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Appellate Court Date: 2018.04.12
16:12:05 -05'00'
Midwest Medical Records Ass’n v. Brown, 2018 IL App (1st) 163230
Appellate Court MIDWEST MEDICAL RECORDS ASSOCIATION, INC.; RENX
Caption GROUP, LLC, f/k/a Big Blue Capital Partners, LLC; and TOMICA
PREMOVIC, Individually, and on Behalf of All Others Similarly
Situated, Plaintiffs-Appellants, v. DOROTHY BROWN, Clerk of the
Circuit Court of Cook County, Illinois; MARIA PAPPAS, Treasurer
of Cook County, Illinois; and COOK COUNTY, ILLINOIS, a Body
Politic and Corporate, Defendants-Appellees.
District & No. First District, Fourth Division
Docket No. 1-16-3230
Filed February 1, 2018
Decision Under Appeal from the Circuit Court of Cook County, Nos. 15-CH-16986,
Review 15-CH-18832, 16-CH-193; the Hon. Sophia H. Hall, Judge, presiding.
Judgment Affirmed in part, reversed in part, and remanded.
Counsel on Myron M. Cherry & Associates, LLC (Myron M. Cherry and Jacie C.
Appeal Zolna, of counsel), Zimmerman Law Offices, P.C. (Thomas A.
Zimmerman Jr., of counsel), Larry D. Drury, Ltd. (Larry D. Drury, of
counsel), and John H. Alexander & Associates, P.C. (John H.
Alexander, of counsel), all of Chicago, for appellants.
Kimberly M. Foxx, State’s Attorney, of Chicago (Chaka M. Patterson,
Paul. A Castiglione, and James S. Beligratis, Assistant State’s
Attorneys, of counsel), for appellees.
Panel JUSTICE BURKE delivered the judgment of the court, with opinion.
Justices McBride and Ellis concurred in the judgment and opinion.
OPINION
¶1 Plaintiffs, Midwest Medical Records Association, Inc.; Renx Group, LLC; and Tomica
Premovic, appeal following the circuit court’s dismissal of their consolidated class action
complaint challenging the practice of defendant, Dorothy Brown, Clerk of the Circuit Court of
Cook County (Clerk), charging a fee for filing a petition or motion to reconsider, vacate, or
modify interlocutory judgments or orders in the circuit court. In granting defendants’ motion to
dismiss the complaint under section 2-615 of the Code of Civil Procedure (Code) (735 ILCS
5/2-615 (West 2014)), the circuit court held that plaintiffs’ claims were barred by the voluntary
payment doctrine and that no private right of action existed under section 27.2a(g) of the
Clerks of Courts Act (or Act) (705 ILCS 105/1 et seq. (West 2014)).
¶2 I. BACKGROUND
¶3 Section 27.2a(g) of the Clerks of Courts Act imposes a fee for filing a petition to vacate or
modify “any final judgment or order of court.” 705 ILCS 105/27.2a(g) (West 2014). Under this
section, plaintiffs were each charged a $60 filing fee for filing motions to reconsider
interlocutory orders in their separate underlying cases pending in the circuit court of Cook
County. Plaintiffs paid these fees but not under protest. Plaintiffs then individually instituted
lawsuits against defendants.1 The lawsuits were subsequently all transferred as related to the
same docket.
¶4 Plaintiffs filed a consolidated amended class action complaint against defendants on May
5, 2016, for equitable and monetary relief. Plaintiffs alleged that they brought suit on behalf of
themselves and all others similarly situated who paid a fee for filing a motion to reconsider an
interlocutory order in the circuit court of Cook County under section 27.2a(g)(1) and (2) of the
Act from November 19, 2010, to the present. Plaintiffs asserted that the filing fee was
unauthorized under section 27.2a(g), but they paid the fees involuntarily and under duress
because they would have been denied their constitutional right to challenge the interlocutory
orders and suffered detrimental consequences and adverse judgments against them if they had
not paid the fees.
1
Midwest Medical Records Ass’n, Inc. v. Brown, No. 15 CH 16986 (Cir. Ct. Cook County) (motion
to reconsider interlocutory order); Renx Group, LLC v. Brown, No. 15 CH 18832 (Cir. Ct. Cook
County) (motion to vacate default judgment); Premovic v. Brown, No. 16 CH 193 (Cir. Ct. Cook
County) (motion to vacate or modify an interlocutory order).
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¶5 In count I, plaintiffs sought a declaratory judgment that the practice of collecting the filing
fee for motions or petitions to reconsider, vacate, or modify interlocutory orders was unlawful
under section 27.2a(g), and requested equitable and monetary relief and reasonable attorney
fees and expenses. Count II alleged that plaintiffs had an implied private cause of action under
the Clerks of Courts Act based on the Clerk’s violation of section 27.2a(g), and requested
equitable and monetary relief, restitution of the unlawful fees they paid, and reasonable
attorney fees and expenses. Count III alleged unjust enrichment based on the unlawful
imposition of filing fees. Count IV prayed for injunctive relief prohibiting charging or
collection of the fees.
