Walker

IN THE

UNITED STATES DISTRICT COURT

CENTRAL DISTRICT OF ILLINOIS

PEORIA DIVISION

REUBEN D. WALKER, individually

and on behalf of a class of all others

similarly situated,

Plaintiffs, Case No. 1:25-cv-01378-JEH-RLH

v.

BRANDEN MARTIN, Treasurer of

Peoria County, Illinois, in his official

capacity and as representative of a

class of all County Treasurers of the

State of Illinois in their official

capacities; MICHAEL W. FRERICHS,

Treasurer of the State of Illinois in his

official capacity; and TIM BROPHY,

Treasurer of Will County, Illinois,

and MARIA PAPPAS, Treasurer of

Cook County, Illinois, in their official

capacities,

Defendants.

Order

Now before the Court are Defendant Branden Martin, Treasurer of Peoria

County’s Motion to Dismiss (D. 38), Defendant Cook County Treasurer’s Motion

to Dismiss Plaintiff’s Complaint Pursuant to Fed. R. Civ. P. 12(b)(1) and (6) (D. 40),

Defendant Illinois Treasurer Michael Frerichs’s Motion to Dismiss (D. 41),

Defendant Will County Treasurer Tim Brophy’s Motion to Dismiss Pursuant to

Fed. R. Civ. P. 12(b)(1), (6), & (7) (D. 43), Defendant Macoupin County Treasurer

Amber McGartland’s Motion to Dismiss Pursuant to Fed. R. Civ. P. 12(b)(1), (6), &

(7) (D. 46), Plaintiff Reuben Walker’s Consolidated Response to Motions to

Dismiss Filed by County Defendants Martin, Brophy and Pappas (D. 47), the

Plaintiff’s Response to the Motion to Dismiss of Defendant Illinois State Treasurer

Frerichs (D. 48), and the parties’ Replies (D. 51 & 54) and Sur Replies (D. 57 & 58).1

This matter is fully briefed, and for the reasons set forth infra, all of the Defendants’

Motions to Dismiss are GRANTED.

I

On September 11, 2025, Plaintiff Reuben D. Walker (Walker) filed a putative

Class Action Complaint (D. 1) against Defendants Branden Martin (Martin),

Treasurer of Peoria County, Illinois, in his official capacity and as representative

of all County Treasurers in the State of Illinois in their official capacities; Michael

W. Frerichs (Frerichs), Treasurer of the State of Illinois; Tim Brophy (Brophy),

Treasurer of Will County, Illinois; and Maria Pappas (Pappas), Treasurer of Cook

County, Illinois. The Plaintiff brings his claims pursuant to 42 U.S.C. § 1983 and

the Fifth and Fourteenth Amendments to the U.S. Constitution. The Plaintiff

requests this Court declare the State of Illinois’ possession of the putative class’s

property constitutes an on-going federally unconstitutional taking without just

compensation in violation of the Takings Clause of the Fifth and Fourteenth

Amendments. He asks for “prospective relief” in the form of an order directing

Defendant Frerichs to stop the on-going retention of their property and to return

their property along with all interest earned upon said property pursuant to the

Declaratory Judgment and Injunction Acts, 28 U.S.C. § 2201 and 28 U.S.C. § 13422,

respectively. He asks for a declaration that the Illinois State Lawsuit Immunity

1 Citations to the electronic docket are abbreviated as “D. ___ at ECF p. ___.”

2 The Plaintiff’s reliance on the “Injunction Act” and “28 USC 1342 et al” appears mistaken here. The Tax

Injunction Act, 28 U.S.C. § 1341, among other things, “divests the district courts of subject matter

jurisdiction in ‘cases in which state taxpayers seek federal-court orders enabling them to avoid paying state

taxes.’” Scott Air Force Base Props., LLC v. Cnty. of St. Clair, Ill., 548 F.3d 516, 520 (7th Cir. 2008) (quoting

Hibbs v. Winn, 542 U.S. 88, 107 (2004)). 28 U.S.C. § 1342 provides, “The district courts shall not enjoin,

suspend or restrain the assessment, levy or collection of any tax under State law where a plain, speedy and

efficient remedy may be had in the courts of such State.”

Act (Immunity Act) violates the Fifth and Fourteenth Amendments such that the

Defendants or any other State of Illinois officials are prohibited from using, or

claiming to be permitted to use, the Immunity Act to retain private property

without just compensation to its owners. The Plaintiff also asks that County

Treasurer Defendants Martin, Pappas, Brophy, and McGartland (County

Treasurer Defendants) be ordered to return all of the fees they have retained and

for damages pursuant to Section 1983.

Specifically, the Plaintiff alleges3 his claims began in 2012 when he, as lead

class representative, challenged in Illinois state court the constitutionality of

Illinois legislation which imposed a $50 “add-on” court filing fee on all mortgage

foreclosure filings (fee statute) within the State of Illinois. That state court action

was filed against a class consisting of all 102 circuit court clerks in the State of

Illinois as the state officers charged with collecting the fees. In 2020, an Illinois

circuit court in Will County found the legislation to be facially unconstitutional,

and, in 2021, the Illinois Supreme Court affirmed that finding and ruled the

legislation to be facially unconstitutional in derogation of the Free Access Clause

of the Illinois Constitution. In January 2025, the Illinois Supreme Court concluded

that once the Illinois “courts declared the fee statute unconstitutional and enjoined

its enforcement, plaintiffs’ claims for a monetary award to redress a past wrong

was the type of claim that is the province of the Court of Claims, not the circuit

court.” Walker v. Chasteen, 268 N.E.3d 133, 137 (Ill. 2025).4

The Plaintiff alleges the State of Illinois refused to return the $102 million

charged pursuant to the unconstitutional fee statute and continues to retain the

money. He alleges the State persuaded the Illinois Supreme Court that the Illinois

3 At the motion to dismiss stage, a court “accept[s] the well-pleaded facts in the complaint as true and

draw[s] reasonable inferences in the plaintiff’s favor.” Bronson v. Ann & Robert H. Lurie Child.’s Hosp. of

Chi., 69 F.4th 437, 448 (7th Cir. 2023).

