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Clerk’s fees at issue in revived suit

Wednesday, January 18, 2017
Chciago Daily law Bulletin
by Lauraann Wood


Chicago Daily Law Bulletin

January 18, 2017

Clerk’s fees at issue in revived suit

By Lauraann Wood
Law Bulletin staff writer

A state appeals panel on Tuesday revived a lawsuit brought by two plaintiffs who contend they shouldn’t be forced to pay a fee for filing to vacate nonfinal orders.

The plaintiffs, listed as David Gassman and A.N. Anymous, were charged $90 to file petitions to vacate dismissal orders for want of prosecution in separate civil cases.

They paid the fee under protest, contending the Clerks of Courts Act imposes filing fees for petitions that address only final judgments and orders — a category under which want-of-prosecution dismissals do not fall.

After paying the fee, they filed the underlying proposed class-action lawsuit seeking a writ of mandamus requiring the Cook County Circuit Court Clerk’s Office to stop collecting unauthorized fees and return all filing fees collected for petitions to vacate dismissals for want of prosecution.

But in reversing Circuit Judge Rodolfo Garcia’s decision to grant Circuit Clerk Dorothy A. Brown’s motion to dismiss, the appeals panel found the state legislature’s decision to include the word “final” in the statute would be “superfluous” if the fee could be imposed on petitions to vacate any kind of judgment or order.

Jonathan P. Novoselsky, an associate at Novoselsky Law Offices P.C. who represented the plaintiffs, said he was pleased to see the panel’s opinion come down in his favor.

“Hopefully this just goes back to the court and we can be able to resolve this issue,” he said.

Outlined in Section 27.2a(g), the Clerks of Courts Act imposes a $50 to $60 fee to file a petition to vacate or modify any final court judgment or order within the first 30 days of its entry. That fee jumps to a minimum $75 and maximum $90 for petitions filed later than 30 days.

Gassman, who was a plaintiff in a civil case that was dismissed for want of prosecution, was informed in November 2013 that the dismissal order could not be vacated until he paid a $90 fee. He paid in protest, contending his payment was improper since the dismissal was neither a final judgment nor a final order under Illinois law.

The panel’s opinion does not discuss the underlying case of co-plaintiff A.N. Anymous, whose name it presumes is fictitious.

However, in its reversal, the panel also remanded the case with instructions to amend the complaint removing any false names filed without leave of court.

Brown moved to dismiss the suit, contending the fee imposition is proper because the statute applies to any court order, not just final ones. She also argued the suit fails to state a cause of action because the statute does not create a private right of action through which the plaintiffs could sue.

Garcia granted the motion in May 2015, though his order did not explain the reasoning behind his decision.

But on appeal, the 1st District panel held the statute’s petition-fee provision applies to final judgments and final orders — not final judgments and any orders.

“A judgment is an order of the court,” Justice Mary Anne Mason wrote in the panel’s 13-page opinion. “Thus, if [S]ection 27.2a(g) authorizes a fee for a petition to modify or vacate any order of court regardless of its finality, then the earlier mention of final judgments is redundant — which the legislature presumably did not intend.”

The statute’s various fee ranges depending on how many days span before filing a motion to vacate or modify further reinforces its interpretation, the panel held.

“The [a]ct’s specification of different fees depending on whether the time to appeal has expired, i.e., before or after 30 days, is a strong indication that its provisions were intended to apply only to final orders,” Mason wrote. “If the fee is payable for motions to vacate nonfinal orders, as the [c]lerk contends, the differing fees for motions filed before or after the 30-day period makes no sense.”

Brown argued the plaintiffs’ statute interpretation could inspire litigants to label their filings as a “petition to reconsider” rather than one to vacate or modify.

“But this problem is independent of the issue at hand; crafty litigators can rename their documents regardless of whether the statute applies only to final orders,” Mason wrote.

The panel also rejected the argument that the plaintiffs’ suit failed to state a claim without the statute affording a private right of action to do so.

It found such an inference unnecessary since the plaintiffs’ mandamus action is not seeking tortlike relief but rather an order compelling the clerk to comply with state statute.

For similar reasons, the panel held, Brown also cannot argue she has statutory and common law tort immunity in the case, as “Gassman does not seek damages; he merely seeks a refund of certain fees that were improperly collected” under the statute.

“In any case, imposition of fees in accordance with the [a]ct is clearly ministerial rather than discretionary and is therefore not protected by either statutory or common law tort immunity,” Mason wrote. “The [c]lerk has no discretion to determine (i) whether to collect a fee or (ii) the amount of the fee.”

Cook County Deputy State’s Attorney Donald J. Pechous and Assistant State’s Attorneys Sisavanh B. Baker and Marie D. Spicuzza represented Brown’s office. Citing the case’s status as pending litigation, a spokeswoman with the state’s attorney’s office declined to comment.

Justices P. Scott Neville Jr. and Daniel J. Pierce concurred in the opinion, David Gassman, et al. v. The Clerk of the Circuit Court of Cook County, 2017 IL App (1st) 151738.

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