¶6 Defendants moved to dismiss the complaint pursuant to sections 2-615 and 2-619 of the
Code. 735 ILCS 5/2-615, 2-619 (West 2014). Defendants argued that (1) the claim was barred
by the involuntary payment doctrine, (2) the filing fees were appropriately charged as section
27.2a(g) applies to nonfinal orders, (3) count II should be dismissed on grounds that the Clerks
of Courts Act does not provide for a private right of action, and (4) the claim was collaterally
stopped. Defendants also argued that although plaintiffs requested attorney fees in all four
counts, there was no legal basis for such relief, as a court cannot order the government to pay
plaintiffs’ attorney fees absent statutory authority or an agreement to create a common fund
where a plaintiff advances a legal theory in tort or contract.
¶7 On September 15, 2016, the circuit court granted the motion to dismiss under section 2-615
but denied the motion as to section 2-619. Concerning count I, the circuit court rejected
plaintiffs’ claim that they paid the filing fees under duress because they would have lost the
opportunity to contest the rulings of the court unless they paid the fees. The circuit court
concluded that plaintiffs failed to adequately plead duress, they did not sufficiently show that
they were denied access to a service that was necessary or essential, and plaintiffs were
represented by counsel when they paid the fees. With respect to count II, the circuit court held
that there was no implied private cause of action under section 27.2a(g) as plaintiffs were not
members of the class intended to be benefited by the statute and plaintiffs failed to show that a
private right of action was necessary to provide an adequate remedy, as plaintiffs could have
simply paid the fees under protest and then pursued their remedies. The circuit court also
dismissed counts III and IV as they depended on counts I and II. The court dismissed the
consolidated amended class action complaint without prejudice.
¶8 Plaintiffs filed a motion to reconsider, which the circuit court denied. Plaintiffs then filed a
second amended consolidated class action complaint. Defendants made an oral motion to
dismiss. The parties agreed to rely on their prior briefs submitted in defendants’ motion to
dismiss the amended consolidated class action complaint and plaintiffs’ motion to reconsider.
¶9 On November 23, 2016, the circuit court granted defendants’ motion “on grounds of
voluntary payment and other reasons set forth in” the court’s September 15, 2016, order, and it
dismissed the complaint with prejudice. Plaintiffs timely appealed the circuit court’s
September 15 and November 23, 2016, orders.
¶ 10 II. ANALYSIS
¶ 11 A. Standard of Review
¶ 12 This court reviews motions to dismiss under section 2-615 of the Code de novo. Kean v.
Wal-Mart Stores, Inc., 235 Ill. 2d 351, 361 (2009). The question presented by a section 2-615
motion is “whether the allegations of the complaint, when taken as true and viewed in a light
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most favorable to the plaintiff, are sufficient to state a cause of action upon which relief can be
granted.” Turner v. Memorial Medical Center, 233 Ill. 2d 494, 499 (2009). We consider only
those facts apparent from the face of the pleadings, matters of which this court may take
judicial notice, and judicial admissions in the record. Pooh-Bah Enterprises, Inc. v. County of
Cook, 232 Ill. 2d 463, 473 (2009). Any exhibits attached to the complaint “are considered part
of the pleading for every purpose.” Dratewska-Zator v. Rutherford, 2013 IL App (1st) 122699,
¶ 14. “Mere conclusions of law or facts unsupported by specific factual allegations in a
complaint are insufficient to withstand a section 2-615 motion to dismiss.” Ranjha v. BJBP
Properties, Inc., 2013 IL App (1st) 122155, ¶ 9.
¶ 13 Additionally, this case involves the construction of statutory language, which presents an
issue of law we review de novo. People v. Perez, 2014 IL 115927, ¶ 9. In construing statutory
language, this court’s “primary objective is to ascertain and give effect to the legislature’s
intent, keeping in mind that the best and most reliable indicator of that intent is the statutory
language itself, given its plain and ordinary meaning.” Id. We consider a statute as a whole and
construe its language in light of other statutory provisions. Id.
¶ 14 On appeal, “this court reviews the judgment, not the reasoning, of the trial court, and we
may affirm on any grounds in the record, regardless of whether the trial court relied on those
grounds or whether the trial court’s reasoning was correct.” Coghlan v. Beck, 2013 IL App
(1st) 120891, ¶ 24.
¶ 15 B. Section 27.2a(g)
¶ 16 Section 27.2a(g) of the Clerks of Courts Act provides, in pertinent part:
“The fees of the clerks of the circuit court in all counties having a population of
3,000,000 or more inhabitants in the instances described in this Section shall be as
provided in this Section. In those instances where a minimum and maximum fee is
stated, the clerk of the circuit court must charge the minimum fee listed and may charge
up to the maximum fee if the county board has by resolution increased the fee. The fees
shall be paid in advance and shall be as follows:
***
(g) Petition to Vacate or Modify.