4 The Plaintiff phrases the Illinois Supreme Court’s holding in this case differently.

courts were powerless to complete the required constitutional remedy of return of

the unlawful fees, and the Illinois Supreme Court held that the Immunity Act left

the Plaintiffs with no means to recover the fees unlawfully taken in the courts and

their only recourse to obtain the refund was to petition the Illinois Court of Claims.

He says the Illinois Court of Claims is not part of the Illinois judicial branch, and,

thus, it has unfettered authority to refuse to refund the fees and thereby permit the

State of Illinois to retain the full benefit of its unconstitutional collection.

The Plaintiff further alleges 2% of the collected filing fees were retained by

the circuit court clerks of each of the 102 counties within the State of Illinois as

compensation for the expenses related to the collection of those fees and to

reimburse the individual counties that were charged under Illinois law with

providing the compensation required to maintain the office of the circuit court

clerks within each county. Pl.’s Compl. (D. 1 at ECF p. 4) (citing 735 ILL. COMP.

STAT. 5/15-1504.1, 20 ILL. COMP. STAT. 3805/7.30, and 20 ILL. COMP. STAT.

3805/7.31). He states those funds were not to be transferred to the possession of

the State of Illinois and are to be retained in the possession of and in the control of

the country treasurer of each county. To date, none of these funds have been

returned to the putative class.

In its January 2025 opinion, the Illinois Supreme Court explained that the

refunds (a return of the unconstitutional “add-on” filing fees) Walker and the class

there sought were “the type of relief the Court of Claims may award[]”. Walker,

268 N.E.3d at 144. The class asserted that “if their refund claim turn[ed] out to be

time-barred in the Court of Claims, the State’s retention of the unconstitutionally

taken funds would violate the takings clause of the United States Constitution and

the Illinois Constitution.” Id. The Illinois Supreme Court responded that

“adopting plaintiffs’ position that a procedural bar to recovery in the Court of

Claims is tantamount to a takings clause violation would negate the procedural

requirements that the General Assembly enacted to prescribe the court’s

authority.” Id. The Walker court continued, it “need not decide and [does] not

consider whether plaintiffs are procedurally barred from pursuing their refund

claim in the Court of Claims.” Id.

II

Defendant Frerichs seeks dismissal of Count I of the Plaintiff’s Complaint,

arguing, pursuant to Federal Rule of Civil Procedure 12(b)(1), the Eleventh

Amendment bars the Plaintiff’s Fifth Amendment Takings Clause claim, and,

pursuant to Rule 12(b)(6), the Plaintiff fails to allege a viable Takings Clause claim.

Federal Rule of Civil Procedure 12(b)(1) provides a complaint may be dismissed

for lack of subject-matter jurisdiction, while Federal Rule of Civil Procedure

12(b)(6) provides a complaint may be dismissed for failure to state a claim upon

which relief can be granted. FED. R. CIV. P. 12(b)(1), (6). The Court must first

consider Rule 12(b)(1) challenges. See Jakupovic v. Curran, 850 F.3d 898, 902 (7th

Cir. 2017) (providing that a court is required to consider subject matter jurisdiction

“as the first question in every case[]”).

A

1

Here, Defendant Frerichs argues that, plain and simple, the Plaintiff wants

the Court to compel the State of Illinois to pay him and members of a putative class

money – specifically, the “return” of fees “previously” paid to the State and with

interest – but the Eleventh Amendment forecloses such a claim. Frerichs Mem. (D.

42 at ECF p. 5). To the extent Defendant Frerichs makes this argument pursuant

to Rule 12(b)(1), the “Seventh Circuit does not consider sovereign immunity to be

a jurisdictional bar[]”; the Court therefore considers this argument under Federal

Rule of Civil Procedure 12(b)(6). Cesca v. W. Ill. Univ. Bd. of Trs., 716 F. Supp. 3d

696, 709 (C.D. Ill. 2024) (citing Meyers v. Oneida Tribe of Indians of Wis., 836 F.3d 818,

822 & n.3 (7th Cir. 2016)); see also McHugh v. Ill. Dep’t of Transp., 55 F.4th 529, 533

(7th Cir. 2022) (explaining the Eleventh Amendment “is ‘jurisdictional’ in the sense

that a defendant invoking its sovereign immunity deprives a federal court of

jurisdiction over the claims against that defendant.”). In reviewing a motion to

dismiss under Rule 12(b)(6), a court must accept all well-pleaded allegations as

true and draw all favorable inferences for the plaintiff. Killingsworth v. HSBC Bank

Nev., N.A., 507 F.3d 614, 618 (7th Cir. 2007).5

The Eleventh Amendment provides that “‘[t]he Judicial power of the United

States shall not be construed to extend’ to suits by individuals against states.”

