceedings by virtue of our supreme court's opinion in First Finance Co. v. Pellum(1975), 62 Ill.2d 86, 92, 338 N.E.2d 876, the Commission argues that the doctrine of sovereign immunity and public policy preclude the imposition of any monetary judgments under section 12-807(a) of the Code of Civil Procedure(Ill.Rev.Stat.1981, ch. 110, par. 12-807(a)), formerly section 6 of "An Act relating to wage deductions for the benefit of creditors and regulating the issuance of deduction orders."Ill.Rev.Stat.1979, ch. 62, par. 76.

On July 1, 1982, Aurora National Bank (bank), plaintiff, filed an Affidavit for Wage Deduction Order which stated that James M. Simpson owed the bank $6,913.58 pursuant to a September 21, 1977, judgment in its favor for $5,852.79 plus costs and interest.It had a Wage Deduction Summons served on the Commission, which required the Commission to file answers to the bank's interrogatories.

After the Commission failed to answer the bank's interrogatories within the specified time, the bank sought the issuance of a conditional judgment against the Commission.The Commission filed a special and limited appearance and moved to dismiss the action against it.The trial court entered an order denying the Commission's motion to dismiss the bank's motion for conditional judgment.The court found that the Commission failed to file answers or withhold nonexempt wages of Simpson when answers were required to be filed and refused to forward any sums from Simpson's wages, that the Commission acknowledged it was not immune from wage garnishment proceedings but it was immune from a judgment order pursuant to section 12-807 of the Code of Civil Procedure(Ill.Rev.Stat.1981, ch. 110, par. 12-807), that the above provision was akin to the power of contempt to enforce compliance with the provisions of the wage deduction proceedings, and that such enforcement was necessary to prevent the circumventing of these proceedings.

The bank filed a new affidavit stating that the amount owed had increased to $7,126.80.The Commission answered the interrogatories, stating that it withheld $4,373.70 from Simpson's salary and that $642.95 was the amount to be withheld pursuant to the wage deduction order.Based upon these answers, the court entered an order against the Commission for $642.95.The parties agree that the Commission has tendered this amount to satisfy the judgment and that Simpson is no longer employed by the Commission.

On November 23, 1982, the trial court certified the question presented here on the Commission's motion finding that the order denying the Commission's motion to dismiss involves an important question of law to which there is substantial grounds for difference of opinion and that an immediate appeal may materially advance the ultimate termination of this litigation.The court stayed the proceedings pending this appeal.We granted the Commission's application for leave to appeal.

We must decide whether sovereign immunity precludes a circuit court from entering a conditional judgment against a State agency in a garnishment proceeding where the agency, as the employer of a judgment debtor, failed to answer wage interrogatories or withhold portions of the employee's salary pursuant to a wage deduction summons.

Under the wage deduction provisions of the Code of Civil Procedure, a judgment creditor may have summons served on a judgment debtor's employer commanding the employer to appear in court and answer written interrogatories.The judgment or balance due becomes a lien on the wages due at the time of the service of summons for a specified period of time and the employer must answer the interrogatories setting forth the amount due as wages to the judgment debtor.If the employer fails to appear and answer these interrogatories, the court may enter a conditional judgment against the employer for the amount due upon the judgment against the judgment debtor; the employer may then be required to show cause why the conditional judgment should not be made final.If the employer fails to appear and answer, the court shall confirm the conditional judgment in the amount of the judgment against the judgment debtor.Ill.Rev.Stat.1981, ch. 110, pars. 12-805 to 12-808.

In First Finance Co. v. Pellum(1975), 62 Ill.2d 86, 338 N.E.2d 876, our supreme court held that the doctrine of sovereign immunity did not exempt the State from wage deduction proceedings.While conceding that it is not exempt from wage deduction proceedings, the Commission argues that the doctrine of sovereign immunity precludes the imposition of a conditional judgment upon it.In its argument, the Commission urges that the application of this doctrine would not leave a judgment creditor remediless because that creditor could maintain a declaratory action (seeLandfill, Inc. v. Pollution Control Board(1978), 74 Ill.2d 541, 552, 25 Ill.Dec. 602, 387 N.E.2d 258), an injunction action (seeBoard of Trustees v. Illinois Community College(1978), 63 Ill.App.3d 969, 973, 20 Ill.Dec. 779, 380 N.E.2d 988), or a mandamus action (seePeople ex rel. Hilger v. Myers(1969), 114 Ill.App.2d 478, 482, 252 N.E.2d 924), in the circuit court to compel the Commission to comply with wage deduction proceedings, or more likely file a claim with the court of claims.

In seeking to sustain the trial court's judgment, the bank contends that a court can abolish the doctrine of sovereign immunity if it finds it is unjust, unfair, or against public policy, but fails to cite any case law in support of this incorrect proposition.It further argues that it would be inconsistent to hold that the State is subject to garnishment proceedings but not to the rendering of a conditional judgment.The bank characterizes the provision allowing the entering of such a judgment as an enforcement device and compares the instant cause to a mandamus action.

Section 4 of article XIII of the 1970 Illinois Constitution abolished sovereign immunity in this State except as may be provided by law by the General Assembly.(Ill. Const.1970, art. XIII, sec. 4.)To determine whether the State is immunized in an action against it, the issue is whether the General Assembly statutorily granted it sovereign immunity.In "An Act in relation to immunity for the State of Illinois"(Immunity Act), the General Assembly provided that, "Except as provided in 'AN ACT to create the Court of Claims,' * * *, the State of Illinois shall not be made a defendant or party in any court."(Ill.Rev.Stat.1981, ch. 127, par. 801.)Section 8 of the Court of Claims Act gives the court of claims exclusive jurisdiction to hear and determine, inter alia, all claims against the State founded upon State law, contract, and tort.Ill.Rev.Stat.1981, ch. 37, par. 439.8.

Ascertaining whether the State may claim sovereign immunity in a particular action pursuant to the General Assembly's grant of sovereign immunity requires a determination of whether the State is "a defendant or party" within the meaning of the Immunity Act.This determination requires an examination of the issues involved and the relief sought in the action.Hudgens v. Dean(1979), 75 Ill.2d 353, 355, 27 Ill.Dec. 193, 388 N.E.2d 1242;G.H. Sternberg & Co. v. Bond(1975), 30 Ill.App.3d 874, 877, 333 N.E.2d 261.

A suit brought against a governmental agency with relation to matters in which the agency represents the State in action and liability constitutes a suit against the State, even where the State is not a party to the record.(Scoa Industries Inc. v. Howlett(1975), 33 Ill.App.3d 90, 94, 337 N.E.2d 305.)If the relief sought could operate to control the action of the State or subject it to liability, the suit is thus deemed to be against the State.(Hoffman v. Yack(1978), 57 Ill.App.3d 744, 748, 15 Ill.Dec. 140, 373 N.E.2d 486.)Thus, when the property of the State is involved, the State becomes directly and adversely affected by the suit and the action must be held to be one against the State.Gordon v. Department of Transportation(1982), 109 Ill.App.3d 1071, 1074, 65 Ill.Dec. 589, 441 N.E.2d 904.

In the instant case, the Commission sought to dismiss an action seeking a money judgment for the amount due to the judgment creditor.Since the relief sought would subject the State to financial liability, sovereign immunity bars the action.Where a party seeks a monetary judgment against an agency payable out of State...