ANDREA G. SMITH-SILK and THOMAS J. KOZIACKI, Individually and on Behalf of All Others Similarly Situated, Plaintiffs-Appellants,
KURT PRENZLER in His Official Capacity as Treasurer of Madison County, MARK VON NIDA, in His Official Capacity as Circuit Clerk of Madison County, CHARLES SUAREZ, in His Official Capacity as Treasurer of St. Clair County, and KAHALAH DIXON, in Her Official Capacity as Circuit Clerk of St. Clair County, Defendants-Appellees.
Appeal from the Circuit Court of St. Clair County. No. 12-L-152 Honorable Lloyd A. Cueto, Judge, presiding.
Thomas G. Maag, Peter J. Maag, Maag Law Firm, LLC, Attorneys For Appellants.
Philip J. Lading, Anthony L. Martin, Lawrence Hall, Sandberg, Phoenix & von for Gontard, P.C., (for Kurt Appellees Prenzler and Mark Von Nida) Alvin C. Paulson, Becker, Paulson, Hoerner & Thompson, P.C., (for St. Clair County, Charles Suarez, and Kahalah Dixon) Attorneys for Appellees.
Presiding Justice Spomer and Justice Welch concurred in the judgment and opinion.
Honorable Richard P. Goldenhersh, J.
¶ 1 Plaintiffs, Andrea G. Smith-Silk and Thomas J. Koziacki, individually and on behalf of all others similarly situated, filed a complaint in the circuit court of St. Clair County against defendants, Kurt Prenzler, in his official capacity as treasurer of Madison County, and Mark Von Nida, in his official capacity as circuit clerk of Madison County (Madison County defendants), along with Charles Suarez, in his official capacity as treasurer of St. Clair County, and Kahalah Dixon, in her official capacity as circuit clerk of St. Clair County (St. Clair County defendants), in which they challenged a $5 "neutral site fee" (fee) charged to all litigants in Madison County and St. Clair County, sought a refund of the fee paid by named plaintiffs, as well as an injunction against the collection of additional fees, and requested class certification. After a hearing, the circuit court found the fee constitutional and dismissed plaintiffs' complaint against defendants. Plaintiffs now appeal. The Madison County defendants have filed a cross-appeal, but only in the alternative should we find the fee unconstitutional. For the following reasons, we affirm.
¶ 2 BACKGROUND
¶ 3 On June 13, 2000, our General Assembly passed Public Act 91-811, codified as the Neutral Site Custody Exchange Funding Act (Act) (55 ILCS 82/1 to 99 (West 2008)), which authorizes county boards to establish by ordinance an additional filing fee of between $1 and $8 in all civil cases to defray the cost of operating neutral site custody exchange centers. 55 ILCS 82/15 (West 2008). Section 5 sets forth the reasons for passage of the Act as follows: \
"§ 5. Legislative findings. The General Assembly finds that the domestic relations area of law, and particularly child custody matters, frequently involves seemingly minor disputes between individuals that escalate into major social and legal problems without the intervention of neutral parties; these problems often result in emotional damage to the children involved and create an extra burden for the courts; there are compelling reasons for providing neutral sites for parents to exchange the physical custody of a child for purposes of visitation; and not-for-profit charitable organizations can make a substantial contribution to the expeditious implementation of child custody and visitation orders in this State." 55 ILCS 82/5 (West 2008).
Pursuant to the Act, in 2005, Madison County passed an ordinance imposing a $4 fee on all civil filings in order to support a neutral site exchange in Madison County. In 2008, the ordinance was amended to increase the fee to $5. St. Clair County also passed an ordinance imposing a $5 fee on all civil filings in order to support a neutral site exchange in St. Clair County.
¶ 4 On March 23, 2012, plaintiffs filed their complaint in the circuit court of St. Clair County, seeking a finding that the Act is unconstitutional, an injunction against collecting additional fees, and a refund of all fees collected, which would require class certification. In response, the St. Clair County defendants filed a motion to dismiss in which they argued they were immune from prosecution pursuant to section 2-203 of the Local Governmental and Governmental Employees Tort Immunity Act (Tort Immunity Act) (745 ILCS 10/2-203 (West 2008)). The Madison County defendants filed a motion to dismiss or transfer venue to Madison County for the claims against Madison County, a motion to sever the claims of the Madison County defendants and St. Clair County defendants, a motion to strike class action allegations, and a motion to dismiss on the grounds that (1) the fee is constitutional, (2) the Madison County defendants are immune from suit, and (3) plaintiffs failed to comply with Illinois pleading requirements.
¶ 5 On June 12, 2012, all motions were argued with all parties present and represented by counsel. The circuit court took the matter under advisement. On July 6, 2012, the trial court entered an order denying the St. Clair County defendants' motion to dismiss on the basis that the Tort Immunity Act did not apply because plaintiffs did not allege a tort. The trial court also denied the Madison County defendants' motion to sever and motion to transfer venue. The trial court found the fee constitutional, noting that a rational basis exists for collection of the fee in that the fee assists the court in enforcing court orders, reduces litigation, and promotes judicial economy.
¶ 6 On August 2, 2012, plaintiffs filed a motion to reconsider and for clarification. Plaintiffs argued that there was no order dismissing the case and, thus, they were unsure as to the status of the case. Plaintiffs further argued that "by taking up the issue of constitutionality, without motion or briefing, [p]laintiff has been deprived of notice and the opportunity to be heard on the ultimate issue in this case, the constitutionality or unconstitutionality of the neutral site fee." Plaintiffs also argued that a finding of constitutionality was contrary to our supreme court's holding in Crocker v. Finley, 99 Ill.2d 444, 459 N.E.2d 1346 (1984). On August 20, 2012, the Madison County defendants filed a response to plaintiffs' motion to reconsider and for clarification in which they argued that the constitutionality of the fee was raised by the Madison County defendants in their motion to dismiss and it was proper for the trial court to make a ruling on the constitutionality of the fee.
¶ 7 On October 4, 2012, a hearing was conducted on plaintiffs' motion to reconsider and for clarification, after which the trial court entered an order denying all motions to dismiss. The trial court also found the fee constitutional, dismissed the case, and entered judgment for defendants and against plaintiffs. Plaintiffs ...