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Boynton v. Kusper

OPINION FILED FEBRUARY 21, 1986.

JOHN C. BOYNTON ET AL., APPELLEES,

v.

STANLEY T. KUSPER, JR., COUNTY CLERK, ET AL., APPELLANTS.



Appeal from the Circuit Court of Cook County, the Hon. Anthony J. Scotillo, Judge, presiding.

JUSTICE RYAN DELIVERED THE OPINION OF THE COURT:

Rehearing denied April 1, 1986.

Plaintiffs, John C. Boynton, Kent Koplin, Marianne Lubke, and Joanne Simon, brought this class action against several Cook County and Illinois State officers to challenge the validity of section 3 of "An Act to provide for the fees of the * * * county clerk in counties of the third class" (Ill. Rev. Stat. 1983, ch. 53, par. 73). The challenged statute required clerks in counties with a population exceeding one million to pay $10 of the $25 fee collected for issuing a marriage license into the Domestic Violence Shelter and Service Fund. (See Ill. Rev. Stat. 1983, ch. 40, pars. 2403, 2403.1.) Plaintiffs maintained that this portion of the license fee was an unconstitutional tax. The Illinois Coalition Against Domestic Violence was given permission to intervene as a defendant. On cross-motions for summary judgment, the trial court ruled for the plaintiffs, holding the challenged provision of the statute unconstitutional. The defendants appealed directly to this court pursuant to Supreme Court Rule 302(a) (94 Ill.2d R. 302(a)). We consolidated defendants' appeals for this opinion.

The legislature, as part of its statutory scheme to combat domestic violence, passed "An Act in relation to domestic relations and domestic violence shelters and service programs" (hereinafter cited as the Domestic Violence Shelters Act). (Ill. Rev. Stat. 1983, ch. 40, par. 2401 et seq.) This act authorized the Department of Public Aid to "administer domestic violence shelters and service programs, or * * * provide for their administration by not-for-profit corporations with whom the Department has contracts." (Ill. Rev. Stat. 1983, ch. 40, par. 2402.) Among other services, these shelters were to provide "temporary residential facilities to family or household members who are victims of domestic violence and their children." (Ill. Rev. Stat. 1983, ch. 40, par. 2401(c).) Funding for the shelters was to be provided by the Department from funds allocated to the Domestic Violence Shelter and Service Fund. Ill. Rev. Stat. 1983, ch. 40, par. 2403.

In conjunction with the passage of these provisions, the legislature increased the fee charged by a county clerk for the issuance of a marriage license in a third class county from $15 to $25. County clerks were specifically directed to pay the $10 increase into the Domestic Violence Shelter and Service Fund. (Ill. Rev. Stat. 1983, ch. 53, par. 73.) A similar provision was enacted for fees charged for marriage licenses in counties of the first and second class. (Ill. Rev. Stat. 1983, ch. 53, par. 35.) The statute has since been amended to raise the fee to $40, with $25 targeted for the funding of shelters and services for victims of domestic violence. Ill. Rev. Stat., 1984 Supp., ch. 53, pars. 35, 73.

Under the Domestic Violence Shelters Act, the county clerk deposits the designated portion of the marriage license fee with the county treasurer. The county treasurer remits the money to the State Treasurer on a monthly basis. The State Treasurer deposits "such amounts into the Domestic Violence Shelter and Service Fund in the State treasury." Ill. Rev. Stat. 1983, ch. 40, par. 2403.1.

In our case the four plaintiffs applied for marriage licenses in Cook County in February 1984. They were made aware that the cost of the license included the portion allotted to the Domestic Violence Shelter and Service Fund. Plaintiffs objected to the payment of this portion of the fee, but were informed that a license would not be issued unless the entire fee amount was paid. Plaintiffs paid the fee but filed a written protest with the county clerk regarding the portion designated for the shelters.

