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Robert J. Devereaux, Jr., Individually and On Behalf of All Others v. Eugene "Gene" Moore

July 15, 2011

ROBERT J. DEVEREAUX, JR., INDIVIDUALLY AND ON BEHALF OF ALL OTHERS SIMILARLY SITUATED, PLAINTIFF,
v.
EUGENE "GENE" MOORE, RECORDER OF DEEDS OF COOK COUNTY, BOTH AS THE RECORDER OF DEEDS OF COOK COUNTY AND ON BEHALF OF ALL OTHER RECORDER OF DEEDS IN EACH AND EVERY OTHER COUNTY IN THE STATE OF ILLINOIS, AND COOK COUNTY, A BODY POLITIC, DEFENDANTS.



The opinion of the court was delivered by: Judge Joan H. Lefkow

OPINION AND ORDER

Robert J. Devereaux, Jr., individually and on behalf of all others similarly situated, filed suit against Eugene "Gene" Moore, the Recorder of Deeds of Cook County ("Recorder") and Cook County (collectively, "defendants"), alleging federal due process and equal protection violations and state law conversion claims arising from the Recorder's collection of certain charges associated with the recording of real estate in Cook County. Defendants have moved to dismiss the complaint under Federal Rules of Civil Procedure 12(b)(1), 12(b)(6), and 12(b)(7). For the reasons that follow, defendants' motion to dismiss [#14] is granted.

BACKGROUND*fn1

On April 5, 2010, Devereaux recorded a deed with the Recorder. In order to do so, he had to pay certain charges, including a Rental Housing Support Program surcharge of $10 ("surcharge"), a Geographic Information System fee of $15 ("GIS fee"), and a document storage fee of $3 ("storage fee"). Devereaux paid these charges under protest.

The charges Devereaux paid are authorized by statute. 55 Ill. Comp. Stat. 5/3-5018. In relevant part, the statute reads:

The county board of any county may provide for an additional charge of $3 for filing every instrument, paper, or notice for record, (1) in order to defray the cost of converting the county recorder's document storage system to computers or micrographics and (2) in order to defray the cost of providing access to records through the global information system known as the Internet.

A special fund shall be set up by the treasurer of the county and such funds collected pursuant to Public Act 83-1321 shall be used (1) for a document storage system to provide the equipment, materials and necessary expenses incurred to help defray the costs of implementing and maintaining such a document records system and (2) for a system to provide electronic access to those records. The county board of any county that provides and maintains a countywide map through a Geographic Information System (GIS) may provide for an additional charge of $3*fn2 for filing every instrument, paper, or notice for record (1) in order to defray the cost of implementing or maintaining the county's Geographic Information System and (2) in order to defray the cost of providing electronic access to the county's Geographic Information System records. Of that amount, $2 must be deposited into a special fund set up by the treasurer of the county, and any moneys collected pursuant to this amendatory Act of the 91st General Assembly and deposited into that fund must be used solely for the equipment, materials, and necessary expenses incurred in implementing and maintaining a Geographic Information System and in order to defray the cost of providing electronic access to the county's Geographic Information System records. The remaining $1 must be deposited into the recorder's special funds created under Section 3-5005.4. The recorder may, in his or her discretion, use moneys in the funds created under Section 3-5005.4 to defray the cost of implementing or maintaining the county's Geographic Information System and to defray the cost of providing electronic access to the county's Geographic Information System records. The recorder shall collect a $10 Rental Housing Support Program State surcharge for the recordation of any real estate-related document. . . . . . . .

One dollar of each surcharge shall be retained by the county in which it was collected. This dollar shall be deposited into the county's general revenue fund. Fifty cents of that amount shall be used for the costs of administering the Rental Housing Support Program State surcharge and any other lawful expenditures for the operation of the office of the recorder and may not be appropriated or expended for any other purpose. The amounts available to the recorder for expenditure from the surcharge shall not offset or reduce any other county appropriations or funding for the office of the recorder. . . . Each recorder shall submit $9 of each surcharge collected in the preceding month to the Department of Revenue and the Department shall deposit these amounts in the Rental Housing Support Program Fund. Subject to appropriation, amounts in the Fund may be expended only for the purpose of funding and administering the Rental Housing Support Program.Id.

LEGAL STANDARD

A motion to dismiss under Federal Rule of Civil Procedure 12(b)(1) challenges the court's subject matter jurisdiction. Fed. R. Civ. P. 12(b)(1). The burden of proof is on the party asserting jurisdiction. United Phosphorus, Ltd. v. Angus Chem. Co., 322 F.3d 942, 946 (7th Cir. 2003). In determining whether subject matter jurisdiction exists, the court must accept all well-pleaded facts alleged in the complaint and draw allreasonable inferences from those facts in the plaintiff's favor. Sapperstein v. Hager, 188 F.3d 852, 855 (7th Cir. 1999).

A motion to dismiss under Rule 12(b)(6) challenges a complaint for failure to state a claim upon which relief may be granted. Fed. R. Civ. P. 12(b)(6); Gen. Elec. Capital Corp. v. Lease Resolution Corp., 128 F.3d 1074, 1080 (7th Cir.1997). In ruling on a motion to dismiss, the court accepts as true all well-pleaded facts in the plaintiff's complaint and draws all reasonable inferences from those facts in the plaintiff's favor. Dixon v. Page, 291 F.3d 485, 486 (7th Cir. 2002). In order to survive a Rule 12(b)(6) motion, the complaint must not only provide the defendant with fair notice of the claim's basis, but must also establish that the requested relief is plausible on its face. Ashcroft v. Iqbal, --- U.S. ----, 129 S. Ct. 1937, 1949, 173 L. Ed. 2d 868 (2009); see also Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555, 127 S. Ct. 1955, 167 L. Ed. 2d 929 (2007). The allegations in the complaint must be "enough to raise a right of relief above the speculative level." Twombly, 550 U.S. at 555. At the same time, the plaintiff need not plead legal theories. Hatmaker v. Mem'l Med. Ctr., 619 F.3d 741, 743 (7th Cir. 2010). Rather, it is the facts that count.

DISCUSSION

I. Rule 12(b)(1)

Defendants argue that the court lacks subject matter jurisdiction over Devereaux's complaint because it is barred by the Tax Injunction Act, 28 U.S.C. § 1341. The Tax Injunction Act provides that "[t]he district courts shall not enjoin, suspend or restrain the assessment, levy or collection of any tax under State law where a plain, speedy and efficient remedy may be had in the courts of such State." 28 U.S.C. § 1341. The TaxInjunction Act "does not limit any substantive rights to enjoin a state tax but requires only that they be enforced in a state court rather than a federal court." Empress Casino Joliet Corp. v. Balmoral Racing Club, Inc., --- F.3d ----, 2011 WL 2652201, at *1 (7th ...


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