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04/22/94 BARBARA B. KADEN v. JOEL A. KAGANN

April 22, 1994

BARBARA B. KADEN, INDIV. AND ON BEHALF OF ALL OTHERS SIMILARLY SITUATED, PLAINTIFF-APPELLANT,
v.
JOEL A. KAGANN, CLERK OF THE CIRCUIT COURT OF DU PAGE COUNTY, DEFENDANT-APPELLEE (THE COUNTY OF DU PAGE, INTERVENING DEFENDANT-APPELLEE).



Appeal from the Circuit Court of Du Page County. No. 92 CH 636. Honorable John S. Teschner, Judge, Presiding.

Released for Publication May 27, 1994. Petition for Leave to Appeal Denied October 6, 1994.

Quetsch, Woodward, Geiger

The opinion of the court was delivered by: Quetsch

JUSTICE QUETSCH delivered the opinion of the court:

The plaintiff, Barbara Kaden, brought a four-count class action complaint on behalf of Illinois taxpayers seeking to enjoin Joel Kagann, the clerk of the 18th Judicial Circuit (Du Page County), from turning over to the Du Page County treasury fees he collected pursuant to the Clerks of Courts Act (705 ILCS 105/27.2 (West 1992)) (which provides fees for filing various types of actions and for other court-related services). She also sought a mandatory injunction requiring Kagann to pay the court fees into the State treasury. The plaintiff contended that her relief should be granted because the Fee Deposit Act (50 ILCS 315/2 (West 1992)), which mandates that circuit court clerks deposit fees collected by them with the county treasurer, violates: (1) section 2 of article VII of the Illinois Constitution (Ill. Const. 1970, art. VII, § 2), which provides that public funds belonging to the State must be appropriated by the General Assembly; (2) section 9(a) of article VII of the Illinois Constitution (Ill. Const. 1970, art. VII, § 9(a)), which states that fees collected on behalf of units of local government shall not be based upon funds collected; (3) the due process and equal protection clauses of the Illinois and Federal Constitutions; and (4) section 8(d) of article IV of the Illinois Constitution, which provides that a bill shall be read by title on three different days in each house and that bills shall be confined to one subject. The trial court subsequently granted Du Page County leave to intervene as a defendant pursuant to section 2-408(a) of the Code of Civil Procedure (735 ILCS 5/2-408(a) (West 1992)). Kagann and Du Page County each filed a motion to dismiss pursuant to section 2-615(a) of the Code of Civil Procedure (735 ILCS 5/2-615 (a) (West 1992)). At the hearing on the defendants' motions, the trial court determined that all four counts of the plaintiff's complaint were predicated upon the argument that the fees collected by Kagann belong to the State. The trial court ruled that the fees are not "State funds," and it dismissed the plaintiff's complaint. The plaintiff filed this timely appeal, and we granted Cook County and the Metro Counties of Illinois leave to file amicus curiae briefs in support of the judgment.

The sole issue on appeal is whether the trial court erred in dismissing the plaintiff's complaint for failure to state a cause of action pursuant to section 2-615 of the Code of Civil Procedure (735 ILCS 5/2-615 (West 1992)). When ruling on a section 2-615 motion to dismiss, the court must accept as true all well-pleaded facts and all reasonable inferences which can be drawn therefrom. ( Kolegas v. Heftel Broadcasting Corp. (1992), 154 Ill. 2d 1, 8-9, 180 Ill. Dec. 307, 607 N.E.2d 201.) A complaint should not be dismissed for failure to state a cause of action unless it clearly appears that no set of facts could be proved which would entitle the party to relief. ( Johnson v. George J. Ball, Inc. (1993), 248 Ill. App. 3d 859, 863, 187 Ill. Dec. 634, 617 N.E.2d 1355.) When making this determination, the court is to interpret the allegations of the complaint in the light most favorable to the plaintiff. ( Johnson, 248 Ill. App. 3d at 863.) The complaint must be liberally construed with a view to doing substantial Justice between the parties. 735 ILCS 5/2-603(c) (West 1992).

The plaintiff contends that the trial court erred in dismissing her complaint for failure to state a cause of action. She argues that the fees collected by the circuit court clerks do belong to the State because the fees are imposed by State law (the Clerks of Courts Act (705 ILCS 105/27.2 (West 1992))) and must be paid in order to gain access to the State court system. She further argues that the diversion of State funds to the counties violates several provisions of the Illinois and Federal Constitutions. The plaintiff contends that she has therefore pleaded facts which, if proved, would entitle her to enjoin Kagann from turning over fees collected by him to the county treasury and would require him to pay the fees into the State treasury. She asks that we reverse the order dismissing her complaint and remand the cause to the trial court.

