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03/30/94 NO. 1-93-1236 BARBARA B. KADEN v. AURELIA

March 30, 1994

NO. 1-93-1236 BARBARA B. KADEN, INDIVIDUALLY AND ON BEHALF OF ALL OTHERS SIMILARLY SITUATED, PLAINTIFF-APPELLEE,
v.
AURELIA PUCINSKI, CLERK OF THE CIRCUIT COURT OF COOK COUNTY, DEFENDANT-APPELLANT, AND THE COUNTY OF COOK, INTERVENOR-DEFENDANT-APPELLANT. NO. 1-93-1243 BARBARA B. KADEN, INDIVIDUALLY AND ON BEHALF OF ALL OTHERS SIMILARLY SITUATED, PLAINTIFF-APPELLANT, V. AURELIA PUCINSKI, CLERK OF THE CIRCUIT COURT OF COOK COUNTY, DEFENDANT-APPELLEE, AND THE COUNTY OF COOK, INTERVENOR-DEFENDANT-APPELLEE.



Appeals from the Circuit Court of Cook County. Honorable Edward C. Hofert, Judge Presiding.

Rehearing Denied June 8, 1994. As Corrected July 8, 1994. Released for Publication July 14, 1994.

Greiman, Tully, Rizzi

The opinion of the court was delivered by: Greiman

JUSTICE GREIMAN delivered the opinion of the court:

Plaintiff and defendants have both appealed orders of the circuit court of Cook County. This court, by its own motion, consolidated both appeals.

Plaintiff appeals an order which denied her motion to stay the instant proceedings in the circuit court of Cook County due to another case based upon substantially similar issues pending before the Appellate Court, Second District on appeal from the circuit court of DuPage County. The sole issue presented is whether the trial court abused its discretion in denying plaintiff's motion for a stay of the Cook County proceedings.

Defendants appeal the trial court's order, considered after plaintiff's appeal, which denied their motion to reinstate briefing schedules on all outstanding motions and found that the interlocutory appeal by plaintiff deprived it of jurisdiction to rule on defendants' motion.

Defendants' appeal raises two issues: (1) whether the appellate court has jurisdiction under Supreme Court Rule 307(a)(1) (134 Ill. 2dR. 307(a)(1)) to consider the trial court's order denying defendants' motion to proceed with the instant case, and (2) whether the trial court loses jurisdiction to proceed to the merits of a case where an interlocutory appeal is pending on the trial court's denial of a stay of proceedings.

As to plaintiff's appeal, we affirm the trial court's denial of a stay of the Cook County action and remand for further proceedings. In light of our Disposition in plaintiff's appeal, we dismiss defendants' appeal as moot.

On March 20, 1992, plaintiff filed the underlying complaint as a class action on behalf of all taxpayers in Illinois to challenge the constitutionality of section 2 of the Fee Deposit Act (Ill. Rev. Stat. 1991, ch. 85, par. 722) and section 27.5 of the Clerks of Courts Act (Ill. Rev. Stat. 1991, ch. 25, par. 27.5). In September 1992, defendant County of Cook was granted leave to intervene as a matter of right. The complaint maintains that the funds collected pursuant to these two Acts are State rather than county funds and should be part of the General Assembly's appropriation process.

After filing the complaint in Cook County, plaintiff filed substantially identical complaints against the county treasurers and circuit clerks of four other counties: Lake County (May 11, 1992); Will County (June 26, 1992); Winnebago County (July 1, 1992); and DuPage County (June 30, 1992). Like the Cook County case, each of these four complaints challenged the constitutionality of section 2 of the Fee Deposit Act. Unlike the Cook County case, none of the other four complaints contested the constitutionality of section 27.5 of the Clerks of Courts Act.

Subsequently plaintiff voluntarily dismissed her three complaints pending in Lake, Will and Winnebago Counties.

On October 22, 1992, plaintiff moved to voluntarily dismiss the Cook County case. To date, no action has been taken on this motion by the trial court.

On January 26, 1993, the circuit court in DuPage County entered an order dismissing plaintiff's complaint on a section 2-615 motion to dismiss (Ill. Rev. Stat. 1991, ch. 110, par. 2-615) brought by the defendant in that case and expressly found that "the funds in question are not State funds." On February 5, 1993, plaintiff appealed this order to the Appellate Court, Second ...


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