A Chicago businessman has asked a Cook County court to order the county to conduct an audit of the finances of the county’s Circuit Court Clerk office to explain what the businessman says are apparent discrepancies, totaling perhaps hundreds of millions of dollars, between what the businessman and his lawyers believe should have been collected for special-use court funds from millions who pass through the county’s court system, and the figures the court clerk has allegedly publicly reported.
Plaintiff Harlan Berk and his attorney, David Novoselsky, of Waukegan, and Joseph Tighe, of Skokie, filed suit in Cook County Circuit Court last month, requesting the court issue a writ of mandamus compelling the county to conduct an “independent audit” of the funds, and ordering county officials “to fulfill their duties mandated by law to account properly for funds received by the (Circuit) Clerk from litigants in the Circuit Court of Cook County.”
It also asks the court to consider ordering the county to refund any money, collected in the so-called “special purpose funds” that may have been treated as a “surplus” by the county and spent on purposes other than the specific purposes established by law for those various fees.
The lawsuit names as defendants Cook County Board President Toni Preckwinkle and the commissioners of the Cook County Board. It does not name any other county officials, including Cook County Circuit Clerk Dorothy Brown.
According to information online, Berk is the owner of Harlan J. Berk Ltd., an ancient and rare coin dealership in downtown Chicago.
The complaint centers on 10 specific “special purpose funds” for which the Circuit Clerk’s office is authorized by special state law to collect fees from those either filing lawsuits or motions in Cook County’s civil courts, or from those charged or convicted of traffic, misdemeanor or felony charges in the county’s criminal courts.
The funds named in the complaint include the county’s Mandatory Arbitration Fund; the County Law Library Fund; Children’s Waiting Room Fund; Court Automation Fund; Document Storage Fund; Sheriff Court Security Fund; Mental Health Court Fund; Peer Jury Fund; Drug Court Fund; and Electronic Citations Fund.
According to the complaint, the county Mandatory Arbitration Fund, for instance, is to be a pass-through for money payable to the state of Illinois’ Mandatory Arbitration Fund, which is used to pay for mandatory arbitration programs and other alternative dispute resolution programs.
The Children’s Waiting Room Fund was established to allow the Circuit Clerk to collect fees to pay to establish and maintain “a children's waiting room for children whose parents or guardians are attending a court hearing as a litigant, witness, or for other court purposes as determined by the court.”
And the Document Storage Fund was created by state law to allow the Circuit Clerk to have a money source to “defray the expense associated with the counties' duties to establish and maintain document storage systems.”
For these and other funds, the Circuit Clerk collects fees ranging from $5 to $25 either at the time certain documents are filed or as part of the “Mandatory Fees and Costs” the Circuit Clerk is allowed to charge litigants and other court participants.
While the Circuit Clerk and county has purportedly reported the collections in those funds through its annual public financial reports, Berk’s lawsuit alleges those numbers don’t add up when compared to actual court activity.
The complaint asserts, from 2011-2015, the county processed more than 5 million civil lawsuits, yet the publicly reported numbers for the various related special purpose funds “reflect no more than 4.7 million payments received by the special purpose funds.”
And the complaint alleges the county’s numbers reflect collections of payments from only 37 percent of the 18.3 million traffic, misdemeanor, felony and other cases in the county’s criminal courts.
In all, the complaint asserts the discrepancies could range from $211 million to as much as $761 million.
“The reported receipts of the (Circuit) Clerk’s office are inconsistent with each other and with the reported case volumes of the Clerk’s office,” Berk’s complaint asserts. “There are inconsistencies among funds that ought to receive the same number of payments each year as other funds, and the overall total number of payments reflected by reported receipts are significantly lower than the number of payments that ought to be reflected in light of the number of cases and requirements of litigants to make payments in those cases.”
The complaint notes the county’s auditor had examined the reports, and as recently as 2015 indicated the Circuit Clerk’s offices “published numbers make no sense, that attempts to explain them are ‘simplistic,’ that supporting data are ‘lacking,’ and that supposedly dependent variables behave in inconsistent manners when exposed to similar changes in independent variables.”
However, the complaint asserts the Circuit Clerk’s office “refused to respond” to the auditor’s findings, which Berk alleged violated legal requirements for the Circuit Clerk to “provide financial records that can withstand audit.”
The lawsuit claims the failure by the county to push for a closer accounting of the funds demonstrate either a failure by county officials “to understand … the operations of the Clerk’s office sufficient to detect material misstatements of revenue” or “intentional efforts to prevent plaintiffs and other members of the public from determining whether the financial statements materially misrepresented the result of operations of the (Circuit) Clerk’s office.”