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Owner-Operator Independent Drivers Association v. Bower

September 21, 2001

OWNER-OPERATOR INDEPENDENT DRIVERS ASSOCIATION, RAYMOND KASICKI, MARINO MOTOR SERVICES, INC., AND HARRY KIJOWSKI, INDIVIDUALLY AND ON BEHALF OF ALL OTHERS SIMILARLY SITUATED, PLAINTIFFS-APPELLANTS
v.
GLEN L. BOWER, DIRECTOR, THE DEPARTMENT OF REVENUE, DEFENDANT-APPELLEE



The opinion of the court was delivered by: Justice Quinn

UNPUBLISHED

Appeal from the Circuit Court of Cook County Honorable Alexander P. White, Judge Presiding.

On February 19, 1999, plaintiffs, on behalf of themselves and all persons engaged in the interstate operation of commercial motor vehicles on the Illinois Tollway, filed an action for declaratory, injunctive and monetary relief against defendant, Glen Bower, Director, Illinois Department of Revenue. The plaintiffs, a trucking association, trucking company, and several owner-operators of commercial motor vehicle carriers, sought:

(1) a declaration that the Illinois motor fuel use tax (MFUT), as applied to commercial motor vehicles traveling on the Illinois Tollway, was unconstitutional;

(2) to enjoin the defendant from collecting the tax for fuel consumed on the Illinois Tollway; and

(3) a refund of any fuel taxes paid by commercial carriers based on mileage traveled on the Illinois Tollway.

The trial court granted defendant's motion under section 2-619 of the Code of Civil Procedure (735 ILCS 5/2-619 (West 1998), motion to dismiss plaintiffs' complaint. The court held that Owner-Operated Independent Drivers Association (OOIDA) lacked standing, that plaintiffs failed to join all necessary parties, that plaintiffs failed to exhaust all administrative remedies, that the voluntary payment doctrine required dismissal and that the MFUT was constitutional. Plaintiffs now timely appeal.

On appeal, plaintiffs argue that:

(1) they were not required to exhaust administrative remedies;

(2) the voluntary payment doctrine is not a bar to this action;

(3) the MFUT is in the nature of a user fee and is violative of the commerce clause;

(4) even if the MFUT is a use tax, it is violative of the commerce clause;

(5) OOIDA has standing in this case; and

(6) all necessary parties have been joined.

For purposes of this appeal, the State does not rely on the contentions that the plaintiffs' complaint was subject to dismissal on the basis of the voluntary payment doctrine, the exhaustion of remedies doctrine, or failure to join all other International Fuel Tax Agreement (IFTA) jurisdictions in this litigation. Therefore, these claims are not before our court on appeal.

For the following reasons, we affirm.

I. BACKGROUND

Plaintiff OOIDA is a not-for-profit association of persons and entities who own and operate motor carrier equipment. OOIDA was founded in 1973, was incorporated in Missouri, and has over 40,000 members in the United States and Canada.

Plaintiff Raymond L. Kasicki is an owner-operator who resides in Ohio. Kasicki, in operating his motor vehicle carrier, utilizes the Illinois Tollway. Kasicki pays his Illinois fuel use tax through the company from which he leases his commercial carrier, Mawson & Mawson, Ltd., a motor carrier based in Pennsylvania.

Plaintiff Marino Motor Services, Inc., is a motor carrier operating a fleet of commercial motor vehicles based in Illinois. Vehicles operated by Marino utilize the Illinois Tollway. Marino pays ...


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