McHugh, 55 F.4th at 532 (citing U.S. CONST. amend. XI). “[A]n unconsenting state

is immune from suits brought in federal courts by her own citizens as well as by

citizens of another state[]”, thus, “a suit by private parties seeking to impose a

liability which must be paid from public funds in the state treasury is barred by

the Eleventh Amendment.” Edelman v. Jordan, 415 U.S. 651, 662-63 (1974).

Plaintiff Walker counters that the Complaint alleges an ongoing violation of

federal law – the State of Illinois’ possession of more than $100 million – and

requests prospective relief – entry of declaratory and injunctive relief compelling

the return of funds illegally retained and an award of interest on the funds – and

so an exception to Eleventh Amendment immunity applies here. The Ex parte

Young doctrine permits a plaintiff to “proceed in federal court against a state

official for the limited purpose of obtaining prospective relief against an ongoing

violation of federal law.” Driftless Area Land Conservancy v. Valcq, 16 F.4th 508, 518,

520 (7th Cir. 2021) (citing Ex parte Young, 209 U.S. 123 (1908)). A court’s “task is to

‘conduct a straightforward inquiry into whether [the plaintiffs’] complaint alleges

an ongoing violation of federal law and seeks relief properly characterized as

5 The outcome here is the same whether Defendant Frerichs’ sovereign immunity challenge is considered

under Rule 12(b)(1) or Rule 12(b)(6).

prospective.’” Id. at 521 (quoting Verizon Md., Inc. v. Pub. Serv. Comm’n of Md., 535

U.S. 635, 645 (2002)).

Plaintiff Walker argues the Supreme Court in Edelman stated that “payment

from a state treasury was permissible under the appropriate circumstances

holding ‘[s]uch an ancillary effect on a state treasury is a permissible and often an

inevitable consequence of the principle announced in Ex parte Young.’” Pl.’s Resp.

to Frerichs (D. 48 at ECF p. 5) (quoting Edelman, 415 U.S. at 668)). Walker says this

case presents the unique circumstances contemplated in Edelman such that the

“restitution” sought in the Complaint falls within the Ex parte Young exception.

See id. (D. 48 at ECF p. 5). However, the Supreme Court in Edelman was

unconvinced by the term “equitable restitution” as a workaround to an Eleventh

Amendment bar. 415 U.S. at 668-69. The Edelman court stated:

While the Court of Appeals described this retroactive award of

monetary relief as a form of ‘equitable restitution,’ it is in practical

effect indistinguishable in many aspects from an award of damages

against the State. It will to a virtual certainty be paid from state funds,

and not from the pockets of the individual state officials who were the

defendants in the action. It is measured in terms of a monetary loss

resulting from a past breach of a legal duty on the part of the

defendant state officials.

Id. at 668. It did not read Ex parte Young “or subsequent holdings of this Court to

indicate that any form of relief may be awarded against a state officer, no matter

how closely it may in practice resemble a money judgment payable out of the state

treasury, so long as the relief may be labeled ‘equitable’ in nature.” Id. at 666.

Try as he may to convince this Court otherwise, the relief the Plaintiff seeks

in this case is purely retrospective monetary relief to be paid out of the state

treasury. He seeks a refund for himself, as well as those in the putative class, of

filing fees paid and later determined by the Illinois Supreme Court to be collected

pursuant to an unconstitutional state fee statute. While the Plaintiff argues he

sufficiently alleges in the Complaint an ongoing federally unconstitutional taking

without just compensation, he later reveals the true nature of his lawsuit in his

Response to Defendant Frerich’s Motion to Dismiss. Therein, the Plaintiff argues

this case presents a “particularly compelling circumstance where the entry of an

order compelling restitution as contemplated by the decision of the Illinois Supreme Court

is a ‘permissible and inevitable consequence of the principle announced in Ex parte

Young.’” Pl.’s Resp. to Frerichs (D. 48 at ECF p. 5) (quoting Edelman) (emphasis

added). Inescapably, the Plaintiff seeks a remedy for a past injury. Payment of

“restitution” here would not amount to “a necessary consequence of compliance

in the future with a substantive federal-question determination, but as a form of

compensation to those” who were charged the add-on filing fee. Edelman, 415 U.S.

at 668. In other words, issuance of an injunction requiring return of the collected

add-on filing fees would have more than a mere ancillary effect on the State of

Illinois’ treasury.

Ford Motor Company v. Department of Treasury of State of Indiana, 323 U.S. 459

(1945), supports this finding. There, the petitioner’s lawsuit was based upon an

Indiana statute which prescribed the procedure for obtaining refund of taxes

illegally obtained, and where judgment was obtained in the taxpayer’s favor, it

was to be satisfied by payment out of any funds in the state treasury. Id. at 463

(overruled on other grounds by Lapides v. Bd. of Regents of Univ. Sys. of Ga., 535 U.S.

613 (2002)). The Supreme Court said that statute “clearly provides for a action

against the state . . .”. Id. Significantly, the Supreme Court explained that “when

the action is in essence one for the recovery of money from the state, the state is

the real, substantial party in interest and is entitled to invoke its sovereign

immunity from suit . . .”. Id. at 464. Ultimately, courts may not “direct a state to

make payments to . . . remedy a past injury to a private party.” McDonough Assocs.,

Inc. v. Grunloh, 722 F.3d 1043, 1050-51 (7th Cir. 2013).

