Appeal from the Circuit Court of Cook County. No. 99 CH 6374 Honorable Sidney A. Jones, Judge Presiding
The opinion of the court was delivered by: Justice Barth
This appeal is from the grant of defendant's motion to dismiss plaintiffs' class action lawsuit pursuant to section 2-615 of the Code of Civil Procedure (735 ILCS 5/2-615 (West 1998)).
On April 27, 1999, named plaintiffs, Spiros A. Gofis and George Gofis (collectively, plaintiffs or the Gofises), filed the underlying class action lawsuit. The complaint defined the class as all parties who paid a tax automation fee (Fee) on the redemption of general real estate taxes sold at Cook County annual tax sales from the time of the imposition of the Fee through April 6, 1999. *fn1 The suit challenged the authority of the Cook County treasurer (Treasurer) to collect the $10 Fee, and the second amended complaint sought: (1) an injunction enjoining the Treasurer from further collection of the Fee and requiring the Treasurer to return any Fee previously collected, and (2) an accounting. Defendants, the County of Cook (the County) and the Treasurer, Maria Pappas, in her capacity as the Cook County treasurer and ex officio county collector, *fn2 moved to dismiss pursuant to section 2-615, arguing that the Treasurer's collection of the Fee is allowed by section 21-245 of the Property Tax Code (35 ILCS 200/21-245 (West 1994)); that Cook County's Tax Sale Automation Fund Ordinance additionally authorizes the Treasurer to collect the Fee; that the voluntary payment doctrine bars the claims; and that plaintiffs did not plead the elements of injunctive relief or an accounting.
On November 22, 1999, the circuit court granted the motion to dismiss in its entirety, finding that the Treasurer has the requisite statutory authority to collect the Fee.
The following issues are presented for our review: (1) whether Illinois law authorizes the Treasurer to collect the Fee; (2) whether Cook County's Tax Sale Automation Fund Ordinance additionally authorizes the Treasurer to collect the Fee; and (3) whether the voluntary payment doctrine bars the claims in the second amended complaint. *fn3
On or about January 29, 1997, the Gofises' property taxes for the nonpayment of 1995 general taxes were sold at the Cook County annual tax sale. The Gofises redeemed the taxes on or about April 22, 1997, by paying $7,796.96 to the county clerk. As part of that redemption, a fee of $200 was designated for the Cook County treasurer's fund, which included the $10 Fee that was collected from the purchaser of the delinquent taxes.
On April 29, 1999, the Gofises filed the original underlying "Class Action Complaint For An Injunction And Accounting against the Cook County Board of Commissioners and the Treasurer," challenging the Treasurer's authority to assess the Fee. Gofis also filed an "Emergency Motion For a Preliminary Injunction And Other Relief," seeking an order restraining defendants from spending any money collected in Fees. This motion was denied on May 4, 1999.
The Board moved to quash service, asserting that it is not a suable entity, and the Treasurer moved to dismiss pursuant to section 2-615. Prior to responding to the motions, the Gofises filed the first amended complaint, which named the County as a defendant instead of the Board of commissioners. Defendants moved to dismiss, and the Gofises responded. The Gofises were subsequently granted leave to file a second amended complaint. In it, they alleged that, although the Board is the County's legislative body which operates pursuant to the County's home-rule powers, prior to April 6, 1999, the Board never enacted an ordinance to impose a tax automation fee on the purchaser of delinquent taxes and that when it enacted a tax automation fee ordinance on April 6, 1999, it failed to follow its own rules. It was further alleged that, although she had no authority to collect the Fee, the Treasurer collected it and put it in a "Tax Sale Automation Fund" (Fund), which now contains in excess of $1 million. *fn4
On September 20, 1999, the County and the Treasurer moved to dismiss the second amended complaint on section 2-615 grounds, arguing that, as a matter of law, the Treasurer is authorized to collect the Fee; that the Gofises' claims are barred by the voluntary payment doctrine; and that the second amended complaint fails to state a claim for injunctive relief or for an accounting. The motion was fully briefed and on November 22, 1999, was granted by the trial court, which issued a memorandum order as to both counts. Plaintiffs filed a timely notice of appeal.
Upon review of the grant of a section 2-615 motion to dismiss, the standard is whether the allegations in the complaint, when viewed in the light most favorable to the plaintiff, sufficiently set forth a cause of action upon which relief may be granted. Saunders v. Michigan Avenue National Bank, 278 Ill. App. 3d 307, 310 (1996). A ruling on a motion to dismiss does not require a court to weigh facts or determine credibility and therefore we review the complaint de novo. Vernon v. Schuster, 179 Ill. 2d 338, 344 (1997). A complaint should not be dismissed under section 2-615 unless it clearly appears that no set of facts could be proved under the pleadings that would entitle the plaintiff to relief. Illinois Graphics Co. v. Nickum, 159 Ill. 2d 469, 488 (1994). A motion to dismiss for failure to state a cause of action may be acted upon in a class action before determination of certification issues. Arriola v. Time Insurance Co., 296 Ill. App. 3d 303, 307 (1998).
Plaintiffs assert that section 21-245 of the Illinois Property Tax Code does not, alone, authorize the Treasurer to collect the Fee without prior Board approval. Section 21-245 provides:
"§ 21-245. Automation Fee. The county collector in all counties may assess to the purchaser of property for delinquent taxes an automation fee of not more than $10 per parcel. In counties with less than 3,000,000 inhabitants:
(a) The fee shall be paid at the time of the purchase if the record keeping system used for processing the delinquent property tax sales is automated or has been approved for automation by the county board. The fee shall be collected in the same manner as other fees or costs.
(b) Fees collected under this Section shall be retained by the county treasurer in a fund designated as the Tax Sale Automation Fund. The fund shall be audited by the county auditor. The county board shall make expenditures from the fund to pay any costs related to the automation of property tax collections and delinquent property tax sales, including the cost of hardware, software, research and development, and personnel." 35 ILCS 200/21-245 (West 1994).
Plaintiffs insist that a reading of the statute as a whole creates a "clear inference" that it was intended to apply only to those counties with less than 3 million inhabitants. They contend that the fact that there are no similar regulatory provisions for counties with more than 3 million inhabitants "seems strongly to suggest" that the statute was not intended by the legislature to ...