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02/18/88 Gregory Baksinski Et Al., v. John B. W. Corey Et Al.

February 18, 1988

GREGORY BAKSINSKI ET AL., PLAINTIFFS

v.

JOHN B. W. COREY ET AL., DEFENDANTS (THE CITY OF CHICAGO, INTERVENING PLAINTIFF-APPELLANT; NORTHWESTERN



APPELLATE COURT OF ILLINOIS, FIRST DISTRICT, FOURTH DIVISION

University et al., Defendants-Appellees)

529 N.E.2d 232, 173 Ill. App. 3d 1016, 124 Ill. Dec. 412 1988.IL.221

Appeal from the Circuit Court of Cook County; the Hon. Albert Green, Judge, presiding.

APPELLATE Judges:

JUSTICE LINN delivered the opinion of the court. JIGANTI, P.J., concurs. JUSTICE McMORROW, Dissenting.

DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE LINN

Plaintiff, the City of Chicago (City), brought a defendant class action in the circuit court of Cook County against several putative classes of charitable organizations. The City sought to collect sewer charges from these organizations under the Sewer Revenue Fund Ordinance (Chicago Municipal Code ch. 185.1 (1984)). Prior to the trial court's certification of the defendant classes, two of the named class representatives, defendants Northwestern University (Northwestern) and the Young Men's Christian Association of Metropolitan Chicago , sought exclusion from their putative classes. The trial court granted their petition and excluded them from their putative classes.

Pursuant to the City's motion, the trial court certified the following question for review:

"May a named defendant class representative 'opt out,' that is, petition for exclusion from its putative class, pursuant to section 2-804 of the Illinois Code of Civil Procedure [Ill. Rev. Stat. 1985, ch. 110, par. 2-804]?"

We reverse the order of the trial court and remand with directions.

Background

The Chicago Sewer Revenue Fund Ordinance imposes a charge for sewer service and the use of the City's sewerage system. The ordinance imposes the charge on all sewer users. The City uses the revenues of the fund to operate and repair the sewer system. Chicago Municipal Code ch. 185.1 (1984).

The record shows that Gregory Baksinski and other taxpayers began this class action. These taxpayers sought the accounting and collection of allegedly overdue sewer charges from all organizations that the Chicago Municipal Code exempts from paying water rates but not sewer charges. The taxpayers named four classes of defendants, with a representative from each class: Northwestern, representing all educational institutions; the YMCA, representing all charitable institutions; the Fourth Presbyterian Church, representing all religious institutions; and Edgewater Hospital, representing all not-for-profit hospitals. The taxpayers also named the City as a defendant.

The trial court subsequently granted the City's motion to realign itself as an intervening plaintiff. The City filed its own defendant class action complaint against the same four classes of defendants, and subsequently moved to certify them. Prior to the trial court's certification of the classes, the Roman Catholic Archdiocese of Chicago petitioned the trial court for ...


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