Appeals court: Cook Courts Clerk can be sued for charging improper motion fees

By Scott Holland | Feb 5, 2018

A panel of state appeals justices will allow the Cook County Circuit Clerk’s office to be sued for allegedly illegally making litigants pay fees to file certain types of motions, saying the clerk can’t argue their payment signaled their assent to the fees, as failure to pay the fees would have locked them out of the ability to challenge the orders pending against them in court.

However, the judges said the companies suing Circuit Clerk Dorothy Brown shouldn’t expect to profit from their class action lawsuit.

On Feb. 1, the three-justice panel of the Illinois First District Appellate Court in Chicago weighed in on a longstanding dispute between businesses, led by Midwest Medical Records Association Inc., and Brown, as well as Cook County Treasurer Maria Pappas and the county. At hand was the appeal of a Sept. 15, 2016, ruling from Cook County Judge Sophia Hall, who determined the suburban medical records company couldn’t sue the clerk because didn’t pay the disputed filing fees under protest before initiating a lawsuit.

Midwest Medical filed its initial complaint in November 2015, saying Brown’s office improperly collected filing fees for so-called interlocutory motions, which are submitted by litigants seeking to answers to legal questions surrounding a judge’s orders while cases are in progress.

Before Hall ruled in September 2016, Midwest Records’ class action was consolidated with similar suits brought by plaintiffs Renx Group and Tomica Premovic. All parties took issue with the $60 filing fees they said were improper because they dealt with ongoing litigation, as opposed to “any final judgment or order of court,” as spelled out in the Illinois Clerks of Court Act, a statute controlling the fees a court clerk can charge.

The companies appealed Hall’s ruling in light of the January 2017 Illinois First District Appellate Court opinion, Gassman v. Clerk of the Circuit Court, in which the court also determined Brown’s office misinterpreted a state law, had been improperly collecting fees on motions to overturn judgments that weren’t “final,” and therefore, could be sued.

Justice Eileen O’Neill Burke wrote the court’s Feb. 1 opinion noting none of the defendants disputed the precedent Gassman established. Justices Margaret McBride and David Ellis concurred in the decision.

Still, the county defendants maintained the businesses had undercut their own ability to sue because they paid the fines without protest. Midwest Medical and the other plaintiffs, however, maintained the payment was “involuntary and under duress,” since failure to do so would have essentially locked them out of the justice system.

The appellate justices agreed, saying it was “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.”

Brown also maintained Judge Hall was right to dismiss part of the complaint upon concluding the Clerk of Courts Act did not allow private parties to sue the clerk for charging such fees. But the businesses said they should be paid damages, including restitution and payment of their legal fees incurred in pursuing the claim.

While allowing the lawsuit to proceed and allowing for the possibility plaintiffs may be able to pursue restitution, the panel said the businesses do not have the ability to demand payment of their legal costs from the court fight. The justices said the purpose of the law was not to benefit litigants at the expense of the county, but rather to pursue damages because the state law governing fees is not written to benefit plaintiffs, but rather to help counties fund court security or set up and maintain recordkeeping systems. Still, the businesses are able — as with the mandamus action in Gassman — to proceed with a declaratory action seeking to have their filing fees returned, the justices said.

With respect to trying to recover attorney costs for pursuing the claims, Burke wrote the “plaintiffs have shown no statutory provision or agreement authorizing” such an arrangement.

The panel remanded the matter back to circuit court so plaintiffs could ask the court to bar Brown from charging the filing fees, and to seek restitution.

Midwest Medical Records is represented by the Chicago firm of Myron M. Cherry & Associates. Cook County was defended by the Cook County State’s Attorney’s Office.

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Cook County Clerk of the Circuit Court Illinois First District Appellate Court Myron M. Cherry & Associates, LLC

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