(1) Petition to vacate or modify any final judgment or order of court, except in
forcible entry and detainer cases and small claims cases or a petition to reopen an
estate, to modify, terminate, or enforce a judgment or order for child or spousal
support, or to modify, suspend, or terminate an order for withholding, if filed before
30 days after the entry of the judgment or order, a minimum of $50 and a maximum
of $60.
(2) Petition to vacate or modify any final judgment or order of court, except a
petition to modify, terminate, or enforce a judgment or order for child or spousal
support or to modify, suspend, or terminate an order for withholding, if filed later
than 30 days after the entry of the judgment or order, a minimum of $75 and a
maximum of $90.” 705 ILCS 105/27.2a(g) (West 2014).
¶ 17 On appeal, plaintiffs dispute defendants’ contention in the circuit court that section
27.2a(g) authorized the Clerk to charge a fee for filing a motion contesting an interlocutory
order. Plaintiffs note that this court recently interpreted this section in accord with plaintiffs’
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argument in Gassman v. Clerk of the Circuit Court, 2017 IL App (1st) 151738. In Gassman,
this court held that the word “final” in section 27.2a(g) modifies both of the terms “judgment”
and “order” in the statute. Id. ¶ 18. Thus, the court held that this court fee statute does not
authorize the Clerk to charge a fee to file a petition to vacate a nonfinal order. Id.
¶ 18 Defendants concede on appeal that Gassman controls here. Defendants do not dispute that
the fees paid by plaintiffs to file their motions to reconsider interlocutory orders in the
underlying lawsuits were unlawful. As such, we find that the fees for the motions to reconsider
interlocutory orders that were charged in the underlying cases here were not authorized under
section 27.2a(g).
¶ 19 C. Collateral Estoppel
¶ 20 We note that plaintiffs also contend on appeal that the circuit court properly rejected
defendants’ collateral estoppel argument below. They assert that the circuit court correctly
held that the present case is distinguishable from the case relied on below by defendants
(Illinois Department of Healthcare & Family Services v. Ikechukwu, 2011 IL App (1st)
102650-U (where the defendant challenged amount of fee imposed when he filed a motion to
vacate all prior orders in paternity case, court upheld the amount of the fee as some orders were
entered in excess of 30 days before motion to vacate was filed and thus the higher fee amount
was authorized)). Plaintiffs also contend that this court’s decision in Gassman would operate
against defendants as it addressed the same issue presented here against the same defendants.
Defendants concede that their collateral estoppel argument is now of no moment on appeal in
light of this court’s recent decision in Gassman, and they do not advance this argument on
appeal. See Gassman, 2017 IL App (1st) 151738, ¶¶ 29, 35 (rejecting the Clerk’s argument
that the plaintiff’s suit was barred by res judicata because the plaintiff’s counsel previously
brought two unsuccessful lawsuits challenging the same fee on behalf of different parties,
where the court found there was no privity between the plaintiffs). We therefore do not address
this issue.
¶ 21 D. Involuntary Payment Doctrine
¶ 22 Defendants contend that the only issues which remain on appeal are (1) whether the
plaintiffs adequately pleaded involuntary payment, i.e., whether the voluntary payment
doctrine bars plaintiffs’ claims, and (2) whether an implied private right of action exists under
section 27.2a(g) of the Clerks of Courts Act. We first address the voluntary payment issue.
¶ 23 Our supreme court long ago recognized that “money voluntarily paid under a claim of right
to the payment and with knowledge of the facts by the person making the payment cannot be
recovered back on the ground that the claim was illegal. It has been deemed necessary not only
to show that the claim asserted was unlawful, but also that the payment was not voluntary; that
there was some necessity which amounted to compulsion, and payment was made under the
influence of such compulsion.” Illinois Glass Co. v. Chicago Telephone Co., 234 Ill. 535, 541
(1908) (affirming dismissal of complaint to recover amounts paid for telephone service in
excess of legal rates because the amounts were voluntarily paid without fraud or mistake of
fact).
¶ 24 Notably, “[t]he kind of duress necessary to establish payment under compulsion has been
expanded over the years.” Smith v. Prime Cable of Chicago, 276 Ill. App. 3d 843, 848 (1995).
“ ‘The doctrine [has] gradually extended *** to recognize duress of property’ ” and
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“ ‘extended so as to admit of compulsion of business and circumstances.’ ” Id. (quoting Illinois
Merchants Trust Co. v. Harvey, 335 Ill. 284, 289 (1929), overruled in part by Kanter &
Eisenberg v. Madison Associates, 116 Ill. 2d 506 (1987)); see Getto v. City of Chicago, 86 Ill.
2d 39, 48-51 (1981) (although the plaintiffs failed to pay under protest an illegal tax on their
telephone bills, the threat of telephone service shut off for nonpayment “amounted to
compulsion that would forbid application of the voluntary-payment doctrine”).
¶ 25 Accordingly, a payment is considered involuntary where “(1) the payor lacked knowledge
of the facts upon which to protest the payment at the time of payment, or (2) the payor paid
under duress.” Dreyfus v. Ameritech Mobile Communications, Inc., 298 Ill. App. 3d 933, 938
(1998) (citing Getto, 86 Ill. 2d at 48-49). Duress is generally an issue of fact, but may be
decided on a motion to dismiss where the facts are not in dispute. Smith, 276 Ill. App. 3d at
850.