The Plaintiff’s reliance upon two cases from the Ninth Circuit Court of

Appeals for the proposition that the relevant funds are considered the property of

the plaintiff, is misplaced. See Taylor v. Westly, 402 F.3d 924, 931 (9th Cir. 2005)

(determining, after considering the language of the pertinent California statutes,

that “to the extent that the funds remained in the state’s special account, they were

being held in trust, rather than being in the state treasury.”); Suever v. Connell, 439

F.3d 1142, 1147-48 (9th Cir. 2006) (applying Taylor to the “highly analogous facts

here[]” and finding the class’s claims not barred by the Eleventh Amendment

where they requested the return of the class’s property) (emphasis added). Not only

are these cases nonbinding out-of-circuit precedent6, a case from within this circuit

rejected the plaintiffs’ reliance on those cases, stating, “The caselaw [in the Seventh

Circuit] make [sic] no distinction between money in state coffers that is owned by

the state versus money owned by the property owner, and the line would be a

difficult one to draw.” Siebers v. Barca, No. 20-cv-1109-jdp, 2022 WL 2438605, at *9

(W.D. Wis. July 5, 2022). The Western District of Wisconsin concluded that the

plaintiffs’ request for the return of their own property was “‘indistinguishable

from an award of damages against the state’ and is barred by sovereign

immunity.” Id. (quoting Edelman, 415 U.S. at 651). The Court is persuaded by and

agrees with the authority from within this circuit. See Rubinas v. Maduros, 513 F.

Supp. 3d 994, 1005 (N.D. Ill. 2021) (stating, where the relevant funds then belonged

to the State of California and were not held in trust for the taxpayer, “No federal

court has the judicial power to order California to pay [the plaintiff] out of its

treasury without violating the Eleventh Amendment”). Moreover, as argued by

6 Notably, the Ninth Circuit later referred to Taylor’s Eleventh Amendment “exception[]” as “extremely

narrow”. N. E. Med. Servs., Inc. v. Cal. Dep’t of Health Care Servs., Health and Hum. Servs. Agency, 712 F.3d

461, 467 (9th Cir. 2013) (deciding Suever and Taylor did not control where the plaintiffs did not seek return

of their own property seized pursuant to a unique statutory scheme and no provision of state law provided

that the “seized” disputed funds were held in trust like the seized property in Suever and Taylor).

Defendant Frerichs, the Eleventh Amendment’s applicability does not hinge on

labels such as “damages” versus “restitution”.7

The interest he additionally seeks, that which he says is to be collected on

the funds unlawfully retained by Defendant Frerichs since the fees first began to

be collected in 2010 and continuing through and including the present, is quite

obviously monetary relief “measured in terms of a monetary loss resulting from a

past breach of a legal duty [allegedly] on the part of” Defendant State Treasurer

Frerichs. Edelman, 415 U.S. at 668 (emphasis added). Moreover, his citation to

Kolton v. Frerichs, 869 F.3d 532 (7th Cir. 2017) bolsters this conclusion. The Kolton

court held that while the plaintiffs were entitled to prospective relief under Ex parte

Young, they could not “parlay success under Ex parte Young into a money

judgment [for interest] in federal court . . . And after all, Frerichs did not pocket

any earnings on Kolton’s money. Illinois did.” 869 F.3d at 536 (explaining lawsuit

against Treasurer Frerichs in his official capacity was really one against Illinois).

The Plaintiff’s citation to Goldberg v. Frerichs, 912 F.3d 1009 (7th Cir. 2019), does not

move the needle in his direction. While Goldberg began with the Kolton court’s

conclusion that “people whose property is taken into custody by Illinois under the

state’s Disposition of Unclaimed Property Act . . . are entitled to receive the time

value of their property (that is, interest or other earnings), less reasonable custodial

fees[,]” Goldberg did not say interest is “prospective” relief, nor did Goldberg even

discuss the Eleventh Amendment. Goldberg, 912 F.3d at 1010. Finally, Gerlach v.

Rokita, 95 F.4th 493 (7th Cir. 2024), supports this Court’s finding that the Plaintiff’s

claim against Frerichs is barred by the Eleventh Amendment. In Gerlach, the

7 The Plaintiff refers to the “Lee-Malone doctrine.” Pl.’s Resp. to Frerichs (D. 48 at ECF p. 6). He does

nothing more than cite those two cases. Such an underdeveloped argument is waived; it is not for the

Court to review the cases in the first instance in order to figure out the Plaintiff’s reliance on them. See

Crespo v. Colvin, 824 F.3d 667, 674 (7th Cir. 2016) (“perfunctory and undeveloped arguments . . . are

waived”).

Seventh Circuit explained that any compensation the plaintiff sought correlated

“directly to the interest her property earned while in state custody – interest that

flowed to the state, not individual state employees . . . Because the State of Indiana

benefited from retaining interest earned on Gerlach’s property, we conclude that

Gerlach’s suit for compensatory relief is actually against the State of Indiana.” Id.

at 501. The Gerlach court concluded, “Since Gerlach’s claim for compensatory

relief is against the state, her claim is doubly barred—first because § 1983 does not

create a cause of action against a state and second because Indiana enjoys

sovereign immunity under the Eleventh Amendment.” Id.

