Opinion

Smith-Silk v. Prenzler

2013 IL App (5th) 120546

Court: Appellate Court of Illinois
Filed: Oct 24, 2013
Status: Published
Cited by: 0 cases
Authority: More cited than 42.5%

The opinion

ILLINOIS OFFICIAL REPORTS

Appellate Court

Smith-Silk v. Prenzler, 2013 IL App (5th) 120456

Appellate Court ANDREA G. SMITH-SILK and THOMAS J. KOZIACKI, Individually

Caption and on Behalf of All Others Similarly Situated, Plaintiffs-Appellants, v.

KURT PRENZLER in His Official Capacity as Treasurer of Madison

County, MARK VON NIDA, in His Official Capacity as Circuit Clerk of

Madison County, CHARLES SUAREZ, in His Official Capacity as

Treasurer of St. Clair County, and KAHALAH DIXON, in Her Official

Capacity as Circuit Clerk of St. Clair County, Defendants-Appellees.

District & No. Fifth District

Docket No. 5-12-0456

Filed October 24, 2013

Held The constitutionality of the $5 “neutral site fee” imposed on all litigants

(Note: This syllabus by defendant counties was upheld and the trial court’s dismissal of

constitutes no part of plaintiff’s action challenging the fee was affirmed, since the fee provided

the opinion of the court neutral sites for parents involved in domestic relations cases to physically

but has been prepared exchange their children, thereby reducing litigation and promoting

by the Reporter of judicial economy, and that relationship to the functions of the court

Decisions for the system provided a basis for sustaining the fee.

convenience of the

reader.)

Decision Under Appeal from the Circuit Court of St. Clair County, No. 12-L-152; the

Review Hon. Lloyd A. Cueto, Judge, presiding.

Judgment Affirmed.

Counsel on Thomas G. Maag and Peter J. Maag, both of Maag Law Firm, LLC, of

Appeal Wood River, for appellants.

Philip J. Lading, Anthony L. Martin, and Lawrence Hall, all of Sandberg,

Phoenix & von Gontard, P.C., of Edwardsville, for appellees Kurt

Prenzler and Mark Von Nida.

Alvin C. Paulson, of Becker, Paulson, Hoerner & Thompson, P.C., of

Belleville, for other appellees.

Panel JUSTICE GOLDENHERSH delivered the judgment of the court, with

opinion.

Presiding Justice Spomer and Justice Welch concurred in the judgment

and opinion.

OPINION

¶1 Plaintiffs, Andrea G. Smith-Silk and Thomas J. Koziacki, individually and on behalf of

all others similarly situated, filed a complaint in the circuit court of St. Clair County against

defendants, Kurt Prenzler, in his official capacity as treasurer of Madison County, and Mark

Von Nida, in his official capacity as circuit clerk of Madison County (Madison County

defendants), along with Charles Suarez, in his official capacity as treasurer of St. Clair

County, and Kahalah Dixon, in her official capacity as circuit clerk of St. Clair County (St.

Clair County defendants), in which they challenged a $5 “neutral site fee” (fee) charged to

all litigants in Madison County and St. Clair County, sought a refund of the fee paid by

named plaintiffs, as well as an injunction against the collection of additional fees, and

requested class certification. After a hearing, the circuit court found the fee constitutional and

dismissed plaintiffs’ complaint against defendants. Plaintiffs now appeal. The Madison

County defendants have filed a cross-appeal, but only in the alternative should we find the

fee unconstitutional. For the following reasons, we affirm.

¶2 BACKGROUND

¶3 On June 13, 2000, our General Assembly passed Public Act 91-811, codified as the

Neutral Site Custody Exchange Funding Act (Act) (55 ILCS 82/1 to 99 (West 2008)), which

authorizes county boards to establish by ordinance an additional filing fee of between $1 and

$8 in all civil cases to defray the cost of operating neutral site custody exchange centers. 55

ILCS 82/15 (West 2008). Section 5 sets forth the reasons for passage of the Act as follows:

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“§ 5. Legislative findings. The General Assembly finds that the domestic relations

area of law, and particularly child custody matters, frequently involves seemingly minor

disputes between individuals that escalate into major social and legal problems without

the intervention of neutral parties; these problems often result in emotional damage to

the children involved and create an extra burden for the courts; there are compelling

reasons for providing neutral sites for parents to exchange the physical custody of a child

for purposes of visitation; and not-for-profit charitable organizations can make a

substantial contribution to the expeditious implementation of child custody and visitation

orders in this State.” 55 ILCS 82/5 (West 2008).

Pursuant to the Act, in 2005, Madison County passed an ordinance imposing a $4 fee on all

civil filings in order to support a neutral site exchange in Madison County. In 2008, the

ordinance was amended to increase the fee to $5. St. Clair County also passed an ordinance

imposing a $5 fee on all civil filings in order to support a neutral site exchange in St. Clair

County.

