A state appeals panel has revived part of a class action facing several circuit court clerks regarding the propriety of foreclosure filing fees.
Reuben Walker filed his original lawsuit in October 2012 against Will County Circuit Court, alleging a mandated $50 filing fee for a mortgage foreclosure complaint was unconstitutional. At the time, the Illinois Housing Development Act directed such fees to a social welfare program.
A judge certified Walker’s complaint as a class action while also certifying as defendants a class including all Illinois circuit clerks in their official capacities. The Illinois Attorney General’s Office was later allowed to intervene to defend the law.
In November 2013, the plaintiffs won partial summary judgment, as a judge determined allowing clerks to retain 2% of $50 filing fees created a fee officer in conflict with a prohibition on such positions in the state constitution.
On appeal, in 2015, the Illinois Supreme Court disagreed with the circuit court and remanded the complaint. The plaintiffs filed an amended complaint in April 2018 to allege violation of separation of powers, equal protection, due process and uniformity of burden principles, claiming the imposition of a fee for purposes unrelated to the court was unconstitutional and requested creation of a protest fund to hold all such fees until final disposition of the litigation.
The plaintiffs again won summary judgment as a circuit court judge ruled the relevant laws violated the state constitution’s equal protection, due process, uniformity and free access clauses. That court stayed its permanent injunction pending Supreme Court review, which reached its resolution in June 2021. The court found the plaintiffs paid the fees under duress, which meant the voluntary payment doctrine didn’t impede their lawsuit, and agreed about the violation of the free access clause.
With the remainder remanded, discovery proceeded regarding restitution. With that ongoing, Will County Circuit Court Clerk Andrea Chasteen moved for dismissal. In August 2022, Will County Circuit Court Judge John Anderson dismissed the complaint, saying restitution needed to be handled in Illinois' Court of Claims so plaintiffs could attempt to recover money from the state.
Walker and fellow named plaintiff Steven Diamond challenged that ruling before the Illinois Third District Appellate Court.
Justice Mary McDade wrote the panel’s opinion, issued Nov. 15; Justices William Holdridge and Lance Peterson concurred.
“While the plaintiffs claim there are five issues on appeal, there is only one — whether the circuit court erred when it granted Chasteen’s motion to dismiss,” McDade wrote. “The primary question we must answer on appeal is whether jurisdiction over the remainder of the plaintiffs’ case lies with the circuit court or the Court of Claims. … The complex analysis needed to determine whether the plaintiffs’ restitution request in this case is legal or equitable is not necessary.”
The Court of Claims is organized under the Secretary of State’s Office to serve “any citizen with a claim of money damages or personal injury against a state agency or state employee,” according to its website, among other functions. McDade said the Court of Claims has jurisdiction over allegations founded upon state laws, but not constitutional questions such as those presented in Walker’s lawsuit. Further, the Court of Claims lacks authority to grant equitable remedies.
The panel further said it would address the question of sovereign immunity, given that both sides raised the issue, but Judge Anderson took no position and it is likely to resurface on remand. McDade explained sovereign immunity doesn’t apply when a plaintiff alleges a state officer exceeded their authority to violate state law or the state constitution.
“Our Supreme Court held that the relevant statutes were facially unconstitutional,” McDade wrote. “Thus, the defendant circuit court clerks collected the filing fees from the plaintiffs in violation of the constitution and absent legal authority to do so; accordingly, their actions were not considered as actions by the state.”
McDade further said the exception doesn’t apply when a plaintiff seeks only damages, but Walker’s complaint sought both restitution and an injunction to prevent future collection of the contested fines.
The panel reversed Judge Anderson’s ruling and remanded the case for further proceedings.
Daniel Cray and Melissa Dakich, of Cray Huber Horstman Heil & VanAusdal, of Chicago, represented the plaintiffs, along with the Law Offices of Laird M. Ozmon, of Joliet, and attorney Michael Reagan, of Ottawa.
“The class plaintiffs appreciate the Third District understanding the law and understanding that this case should remain in the circuit court,” Cray said in a phone interview. He said the circuit court is the only place his clients “can obtain justice for this unconstitutional statute being enacted by the Legislature.”
He said the state’s position would’ve forced plaintiffs to file a separate action in the Court of Claims to pursue compensation, ultimately adding to their expense stemming from a law the Supreme Court has already said is unconstitutional.
Some plaintiffs have been waiting 13 years for a refund, he said, and because of a graduated fee structure, some plaintiffs had paid nearly $1,000 to pursue foreclosure proceedings.
“If (a law) is facially unconstitutional, you get your money back,” Cray said. “The social programs are fine, but it has to come from regular taxpayers.”
In addition to the Illinois Attorney General’s Office, certain government defendants were represented by Carrie Hass, of Dunn Law Firm, Bloomington, the Cook County State’s Attorney’s Office and the Joliet County State’s Attorney’s Office.
Under a new state law recently enacted by Illinois state lawmakers and Gov. JB Pritzker, the plaintiffs in this case would have been prohibited from challenging the constitutionality of this law in their home county. Instead, any challenge to any state law can only be filed in Cook County Circuit Court in Chicago or Sangamon County Circuit Court in Springfield.