Plaintiffs filed this class action in February 1984 pursuant to sections 2-801 and 2-802 of the Civil Practice Law (Ill. Rev. Stat. 1983, ch. 110, pars. 2-801, 2-802). The trial court certified the cause as a class action. Plaintiffs attacked the statute as a violation of the due process guarantee of article I, section 2, of the Illinois Constitution of 1970. Plaintiffs also alleged that the statute violated article IX, section 2, of the Illinois Constitution, which provides that "[i]n any law classifying the subjects or objects of non-property taxes or fees, the classes shall be reasonable and the subjects and objects within each class shall be taxed uniformly. Exemptions, deductions, credits, refunds and other allowances shall be reasonable."

On cross-motions for summary judgment, the trial court ruled in favor of the plaintiff class. The court found that it was bound by our decision in Crocker v. Finley (1984), 99 Ill.2d 444, to find the statute unconstitutional as a violation of the due process guarantee of article I, section 2, of the Illinois Constitution of 1970.

The virtues of the domestic-violence shelter program are not at issue in this case. However, our duty to decide whether a statute is violative of a constitutional provision cannot be evaded or neglected no matter how desirable or beneficial the legislation may be. (Grasse v. Dealer's Transport Co. (1952), 412 Ill. 179, 190.) In considering the question before us we must be mindful of Justice Holmes' admonition in Pennsylvania Coal Co. v. Mahon (1922), 260 U.S. 393, 416, 67 L.Ed. 322, 326, 43 S.Ct. 158, 160, that "a strong public desire to improve the public condition is not enough to warrant achieving the desire by a shorter cut than the constitutional way of paying for the change."

We are dealing in this case with a very sensitive and highly emotional issue. Plaintiffs, defendants, intervenor and amici have devoted a large portion of the briefs to the subject of wife beating and whether contemporary societal norms sanction such conduct. Similarly, a substantial part of the record below consists of statistical data, testimony of experts and publications. The thrust of much of this material is that there is a cause-and-effect relationship between marriage and domestic violence. Much of this material is irrelevant. Simply stated, the issue before us is whether our legislature may impose a "fee" upon a class of people based only on the fact that they have applied for marriage licenses, where the money collected is used to fund a general welfare program.

Since we are dealing here with the same sections of the Domestic Violence Shelters Act, the same type of "fee," and the same type of limited classification of who must pay the fee, we agree with the trial court that our decision in Crocker v. Finley (1984), 99 Ill.2d 444, is controlling in the present case.

In Crocker, the plaintiff class challenged the validity of a statute that required circuit court clerks to collect a special $5 filing fee from petitioners for dissolution of marriage "to fund shelters and other services for victims of domestic violence in Illinois." (99 Ill.2d 444, 447-48.) The fee was collected to enable the Department of Public Aid to carry out the provisions of the Domestic Violence Shelters Act, the same statutory provisions involved here. See 99 Ill.2d 444, 447-48.

Plaintiffs in Crocker alleged both that the provision conflicted "with the Illinois constitutional right to obtain justice by law freely" (Crocker v. Finley (1984), 99 Ill.2d 444, 451) and that it violated the due process clause of the Illinois constitution (99 Ill.2d 444, 456.) We recognized that the central issue in both contentions was whether the legislature could impose such a fee upon a limited group of plaintiffs where the funds collected went into the State Treasury to fund a general welfare program. 99 Ill.2d 444, 451.

As to the first contention, this court found that the filing fee constituted a tax that unreasonably interfered with the plaintiffs' access to Illinois courts. (Crocker v. Finley (1984), 99 Ill.2d 444, 455.) This finding alone would have been sufficient to render the statute invalid. (See 99 Ill.2d 444, 451-52.) However, this court also discussed the plaintiffs' second allegation as a separate basis for invalidating the statute. The court recognized that whether the filing fee was imposed under the State's police power or the power to tax, it could not be imposed arbitrarily. (99 Ill.2d 444, 457.) The court noted the issues of due process and equal protection were "overlapping and intertwining" and that an arbitrary exercise of either the taxing power or the police power "is violative of due process, as well as equal protection, guaranteed by our Constitution. [Citation.]" 99 Ill.2d 444, 457.

Based upon the facts that the services provided by the fees were "available to all adults and their dependents who are the subjects of domestic violence"; that there was "no requirement that recipients of the services be either married or divorced"; and that only those petitioning for dissolution of marriage were required to pay the fee, the statute was found "to be an arbitrary use" (emphasis added) of the ...


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