¶4 On March 23, 2012, plaintiffs filed their complaint in the circuit court of St. Clair

County, seeking a finding that the Act is unconstitutional, an injunction against collecting

additional fees, and a refund of all fees collected, which would require class certification. In

response, the St. Clair County defendants filed a motion to dismiss in which they argued they

were immune from prosecution pursuant to section 2-203 of the Local Governmental and

Governmental Employees Tort Immunity Act (Tort Immunity Act) (745 ILCS 10/2-203

(West 2008)). The Madison County defendants filed a motion to dismiss or transfer venue

to Madison County for the claims against Madison County, a motion to sever the claims of

the Madison County defendants and St. Clair County defendants, a motion to strike class

action allegations, and a motion to dismiss on the grounds that (1) the fee is constitutional,

(2) the Madison County defendants are immune from suit, and (3) plaintiffs failed to comply

with Illinois pleading requirements.

¶5 On June 12, 2012, all motions were argued with all parties present and represented by

counsel. The circuit court took the matter under advisement. On July 6, 2012, the trial court

entered an order denying the St. Clair County defendants’ motion to dismiss on the basis that

the Tort Immunity Act did not apply because plaintiffs did not allege a tort. The trial court

also denied the Madison County defendants’ motion to sever and motion to transfer venue.

The trial court found the fee constitutional, noting that a rational basis exists for collection

of the fee in that the fee assists the court in enforcing court orders, reduces litigation, and

promotes judicial economy.

¶6 On August 2, 2012, plaintiffs filed a motion to reconsider and for clarification. Plaintiffs

argued that there was no order dismissing the case and, thus, they were unsure as to the status

of the case. Plaintiffs further argued that “by taking up the issue of constitutionality, without

motion or briefing, [p]laintiff has been deprived of notice and the opportunity to be heard on

the ultimate issue in this case, the constitutionality or unconstitutionality of the neutral site

fee.” Plaintiffs also argued that a finding of constitutionality was contrary to our supreme

court’s holding in Crocker v. Finley, 99 Ill. 2d 444, 459 N.E.2d 1346 (1984). On August 20,

2012, the Madison County defendants filed a response to plaintiffs’ motion to reconsider and

for clarification in which they argued that the constitutionality of the fee was raised by the

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Madison County defendants in their motion to dismiss and it was proper for the trial court

to make a ruling on the constitutionality of the fee.

¶7 On October 4, 2012, a hearing was conducted on plaintiffs’ motion to reconsider and for

clarification, after which the trial court entered an order denying all motions to dismiss. The

trial court also found the fee constitutional, dismissed the case, and entered judgment for

defendants and against plaintiffs. Plaintiffs now appeal. The Madison County defendants

have filed a cross-appeal in the alternative.

¶8 ANALYSIS

¶9 Plaintiffs contend that the fee charged to them and all litigants who pay filing or

appearance fees in Madison County and St. Clair County pursuant to the Act and to the

corresponding ordinances is not a fee, but is in reality a tax. Plaintiffs do not appeal the

denial of defendants’ motions to dismiss, but appeal what they call the sua sponte dismissal

of the action and the finding of constitutionality of the fee. Plaintiffs recognize the positive

intentions behind the filing fee, but argue the legislature may not impose such fees on

litigants where the funds collected ultimately go into the county treasury to fund what they

allege is essentially a general welfare program.

¶ 10 We first address plaintiffs’ argument that the trial court improperly dismissed the action

sua sponte. Here, the record shows that the Madison County defendants filed a motion to

dismiss on the basis that the fee was constitutional. Plaintiffs responded to the motion, and

a hearing was held on all pending motions. All parties were present and participated in

arguments. Therefore, the trial court did not sua sponte rule on the constitutionality of the

fee, but was ruling on an issue specifically raised by the Madison County defendants.

Furthermore, even assuming arguendo that the trial court made a sua sponte ruling on the

constitutionality of the fee, it was not improper for the trial court to do so.

¶ 11 Under the rational basis test, a court may on its own initiative articulate facts necessary

to justify a legislative classification. Mount Prospect State Bank v. Village of Kirkland, 126

Ill. App. 3d 799, 802, 467 N.E.2d 1142, 1145 (1984). The question of whether a rational

basis for the classification exists is a question of law. Mount Prospect State Bank, 126 Ill.

App. 3d at 802, 467 N.E.2d at 1145. It is appropriate when ruling on a motion to dismiss for

a court on its own initiative to consider the issue of whether a rational basis exists for the

classification. Mount Prospect State Bank, 126 Ill. App. 3d at 802, 467 N.E.2d at 1145. We

believe the trial court correctly addressed the constitutionality of the fee, and we find no error

in the procedural undertakings of the trial court in reaching and ruling on the question.

¶ 12 Addressing the substance of the trial court’s dismissal, we again note that the question

of whether a rational basis for a legislative classification exists is a question of law. Because

constitutionality is a pure question of law, the standard of review is de novo. Davis v. Brown,

221 Ill. 2d 435, 443, 851 N.E.2d 1198, 1204 (2006); Lucas v. Lakin, 175 Ill. 2d 166, 171, 676

N.E.2d 637, 640 (1997).