¶ 26 Here, as stated, there is no dispute that payment of the fees was unlawful under Gassman.
In addition, plaintiffs do not dispute that they failed to note any protest on the written
instruments with which they paid the fees. 2 Plaintiffs also do not allege that they lacked
knowledge of the facts upon which to protest payment of the fees. Instead, they contend that
their payment of the filing fees was involuntary and under duress as failure to pay would have
denied them access to the courts and the right to a hearing, subjecting them to adverse
judgments and their lawyers to legal malpractice claims. To that end, plaintiffs assert that the
circuit court erred in concluding that nonpayment would not have resulted in loss of access to
necessary goods or services. Plaintiffs urge that the modern trend is against harsh application
of the voluntary payment doctrine and a plaintiff need not show that the product or service is a
“necessity” in order to establish duress.
¶ 27 Defendants contend that plaintiffs’ concept of duress is overbroad and argue that duress
requires a showing of fraud or coercion, and the threat of being denied access to the courts is
insufficient.
¶ 28 In determining whether payment is made under duress, the main consideration is whether
the party had a choice or option, i.e., whether there was “some actual or threatened power
wielded over the payor from which he has no immediate relief and from which no adequate
opportunity is afforded the payor to effectively resist the demand for payment.” Id. at 849.
Duress may be implied. Wexler v. Wirtz Corp., 211 Ill. 2d 18, 24 (2004); Ramirez v. Smart
Corp., 371 Ill. App. 3d 797, 802 (2007).
¶ 29 Plaintiffs cite Keating v. City of Chicago, 2013 IL App (1st) 112559-U, in support of their
assertion that they paid the filing fees under duress. Defendants criticize plaintiffs’ reliance on
an unpublished order of this court. “[O]ur supreme court restricts parties from citing
unpublished orders of Illinois appellate courts” as binding authority, although parties may use
“the reasoning and logic that an Illinois appellate court used in its unpublished decision.”
Osman v. Ford Motor Co., 359 Ill. App. 3d 367, 374 (2005). While plaintiffs acknowledge that
Keating is nonprecedential, they assert that Keating merely followed existing law and relied on
published, binding cases. Indeed, the Keating court relied on several supreme court and
2
We note that defendants argue on appeal that plaintiffs failed to pay under protest. However,
plaintiffs conceded this point and instead argue that while protest is evidence of compulsion,
“compulsion may appear from the circumstances without a protest against payment” (Smith, 276 Ill.
App. 3d at 849), and that they paid under duress.
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appellate court cases, namely, Illinois Glass, Getto, Smith, Norton v. City of Chicago, 293 Ill.
App. 3d 620 (1997), and Raintree Homes, Inc. v. Village of Long Grove, 389 Ill. App. 3d 836
(2009).3 Of these, plaintiffs rely particularly on Norton and Raintree, which we discuss in turn.
¶ 30 In Norton, the plaintiffs challenged a $3 penalty fee they paid on parking fines. Norton, 293
Ill. App. 3d at 623. This court found the voluntary payment doctrine did not bar their claims,
despite failure to pay under protest, because the demand notices sent by the defendant city
were coercive in that they threatened further legal action, entry of a default judgment plus court
costs, and action to recover further amounts or demand the maximum fine allowed by law. Id.
at 627. In addition, the notice directed, without any legal basis, that the plaintiffs were not to
contact the traffic court and misinformed them that “[n]o information will be given or payment
accepted at” the court. Id. The appellate court thus reversed the grant of summary judgment
against the plaintiffs. Id.
¶ 31 Next, in Raintree, the trial court found in favor of the plaintiff developer in its declaratory
judgment action challenging a village ordinance that required payment of impact fees as a
condition of obtaining building permits. Raintree Homes, 389 Ill. App. 3d 836. The appellate
court agreed that the developer paid the fees under duress. Id. at 866. The majority held that
necessity and protest were not the only bases for recoupment; it disagreed with the notion
advanced by the dissenting justice that “recoupment of payments made under duress has been
either limited to items or services that constitute necessities or allowed only when there has
been a protest.” Id. at 863-64.4 The court also rejected the argument that recovery was barred
because the plaintiff paid the impact fees for years before it sued. Id. at 864 (citing Getto, 86 Ill.
3
In Keating, the plaintiffs received red light violation citations from the City of Chicago and paid
their fines. Keating, 2013 IL App (1st) 112559-U, ¶ 4. The plaintiffs asserted that the circuit court erred
in dismissing their subsequent lawsuit challenging the fines based on the voluntary payment doctrine
where the notices of citation from the City of Chicago stated that they could pay or contest the fine, but
city ordinances provided that, unless a stay was obtained in court, the fine would become a judgment
even if they exhausted their administrative remedies and the city could impose a lien, collection actions
would be taken, they would be liable for attorney fees and costs, and could have their vehicles
immobilized. Id. ¶¶ 69, 71. The court held that the ordinances created “both a threat to the plaintiffs’
property (in the form of a judgment lien) and a threat of penalties.” Id. ¶ 75. The Keating court likened
the ordinances to the notices at issue in Norton, 293 Ill. App. 3d 620, in finding they had a coercive
effect.
