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Nationwide Art Center, Ltd. v. Daley

OPINION FILED OCTOBER 31, 1986.

NATIONWIDE ART CENTER, LTD., PLAINTIFF-APPELLANT,

v.

RICHARD M. DALEY, STATE'S ATTORNEY, ET AL., DEFENDANTS-APPELLEES.



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

JUSTICE PINCHAM DELIVERED THE OPINION OF THE COURT:

Rehearing denied December 19, 1986.

The State's Attorney of Cook County instituted actions against Nationwide, Ltd., in which four default judgments in amounts of $3520.25, $5607.64, $32,715.10, and $10,040.88 were entered for delinquent personal property taxes. To collect the judgments, the State's Attorney filed a citation to discover assets. Prior to the citation hearing, the parties entered into an agreement which provided that Nationwide would present a motion to vacate the default judgments and that the State's Attorney would not object to the setting aside of default judgments. The agreement further provided that reduced judgments would be entered against Nationwide in the amounts of $824.67 plus costs, $212.73 plus costs, $195.87 plus costs, and in the fourth case there would be a finding for Nationwide. The agreement also provided that Nationwide would pay a court fee of $30 as a prerequisite to the setting aside of each of the default judgments and an additional $30 citation charge in each of the four cases. Pursuant to this agreement, on June 18, 1982, the original default judgments were vacated and the reduced judgments and costs were entered against Nationwide.

Nationwide filed the instant class action complaint on July 20, 1982, against the State's Attorney. The complaint alleged that the State's Attorney illegally charged and collected a citation fee of $30 from Nationwide and other taxpayers similarly situated. Nationwide later filed an amended complaint, in which it asserted in count II that the collected citation fees were wrongfully deposited in a non-interest-bearing account. Count III of the amended complaint alleged that in violation of section 27.2 of "An Act to revise the law in relation to clerks of courts" (Ill. Rev. Stat. 1983, ch. 25, par. 27.2) and section 4 of "An Act to provide for the fees of the sheriff, recorder, and county clerk in counties of the third class" (Ill. Rev. Stat. 1983, ch. 53, par. 74) the State's Attorney, in conspiracy with the clerk of the circuit court and the sheriff of Cook County, did not pay filing fees for the complaint, citation, or supplemental proceedings or sheriff's fees for the placement and service of summons. Nationwide sought interest on all citation charges recovered by defendant. The State's Attorney responded with a motion to dismiss the complaint, which was denied. Thereupon the State's Attorney filed an answer in which it was asserted that the State's Attorney had the statutory authority to prosecute an action for collection of overdue personal property taxes under section 5 (Ill. Rev. Stat. 1983, ch. 14, par. 5). The State's Attorney's answer further asserted that the $30 citation charge was not a fee, fine, forfeiture or penalty but that the $30 citation charges were paid into the State's Attorney Citation Fund pursuant to a negotiated settlement between the State's Attorney and Nationwide for delinquent personal property taxes owed by Nationwide. The State's Attorney's answer also stated that the $30 citation charges deposited in the Citation Fund were later turned over to the Cook County treasurer.

A hearing on Nationwide's motion for a preliminary injunction was held on January 17, 1983. Nationwide sought to enjoin the State's Attorney from collecting the $30 citation charges. Thomas J. McNulty, an assistant State's Attorney and supervisor of the tax collections unit of that office, and Judge Louis J. Gilberto, the circuit court judge who presided over the personal property tax cases, were called as witnesses. McNulty testified about the State's Attorney's office procedures in settlement conferences with the taxpayer as follows:

"Q. With respect to the $30.00 citation fund, how do we get there and what is the office policy in relation to that?

A. Once we have got a tax and an interest calculated based on the information we have, the assistant then adds up the figures.

In addition to that the assistant is then — it is our office policy that the assistant then orally let's say informs the taxpayer what else he will need to dispose of the case. The taxpayer or the delinquent taxpayer or his counsel is informed of the Cook County Citation Fund of $30.00. He is informed of the $30.00 fee that the clerk of the circuit court will charge him to file.

He is then asked to sign the spread sheet informing of the agreement. The taxpayer is then advised if the taxpayer doesn't like the tax we are recommending, the $53.00 costs, Mr. Finley's $30.00 fee, or the Cook County Citation Fund fee, or if he doesn't like anything that we have done about the case, he is invited to protest it to Judge Gilberto.

Q. If during settlement negotiations the taxpayers upon being informed with respect to the $30.00 citation fee and he tells the assistant that he objects to the payment, would we still settle the case with respect to the settlement and interest.

A. Yes, we would.

Q. What would happen if he objected, or what — or what has happened in the past?

A. Well, what would happen is that he would be invited to articulate his grievance ...


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