The opinion of the court was delivered by: Presiding Justice Hartman
Appeal from the Circuit Court of Cook County. Honorable Ronald C. Riley, Judge Presiding.
This appeal challenges the constitutionality of funding the mandatory arbitration program under the Code of Civil Procedure (Code) section 2-1009A (735 ILCS 5/2-1009A (West 1998) (section 2-1009A)) in Cook County, which exacts a $10 charge on all circuit court civil filings of cases. The charge is imposed even for causes that are statutorily and by rule precluded from using the arbitration system funded by the fee. Plaintiffs are litigants who were compelled to pay the fee when they filed their lawsuits for various causes of action, but did not qualify as users of the arbitration system. Defendants are the clerk of the circuit court of Cook County, who charges for and collects court fees, and the treasurer of the state of Illinois, who administers the court fees collected by the clerk. The circuit court granted defendants' Code section 2-615 (735 ILCS 5/2-615 (West 1998) (section 2- 615)) motion for dismissal and denied plaintiffs' motion for summary judgment. 735 ILCS 5/2-1005 (West 1998). Plaintiff appeals.
The legal issue presented is whether the imposition of a fee upon a class of litigants who are specifically excluded from receiving the benefit of the program funded with the fee violates various provisions of the Illinois Constitution.
Section 5/2-1001A of the Code (735 ILCS 5/2-1001A (West 1998) (section 2-1001A)), authorizes the creation of a court-annexed mandatory arbitration system in Illinois, as follows:
"The Supreme Court of Illinois, by rule, may provide for mandatory arbitration of such civil actions as the Court deems appropriate in order to expedite in a less costly manner any litigation wherein a party asserts a claim not exceeding $50,000 or any lesser amount as authorized by the Supreme Court for a particular Circuit, or a judge of the circuit court, at a pretrial conference determines that no greater amount than that authorized for the Circuit appears to be genuinely in controversy." Illinois Supreme Court Rule 86(b) (155 Ill. 2d R. 86(b)), declares that civil actions are subject to mandatory arbitration "if each claim therein is exclusively for money in an amount or of a value not in excess of the monetary limit authorized by the Supreme Court for that circuit or county within that circuit, exclusive of interest and costs."
To fund the mandatory arbitration program, the Legislature enacted section 2-1009A, which provides:
"Filing fees. In each county authorized by the Supreme Court to utilize mandatory arbitration, the clerk of the circuit court shall charge and collect, in addition to any other fees, an arbitration fee of $8, except in counties with 3,000,000 or more inhabitants the fee shall be $10, at the time of filing the first pleading, paper or other appearance filed by each party in all civil cases, but no additional fee shall be required if more than one party is represented in a single pleading, paper or other appearance. Arbitration fees received by the clerk of the circuit court pursuant to this Section shall be remitted within one month after receipt to the State Treasurer for deposit into the Mandatory Arbitration Fund, a special fund in the State treasury for the purpose of funding mandatory arbitration programs and such other alternative dispute resolution programs as may be authorized by the circuit court rule for operation in counties that have implemented mandatory arbitration, with a separate account being maintained for each county." 735 ILCS 5/2-1009A (West 1998).
According to statute and rule, then, although only those actions involving exclusive claims for money not in excess of $50,000 are arbitrable, the mandatory arbitration program authorizes collection of a filing fee from each litigant in all civil cases which utilize the system, regardless of whether a particular case is arbitrable, or not.
On September 15, 1998, plaintiffs filed a class-action complaint in the circuit court, in which they asserted that they were required to pay the mandatory arbitration fee in filing complaints for specific performance, probate and dissolution of marriage despite the fact that none of those matters were eligible for arbitration proceedings. Plaintiffs additionally alleged that the clerk of the circuit court collects the mandatory arbitration fee in other actions filed in the circuit court, such as adoption matters, tax cases and foreclosure proceedings, which also are not eligible for arbitration. Further, plaintiffs contended that the clerk of the circuit court does not permit new actions to be filed if the arbitration fee is not paid and refuses requests to waive payment of the fee. Plaintiffs alleged that section 2-1009A violates the Illinois Constitution, specifically, the due process, free access, uniformity and equal protection clauses.
Defendants moved to dismiss the action under section 2-615 for failure to state a cause of action, asserting that the mandatory arbitration fee was constitutional because its burden fell equally on all civil law litigants in Cook County and was related to the overall operation and maintenance of the court system in Illinois.
On January 6, 1999, plaintiffs moved for summary judgment, relying upon the facts alleged in their complaint, and added an argument not pled, namely, that the mandatory arbitration fee violated the free access clause of the Illinois Constitution.
The circuit court granted defendants' motion to dismiss, denied plaintiffs' motion for summary judgment, and denied as moot plaintiffs' motion to certify the class, in light of the court's ruling on the merits. Plaintiffs timely filed their notice of appeal.
We note, preliminarily, that although the denial of a motion for summary judgment is not ordinarily appealable, such a denial is reviewable where the case is on appeal before the appellate court from a final judgment, such as a motion to dismiss which has been granted, as in the present case, where there has been no evidentiary hearing or trial, and the party seeking such review has not in any way prevented or avoided hearing or trial. See Arangold Corp. v. Zehnder, 187 Ill. 2d 345, 357, 718 N.E.2d 191 (1999); International Association of Machinists and Aerospace Workers, District Lodge No. 140 v. Chesire/A Xerox Co., 125 Ill. App. 3d 350, 352, 465 N.E.2d 981 (1984); Fremont Casualty Insurance Co. v. Ace-Chicago Great Dane Co., 317 Ill. App. 3d 67, 72-73, 739 N.E.2d 85 (2000); DePluzer v. Village of Winnetka, 265 Ill. App. 3d 1061, 1064-65, 638 N.E.2d 1157 (1994).
A circuit court's decision with respect to the constitutionality of a statute is reviewed de novo. Brown's Furniture, Inc. v. Wagner, 171 Ill. 2d 410, 420, 665 N.E.2d 795 (1996). A strong presumption of constitutionality attaches to legislative enactments. Best v. Taylor Machine Works, 179 Ill. 2d 367, 377, 689 N.E.2d 1057 (1997). The party who challenges a statute's constitutionality bears the heavy burden of ...