It bears mention, as Defendant Frerichs argues, that the Eleventh

Amendment’s application in this case to bar the Plaintiff’s Count I for declaratory

and injunctive relief for violation of the Takings Clause of the Fifth and Fourteenth

Amendments is particularly clear in this case. Recently, the Seventh Circuit stated,

“We ourselves have never held that the unavailability of a state court remedy

opens the doors of the federal courthouse to not just prospective relief under Ex

parte Young but also retrospective relief and payment of money compensation.”

Gerlach, 95 F.4th at 499 n.3. The Court need not delve too deep into the

availability/unavailability of Illinois state courts for Takings Clause compensation

claims. “Illinois circuit courts have authority to hear true takings claims, which if

proven, result in a writ of mandamus ordering the government to institute

eminent domain proceedings . . . The Illinois Court of Claims has exclusive

jurisdiction over suits asserting damages to property.” Sorrentino v. Godinez, 777

F.3d 410, 413 (7th Cir. 2015) (internal citation omitted). Furthermore, the Illinois

Supreme Court has already held that the plaintiffs’ (there and here) claims for a

monetary award to redress a past wrong fall within the province of the Illinois

Court of Claims. The Plaintiff’s Count I is dismissed pursuant to Rule 12(b)(6).

2

In light of the foregoing, it is unnecessary for the Court to address Defendant

Frerichs’s and Plaintiff Walker’s remaining arguments as to whether Walker has

alleged a viable Takings Clause claim against Frerichs. The relief the Plaintiff seeks

for a Takings Clause violation is made unavailable by application of the Eleventh

Amendment. See Gerlach, 95 F.4th at 498 (stating “even if the [Supreme] Court

does find a direct cause of action [under the Fifth Amendment], the second

obstacle – Eleventh Amendment sovereign immunity – disposes of [the plaintiff’s]

claim.”); see also Texas v. Devillier, 601 U.S. 285, 292 (2024) (not resolving the

question of whether a plaintiff has a cause of action arising directly under the

Takings Clause).8

B

1

The County Treasurer Defendants argue that the claim against them must

be dismissed pursuant to Federal Rule of Civil Procedure 12(b)(1) for lack of

jurisdiction. In considering a Rule 12(b)(1) motion to dismiss, the court accepts the

well-pleaded facts as true and draws all reasonable inferences in the non-moving

party’s favor. Choice v. Kohn Law Firm, S.C., 77 F.4th 636, 638 (7th Cir. 2023).

Specifically, the County Treasurer Defendants each argue that standing is missing.

“Article III standing is a ‘bedrock constitutional requirement,” and [a federal

court] cannot reach the merits of a case without it.” Wis. Voter All. v. Millis, 166

F.4th 627, 632 (7th Cir. 2026) (quoting Food and Drug Admin. v. All. for Hippocratic

8 The Court also does not address any would-be Takings Clause claim based upon the State Lawsuit

Immunity Act which Defendant Frerichs stated he addressed “out of an abundance of caution” because the

Plaintiff’s Complaint was not entirely clear. Frerichs Reply (D. 54 at ECF p. 11). The Plaintiff stated in his

Response to Frerichs’s Motion to Dismiss, “Defendant [Frerichs] insists . . . the proceedings before the Court

of Claims ‘do not state a Takings Clause claim.’ [ ] Even assuming Plaintiffs had actually made such an

argument in their Complaint (which they did not) . . .”. Pl.’s Resp. to Frerichs (D. 48 at ECF p. 11) (quoting

Frerichs Mem. (D. 42 at ECF p. 13)).

Med., 602 U.S. 367, 378 (2024)). To establish that he has a “personal stake”,

standing, in a case, a plaintiff must show: 1) that he suffered an injury in fact that

is concrete, particularized, and actual or imminent; 2) that the injury was likely

caused by the defendant; and 3) that the injury would likely be redressed by

judicial relief. TransUnion LLC v. Ramirez, 594 U.S. 413, 423 (2021) (citing Lujan v.

Defs. of Wildlife, 504 U.S. 555, 560-61 (1992)). The County Treasurer Defendants

argue the second element is missing where the injury Plaintiff Walker sustained –

the collection of unconstitutional filing fees – is traceable to the circuit court clerks’

conduct rather than their own.

The Lujan court phrased the second element as follows: “[T]here must be a

causal connection between the injury and the conduct complained of – the injury

has to be fairly traceable to the challenged action of the defendant, and not the

result of the independent action of some third party not before the court.” Lujan,

504 U.S. at 560 (quotation marks omitted). The Plaintiff’s Complaint alleges how

the 2% of collected fees were retained by the circuit court clerks of each of Illinois’

102 counties, the Defendants continue to retain for public use private property

belonging to the Plaintiff and others similarly situated without just compensation,

the County Treasurer Defendants are the custodians of certain private property of

the Plaintiffs vested with the control and disposition of such property, and all the

party Defendants in their capacity as Treasurers of each county collected court

filing fees from the Plaintiff and putative class under state legislation later declared

unconstitutional as it was in derogation of their right of free access to the Illinois

judicial system. Pl.’s Compl. (D. 1).

It first bears mentioning that, whereas the Plaintiff’s earlier Illinois lawsuit

named only the Illinois circuit court clerks as defendants, the Plaintiff obtained

Illinois court certification of a class of defendants that consisted only of all the

circuit court clerks in Illinois in their official capacities, and the Illinois Supreme

Court explained the Plaintiff’s refund request was an award the Illinois Court of

Claims may award, the Plaintiff now names the Illinois county treasurers as

defendants. See Parungao v Cmty. Health Sys., Inc., 858 F.3d 452, 457 (7th Cir. 2017)

(“Courts may take judicial notice of court filings and other matters of public record

when the accuracy of those documents reasonably cannot be questioned.”); see also

188 LLC v. Trinity Indus., Inc., 300 F/3d730, 735 (7th Cir. 2002) (“It is also well-

settled in this circuit that documents attached to a motion to dismiss are

considered part of the pleadings if they are referred to in the plaintiff’s complaint

and are central to his claim. Such documents may be considered by a district court

in ruling on the motion to dismiss.”) (quotation marks omitted).

