Appeals court: Cook Circuit Clerk misinterpreted state law, can be sued for wrongly collecting fees

By Jonathan Bilyk | Jan 18, 2017

The Cook County Circuit Clerk’s office has misinterpreted a state law allowing it to collect fees from people filing certain motions in court, a state appeals court has said, clearing the way for a Chicago man and his attorney to pursue their lawsuit to secure a court order forcing the clerk’s office to stop demanding the money.

On Jan. 17, a three-justice panel of the Illinois First District Appellate Court overturned the decision of Cook County Circuit Judge Rodolfo Garcia, who had dismissed the lawsuit brought by plaintiff David Gassman, through attorney David Novoselsky, of Waukegan, against the office of the Clerk of the Cook County Circuit Court.

Dorothy Brown has served as circuit clerk since 2000. She was reelected in November.

The appellate opinion was authored by Justice Mary Anne Mason, with justices P. Scott Neville Jr. and Daniel J. Pierce concurring.

Gassman had sued the circuit clerk’s office in 2014, asserting the clerk had improperly charged him a $90 fee to file a motion to ask the court to undo the dismissal of a lawsuit he had filed. According to court documents, that lawsuit had been dismissed “for want of prosecution.”

At the time Gassman filed to ask the court to restart the case, the court clerk’s office required him, like others, to pay the fee, citing a state law which allows court clerks to collect a fee of up to $90 on all motions to “petition to vacate or modify any final judgment or order of the court … filed later than 30 days after the entry of the judgment.”

While Gassman paid the fee “under protest,” he filed suit soon after, saying the circuit clerk was misinterpreting the law and improperly collecting fees on motions to overturn judgments that weren’t “final.”

Court documents noted dismissals for want of prosecution are not considered to be final judgments under the law until at least a year has passed from the time of dismissal with no attempt by the plaintiff to resuscitate the case.

In his lawsuit, Gassman asked the court to issue a writ of mandamus ordering the clerk to refund his money and to stop collecting the fees.

Judge Garcia dismissed the case in May 2015, entering a judgment for the circuit clerk, though his order did not explain why.

However, in defending against the lawsuit, the court clerk’s office, represented by the Cook County State’s Attorney’s office, insisted it was empowered by the law to collect the fee. The county officials also argued Gassman’s lawsuit should not be allowed, because his attorney, Novoselsky, had earlier twice attempted to sue the court clerk on behalf of two different clients for improperly collecting fees from litigants filing motions.

Gassman appealed Garcia’s dismissal, and the three appellate justices considering the case sided with him, ruling Garcia had been wrong to dismiss the case.

The justices noted the “plain language” of the law itself – which solely requires the clerk to collect the fee on “final” judgments and orders – upholds Gassman’s argument.

“Here, the Clerk’s interpretation renders the phrase ‘final judgment’ superfluous,” the justices wrote. “A judgment is an order of court. Thus, if (the law) authorizes a fee for a petition to modify or vacate any order of court regardless of its finality, then the earlier mention of final judgments is redundant - which the legislature presumably did not intend.”

Further, the justices noted the law cited by the court clerk to demand the fees had been amended by state lawmakers in 1990 specifically to insert “the word ‘final’ before ‘judgment or order of the court.’”

“Obviously the legislature thought it was effecting some change by adding that limitation,” the justices wrote. “But the Clerk’s interpretation of the statute would render the amendment entirely meaningless by allowing the collection of fees for a petition to vacate or modify any order whatsoever.”

Justices also rejected the clerk’s contention that invalidating the fees would create “practical difficulties” for her office, as her staff may have difficulty knowing when an order or judgment is “final” and when collecting the fee is allowed.

“To the extent that this is true, the Clerk’s complaint is not properly directed at this court, but to the legislature that decided in 1990 to limit (the law) to final orders,” justices wrote.

Finally, the justices dispensed with the county officials’ assertions that Gassman should not be allowed to sue the court clerk’s office because his attorney had previously represented clients who had attempted to sue the court clerk for allegedly improper fee collections, but had failed.

While the county’s lawyers argued Gassman held “privity” with those other plaintiffs, justices said those cases differed enough from Gassman’s to allow his case to proceed.

Gassman’s is not the only such suit the court clerk’s office is facing over such fees.

Earlier this year, Cook County Circuit Judge Sophia Hall dismissed a lawsuit brought by Schaumburg-based Midwest Medical Records Association Inc., which had argued the court clerk’s office had wrongly collected similar fees on filings for so-called interlocutory motions. Such motions are submitted by litigants seeking answers to legal questions arising while cases are in progress.

In that case, the plaintiffs had also argued the state law allowed the clerk to only collect such fees for “final” judgments or orders, not all motions by plaintiffs.

The plaintiffs, represented by the firm of Myron Cherry & Associates, of Chicago, have appealed that decision.  


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Cook County Clerk of the Circuit Court David A. Novoselsky Illinois First District Appellate Court Myron M. Cherry and Associates, LLC

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