Martinez v. Department of Public Aid

• Decision Date: 25 May 2004
• Docket Number: No. 1-03-0730.,1-03-0730.
• Citation: 348 Ill.App.3d 788,810 N.E.2d 608,284 Ill.Dec. 818
• Parties: Paula Q. MARTINEZ, Plaintiff-Appellant, v. The DEPARTMENT OF PUBLIC AID, an Agency of the State of Illinois, and Bank One, N.A., a National Banking Association, Defendants-Appellees.
• Court: United States Appellate Court of Illinois

810 N.E.2d 608

348 Ill.App.3d 788

284 Ill.Dec. 818

Paula Q. MARTINEZ, Plaintiff-Appellant, v. The DEPARTMENT OF PUBLIC AID, an Agency of the State of Illinois, and Bank One, N.A., a National Banking Association, Defendants-Appellees.

No. 1-03-0730.

Appellate Court of Illinois, First District, Second Division.

May 25, 2004.

Nunc Pro Tunc March 31, 2004.

Drake James Leoris, Jr. and David Drenk, of Leoris & Cohen, P.C., Highland Park, for Appellant.

Lisa Madigan, Attorney General, Gary S. Feinerman, Solicitor General, and Diane M. Potts, Assistant Attorney General, Chicago, for Appellee Department of Public Aid.

James M. Wyman and Paul K. Johnson, Attorneys for Bank One, NA, Chicago, for Appellee Bank One, NA.

Justice CAHILL delivered the opinion of the court:

Plaintiff Paula Q. Martinez appeals the trial court order dismissing her complaint against defendants the Illinois Department of Public Aid (Department) and Bank One, N.A. We affirm.

This dispute arose over an arrearage in child support owed by plaintiff's nephew, Mauro Rodriguez. Rodriguez owed his ex-wife $28,316.96 in past-due child support for the couple's two children. While investigating Rodriguez's assets, the Department discovered a savings account with Bank One held by Rodriguez and plaintiff. The Department placed a lien on the account under section 10-25.5 of the Illinois Public Aid Code (Public Aid Code) (305 ILCS 5/10-25.5 (West 2002)) and section 160.70(g)(2) of the Illinois Administrative Code (Administrative Code) (89 Ill. Adm.Code § 160.70(g)(2) (2002)). Notice of the lien was sent to plaintiff, advising plaintiff of her right to prevent the levy on her share of the account by requesting a hearing within 15 days of the notice. Plaintiff received the notice but did not request a hearing, later alleging she "lacked the capacity to understand said notice."

On direction of the Department, Bank One surrendered $28,316.96 of the account to the Department on January 11, 2002. After receiving the money, the Department forwarded the funds to Rodriguez's ex-wife. On March 26, 2002, plaintiff sent the Department a letter demanding return of the funds to her account. The Department advised plaintiff it was no longer in possession of the funds.

On August 27, 2002, plaintiff filed a two-count declaratory judgment action against defendants. In count I, plaintiff sought a declaratory judgment that section 160.70(g)(2) of the Administrative Code, to the extent it gave the Department "authority to adjudicate its own lien claim against plaintiff," is unconstitutional. In addition to declaratory relief, plaintiff sought "an order requiring the return of [the transferred] funds to [p]laintiff, prejudgment interest, plus costs and such other relief as the court deems just and proper." Count II was brought against Bank One and alleged Bank One wrongfully surrendered the funds in plaintiff's account to the Department. Plaintiff sought a declaratory judgment that the account funds "were at all times the property of [p]laintiff and * * * an order requiring the return of said funds to [p]laintiff, prejudgment interest, plus costs and such other relief as the court deems just and proper." As a basis for relief on both counts, plaintiff alleged the savings account had been in her name for several years. She added Rodriguez to the account out of convenience "so he could make transactions on behalf of [p]laintiff with respect to the account." Plaintiff alleged Rodriguez was not given an interest in the account.

The Department moved to dismiss count I under section 2-619 of the Code of Civil Procedure (Code) (735 ILCS 5/2-619 (West 2002)), arguing sovereign immunity deprived the court of jurisdiction over plaintiff's claim because it was a claim against the state for money damages. Bank One moved to dismiss count II of the complaint under section 2-615 of the Code (735 ILCS 5/2-615 (West 2002)), arguing it was immune from liability under section 24.50 of the Public Aid Code (305 ILCS 5/10-24.50 (West 2002)). The trial court granted defendants' motions and denied plaintiff's motion for leave to file an amended complaint. Plaintiff appeals.