Section 5/15-1504.1 of Chapter 735 of the Illinois Compiled Statutes, the

Illinois statute pursuant to which filing fees were collected, later declared to be

unconstitutional, and which the Plaintiff cites in his Complaint, states, in relevant

part:

With respect to residential real estate, at the time of the filing of a

foreclosure complaint, the plaintiff shall pay to the clerk of the court in

which the foreclosure complaint is filed a fee of $50 for deposit into the

Foreclosure Prevention Program Fund, a special fund created in the

State treasury. The clerk shall remit the fee collected pursuant to this

subsection (a) to the State Treasurer to be expended for the purposes

set forth in Section 7.30 of the Illinois Housing Development Act. All

fees paid by plaintiffs to the clerk of the court as provided in this

subsection (a) shall be disbursed within 60 days after receipt by the clerk

of the court as follows: (i) 98% to the State Treasurer for deposit into

the Foreclosure Prevention Program Fund, and (ii) 2% to the clerk of

the court to be retained by the clerk for deposit into the Circuit Court

Clerk Operation and Administrative Fund to defray administrative

expenses related to implementation of this subsection (a).

735 ILL. COMP. STAT. 5/15-1504.1(a) (emphasis added). The plain language of that

provision indicates that the clerk of the court was to collect the filing fee, not the

county treasurer. The plain language indicates the clerk of court, not the county

treasurer, was to retain 2% of the $50 filing fee. The other 98% was to be placed

by the clerk of the court to the State Treasurer, not to the county treasurers. The

Circuit Court Clerk Operation and Administrative Fund, in turn, is created by each

circuit court clerk, and the circuit court clerk “shall be the custodian, ex officio, of

this Fund and shall use the Fund to perform the duties required by the office.” 705

ILL. COMP. STAT. 105/27.3d. Nowhere in Section 15-1504.1(a) are the county

treasurers expressly mentioned, and nowhere therein are they even implicated.

Missing here is a causal connection between the Plaintiff’s alleged injury of

the collection of an unconstitutional $50 filing fee and the County Treasurer

Defendants’ conduct. While the Plaintiff alleges the County Treasurer Defendants

are each the “custodians” of the Plaintiff’s private property and

“collected court filings fees from Plaintiffs under state legislation”, Section 15-

1504.1(a) totally contradicts those allegations. The Plaintiff argues the public

record shows that the Circuit Court Operation and Administrative Fund remains

part of the current budget of Illinois counties and continues to be funded out of

general funds, and, further, the fund does not appear to be subject to the exclusive

control of the circuit clerks as opposed to the control of the county treasurers. He

cites (and says it is attached to his Response though it is not) to a section of the

Will County Code stating the Will County Treasurer “shall maintain” special

funds including the Circuit Court Operations and Administration Fund. Pl.’s

Combined Resp. (D. 47 at ECF pp. 5-6). He also directs the Court’s attention to a

portion of the 2024-25 Cook County Budget Summary, also not attached, which he

says places the Circuit Court Operations and Administration Fund within the

general funds of Cook County. Id. at ECF p. 6. Ultimately, he argues how and by

whom the funds are currently being held does not alter the fact that under Illinois

law as stated in Kaden v. Pucinski, 678 N.E.2d 792 (Ill. App. Ct. 1997), the funds are

the property of the counties and subject to the control and disposition of the chief

financial officer of that body, the county treasurer. See Kaden, 678 N.E.2d at 551

(involving action against clerk of the Cook County circuit court to recover for the

State of Illinois’ treasury circuit court fees that were imposed by the state upon

persons using the state court system and that were deposited in county treasuries,

and the court concluding under the particular facts and existing authority, the

circuit court fees were fees leveled for county usage and could not be characterized

as purely trust funds or state funds).

The Plaintiff’s arguments fail. Where standing is challenged as a factual

matter, as it is here, a plaintiff must come forward with “competent proof” that

standing exists. Lee v. City of Chi., 330 F.3d 456, 468 (7th Cir. 2003). The Plaintiff

relies on portions of the Will County Code and the 2024-25 Cook County Budget

Summary he did not actually attach for the Court’s review. Even if the Court were

to accept those documents say what the Plaintiff represents, the fact remains that

the relevant Illinois statute cited within the Complaint contradicts the Plaintiff’s

claim that the county treasurers collected the filing fees and are the fees’

custodians. As the County Treasurer Defendants put it, Plaintiff Walker overreads

Kaden, specifically in the context of this case. Kaden case does not help him as his

cited (now unconstitutional) Illinois statute in turn refers to another Illinois statute

which explicitly states the Circuit Court Clerk Operation and Administrative

Fund’s custodian is the circuit court clerk. In other words, as the County Treasurer

Defendants reply, they are not authorized to collect, retain, or distribute money

from the Circuit Clerk Fund. While the Plaintiff alleges in his Complaint that Will

County Circuit Court ordered in September 2021 that the filing fees collected

under the unconstitutional legislation be held and not transferred to the Illinois

State Treasurer, the Will County Circuit Court directed the “circuit clerks” to

continue holding the filing fees at issue and made no mention of the county

treasurers. See Pappas Mem. Ex. A (D. 40-1 at ECF p. 3) (“To the extent the fees

already collected under the subject statutes are (or have been) held by the circuit

clerks, the circuit clerks are ordered to continue holding said funds, in a segregated

account, until further court order.” (emphasis added)).