4
The Raintree court cited DeBruyn v. Elrod, 84 Ill. 2d 128, 136 (1981) (duress established
where plaintiffs had to pay sheriff’s fees or sheriff would refuse to effectuate requested sale),
People ex rel. Carpentier v. Treloar Trucking Co., 13 Ill. 2d 596, 600 (1958) (payment for
higher classification of truck license plates, without protest, was under duress where Secretary
of State refused to file any other classification and economic necessity demanded that trucking
company pay for such license plates in order to carry on business and avoid statutory
penalties), Norton, 293 Ill. App. 3d 620, Ball v. Village of Streamwood, 281 Ill. App. 3d 679,
688 (1996) (duress existed despite taxpayers’ failure to pay tax under protest where their
residences were subject to contracts to sell to third parties and taxpayers would be subject to
civil penalties for failure to pay the tax), and Terra-Nova Investments v. Rosewell, 235 Ill. App.
3d 330, 337 (1992) (claim not barred by voluntary payment doctrine and duress was shown
where certificate of purchase would not have been issued to plaintiff absent payment of the
fee).
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2d at 51, and Geary v. Dominick’s Finer Foods, Inc., 129 Ill. 2d 389, 407 (1989)). It found
there was a business compulsion to continue doing business in the village and pay the impact
fees because the plaintiff would have gone out of business, breached its contracts with
third-party customers, it had “substantial commitments” in land there, and without the permits
it could not have legally built homes in the village. Id. at 864-65. That the plaintiff’s business
was profitable did not render the payment of fees voluntary. Id. at 865.
¶ 32 We find Norton and Raintree instructive in the present case. Although plaintiffs here did
not pay under protest, it is indisputable that they would have forfeited the ability to challenge
the interlocutory orders if they had not paid the filing fee as the Clerk would have refused to
accept their motions. We observe that, in attempting to distinguish Raintree, defendants rely
on the dissenting opinion in that case, which is not binding on this court. Defendants argue that
Norton is distinguishable because the Clerk here did not make any misrepresentations
regarding legal rights or threaten entry of a judgment. However, Norton did not hold that a
plaintiff must show fraud or coercive misrepresentations. Rather, the court simply followed
precedent in holding that a plaintiff could show that a payment was “made under duress or
compulsion” if he demonstrated that “the payee exert[s] some actual or threatened power over
the payor from which the payor has no immediate relief except by paying.” (Internal quotation
marks omitted.) Norton, 293 Ill. App. 3d at 627. As such, the notices were “coercive enough to
render plaintiffs’ payment involuntary” where they “discouraged use of the judicial process or
coerced payment.” Id. at 628. Similarly, here, plaintiffs could not avail themselves of the
judicial process without payment. Plaintiffs’ refusal to pay the fee would have immediately
resulted in loss of access to the courts to challenge orders entered against them. This is a more
immediate threat than the possibility of a judgment being entered against the plaintiffs in
Norton.
¶ 33 On appeal, defendant relies primarily on two cases: Alvarez v. Pappas, 229 Ill. 2d 217
(2008), and Wexler, 211 Ill. 2d 18, neither of which we find persuasive. In Alvarez, the plaintiff
property owners claimed they were entitled to a refund of real estate taxes where, unbeknownst
to the property owners, the taxes were twice paid—by the property owners and their lenders.
The issue was whether their requests for a refund were barred by the five-year statute of
limitations in the Property Tax Code (35 ILCS 200/20-175 (West 2006)), i.e., whether they
constituted “tax payments” which were “overpaid” under the statute. Alvarez, 229 Ill. 2d at
221-22. The court held that the payments were for taxes and constituted overpayment for
purposes of the five-year limitations statute; the refund claims were thus barred because they
were made more than five years after the overpayments. Id. at 226.
¶ 34 We find Alvarez to be inapposite. The Alvarez court noted that the statute of limitations
created an exception to the voluntary payment doctrine, which would otherwise bar repayment
in that case. Id. at 221-22. Voluntary payment and duress were not at issue; rather, the issue
was whether the refund requests were barred under the specific statute of limitations.
¶ 35 Defendant also asserts that the circuit court properly relied on Wexler, 211 Ill. 2d 18, in
ruling against plaintiffs. In Wexler, the plaintiff, who purchased liquor as a retail customer at a
liquor store, challenged the constitutionality of a statute increasing taxes on manufacturers and
importers of alcoholic beverages. Id. at 20-21. Our supreme court held that the plaintiff’s
payment of the taxes was voluntary and not under duress. Id. at 23-24. The court held,
“duress exists where the taxpayer’s refusal to pay the tax would result in loss of
reasonable access to a good or service considered essential. [Citation.] Goods or
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services deemed to be necessities have included telephone and electrical service and,
for women, sanitary napkins and tampons. [Citation.]