We review the trial court order dismissing plaintiff's complaint under sections 2-615 and 2-619 of the Code de novo. See Feltmeier v. Feltmeier, 207 Ill.2d 263, 266, 278 Ill.Dec. 228, 798 N.E.2d 75 (2003).

Count I of plaintiff's complaint alleged section 160.70(g)(2) of the Administrative Code violates article I, section 12 (open courts provision), and article II, section 1 (separation of powers clause), of the Illinois Constitution. Ill. Const.1970, art. I, § 12, art. II, § 1. Section 160.70(g)(2) governs enforcement of child support orders through liens on the personal property of people who are legally responsible for dependant support. See 89 Ill. Adm.Code § 160.70(g)(2) (1996); see also 89 Ill. Adm.Code § 160.5 (1996) (defining "responsible relative"). Because plaintiff did not specify which provisions of section 160.70(g)(2) are unconstitutional, we set forth the full text of the rule below:

"Liens against personal property

A) The Department shall impose liens against personal Property of responsible relatives in IV-D cases in accordance with Article X of the Illinois Public Aid Code when the following circumstances exist:

i) the amount of past-due support is at least $1,000;

ii) the responsible relative has an interest in personal property against which a lien may be claimed; and

iii) if the personal property to be levied is an account as defined in Section 10-24 of the Illinois Public Aid Code [305 ILCS 5/10-24], the account is valued in the amount of at least $300.

B) The Department shall prepare a Notice of Lien or Levy that shall be provided to the responsible relative, any joint owner of whom the Department has knowledge and location information, and either the financial institution in which the account of the responsible relative is located or the sheriff of the county in which the personal property of the responsible relative is located. The notice shall inform the responsible relative, joint owner if applicable, and the financial institution or the sheriff of the following:

i) the name and address of the responsible relative;

ii) a description of the account or personal property to be levied;

iii) the amount of past-due support to be satisfied by the levy;

iv) the fact that a lien is being claimed for past-due child support owed by the responsible relative;

v) the right of the responsible relative to prevent levy upon the personal property, including accounts, by payment of the past-due support amount in full or by contesting the determination that past-due support is owed or the amount of past-due support by requesting a hearing within 15 days after the date of mailing of the Notice of Lien or Levy; and

vi) the right of a joint owner to prevent levy upon his or her share of the account or other personal property or to seek a refund of his or her share of the account or other personal property already levied, by requesting, within 15 days after the date of mailing of the Notice of Lien or Levy to the joint owner, a hearing by the Department to determine his or her share of the account or other personal property. A joint owner who is not provided with a Notice of Lien or Levy by the Department may request a hearing by the Department within 45 days after the date of levy of the account or other personal property.

C) In addition to the information to be included in the Notice of Lien or Levy under subsection (g)(2)(B), the Notice of Lien or Levy provided to a financial institution shall:

i) state that the lien is subordinate to any prior lien or prior right of set-off that the financial institution may have against the assets, or in the case of an insurance company or benefit association only in the accounts as defined in Section 10-24 of the Illinois Public Aid Code [305 ILCS 5/10-24];

ii) state that upon being served with the Notice of Lien or Levy that the financial institution shall encumber the assets in the account, and surrender and remit such assets within five days after being served with a Notice to Surrender Assets by the Department iii) state that the financial institution may charge the responsible relative's account a fee of up to $50, and that the amount of any such fee be deducted from the account before remitting any assets from the account to the Department; and

iv) include a form, Response to Notice of Lien or Levy, to be completed by the financial institution and returned to the Department within 30 days after receipt of the Notice of Lien.

D) The form for the response to Notice of Lien or Levy provided for under subsection (g)(2)(C)(iv) of this Section shall include provisions for the financial institution to complete stating:

i) the amount of assets in the responsible relative's account;

ii) the amount of the fee to be deducted from the account;

iii) the amount of assets in the account subject to a prior lien or prior right of set-off of the financial institution;

iv) the name and address of any joint owners of the account; and

v) the amount of assets surrendered and remitted to the Department.

E) A written request for a hearing made within 15 days after the date of mailing the Notice of Lien or Levy shall stay the Department from levying upon the personal property, although the lien shall remain in effect during the pendency of any appeal taken pursuant to this subsection (g).

F) The Department shall proceed in accordance with 89 Ill. Adm.Code 104.103 upon receipt of the responsible relative's written request for hearing, except that 89 Ill. Adm.Code 104.103(b) and (c) shall not apply.

G) The Department shall proceed in accordance with 89 Ill. Adm.Code 104.110 upon receipt of a joint owner's written request for a hearing.

H) The Department, upon determining a joint owner's share of the personal property or account, shall release the lien against the personal property or account to

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