The Plaintiff further argues the Defendants must concede the basis for their

Motions to Dismiss do not take the allegations of the Complaint as true, and they

cite to statutory language which they believe supports their “admittedly

affirmative defense.” Pl.’s Combined Resp. (D. 47 at ECF p. 6). Several courts in

this circuit have found that lack of standing is not an affirmative defense under

federal law. More importantly, and again, if a factual attack is launched against

jurisdiction, a plaintiff must come forth with competent proof. See Apex Digit., Inc.

v. Sears, Roebuck & Co., 572 F.3d 440, 444 (7th Cir. 2009) (“The law is clear that when

considering a motion that launches a factual attack against jurisdiction, the district

court may properly look beyond the jurisdictional allegations of the complaint and

view whatever evidence has been submitted on the issue to determine whether in

fact subject matter jurisdiction exists.”) (internal citation omitted). The Plaintiff’s

Count II is dismissed for lack of jurisdiction.

2

Given the foregoing, it is unnecessary for the Court to address the County

Treasurer Defendants’ and Plaintiff Walker’s remaining arguments as to res

judicata and collateral estoppel9, failure to state a Takings Clause claim, and

Pullman abstention. While unnecessary to address, the Court notes that even if it

found standing satisfied here and all of the Defendant County Treasurer

9 In addition to the switch from naming circuit court clerks in the earlier state court proceedings as

defendants to naming county treasurers in the current federal proceedings, the Peoria County Treasurer

was specifically named as a defendant here along with the Cook County and Will County Treasurers (the

same two counties specifically identified in the earlier state court proceedings). Though technically not

improper for the Plaintiff to have done so, it is curious as to why he chose to specifically name the Peoria

County Treasurer out of all the other possible Illinois county treasurers that could have been specifically

named.

Defendants’ challenges failed, their statute of limitations challenge presents

another reason to dismiss the Plaintiff’s Complaint. “[W]hen a plaintiff’s

complaint [ ] sets out all of the elements of an affirmative defense [such as the

statute of limitations], dismissal under Rule 12(b)(6) is appropriate.” Indep. Trust

Corp. v. Stewart Info. Servs. Corp., 665 F.3d 930, 935 (7th Cir. 2012). A two-year

statute of limitations applies in Section 1983 cases premised on injuries occurring

in Illinois. Woods v. Ill. Dep’t of Child. & Fam. Servs., 710 F.3d 762, 766 (7th Cir. 2013).

See

The allegations of Plaintiff Walker’s Complaint include that in 2020, an

Illinois circuit court found the legislation providing for the collection of the $50

filing fee to be facially unconstitutional, and in 2021, the Illinois Supreme Court

affirmed that ruling and held the legislation to be facially unconstitutional in

derogation of the Free Access Clause of the Illinois Constitution. The Plaintiff filed

the instant federal Complaint on September 11, 2025. In Knick v. Township of Scott,

Pennsylvania, the Supreme Court stated, “the act of taking is the event which gives

rise to the claim for compensation.” 588 U.S. 180, 190 (2019). Further, “The Fifth

Amendment right to full compensation arises at the time of the taking . . .”. Id.

Applying Knick to the alleged facts here, the Plaintiff’s Takings Clause claim under

Section 1983 against the County Treasurer Defendants arose, at the latest, in 2021

when the Illinois Supreme Court held the filing fee legislation unconstitutional.

See Reilly v. Will Cnty. Sheriff’s Off., 142 F.4th 924, 930 (7th Cir. 2025) (explaining

that federal law governs the accrual date for Section 1983 claims, and that date is

when the plaintiff “knows or should know that his or her constitutional rights

have been violated.”) (quoting Hileman v. Maze, 367 F.3d 694, 696 (7th Cir. 2004)).

Thus, his Section 1983 claim raised in this Court in September 2025 is late.

Plaintiff Walker’s contention that the five-year Illinois statute of limitations

for injury or loss to property applies is simply wrong; it is firmly established that

Section 1983 claims brought in federal court based upon injuries occurring in

Illinois are subject to Illinois’ two-year statute of limitations for personal injury

claims. His contention that the deprivation of his federal rights occurred when his

Takings Clause claim became ripe on April 8, 2025, the date the State of Illinois

filed its Motion to Dismiss in the Court of Claims, is borderline frivolous and

certainly incorrect. The Supreme Court and Seventh Circuit authority cited above

renders the Plaintiff’s argument entirely unpersuasive.

3

County Treasurer Defendants Martin, Brophy, and McGartland

additionally argue this case must be dismissed pursuant to Federal Rule of Civil

Procedure 12(b)(7) for failure to join a party under Federal Rule of Civil Procedure

19. “In deciding a Rule 12(b)(7) motion to dismiss, [the court] must apply Rule

19(b) if [it] first determine[s] that the party to be joined satisfies the threshold

requirements of Rule 19(a).” Boulevard Bank Nat’l Ass’n v. Philips Med. Sys. Int’l

B.V., 15 F.3d 1419, 1422 (7th Cir. 1994). Rule 19(a) provides that a person who is

subject to service of process and whose joinder will not deprive the court of subject

matter jurisdiction must be joined as a party if the court cannot accord complete

relief among existing parties in that person’s absence, or disposing of the action in

that person’s absence may as a practical matter impair or impede the person’s

ability to protect the interest or leave an existing party subject to substantial risk

of incurring otherwise inconsistent obligations because of the interest. FED. R. CIV.