Alcoholic beverages do not fall within the category of necessary goods or
services.” Id. at 24.
¶ 36 The Wexler court concluded that alcoholic beverages were “not essential, in any objective
sense, to consumers such as [the plaintiff].” Id.; see Geary, 129 Ill. 2d at 397-98 (implied
duress where the nature of the product—sanitary napkins and tampons—was a necessity and
the consequence of nonpayment of the taxes on the product was significant, i.e., the plaintiffs
could not obtain the product unless they paid the taxes); Ross v. City of Geneva, 71 Ill. 2d 27,
33-34 (1978) (implied duress where the defendant had a policy of terminating electric service
if a customer failed to pay their bills, electrical service was a necessity, and there was no
reasonable alternative provider of electrical service). The plaintiff was aware of the tax and
purchased the alcohol anyway and, in fact, did so in order to establish a basis upon which to
bring his legal challenge. Wexler, 211 Ill. 2d at 24.
¶ 37 Defendants argue that the payment of the fee to file a motion to challenge an interlocutory
order here is more like the purchase of alcoholic beverages in Wexler and different from the
necessary products or services at issue in the cases Wexler discussed, i.e., the sanity napkins
and tampons at issue in Geary, the electrical service at issue in Ross, or the telephone service at
issue in Getto. However, Wexler is readily distinguishable from the present circumstances.
Access to the courts to challenge an order entered against a party is an entirely different
consideration than the plaintiff’s purchase of alcoholic beverages in Wexler. And, unlike in
Wexler, there is no indication that plaintiffs here filed the interlocutory motions and paid the
filing fees solely to form a legal basis upon which to challenge the fee statute.
¶ 38 In addition, we are not persuaded by defendants’ argument that the approximately $60 fee
could not be impliedly coercive because it is a small amount compared to one hour of
reasonable attorney fees in the Chicago market. Defendants do not cite to any authority holding
that the amount of the unlawful fee is a relevant consideration. Indeed, case law points in the
opposite direction. See Norton, 293 Ill. App. 3d 620 (finding that a $3 charge was
compulsory).
¶ 39 Accordingly, we find that the trial court erred in holding that plaintiffs’ claims were
insufficient to plead duress and failed to show they were denied access to a service that was
necessary to them. Plaintiffs alleged that they paid the fees under duress because nonpayment
would have resulted in loss of access to a necessary good or service, i.e., access to the courts to
challenge adverse judgments entered against them. At a minimum, the circuit court should not
have resolved the issue of duress as a matter of law on the pleadings, as it is generally a
question of fact. Smith, 276 Ill. App. 3d at 850.
¶ 40 E. Implied Cause of Action Under the Clerks of Courts Act
¶ 41 We next examine whether the circuit court erred in dismissing count II of the complaint
upon concluding that no implied private right of action existed under the Clerks of Courts Act.
¶ 42 “When a plaintiff seeks to use a statutory enactment as a predicate for a tort action seeking
damages, he must demonstrate that a private right of action is either expressly granted or
implied in the statute.” Gassman, 2017 IL App (1st) 151738, ¶ 25 (citing Noyola v. Board of
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Education of the City of Chicago, 179 Ill. 2d 121, 129-31 (1997)). Our supreme court has
outlined a four-part test to determine whether a statute implies a private right of action:
“(1) the plaintiff belongs to the class for whose benefit the statute was enacted; (2) the
plaintiff’s injury is one the statute was designed to prevent; (3) a private right of action
is consistent with the underlying purpose of the statute; and (4) implying a private right
of action is necessary to provide an adequate remedy for the statute’s violation.”
Marshall v. County of Cook, 2016 IL App (1st) 142864, ¶ 12 (citing Fisher v.
Lexington Health Care, Inc., 188 Ill. 2d 455, 460 (1999), and Givot v. Orr, 321 Ill. App.
3d 78, 87 (2001)).
¶ 43 In count II, plaintiffs alleged that defendants violated section 27.2a(g) by imposing and
collecting the filing fees and that plaintiffs were overcharged or paid fees they did not owe and
suffered monetary damages as a result. Plaintiffs requested a declaration that charging the fees
was unlawful and also sought a return of the fees collected pursuant to section 27.2a(g), in
addition to attorney fees and other costs. Defendants asserted in their motion to dismiss that
count II should be dismissed under Marshall, 2016 IL App (1st) 142864, because there is no
implied private cause of action for an alleged violation of section 27.2a(g). Defendants argued
that plaintiffs have an adequate remedy in the form of a restitution claim. The circuit court
agreed.
¶ 44 On appeal, plaintiffs attempt to distinguish Marshall in asserting that litigants are the
intended beneficiaries of the statute, as demonstrated by statements by a legislator in
opposition to a proposal to increase court fees and the Act’s detailed categories of fees and
maximum amounts that the Clerk may charge. Plaintiff contends that payment of the unlawful
fee is the type of injury intended to be prevented, considering the legislature amended the Act
to add the adjective “final,” and an implied cause of action would be consistent with the
underlying purpose of the statute. Plaintiffs dispute that a restitution claim would provide an
adequate remedy, as plaintiffs seek damages caused by defendants’ imposition of unlawful
fees, which includes the amount paid in unlawful fees and their attorney fees and costs.
