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06/19/89 Adrienne Geary Et Al., v. Dominick's Finer Foods

June 19, 1989

ADRIENNE GEARY ET AL., APPELLANTS

v.

DOMINICK'S FINER FOODS, INC., ET AL., APPELLEES



Before we consider the merits of the duress issue, we must first discuss two collateral issues raised by the parties. The first issue concerns who bears the burden of proving that plaintiffs paid the taxes voluntarily or involuntarily. The circuit court did not certify this issue for review (107 Ill. 2d R. 308(a)) and the appellate court did not address this issue, so it is not properly before us and we decline to consider it (see Christopher v. West (1951), 409 Ill. 131, 134-35). We are only concerned in the case at bar with the sufficiency of the pleading.

SUPREME COURT OF ILLINOIS

544 N.E.2d 344, 129 Ill. 2d 389, 135 Ill. Dec. 848 1989.IL.919

Appeal from the Appellate Court for the First District; heard in that court on appeal from the Circuit Court of Cook County, the Hon. Anthony Scotillo, Judge, presiding.

APPELLATE Judges:

JUSTICE CALVO delivered the opinion of the court. JUSTICE STAMOS took no part in the consideration or decision of this case.

DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE CALVO

Plaintiffs, Adrienne Geary, Marge E. Mulcahy, and Maureen E. Ryan, initiated a class action suit alleging that R. Thomas Johnson, as director of the Illinois Department of Revenue, the City of Chicago and Charles Sawyer, as director of the Chicago Department of Revenue (city defendants), and the Regional Transportation Authority imposed illegal taxes on tampons and sanitary napkins plaintiffs purchased from Dominick's Finer Foods, Inc., Jewel Food Stores, Inc., Walgreens Company, and K mart Corporation (retail defendants). The circuit court held that the voluntary-payment doctrine did not bar plaintiffs' claims and that tampons and sanitary napkins were exempt from the Chicago sales tax; therefore, the circuit court denied defendants' motions to strike and dismiss plaintiffs' complaint. At the request of the defendants and pursuant to Supreme Court Rule 308(a) (107 Ill. 2d R. 308(a)), the circuit court certified three questions for review. The appellate court consolidated the questions into the following two issues: (1) whether plaintiffs sufficiently pleaded duress under the voluntary-payment doctrine when they alleged that tampons and sanitary napkins were necessities; and (2) whether tampons and sanitary napkins were "medical appliances" under the Chicago Sales Tax Ordinance (Chicago Municipal Code § 200.6-1 et seq. (1984)) and thus exempt from that tax. The appellate court reversed the circuit court on the first issue, but did not address the second issue. We granted plaintiffs' petition for leave to appeal (107 Ill. 2d R. 315). Only the city and retail defendants participated in this appeal. The Women's Bar Association of Illinois, as amicus curiae, filed a brief in support of plaintiffs' position. I. Voluntary-payment Doctrine

Under the voluntary-payment doctrine, a taxpayer may not recover taxes voluntarily paid, even if the taxing body assessed or imposed the taxes illegally. (Getto v. City of Chicago (1981), 86 Ill. 2d 39, 48-49.) A taxpayer can only recover taxes voluntarily paid if such recovery is authorized by statute. (Getto, 86 Ill. 2d at 48.) A taxpayer, however, has paid the taxes involuntarily if (1) the taxpayer lacked knowledge of the facts upon which to protest the taxes at the time he or she paid the taxes, or (2) the taxpayer paid the taxes under duress. (Getto, 86 Ill. 2d at 48-49.) The court in Getto explained the voluntary-payment doctrine:

"'oney voluntarily paid under a claim of right to the payment and with knowledge of the facts by the person making the payment cannot be recovered back on the ground that the claim was illegal. It has been deemed necessary not only to show that the claim asserted was unlawful, but also that the payment was not voluntary; that there was some necessity which amounted to compulsion, and payment was made under the influence of such compulsion.'