P. 19(a)(1)(A)-(B)(ii). Rule 19(a)(2) provides in relevant part, “If a person has not

been joined as required, the court must order that the person be made a party.”

FED. R. CIV. P. 19(a)(2).

The circuit court clerks of each of the 102 counties in Illinois are subject to

service of process and their joinder will not deprive this court of federal question

subject matter jurisdiction if joined as parties. They are, pursuant to the

unconstitutional fee statute, responsible for the 2% portion of the fee collected and

retained and maintain control over the Circuit Clerk Fund. Hence, this Court

cannot accord complete relief among the parties in their absence, and their absence

would impede their ability to assert any defenses they may have, including the

statute of limitations, res judicata, collateral estoppel, and sovereign immunity.

The circuit court clerks must be made defendants in this action while the County

Treasurer Defendants will be dismissed from this action pursuant to Federal Rule

of Civil Procedure 21. See FED. R. CIV. P. 21 (“Misjoinder of parties is not a ground

for dismissing an action. On motion or on its own, the court may at any time, on

just terms, add or drop a party. The court may also sever any claim against a

party.”). The Court drops the County Treasurer Defendants for the reasons

already stated – standing is missing, and the statute of limitations has run on the

Plaintiff’s would-be 1983 claim against those Defendants.

4

Lastly, Defendants Martin, Brophy, and McGartland all seek attorney’s fees

pursuant to 42 U.S.C. § 1988. Section 1988 “allows the award of ‘a reasonable

attorney’s fee’ to ‘the prevailing party’ in various kinds of civil rights cases,

including suits brought under § 1983.” Fox v. Vice, 563 U.S. 826, 832-33 (2011)

(quoting Section 1988). Those three County Treasurer Defendants cite Supreme

Court authority, arguing that a “prevailing party” in a civil rights action “should

ordinarily recover an attorney’s fee” unless special circumstances would render

such an award unjust. Martin Mem. (D. 39 at ECF p. 10); Brophy Mem. (D. 44 at

ECF p. 14) (both quoting Lefemine v. Wideman, 568 U.S. 1, 5 (2012)). More

specifically, with regard to a prevailing defendant, the Supreme Court has said Ҥ

1988 authorizes a district court to award attorney’s fees to a defendant ‘upon a

finding that the plaintiff’s action was frivolous, unreasonable, or without

foundation.’” Fox, 563 U.S. at 833 (quoting Christianburg Garment Co. v. Equal Emp.

Opportunity Comm’n, 434 U.S. 412, 421 (1978)). None of those three County

Treasurer Defendants makes a sufficiently developed argument for fees under

Section 1988. Nor does the Court find Plaintiff Walker’s action to tip over the line

to frivolous, unreasonable, or without foundation. The County Treasurer

Defendants are not entitled to attorney’s fees.

III

For the reasons set forth supra, Defendant Branden Martin, Treasurer of

Peoria County’s Motion to Dismiss (D. 38) is GRANTED, Defendant Cook County

Treasurer’s Motion to Dismiss Plaintiff’s Complaint Pursuant to Fed. R. Civ. P.

12(b)(1) and (6) (D. 40) is GRANTED, Defendant Illinois Treasurer Michael

Frerichs’s Motion to Dismiss (D. 41) is GRANTED, Defendant Will County

Treasurer Tim Brophy’s Motion to Dismiss Pursuant to Fed. R. Civ. P. 12(b)(1), (6),

& (7) (D. 43) is GRANTED, and Defendant Macoupin County Treasurer Amber

McGartland’s Motion to Dismiss Pursuant to Fed. R. Civ. P. 12(b)(1), (6), & (7) (D.

46) is GRANTED. Count I of Plaintiff Reuben Walker’s Complaint (D. 1) against

Defendant Frerichs is DISMISSED WITH PREJUDICE. Count II of the Plaintiff’s

Complaint against Defendants Martin, Pappas, Brophy, McGartland and all

County Treasurers of the State of Illinois is DISMISSED WITH PREJUDICE. The

Clerk is directed to terminate Defendants Martin, Frerichs, Brophy, Pappas,

McGartland and all County Treasurers of the State of Illinois in their official

capacities from this case. The Clerks of the Circuit Courts of all counties within

the State of Illinois are ordered to be made party defendants in this case pursuant

to Federal Rule of Civil Procedure 19(a)(2). The Plaintiff is directed to file an

amended complaint by April 6, 2026 naming as defendants only the Clerks of the

Circuit Courts of the counties within the State of Illinois in their official capacities.

The Plaintiff must properly serve the newly added Clerks of the Circuit Courts of

the State of Illinois within 30 days of the date of this Order. Should the Plaintiff

fail to file an amended complaint on or before April 6, 2026, final judgment will

enter and the case will be terminated.

This matter is referred to the Magistrate Judge for further proceedings.

It is so ordered.

Entered on March 23, 2026

s/Jonathan E. Hawley

U.S. DISTRICT JUDGE