¶ 45 Defendants maintain on appeal that Marshall is controlling. Defendants also assert that
plaintiffs are not entitled to attorney fees absent a statutory or contractual basis. Defendants
reiterate that plaintiffs have an adequate remedy in the form of a claim for restitution.
¶ 46 In Marshall, 2016 IL App (1st) 142864, ¶ 4, the plaintiff asserted that he paid statutory
filings fees under different provisions of the Clerks of Courts Act—section 27.3a (to establish
record keeping systems) and section 27.3c (for document storage systems) (705 ILCS
105/27.3a, 27.3c (West 2012))—in addition to a fee under section 5-1103 (55 ILCS 5/5-1103
(West 2012)) (to defray costs of court security), but the county allegedly refused to use the fees
for the specific purposes set forth in the enabling statutes. The plaintiff requested that the
county be compelled to use the fees for their statutory purposes or be returned to him.
Marshall, 2016 IL App (1st) 142864, ¶ 5. The circuit court granted the county’s motion to
dismiss, finding no implied private cause of action under the statutes and that the plaintiff
lacked standing. Id. ¶ 7. On appeal, this court held that the circuit court correctly found no
private cause of action existed under the statutes because the plaintiff was “not a member of the
class intended to be benefited by the statutes—the statutes are intended to benefit counties that
want to reduce court security costs or establish and maintain document storage or automated
recordkeeping systems.” Id. ¶ 13. The Marshall court further held that implying a private cause
of action was “inconsistent with that underlying purpose and not necessary to provide an
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adequate remedy, as the circuit court noted, since the Cook County State’s Attorney can bring
an action for any alleged violations.” Id.
¶ 47 The holding in Marshall demonstrates that the fees imposed by section 27.2a(g) are
intended to compensate for the financial costs of operating the Clerk’s office in handling
litigants’ pleadings and motions. It is not meant to benefit litigants such as plaintiffs. As the
Marshall court specifically held, the Clerks of Courts Act is intended to “benefit counties that
want to reduce court security costs or establish and maintain document storage or automated
recordkeeping systems” and a private right of action is inconsistent with this underlying
purpose of the Act and not necessary to provide an adequate remedy. Id. The same reasoning is
applicable here.5 Thus, we are not persuaded by plaintiffs’ arguments that one legislator’s
comment regarding a proposed fee increase in 1991 demonstrates that the Act was meant to
protect litigants as a class. Similarly, we are not persuaded that the fee structure of the Act
shows that it was intended to primarily protect litigants and prohibit the Clerk from charging
“exorbitant fees for access to the courts” or that plaintiffs’ injuries were of the type intended to
be prevented by the statute. The fees correspond with different types of filings and the
administrative costs associated with each type of filing. Id. Implying a private cause of action
here is not necessary to effectuate the purpose of the statute.
¶ 48 We also examine whether “implying a private right of action is necessary to provide an
adequate remedy for the statute’s violation.” Id. ¶ 12. Plaintiffs complain that equitable relief
would not fully compensate them because they are seeking damages—i.e., attorney fees and
other expenses costs incurred.
¶ 49 We note that in Gassman, the Clerk argued, as it does here, that there was no implied
private right of action under section 27.2a(g). Gassman, 2017 IL App (1st) 151738, ¶ 24. The
plaintiff in Gassman sought a writ of mandamus to compel the Clerk to cease collecting the
unauthorized fees, to return all fees previously collected, and for an accounting of all fees
collected. Id. ¶ 7. This court held that it was not necessary to infer a private right of action
because the plaintiff was not seeking tort-like relief or damages, but instead the plaintiff’s suit
for mandamus was the proper vehicle. Id. ¶ 24. The plaintiff was not attempting to impose tort
liability on the Clerk, but to compel public officials to comply with the language of the statute,
and therefore the plaintiff was “entitled to pursue a mandamus action to compel the officials’
compliance with the law, and no private right of action is necessary.” Id. ¶ 25.
5
That the purpose of section 27.2a(g) of the Clerks of Courts Act is intended to benefit the clerks’
offices to cover the expenses associated with filing a petition to vacate a final order or judgment is
buttressed by other cases examining the purpose behind similar fee provisions in the Clerks of Courts
Act. See Pick v. Pucinski, 247 Ill. App. 3d 1068, 1073 (1993) (statute requiring payment of a second
filing fee after remand had a reasonable basis of compensating clerks for services rendered to case on
remand; upheld statutory fee based on purpose related to operating and maintaining court system);
People v. Tolliver, 363 Ill. App. 3d 94, 97 (2006) (circuit clerks’ fee for automation and document
storage constituted a fee, and not a fine, as it compensates clerks for costs associated with a defendant’s
conviction); People v. Heller, 2017 IL App (4th) 140658, ¶ 74 (same); Lee v. Pucinski, 267 Ill. App. 3d
489 (1994) (statutory fees charged under Clerks of Courts Act for reproduction of records did not
violate constitutional right to free access to courts as they constituted charge to compensate clerks for
expenses in providing copying services, and statutory fees were reasonably related to statute’s purpose
of defraying copying expenses).