. . . Though payment under protest is the typical means by which a taxpayer signifies his contention that a tax or charge was improper, the absence of such a protest does not, without more, require application of the voluntary-payment doctrine. It must also be shown that the taxpayer plaintiff had knowledge of the facts upon which to frame a protest and also that the payments were not made under duress or compulsion." Getto, 86 Ill. 2d at 48-49, quoting Illinois Glass Co. v. Chicago Telephone Co. (1908), 234 Ill. 535, 541.

Plaintiffs admitted that they failed to protest when they paid the taxes. The circuit court held that plaintiffs did not plead sufficient facts to show that they lacked the knowledge upon which to frame a protest. Plaintiffs, however, also alleged in their complaint that tampons and sanitary napkins were medical necessities of life, and the circuit court held that this allegation constituted a sufficient pleading of duress. Consequently, the circuit court determined that plaintiffs did not pay the taxes voluntarily and therefore held that they could proceed with their suit. The appellate court, however, reversed the holding of the circuit court on the duress issue. The appellate court held that "pleading that an item is a necessity does not constitute pleading duress" (167 Ill. App. 3d 1, 6) and, therefore, plaintiffs did not sufficiently plead that they paid the taxes involuntarily.

Second, the parties discuss at length whether plaintiffs had to protest the taxes and whether plaintiffs had sufficient knowledge to protest the taxes. The parties also dispute the form of protest plaintiffs had to make. The appellate court held that it would not decide those issues because the circuit court had not certified the issues for appeal; likewise, we will not consider those issues. (107 Ill. 2d R. 308(a); see Christopher, 409 Ill. at 134-35.) In addition, whether plaintiffs had to protest the taxes is irrelevant to the issue of duress because the absence of a protest is not enough to establish that a taxpayer made a payment voluntarily. (Getto, 86 Ill. 2d at 49.) Defendants argue that plaintiffs could have filed a protest, either informally or pursuant to the State Officers and Employees Money Disposition Act (otherwise known as the Protest Fund Act) (Ill. Rev. Stat. 1985, ch. 127, par. 170 et seq.), but failed to do so. Regardless, according to Getto, plaintiffs could still proceed with their claim, if they could succeed in establishing duress alone. Getto, 86 Ill. 2d at 49.

We now consider whether plaintiffs' allegation that tampons and sanitary napkins are necessities is sufficient, standing alone, to plead duress under the voluntary-payment doctrine. Plaintiffs rely on two cases. In Getto, plaintiff challenged the method defendants used in calculating a tax imposed on telephone service. (Getto, 86 Ill. 2d at 42.) Defendants argued that prior to filing the suit plaintiff paid his telephone bills without protest. (Getto, 86 Ill. 2d at 45.) Plaintiff asserted that he made the payments under compulsion and thus involuntarily because he feared that defendant telephone company would terminate his telephone service if he did not pay the tax. (Getto, 86 Ill. 2d at 46.) The court stated:

"Even were it to be held that the plaintiff had sufficient knowledge of all the facts to permit a Conclusion that all payments . . . were voluntary, we Judge that the implicit and real threat that phone service would be shut off for nonpayment of charges amounted to compulsion that would forbid application of the voluntary-payment doctrine." (Emphasis added.) (Getto, 86 Ill. 2d at 51.)

The court stated further:

"The factor of compulsion and its place in the voluntary-payment doctrine were discussed in Illinois Glass. It was observed by the court in 1908:

'The ancient doctrine of duress of person, and later of goods, has been relaxed, and extended so as to admit of compulsion of business and circumstances, and perhaps a telephone corporation having a system in general operation and connected with customers and other business houses might reasonably influence a business house to make an unwilling payment of an amount illegally demanded, which would make the payment compulsory. The telephone has become an instrument of such necessity in business houses that a denial of its advantages would amount to a destruction of the business.'" (Getto, 86 Ill. 2d at 52, quoting Illinois Glass, 234 Ill. at 541.)