Kagann and Cook County argue that the trial court acted correctly by dismissing the plaintiff's complaint for failure to state a cause of action because the fees collected by circuit court clerks are trust funds which constitutionally belong to the counties to be used for court-related purposes. In support of this argument, they contend that the General Assembly has the constitutional authority to appropriate for the expenses of the judicial system. (Ill. Const. 1970, art. VI, §§ 14, 18; see also Kotche v. County Board of Winnebago County (1980), 87 Ill. App. 3d 1127, 1130, 42 Ill. Dec. 886, 409 N.E.2d 501.) The General Assembly has, in turn, delegated much of the responsibility for funding the State court system to the counties. For example, counties are required to: fund the offices of the circuit clerks (705 ILCS 105/27.3 (West 1992)); supplement the salary of the local State's Attorney (55 ILCS 5/4-2001

Page 259

(West 1992)); and erect, maintain, and furnish court facilities and provide for the reasonable and necessary expenses of the judiciary (55 ILCS 5/5-1106 (West 1992)). Kagann and Cook County contend that the fees collected by the circuit court clerks belong to the counties in trust to be used to satisfy their obligations to fund the court system.

Du Page County also argues that the fees collected by the circuit court clerks are not "State funds" and therefore the trial court did not err in dismissing the plaintiff's complaint. Du Page County basically contends that the State treasury has a right to only those funds included in the Governor's budget and appropriated by the General Assembly pursuant to section 2 of article VIII of the Illinois Constitution (Ill. Const. 1970, art. VIII, § 2). Since the fees are not included in the Governor's budget, and are not appropriated by the General Assembly, they do not belong to the State.

The Metro Counties of Illinois argue that, based upon our decision in Kotche v. County Board of Winnebago (1980), 87 Ill. App. 3d 1127, 42 Ill. Dec. 886, 409 N.E.2d 501, the trial court was correct in dismissing the plaintiff's complaint for failure to state a cause of action. In Kotche, the clerk of the circuit court for the 17th Judicial Circuit argued that the Fee Deposit Act violated the 1970 Illinois Constitution. The clerk argued that, in contrast to the 1870 Illinois Constitution which designated circuit clerks as elected county officers and provided that all fees collected by them above their legislative designated salaries were to be paid to the county treasurer (Ill. Const. 1870, art. X, § 9), the sole reference in the 1970 Constitution to the circuit court clerks is found in article VI providing for the judiciary. ( Kotche, 87 Ill. App. 3d at 1129.) He reasoned that the 1970 Constitution was intended to remove the office of the circuit court clerk from control by the county board. Therefore, the Fee Deposit Act's requirement that he deposit fees into the county treasury was unconstitutional. Kotche, 87 Ill. App. 3d at 1129.

We rejected this argument because there is no provision in the 1970 Illinois Constitution which specifically mandates the manner in which fee income received by the county clerk shall be deposited. ( Kotche, 87 Ill. App. 3d at 1130.) We held that the General Assembly is therefore free to provide by law for the disposal of such fees. ( Kotche, 87 Ill. App. 3d at 1130.) In this case, the Metro Counties argue that we should reaffirm Kotche and hold that the State has no constitutional right to the fees collected by the circuit court clerks since the General Assembly has provided by law for the disposal of the fees with the county treasuries.

Having set forth the arguments of the parties and amici curiae, we proceed to determine whether the trial court erred in dismissing the plaintiff's complaint for failure to state a cause of action. We first consider whether the plaintiff has pleaded sufficient facts which, if proved, would establish that the fees collected by the circuit court clerks constitutionally belong to the State. The starting point of our analysis is an examination of the 1970 Illinois Constitution, which makes eight references to public funds belonging to the State. Section 1 of article VIII provides that "the State * * * shall incur obligations for payment or make payments from public funds only as authorized by law or ordinance" (Ill. Const. 1970, art. VIII, § 1(b)) and that "reports and records of the obligation, receipt and use of public funds of the State * * * are public records available for inspection by the public according to law" (Ill. Const. 1970, art. VIII, § 1(c)). Section 2 of article 8 provides that "the General Assembly by law shall make appropriations for all expenditures of public funds by the State." (Ill. Const. 1970, art. VIII, § 2(b).) Section 3 of article 8 provides that "the General Assembly shall provide by law for the audit of the obligation, receipt and use of public funds of the State" (Ill. Const. 1970, art. VIII, § 3(a)) and that "the Auditor General shall conduct the audit of public funds of the State" (Ill. Const. 1970, art. VIII. § 3(b)). Section 4 of article 8 provides that "the General Assembly by law shall provide systems of accounting, auditing and reporting of the obligation, receipt and use of public funds." (Ill. ...


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