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¶ 50 Indeed, a mandamus action is “an extraordinary remedy to enforce the performance of
official duties by a public officer where no exercise of discretion on his part is involved.”
Wilson v. Quinn, 2013 IL App (5th) 120337, ¶ 18 (citing Noyola, 179 Ill. 2d at 133). See also
Noyola, 179 Ill. 2d at 124, 132-35 (where the plaintiffs brought suit to force public officials to
comply with statutory requirements, and were not using statute as a predicate for tort action, a
court may compel public officials’ compliance by means of a writ of mandamus). We note that
the circuit court here ruled on defendants’ motion to dismiss in the present case before
Gassman was decided. To the extent that plaintiffs here are requesting a declaration that
imposition of the filing fees is unlawful and seek a return of the fees collected pursuant to
section 27.2a(g), plaintiffs’ claim can be construed as one for restitution, and not attempting to
impose tort liability or damages on the Clerk.
¶ 51 As our supreme court has explained, restitution is available in both cases of law and equity
and “ ‘[t]he concepts of restitution and damages are quite distinct, but sometimes courts use the
term damages when they mean restitution.’ ” Raintree Homes, Inc. v. Village of Long Grove,
209 Ill. 2d 248, 257 (2004) (quoting 1 Dan B. Dobbs, Law of Remedies § 3.1, at 280 (2d ed.
1993)). “ ‘Damages differs from restitution in that damages is measured by the plaintiff’s loss;
restitution is measured by the defendant’s unjust gain.’ ” Id. (quoting Dobbs, supra, at 278). In
Raintree, the plaintiffs sought a declaration that the ordinance at issue was unlawful and the
return of the impact fees collected under the same. Id. at 256. The court rejected the
defendant’s characterization of the plaintiffs’ claim as one for “damages,” holding instead that
plaintiffs sought a refund or restitution of the money they had paid which was not owed. Id. at
257. “ ‘[I]f the plaintiff has no substantive claim grounded in tort, contract, or statute, then if
the plaintiff’s claim is viable at all, it must be one for restitution to prevent unjust
enrichment.’ ” (Emphases in original.) Id. at 258 (quoting Dobbs, supra § 4.1(1), at 556). The
plaintiffs sought only return of the money paid, not compensation for lost capital which could
have been invested elsewhere, and they did not allege that the defendant breached a duty as a
predicate for imposing liability. Id. at 257.
¶ 52 Here, we find that plaintiffs do not have a basis to pursue a private action to impose tort
liability on defendants under Marshall, and consequently, they do not have a basis upon which
to seek damages to compensate for costs and expenses beyond restitution. However, plaintiffs
can proceed with a declaratory action, similar to the mandamus action pursued by the plaintiffs
in Gassman. Much like the mandamus action by the plaintiffs in Gassman, plaintiffs here need
not pursue a private right of action under the Clerks of Courts Act in seeking the equitable
relief of a declaratory judgment and return of the fees unlawfully imposed in the form of
restitution.
¶ 53 Moreover, to the extent that plaintiffs argue that they are seeking attorney fees, we note that
“Illinois has long adhered to the general American rule that the prevailing party in a lawsuit
must bear the costs of litigation, unless a statutory provision or an agreement between the
parties allows the successful litigant to recover attorney fees and the expenses of suit.”
Brundidge v. Glendale Federal Bank, F.S.B., 168 Ill. 2d 235, 238 (1995) (citing Saltiel v.
Olsen, 85 Ill. 2d 484, 488 (1981), and Hamer v. Kirk, 64 Ill. 2d 434, 437 (1976)).6 Here,
plaintiffs have shown no statutory provision or agreement authorizing such fees.
6
We note that “where the outcome of the litigation has created a common fund, this court has
adopted the ‘common fund doctrine.’ ” Brundidge, 168 Ill. 2d at 238. “The general rule requiring
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¶ 54 III. CONCLUSION
¶ 55 We find the circuit court erred in dismissing plaintiffs’ count I claim on the basis that it was
barred by the voluntary payment doctrine. As to count II, we find that no private right of action
is implied in the Clerks of Courts Act. However, plaintiffs may proceed on their declaratory
action to prevent the Clerk from charging filing fees under section 27.2a(g) for interlocutory
motions and to recover such fees paid by plaintiffs as restitution.
¶ 56 Affirmed in part, reversed in part, and remanded.
litigants to bear their own costs and attorney fees does not interfere, however, with the power of courts
of equity to permit a litigant or lawyer who recovers a common fund for the benefit of others to recover
costs and reasonable fees from the fund as a whole.” Ryan v. City of Chicago, 274 Ill. App. 3d 913, 921
(1995).
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