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Jillian Jacobsen, Individually and On Behalf of All Others Similarly Situated v. Gary King

June 11, 2012

JILLIAN JACOBSEN, INDIVIDUALLY AND ON BEHALF OF ALL OTHERS SIMILARLY SITUATED,
PLAINTIFF-APPELLANT,
v.
GARY KING, CLERK OF THE COUNTY OF DU PAGE, DAN RUTHERFORD, TREASURER OF THE STATE OF ILLINOIS, AND LISA MADIGAN, ATTORNEY GENERAL OF THE STATE OF ILLINOIS,
DEFENDANTS-APPELLEES.



Appeal from the Circuit Court of Du Page County. No. 10-MR-1604 Honorable Terence M. Sheen, Judge, Presiding.

The opinion of the court was delivered by: Justice Schostok

JUSTICE SCHOSTOK delivered the judgment of the court, with opinion.

Presiding Justice Jorgensen and Justice McLaren concurred in the judgment and opinion.

OPINION

¶ 1 The plaintiff, Jillian Jacobsen, filed a three-count complaint arguing that a $5 fee that the legislature added in 2008 to the cost of a marriage license was an unconstitutional tax on marriage. The circuit court dismissed the plaintiff's complaint, and the plaintiff appeals from that order. We affirm.

¶ 2 I. General Background

¶ 3 In June 2008, in Public Act 95-711, the Illinois General Assembly increased by $5 the fee for obtaining a marriage license. Pub. Act 95-711 (eff. June 1, 2008). The $5 charge funds the Married Families Domestic Violence Fund (the Fund). See 55 ILCS 5/4-12003, 4-4001 (West 2010). The General Assembly created the Fund in order to award grants to public and private agencies that facilitate or provide free legal services to currently or formerly married domestic violence victims seeking remedies for domestic violence through civil proceedings (such as dissolution of marriage). It is administered by the Attorney General of Illinois. 30 ILCS 105/6z-72 (West 2010).

¶ 4 In June 2009, the plaintiff paid the Du Page County clerk $35 for a marriage license. In November 2010, the plaintiff filed a suit against the defendants, the Du Page County clerk, the Illinois Treasurer, and the Illinois Attorney General, in their official capacities. The plaintiff also sought statewide certification of a plaintiff class of those who paid the additional $5 and a defendant class of the State's 102 county clerks. The plaintiff's complaint, as amended, alleged that the $5 portion of the marriage license fee that went to the Fund violated the Illinois Constitution's guarantees of due process and equal protection as well as its tax uniformity requirement. Specifically, the complaint alleged that the $5 charge did not survive strict scrutiny for purposes of due process and equal protection for several reasons: (1) it must be paid and cannot be waived; (2) the fee is an unreasonable burden on marriage because it directly and significantly impedes one's ability to obtain a marriage license, given that the General Assembly may raise the fee to any amount it wishes; and (3) the charge neither serves a compelling government interest nor is narrowly tailored to achieve the State's purpose in creating the Fund.

¶ 5 The complaint also asserted that the $5 fee violated the rational basis test because (1) it was a tax on the fundamental right to marry, collected to fund a general welfare program; (2) the relationship between the purchase of a marriage license and domestic violence was too remote; and (3) there was no nexus between the $5 fee on marriage licenses and services for married or formerly married victims of domestic violence. The complaint alleged that the fee violated the tax uniformity requirement because it bore no reasonable relation to the statute's object nor was it based upon a real or substantial difference between those taxed (marriage license applicants) and those not taxed (everyone else).

¶ 6 On May 13, 2011, the defendants filed a motion to dismiss the plaintiff's complaint pursuant to section 2-615 of the Code of Civil Procedure (735 ILCS 5/2-615 (West 2010)). The defendants argued that the fee was constitutional because it was imposed only on those who were getting married and was used to fund programs supporting married or formerly married victims of domestic violence. The defendants further argued that the fee was nominal and that it did not directly or substantially impede the fundamental constitutional right to marry.

¶ 7 On June 28, 2011, following a hearing, the trial court dismissed the plaintiff's complaint. The trial court explained that the $5 fee was constitutional because it was narrowly tailored to further the compelling government interest of helping victims of marital domestic violence end such abuse. Further, the trial court found that the $5 fee did not violate principles of tax uniformity, because there was a clear and reasonable relationship between marriage license applicants and the Fund for domestic violence victims who are or were married, even though not all license applicants would benefit from the Fund. Following the trial court's ruling, the plaintiff filed a timely notice of appeal.

¶ 8 II. Motion to Strike Plaintiff's Introduction Section

ΒΆ 9 At the outset, we note that the defendants request that we strike the introduction section of the plaintiff's opening brief for violating Illinois Supreme Court Rule 341(h)(2) (eff. July 1, 2008). Rule 341(h)(2) sets forth what is to be included in the introductory paragraph of an appellant's brief, describing the nature of the action. The defendants argue that the introductory "nature of the action" section of the plaintiff's brief improperly includes "argumentative matters" in violation of Rule 341(h)(2). We agree with the defendants that portions of the introductory section of the plaintiff's brief contain argument that should not have been included in that section. Nonetheless, we decline to strike the introductory section of the plaintiff's brief ...


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