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Lipe v. O'Connor

Court of Appeals of Illinois, Third District

April 10, 2014

JAY LIPE, Individually and on Behalf of All Others Similarly Situated, Plaintiff-Appellant,
v.
EDWARD O'CONNOR, as Treasurer of Peoria County, Illinois, ROBERT SPEARS, as Clerk of Peoria County, Illinois, Capacity as Clerk of Peoria County, Illinois, Defendant-Appellees

Appeal from the Circuit Court of the 10th Judicial Circuit, Peoria County, Illinois. Circuit No. 12-L-195. Honorable Richard D. McCoy Judge, Presiding.

Affirmed.

SYLLABUS

The constitutionality of the neutral site custody exchange fee assessed in defendant county on all civil litigants to provide neutral sites for the exchange of children for visitation in domestic relations cases was upheld over plaintiff's contentions that the fee unreasonably interfered with access to the courts and deprived civil litigants of property without due process, since the fee is imposed on all civil litigants, it supports ancillary court services, the neutral sites alleviate the burdens resulting from disruptive visitation exchanges, any surplus was used for other court administrative justice actions, and there was no violation of the free access clause or the due process clause.

Thomas G. Maag (argued) and Peter J. Maag, both of Maag Law Firm, of Wood River, for appellant.

Jerry Brady, State's Attorney, of Peoria (Steven Giebelhausen (argued), Assistant State's Attorney, of counsel), for appellees.

JUSTICE O'BRIEN delivered the judgment of the court, with opinion. Presiding Justice Lytton and Justice Carter concurred in the judgment and opinion.

OPINION

O'BRIEN, JUSTICE.

Page 664

[¶1] Plaintiff Jay Lipe, individually and on behalf of all others similarly situated, brought this action against defendants Edward O'Connor, treasurer of Peoria County, and Robert Spears, clerk of Peoria County (collectively Peoria County), challenging the constitutionality of an $8 neutral site custody exchange fee assessed on all civil litigants in Peoria County. The trial court granted Peoria County's motion to dismiss. Lipe appealed. We affirm.

[¶2] FACTS

[¶3] Plaintiff Jay Lipe filed a small claims action in Peoria County in June 2012 and was charged an $8 neutral site custody exchange fee. Lipe objected to the fee and paid it under protest. Also in June 2012, Lipe sought and was granted class certification and filed a class action complaint representing all Peoria County litigants who paid the $8 fee between June 15, 2009 and the date of disposition. In the complaint, Lipe argued the fee unreasonably interfered with access to the courts and deprived him and the other plaintiffs of property without due process.

[¶4] Peoria County filed a motion to dismiss (735 ILCS 5/2-619 (West 2012)) and submitted the affidavit of John Flynn, the court administrator in Peoria County. In his affidavit, Flynn attested that the neutral site custody exchange fund was part of the court administrator[']s budget, that funds were disbursed for the neutral site custody exchange, that any remaining funds were disbursed for " other court administrative justice action," such as guardians ad litem, and that the chief judge was required to approve all disbursements.

[¶5] Following a hearing, the trial court granted Peoria County's motion to dismiss. The trial court found that the fee " 'serves to improve overall the administration of justice and was imposed for a court-related purpose,'" quoting Rose v. Pucinski, 321 Ill.App.3d 92, 99, 746 N.E.2d 800, 254 Ill.Dec. 43 (2001), and that the fee did not violate the due process or free access clauses of the Illinois ...


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