JASON S. MARKS et al., Appellees,
MARY ELLEN VANDERVENTER et al., Appellants.
Rehearing denied September 28, 2015
Appeal from the Circuit Court of Lake County, the Hon. Christopher C.
Starck and the Hon. David M. Hall, Judges, presiding.
Counsel on Appeal
Lisa Madigan, Attorney
General, of Springfield, and Michael Nerheim, States Attorney, of Waukegan
(Carolyn E. Shapiro, Solicitor General, and Brett E. Legner, Deputy Solicitor
General, of Chicago, and Daniel L. Jasica and Victoria Gray, Assistant States
Attorneys, of counsel), for appellants.
Anita M. Alvarez, States
Attorney, of Chicago (Daniel Gallagher, Paul A. Castiglione, Jeffrey S.
McCutchan and Margaret S. Zilligen, Assistant States Attorneys, of counsel),
for intervenor-appellant Karen A. Yarbrough and as amicus.
Robert Markoff, of Chicago,
and Michael K. Noonan, of Noonan Perillo Ltd., and David A. Novoselsky, of
Waukegan, for appellees.
Meredith D. Schacht and
Mindy B. Kurlansky, of Neal, Gerber & Eisenberg LLP, of Chicago, for amicus
curiae Illinois Housing Development Authority et al.
JUSTICE BURKE delivered the judgment of the court, with opinion. Chief Justice Garman and Justices Freeman, Thomas, Kilbride, Karmeier, and Theis concurred in the judgment and opinion.
¶ 1 At issue is the constitutionality of a $10 Rental Housing Support Program surcharge collected by the recorder of deeds for the recordation of any real estate-related document in a county. 55 ILCS 5/3-5018 (West Supp. 2013). When originally enacted, the surcharge imposed by section 3-5018 of the Counties Code was $10 and provided that $1 of each surcharge shall be retained by the county in which it was collected. 55 ILCS 5/3-5018 (West 2006). Plaintiffs filed a class action lawsuit in the circuit court of Lake County challenging the surcharge as unconstitutional. In the course of this litigation, the General Assembly amended section 3-5018, imposing a $9 surcharge to fund the Rental Housing Support
Program and imposing a separate $1 recordation fee to be paid to the county in which it was collected. Pub. Act 98-5, § 5 (eff. Mar. 22, 2013) (amending 55 ILCS 5/3-5018). The trial court below held both the original and amended versions of the statute to be unconstitutional. Defendants appealed directly to this court pursuant to Supreme Court Rule 302(a)(1) (Ill. S.Ct. R. 302(a)(1) (eff. Oct. 4, 2011)). We now reverse the trial court's orders and remand for further proceedings consistent with this opinion.
¶ 2 BACKGROUND
¶ 3 Plaintiffs, Jason Marks and Lauren Marks, filed their complaint against Mary Ellen Vanderventer, recorder of deeds of Lake County, and Lake County itself, alleging that the preamended version of the $10 Rental Housing Support Program state surcharge was unconstitutional. They asserted that the statute created an unconstitutional fee office in violation of article VII, section 9(a), of the Illinois Constitution of 1970 (Ill. Const. 1970, art. VII, § 9(a)). Plaintiffs also alleged that the statute violated the equal protection and due process clauses (Ill. Const. 1970, art. I, § 2), as well as the uniformity clause in the state constitution (Ill. Const. 1970, art. IX, § 2). Plaintiffs requested relief in the form of a refund of the surcharges paid by them, exemplary damages, attorney fees, and costs. The trial court below certified a class of plaintiffs and a class of defendants consisting of the recorders of deeds in each of the counties in the state. The State of Illinois was allowed to intervene in the matter.
¶ 4 As enacted in 2005, section 3-5018 required the recorder to collect a $10 surcharge, or fee, from an individual for the recordation of any real estate-related document. The statute provided that $9 of the surcharge was to be submitted to the State for purposes of the Rental Housing Support Program. The remaining $1 was to be retained by the county in which it was collected and deposited into the county's general revenue fund. 55 ILCS 5/3-5018 (West 2010). Of that $1, 50 cents was allocated "for the costs of administering the Rental Housing Support Program State surcharge ...