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10/26/94 DANNIE LEE AND SCOTT MICHAEL ALEXANDER v.

October 26, 1994

DANNIE LEE AND SCOTT MICHAEL ALEXANDER, P.C., AN ILLINOIS CORPORATION, INDIVIDUALLY AND ON BEHALF OF ALL PERSON SIMILARLY SITUATED, PLAINTIFFS-APPELLANTS,
v.
AURELIA PUCINSKI, CLERK OF THE CIRCUIT COURT OF COOK COUNTY, AND EDWARD J. ROSEWELL, TREASURER OF THE COUNTY OF COOK, DEFENDANTS-APPELLEES.



Appeal from the Circuit Court of Cook County. Honorable Richard Curry, Judge Presiding.

Released for Publication December 16, 1994. As Corrected December 13, 1994.

Cerda, Tully, Greiman

The opinion of the court was delivered by: Cerda

JUSTICE CERDA delivered the opinion of the court:

Plaintiffs, Dannie Lee (Lee) and Scott Michael Alexander, P.C. (Alexander), filed a class action against defendants, Aurelia Pucinski, Clerk of the Circuit Court of Cook County (Clerk), and Edward Rosewell, Treasurer of Cook County (Treasurer), seeking (1) a declaration that section 27.2a(k)(5) of the Clerks of Courts Act (Ill. Rev. Stat. 1991, ch. 25, par. 27.2a(k)(5) (now 705 ILCS 105/27.2a(k)(5) (West 1992))) is unconstitutional; and (2) recovery of the fees paid under the statute. Plaintiff Lee also filed a motion for temporary restraining order to segregate the fees paid and to create a special protest fund. The trial court denied plaintiff's motion, then dismissed the amended complaint on the basis of section 2-615 of the Code of Civil Procedure (Ill. Rev. Stat. 1991, ch. 110, par. 2-615 (now 735 ILCS 5/2-615 (West 1992))). On appeal, plaintiffs assert that (1) their amended complaint states a cause of action that section 27.2a(k)(5) is unconstitutional; and (2) the trial court abused its discretion in denying plaintiff Lee's motion for a temporary restraining order and to create a special protest fund. We affirm for the reasons that follow.

The following are the facts as stated in the amended complaint, which are taken as true in a motion to dismiss. Section 27.2a(k)(5) of the Clerks of Courts Act (Ill. Rev. Stat. 1991, ch. 25, par. 27.2a(k)(5) (now 705 ILCS 105/27.2a(k)(5) (West 1992))) provides that the fee to reproduce any document in the clerk's file is $2 for the first page, 50 cents per page for the next 19 pages, and 25 cents per page for the remaining pages. Plaintiffs allege that the statute (1) was enacted without regard to the business operation of the courts or the Clerk's office; (2) is a mechanism for raising general revenue; (3) is substantially higher than the marketplace rate of 10 cents for reproductions; and (4) is not for the legitimate purpose of operating, maintaining, and increasing the court's efficiency.

On January 1, 1992, the clerk's office began to collect the increased fees for reproduction of all documents. On February 25, 1992, plaintiff Lee asked a deputy clerk to reproduce two one-page orders from his divorce case so that his attorney could prepare a petition to terminate child support payments because his youngest child had attained the age of majority. After the deputy clerk refused to reproduce the documents without the $4 reproduction fee, Lee paid the $4.

On March 3, 1992, plaintiff Lee filed his complaint, seeking a declaration that section 27.2a(k)(5) is unconstitutional, temporary and permanent injunctions, the establishment of a special protest fund, an accounting, and the certification of a class action suit. On March 25, 1992, Lee filed a motion for a temporary restraining order (TRO) to enjoin the clerk from transferring to the treasurer any reproduction fees collected and to require the clerk to pay the fees into a protest fund. The trial court denied the TRO motion.

On August 25, 1992, plaintiff Alexander tried to obtain a copy of a court document in order to prepare a motion. An agent for plaintiff Alexander asked a deputy clerk to reproduce the document. After the deputy clerk demanded that he pay $2 for photocopying the document, the agent paid the $2 under protest. On October 8, 1992, plaintiff Alexander joined Lee in filing an amended class action complaint.

On November 5, 1992, defendants filed a section 2-615 motion to dismiss the amended complaint. After a hearing, the trial court dismissed the amended complaint with prejudice. The trial court found that the complaint does not present any facts from which there can be a Conclusion that the clerk has an express or implied duty to provide reproduction services.

Plaintiffs challenge the constitutionality of section 27.2a(k)(5) of the Clerks of Courts Act on the grounds that it (1) violates article I, section 12 of the Illinois Constitution (Ill. Const. 1970, art. I, §§ 12) by impermissibly interfering with the free access to Justice; and (2) violates the due process clauses of the Federal and Illinois Constitutions. U.S. Const., amend. XIV, Sec. 1; 1970 Ill. Const., art. I, Sec. 2.

All legislative enactments carry a strong presumption of constitutionality and all doubts must be resolved in favor of their validity. ( People v. Esposito (1988), 121 Ill. 2d 491, 497, 521 N.E.2d 873, 118 Ill. Dec. 396.) The presumption can be overcome only by a clear showing that the statute is arbitrary and unsupportable by any set of facts. ( Mlade v. Finley (1983), 112 Ill. App. 3d 914, 919, 445 N.E.2d 1240, 68 Ill. Dec. 387.) A complaint challenging the constitutionality of a statute must allege specific facts that rebut the presumption of constitutionality. Mlade, 112 Ill. App. 3d at 921, 445 N.E.2d 1240.

Plaintiffs assert that section 27.2a(k)(5) violates the Illinois Constitution's free access to Justice clause because the legislature breached the clerk's duty to reproduce court documents. The free access to Justice clause states:

"Every person shall find a certain remedy in the laws for all injuries and wrongs which he receives to his person, privacy, property or reputation. He shall obtain Justice by law, freely, completely, ...


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