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HARDIN v. HARSHBARGER

January 14, 1993

DECAROL HARDIN, Individually and as a class representative, Plaintiff,
v.
HELEN S. HARSHBARGER, in her capacity as the Clerk of the Circuit Court of Will County, Illinois, JACK WEBER, in his capacity as the Treasurer of Will County, THE COUNTY OF WILL, AURELIA PUCINSKI, in her capacity as the Clerk of the Circuit Court of Cook County, Illinois, EDWARD ROSEWELL, in his capacity as the Treasurer of Cook County, THE COUNTY OF COOK, JOEL KAGANN, in his capacity as the Clerk of the Circuit Court of DuPage County, Illinois, JOHN NOVAK, in his capacity as the Treasurer of DuPage County, and THE COUNTY OF DUPAGE, Defendants.



The opinion of the court was delivered by: MARVIN E. ASPEN

 MARVIN E. ASPEN, District Judge:

 Plaintiff Decarol Hardin brings this action pursuant to 28 U.S.C. ยง 2201, seeking a declaration that the present and future Illinois state practice of charging a filing fee for the initiation of protection orders is in violation of her rights, privileges and immunities as secured under the United States Constitution. Additionally, Hardin seeks compensatory and exemplary damages, attorney's fees and costs. Presently before the court is Hardin's motion for class certification. Further, in five separate motions, defendants Joel Kagann (Circuit Court Clerk of DuPage County), John Novak (Treasurer of DuPage County), DuPage County, Aurelia Pucinski (Circuit Court Clerk of Cook County), Edward Rosewell (Treasurer of Cook County), Cook County, Helen Harshbarger (Circuit Court Clerk of Will County), Jack Weber (Treasurer of Will County), and Will County have moved to dismiss Hardin's complaint for failure to state a claim upon which relief may be granted. *fn1" For the reasons set forth below, we deny Hardin's motion for class certification and grant the motions to dismiss filed on behalf of the Cook and DuPage County defendants. The Will County defendants are entitled to a judgment on the merits.

 I. Background

 Decarol Hardin is a victim of an insidious crime afflicting women in our society in alarming proportion. She is a victim of domestic violence. On March 30, 1992, Hardin was repeatedly stabbed in the chest, neck and legs by her husband, Ernest Hardin. Following the incident, Ernest was arrested and charged with armed violence in Will County. Hardin was hospitalized, treated for multiple stab wounds and released on Friday, April 3, 1992. On Monday, April 6, 1992, Hardin went to the office of the Will County Circuit Clerk to obtain an emergency order of protection available pursuant to Ill. Rev. Stat. ch. 40, P 2312-2. At the time, Ill. Rev. Stat. ch. 25, P 27.1a required a person seeking an emergency protection order to pay a filing fee of $ 170 in cash. Hardin did not have $ 170 in cash and, as she did not meet the prerequisites for filing in forma pauperis, she was forced to leave the Clerk's office without an order of protection. Subsequently, Hardin returned home, obtained the $ 170 in cash and paid the Clerk the mandatory fee. Hardin obtained her emergency order of protection that day. Hardin brings this action to contest the charging of a filing fee for persons seeking orders of protection in Will, DuPage and Cook Counties. She seeks to represent a class including

 all persons in Will, DuPage, or Cook Counties, Illinois, who have sought an order of protection under the Illinois Domestic Violence Act and who have been required, or who were requested to pay, a filing fee for the initiation of a protective order; including those unknown individuals who were denied a protective order because they lacked sufficient funds to pay the mandatory filing fee.

 This case, however, does not represent the first public challenge to the practice of charging a filing fee for persons seeking a protection order. Indeed, Hardin has filed nearly an identical complaint against the Will County defendants in the Circuit Court of Will County, captioned Hardin v. Harshbarger, 92 MR 4929. On May 22, 1992, Chief Judge Edward E. Masters entered an order enjoining the Clerk of the Circuit Court from collecting fees for those seeking protection orders under the Illinois Domestic Violence Act. Judge Masters subsequently issued a permanent administrative order (No. 92-29), which provides that the Clerk of the Circuit Court "shall not require the payment of a filing fee for Emergency Orders of Protection." Given the administrative order, and upon agreement by the parties, Judge Masters dismissed Hardin's complaint on May 28, 1992. Additionally, the issue of filing fees for orders of protection has recently been the subject of the Illinois General Assembly. On September 24, 1992, Governor Edgar signed into law S.B. 400, which eliminates the filing fee requirement statewide.