¶ 13 Section 15 of the Act provides as follows:

“§ 15. Fund; fee; administration.

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(a) In any county, a neutral site custody exchange fund may be established by the

passage of an ordinance by the county board.

(b) In each county in which a county board has enacted an ordinance authorizing a

neutral site custody exchange fund to be established, the county board shall set a fee to

be collected by the clerk of the circuit court on all civil case filings of not less than $1 nor

more than $8 to be paid by the plaintiff at the time of the filing of the case and by the

defendant at the time of filing an appearance. The county board shall review the amount

of the fee on an annual basis and shall increase the amount of the fee, not to exceed the

$8 maximum, if the demand for neutral site custody exchanges requires additional

funding.

neutral site custody exchange fund to be established, the clerk of the circuit court shall

charge and collect a neutral site custody exchange fund fee as established by the county

ordinance. The fee shall be paid by the parties to the action at the time of filing the first

pleading in all civil cases. The fees shall not be charged in any proceeding commenced

by or on behalf of a unit of local government.

The fees shall be in addition to all other fees and charges of the clerk, shall be

assessable as costs, shall be remitted by the clerk monthly to the county treasurer, and

shall be deposited monthly by the county treasurer in the neutral site custody exchange

fund established under this Section. Each such clerk shall commence the charging and

collection of the fee upon receipt of written notice from the county board that a neutral

site custody exchange fund has been established.” 55 ILCS 82/15 (West 2008).

The instant case presents a matter of statutory interpretation in that the statute states that the

$5 charge is a “fee,” whereas plaintiffs contend it is, in fact, a tax.

¶ 14 The fundamental rule of statutory construction is to ascertain and give effect to the

legislature’s intent. Michigan Avenue National Bank v. County of Cook, 191 Ill. 2d 493, 503-

04, 732 N.E.2d 528, 535 (2000). Courts, therefore, should consider a statute in its entirety,

keeping in mind the subject it addresses and the legislature’s objective in enacting it. People

v. Davis, 199 Ill. 2d 130, 135, 766 N.E.2d 641, 644 (2002). The best indication of legislative

intent is the statutory language, giving that language its plain and ordinary meaning. Illinois

Graphics Co. v. Nickum, 159 Ill. 2d 469, 479, 639 N.E.2d 1282, 1287 (1994). Statutes carry

a strong presumption of constitutionality. People ex rel. Ryan v. World Church of the

Creator, 198 Ill. 2d 115, 120, 760 N.E.2d 953, 956 (2001). The Act specifically calls the

charge a fee, but plaintiffs nevertheless argue that the charge is actually a tax, not a fee. In

support thereof, plaintiffs rely on Crocker v. Finley, 99 Ill. 2d 444, 459 N.E.2d 1346 (1984).

¶ 15 In Crocker, the plaintiffs challenged the constitutionality of a $5 fee charged to all

petitioners in dissolution of marriage proceedings. The $5 fee was assessed in addition to the

usual filing fees and, pursuant to statute, was collected to fund shelters and other services for

victims of domestic violence. Our supreme court struck down the statute, finding the $5

charge violated the Illinois Constitution’s due process and equal protection clauses because

there was no rational relationship between the imposition of the fee and the litigants. The

supreme court noted that the services were available to all adults and their dependents who

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are the subjects of domestic violence, and there was no requirement that the recipients of the

services be married or divorced. Yet the legislature chose to tax dissolution petitioners as a

means of funding the programs, thereby causing members of that class to bear the cost of

maintaining this public welfare program, while excluding other classes of taxpayers who

would also benefit from the programs. Crocker, 99 Ill. 2d at 456-57, 459 N.E.2d at 1351-52.

¶ 16 However, our supreme court also made it clear in Crocker that court filing fees and

litigation taxes may be properly imposed if done so for purposes “relating to the operation

and maintenance of the courts.” Crocker, 99 Ill. 2d at 454, 459 N.E.2d at 1351. Explaining

the provision securing the right to collect court filing fees, the supreme court stated:

“ ‘ “ ‘The constitution does not guarantee to the citizen the right to litigate without

expense, but simply protects him from the imposition of such terms as unreasonably and

injuriously interfere with his right to a remedy in the law or impede the due

administration of justice ***.’ ” ’ (Ali v. Danaher (1970), 47 Ill. 2d 231, 236[, 265

N.E.2d 103, 106] (quoting Williams v. Gottschalk (1907), 231 Ill. 175, 179, [83 N.E. 141,

142-43,] and Adams v. Corriston (1862), 7 Minn. 456, 461); [citation].)” Crocker, 99 Ill.

2d at 455, 459 N.E.2d at 1351.

The $5 fee in Crocker was too remote from any court-related purpose to withstand

constitutional analysis. The fee in the instant case, however, is distinguishable from the $5

fee in Crocker because, here, the fee does not fund a general welfare program as plaintiffs

contend but is specifically related to improved operation of the courts.

¶ 17 Section 5 of the Act specifically states: