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Dismissed suit over unlawful $60 filing fee revived

Friday, February 02, 2018
Chicago Daily Law Bulletin
by David Thomas

A state appeals panel on Thursday revived a class-action lawsuit against the Cook County Circuit Clerk’s Office over a $60 filing fee charged unlawfully on potentially thousands of petitions or motions involving nonfinal orders.

The case relates to a section of law interpreted by the 1st District Appellate Court last year, Gassman v. Clerk of the Circuit Court, 2017 IL App (1st) 151738, which found Dorothy A. Brown’s office was able to charge fees only on final judgments and final orders, not nonfinal ones.

In the present case, Brown’s office conceded on appeal that Gassman rendered as unlawful any fees on a “petition or motion to reconsider, vacate or modify interlocutory judgments or orders in the circuit court.”

But the circuit clerk contended the plaintiffs’ claims should be barred under the voluntary payment doctrine.

The voluntary payment doctrine is an affirmative defense available in specific situations in which a payment is voluntarily made under a mistake of law.

The 1st District panel instead found that the plaintiffs in the case — Midwest Medical Records Association Inc., Renx Group LLC and Tomica Premovic — paid the $60 filing fee under duress, even though they did not protest the fee at the time.

“[P]laintiffs could not avail themselves of the judicial process without payment,” Justice Eileen M. O’Neill Burke wrote. “Plaintiffs’ refusal to pay the fee would have immediately resulted in loss of access to the courts to challenge orders entered against them.”

The plaintiffs separately filed suits against the circuit clerk’s office, but the circuit court consolidated them in May 2016.

The 1st District decision remands the case back to Cook County Circuit Judge Sophia H. Hall for further proceedings.

Thomas A. Zimmerman Jr., a shareholder at Zimmerman Law Offices P.C. and Renx Group’s attorney, said the circuit clerk’s office will now have to answer the lawsuit.

The panel rejected the plaintiffs’ argument that the Clerks of Court Act gave them a private cause of action to pursue against the circuit clerk’s office. However, Zimmerman noted the 1st District panel did not consider the other two counts in the plaintiffs’ lawsuit: unjust enrichment, which could require the circuit clerk’s office to return the money, and injunctive relief, which would prohibit the circuit clerk’s office from imposing the fee in the future.

Zimmerman said the panel likely did not address those issues because Hall did not rule on them substantively when she dismissed the lawsuit.

Zimmerman declined to estimate how large a class could be, noting that interlocutory orders occur in nearly every case. The proposed class would capture everyone who paid the $60 fee from Nov. 19, 2010, to the present.

“The only question is: How many of those did a litigant try to move to reconsider or move to vacate,” Zimmerman said.

Jacie C. Zolna, a partner at Myron M. Cherry & Associates LLC and one of the attorneys who represented Midwest Medical Records Association, likened the number of potential class members to the number of people who attend a Cubs game during baseball season.

“All you have to do is walk over to the Daley Center and see how busy it is,” Zolna said. “Those types of motions are routinely filed. We filed one, unironically, in this suit. This is going to impact a lot of people.”

Zimmerman stressed that the lawsuit does not allege that the circuit clerk’s office or Brown intentionally imposed this fine in violation of the law, noting there was no clarity on the issue until the 1st District panel’s decision in Gassman.

“They read the statute in a certain way on consultation with their counsel,” Zimmerman said. “Because of that, I think it was an honest mistake that was made.”

Zimmerman said he believes Brown’s office will “do the right thing” and offer refunds to people who paid the $60 filing fee. He noted that the 1st District in this ruling found the plaintiffs do not have a basis to seek damages against the office, just refunds.

Zolna struck a different tone, saying the circuit clerk’s office knew what they were doing was wrong. He pointed to copies of fee schedules showing the office rearranged certain words making clear they could charge filing fees for anything.

“It’s irrelevant whether they did this intentionally or not, but the position of the [circuit] clerk’s office was so ridiculous — there’s no other conclusion that anyone could reach that they were doing this on purpose,” Zolna said. “If we had to prove intentionality … I wouldn’t have a concern in the world.”

Zimmerman said he did not know if the circuit clerk’s office was still charging the fee.

Burke wrote in the panel’s opinion that the parties were in the early phase of the litigation, and that the justices were required to accept all of the plaintiffs’ pleadings as true.

Hall, in granting the circuit clerk’s Section 2-615 motion to dismiss, found the plaintiffs did not adequately show they were under duress when they each paid the $60 filing fee.

The plaintiffs did not protest when they paid the fee, did not show they would be deprived of an essential service by not paying the fee and were represented by attorneys at the time, Hall ruled.

But the 1st District panel disagreed, finding the plaintiffs did show they paid the fee under duress and compulsion, arguing their legal actions would not have gone forward had they not paid.

The panel rejected the circuit clerk’s contention that the $60 fee was not burdensome, pointing to a 1997 decision where the court found that even a $3 penalty fee was considered compulsory.

Both Hall and the panel also rejected the plaintiffs’ call for a writ of mandamus against the circuit clerk’s office.

The circuit clerk’s office, the Cook County treasurer and the county at large were represented by Cook County Assistant State’s Attorneys Paul A. Castiglione and James S. Beligratis. A spokesperson with the circuit clerk’s office did not return a request for comment.

Midwest Medical Records Association Inc. was represented by Myron M. Cherry and Zolna of Myron M. Cherry & Associates LLC.

Tomica Premovic was represented by John H. Alexander of John H. Alexander & Associates P.C. and Larry D. Drury of Larry D. Drury Ltd.

Justices Margaret Stanton McBride and David W. Ellis concurred with the opinion.

The case is Midwest Medical Records Association Inc., et al., v. Dorothy Brown, 2018 IL App (1st) 163230.

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