 II. Class Certification

 Rule 23 of the Federal Rules of Civil Procedure establishes a two-step procedure to determine if a class action is appropriate. The court must first inquire into whether the class meets the four preliminary requirements of Rule 23(a):

 (1) the class is so numerous that joinder of all members is impracticable; (2) there are questions of law or fact common to the class; (3) the claims or defenses of the representative parties are typical of the claims or defenses of the class; and (4) the representative parties will fairly and adequately protect the interests of the class.

 Additionally, a class action that satisfies all four of the Rule 23(a) requirements must also qualify under one of the three subsections of Rule 23(b). In the instant case, Hardin seeks certification of the class under Rule 23(b)(2), which provides that a class action is proper if "the party opposing the class has acted or refused to act on grounds generally applicable to the class, thereby making appropriate final injunctive relief or corresponding declaratory relief with respect to the class as a whole." In the alternative, Hardin requests certification under Rule 23(b)(3), which provides that a class action is proper if "the court finds that the questions of law or fact common to the members of the class predominate over any questions affecting only individual members, and that a class action is superior to other available methods for the fair and efficient adjudication of the controversy."

 In evaluating the motion for class certification, the allegations made in support of certification are taken as true, and we do not examine the merits of the case. Eisen v. Carlisle & Jacquelin, 417 U.S. 156, 177-78, 94 S. Ct. 2140, 2152-53, 40 L. Ed. 2d 732 (1974); Spencer v. Central States, Southeast and Southwest Areas Pension Fund, 778 F. Supp. 985, 989 (N.D. Ill. 1991); Riordan v. Smith Barney, 113 F.R.D. 60, 62 (N.D. Ill. 1986). The burden of showing that the requirements for class certification have been met rests with the plaintiff. General Tel. Co. of Southwest v. Falcon, 457 U.S. 147, 161, 102 S. Ct. 2364, 2372, 72 L. Ed. 2d 740 (1982); Trotter v. Klincar, 748 F.2d 1177, 1184 (7th Cir. 1984); Riordan, 113 F.R.D. at 62.

 In the instant case, we begin and end our inquiry with subsections (a)(3) and (a)(4) of Rule 23, which provides that a district court may only certify a class if the claims or defenses of the representative party are typical of the claims or defenses of the class, and the representative party will fairly and adequately protect the interests of the class. Drawing from these two subsections, courts consistently hold that a class action may not be certified unless the named plaintiff has standing to seek the relief requested. See O'Shea v. Littleton, 414 U.S. 488, 494, 94 S. Ct. 669, 675, 38 L. Ed. 2d 674 (1974) ("If none of the named plaintiffs purporting to represent a class establishes the requisite of a case or controversy with the defendants, none may seek relief on behalf of himself or any other member of the class."); see also Robinson v. City of Chicago, 868 F.2d 959, 968 (7th Cir. 1989) (class action may not be certified unless the named plaintiff has standing), cert. denied, 493 U.S. 1035, 110 S. Ct. 756, 107 L. Ed. 2d 773 (1990); Magnuson v. City of Hickory Hills, 730 F. Supp. 1439, 1442 (N.D. Ill. 1990), aff'd, 933 F.2d 562 (7th Cir. 1991) (same). Because Hardin lacks standing (1) to seek injunctive relief, and (2) to represent those class members who sought an order of protection in DuPage and Cook Counties, we deny the motion for class certification.

 The requirement that a justiciable controversy exists applies to both actions requesting a declaratory judgment and those seeking equitable relief. Magnuson, 933 F.2d at 565 (citing Aetna Life Ins. Co. v. Haworth, 300 U.S. 227, 57 S. Ct. 461, 81 L. Ed. 617 (1936)). To invoke Article III jurisdiction, a plaintiff seeking injunctive relief must show that there is some immediate danger of a direct injury. Robinson, 868 F.2d at 966 (citing City of Los Angeles v. Lyons, 461 U.S. 95, 103 S. Ct. 1660, 75 L. Ed. 2d 675 (1983)). Past exposure to illegal conduct is insufficient to establish a present case or controversy regarding injunctive relief. A past injury must be accompanied with continuing adverse effects. O'Shea, 414 U.S. at 495-96, 94 S. Ct. at 675-76; Magnuson, 730 F. Supp. at 1442; Alvarez v. City of Chicago, 649 F. Supp. 43, 44 (N.D. Ill. 1986). A ...


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