Defendants in Getto argued that plaintiff could have protested the tax without risking termination of his service. Under General Order 197 of the Illinois Commerce Commission, a consumer could file a complaint with the utility, only pay the undisputed portion of his or her utility bills, and then seek to resolve the dispute with the utility. If the consumer and the utility could not resolve the dispute, then the consumer could file a complaint with the Commission. (Getto, 86 Ill. 2d at 52-53.) The court rejected defendants' contention:

"[The tax] was sanctioned and approved by the Commission itself. . . . Any attempt by the plaintiff to follow the procedural requirements in General Order 197 would obviously have been pointless and he would have been exposed to possible termination of service. We Judge that the plaintiff is not barred under the voluntary-payment doctrine." (Emphasis added.) (Getto, 86 Ill. 2d at 53.)

Thus, Getto found telephone service a necessity such that the "implicit" (Getto, 86 Ill. 2d at 51) threat of and "possible" (Getto, 86 Ill. 2d at 53) termination of that service amounted to duress.

The Getto court relied on Ross v. City of Geneva (1978), 71 Ill. 2d 27. In Ross, defendant supplied electricity as a public utility. Pursuant to an ordinance, defendant imposed a 10% surcharge on the electric bill of each commercial user of electricity. When plaintiff received his electric bill, he paid the surcharge but indicated on his check that he made the payment under protest. Plaintiff then sought recovery for the surcharge he paid to defendant. In holding that plaintiff did not pay the tax voluntarily, the court stated:

"In Allison Co. v. Village of Dolton, 24 Ill. 2d 233, plaintiff sought to recover money allegedly paid under duress to the defendant village for license and inspection fees under an ordinance which plaintiff alleged was either invalid or inapplicable to him. Relying upon Benzoline Motor Fuel Co. v. Bollinger, 353 Ill. 600, and People ex rel. Carpentier v. Arthur Morgan Trucking Co., 16 Ill. 2d 313, the court held that payments made to avoid 'disastrous effects to business' were involuntary and that the money thus paid could be recovered. Confronted with the choice of payment of the surcharge or termination of service, plaintiff, in making the payment, acted with prudence and is not barred from recovery of the sums paid." (Ross, 71 Ill. 2d at 33-34.)

The Ross court found it important that plaintiff could only choose between paying the surcharge or having his service terminated. The court found plaintiff's need for electricity important because the termination of that service would produce disastrous results. Thus, the court held that plaintiff acted prudently by paying the surcharge rather than risking the termination of an essential service.

Unlike plaintiffs in the case at bar, plaintiff in Ross made his payments under protest and he showed that defendant had a policy of terminating service to those customers who failed to pay their bills. (Ross, 71 Ill. 2d at 33.) The Getto court, however, found these circumstances irrelevant or at least unimportant. (See Getto, 86 Ill. 2d at 57 (Underwood, J., Dissenting).) The court in Getto, as we noted earlier, found duress even without such a protest, and the court did not require plaintiff to show that defendant telephone company had a policy of terminating service to nonpaying customers. See Getto, 86 Ill. 2d at 49, 51-52.

We find Getto and Ross similar to the case at bar and controlling on the issue of duress. The appellate court in the case at bar held that Getto and Ross were "readily distinguished from the case at bar for the reason that duress was present in both instances, not because they involved services which the court deemed essential, but because the plaintiffs certainly would have had their service shut off if they had refused to pay the disputed taxes." (167 Ill. App. 3d at 5-6.) We disagree. Duress existed in Ross and Getto not only because the defendants would have shut off the services had the plaintiffs not paid the taxes, but also because those cases involved services the courts deemed essential. The relationship between those two circumstances -- the nature of the service and the consequence of nonpayment of the taxes -- was significant. If the service had not been a necessity or if the defendants would not have terminated the services upon nonpayment of the taxes, then clearly the Getto and Ross plaintiffs would not have suffered any duress in paying the taxes.

In the case at bar both circumstances exist. Clearly tampons and sanitary napkins are necessities of life for a vast number of post-pubescent women. These products are virtually the only ones available to and used by women during menstruation. No reasonable alternative product exists. The invention of telephones and electricity generated a reliance on those services. Likewise, the invention of tampons and sanitary napkins generated a reliance on those products. Certainly if telephones and electricity are necessities, ...


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