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July 21, 1997


Appeal from the Circuit Court of Cook County. Honorable Dorothy Kirie Kinnaird, Judge Presiding.

Released for Publication September 11, 1997.

The Honorable Justice Buckley delivered the opinion of the court. Buckley, J., and Gallagher, J., concur.

The opinion of the court was delivered by: Buckley

The Honorable Justice BUCKLEY delivered the opinion of the court:

This action was brought as a class action by the named plaintiff, Loop Mortgage Corporation, acting on its own behalf and as representative of a class of persons and other entities similarly situated, seeking a declaration that ordinance No. 195136 of the County of Cook is invalid because it exceeds the powers granted to home rule counties by the Illinois Constitution of 1970. The County of Cook (the County) and the recorder of deeds of Cook County (the Recorder) were named as defendants. The amended complaint was dismissed with prejudice pursuant to section 2-619 of the Illinois Code of Civil Procedure. 735 ILCS 5/2-619 (West 1994).

Plaintiff appeals from the order of dismissal, raising the following issues: (1) whether the trial court erred in holding that ordinance No. 195136 constitutes a valid exercise or performance of a "power or function pertaining to the government and affairs of Cook County" within the meaning of article VII, section 6(a), of the Illinois Constitution (Ill. Const. 1970, art. VII, § 6(a)); and (2) if the ordinance is upheld, whether the Recorder may lawfully collect a $2 fee for filing or recording a tax billing information form in the absence of any statute or county ordinance authorizing the imposition of such a fee.

The ordinance at issue is ordinance No. 195136 and is entitled an "Ordinance to Require the Filing of Changes to Tax Billing Information" (the ordinance). The Cook County board adopted the ordinance on November 30, 1994, and made it effective January 1, 1995. The ordinance provides for the preparation and filing of a tax billing information form (the form) in order to facilitate the distribution of real estate tax bills to the current owner or assessee of record. The ordinance provides in pertinent part:

"Section 1. It shall be the duty of persons seeking recordation to file a Tax Billing Information Form at the time of recordation of any instrument which relates to or causes a change in the assessee of record for real property located in Cook County ***." Cook County Ordinance No. 195136 (eff. November 30, 1994.

The Cook County treasurer, the county collector, has the sole and mandatory statutory duty of administering the system of real property tax billing as required by the Illinois Property Tax Code, sections 20-5, 20-10 and 20-15. 35 ILCS 200/20-5, 20-10, 20-15 (West 1994). Over 1,400,000 individual parcels of real property are identified each year for assessment and taxation in Cook County. For the tax year of 1994, the county collector issued 2,984,106 real property tax bills. During the course of an average business week, the county collector processes in excess of 1,500 tax bill name and address changes.

The Cook County board determined that, in order to facilitate the collector's statutory duties, a tax billing information form should be devised and its use implemented. The form, when completed and filed pursuant to the ordinance, provides the collector with all of the information necessary to prepare and accurately distribute real property tax bills to all owners and assessees of record. According to the affidavit of Grace Neville, first deputy treasurer of Cook County, the collector uses the information contained in the form to assure that all real property tax payers in Cook County are mailed an accurate and timely tax bill as required by law. Ms. Neville's affidavit further states that the recording of the form with the office of the recorder of deeds provides a permanent record of the changes contained in the form.

The ordinance does not direct the actions of the Recorder relative to the form, assess a fee for the filing of the form, condition the recording of deeds on the filing of the form, or penalize citizens for failure to comply with the ordinance. Cook County Recorder Jesse White states in his affidavit that it is the policy of his office to accept deeds and other instruments of conveyance for recordation without the additional presentation of the form. In the event that a citizen does tender the form when a deed or other instrument of conveyance is presented for recording, the corresponding fee for the recordation of the form is charged pursuant to the fee schedule set by state law.

On February 10, 1995, plaintiff filed a single-count complaint for declaratory and injunctive relief contending that the ordinance is unconstitutional. Substantively, plaintiff complained that the adoption of the ordinance is neither authorized by the General Assembly nor a proper exercise of home rule power because the collection of real estate property taxes does not pertain to the government and affairs of Cook County within the meaning of article VII, section 6(a), of the Illinois Constitution of 1970. Ill. Const. 1970, art. VII, § 6(a). Paragraph 6 of the complaint alleges that, as a condition precedent for recording its deed, plaintiff was required by defendant Recorder to file the form and pay a $2 fee.

On April 28, 1995, defendants filed a motion to dismiss, along with the affidavits of Grace Neville and Jesse White. On May 19, 1995, at the hearing on defendant's motion to dismiss, plaintiff presented a counteraffidavit of its counsel's paralegal, Kim Whitman. Ms. Whitman states that on February 9, 1995, while she was at the Recorder's office, the deputy recorder told her that a deed would not be accepted for recording unless it was accompanied by the form and a $2 fee paid. Ms. Whitman further states that on May 12, 1995, she returned to the Recorder's office with her employer and plaintiff's counsel, Mr. Arnold Flamm, to present a deed for recordation. This time, Mr. Flamm was told by the deputy recorder that the deed would be recorded without the filing of the form. They then recorded the deed without filing the form.

Following argument of the motion, the trial court dismissed the complaint without prejudice because it failed to state a cause of action. Specifically, the trial court found that there was not a sufficient case in controversy in light of the facts presented in the affidavits. The court found that the ordinance did not impose a duty upon the Recorder and the Recorder's policy of not treating the filing of the form as a condition ...

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