Challenge to filing fee has some worth
Monday, April 16, 2018
Chicago Daily law Bulletin
by Steven Garmisa
Section 27.2a(g) of the Clerks of Courts Act authorizes Cook County Circuit Clerk’s Office to charge a $60 fee when litigants file petitions to vacate or modify “any final judgment or order of court.”
Before the Illinois Appellate Court issued its ruling in Gassman v. Clerk of the Circuit Court, 2017 IL App (1st) 151738 — which concluded that Section 27.2a(g) did not justify a $60 fee for petitions to vacate orders that dismissed lawsuits for want of prosecution — a judge tossed a consolidated class-action complaint that alleged Brown’s office violated Section 27.2a(g) by imposing the $60 filing fee on motions to reconsider interlocutory orders.
The judge ruled that (1) the voluntary payment doctrine blocked the class action, and (2) the plaintiffs did not have a private right of action under the Clerks of Courts Act.
Reversing in part, the Illinois Appellate Court concluded that the facts alleged in the class-action complaint would, if proved, be sufficient to invoke exceptions to the voluntary payment doctrine. And although the plaintiffs do not have a private right of action under the Clerks of Courts Act, they can pursue claims for restitution of unlawfully imposed fees. Midwest Medical Records Association v. Brown, 2018 IL App (1st) 163230 (Feb. 1, 2018).
Here are highlights of Justice Eileen O’Neill Burke’s opinion (with omissions not noted in the text):
Our Supreme Court long ago recognized that “money voluntarily paid under a claim of right to the payment and with knowledge of the facts by the person making the payment cannot be recovered back on the ground that the claim was illegal. It has been deemed necessary not only to show that the claim asserted was unlawful, but also that the payment was not voluntary; that there was some necessity which amounted to compulsion and payment was made under the influence of such compulsion.” Illinois Glass Co. v. Chicago Telephone Co., 234 Ill. 535 (1908).
Notably, “the kind of duress necessary to establish payment under compulsion has been expanded over the years.” Smith v. Prime Cable, 276 Ill. App. 3d 843 (1995). “The doctrine has gradually extended to recognize duress of property” and “extended so as to admit of compulsion of business and circumstances.” Id.
Accordingly, a payment is considered involuntary where “(1) the payor lacked knowledge of the facts upon which to protest the payment at the time of payment, or (2) the payor paid under duress.” Dreyfus v. Ameritech, 298 Ill. App. 3d 933 (1998).
Here, there is no dispute that payment of the fees was unlawful under Gassman. In addition, plaintiffs do not dispute that they failed to note any protest on the written instruments with which they paid the fees.
Plaintiffs also do not allege that they lacked knowledge of the facts upon which to protest payment of the fees. Instead, they contend that their payment of the filing fees was involuntary and under duress as failure to pay would have denied them access to the courts and the right to a hearing, subjecting them to adverse judgments and their lawyers to legal malpractice claims.
To that end, plaintiffs assert that the circuit court erred in concluding that nonpayment would not have resulted in loss of access to necessary goods or services. Plaintiffs urge that the modern trend is against harsh application of the voluntary payment doctrine and a plaintiff need not show that the product or service is a “necessity” in order to establish duress.
Defendants contend that plaintiffs’ concept of duress is overbroad and argue that duress requires a showing of fraud or coercion, and the threat of being denied access to the courts is insufficient.
In determining whether payment is made under duress, the main consideration is whether the party had a choice or option, i.e., whether there was some actual or threatened power wielded over the payor from which he has no immediate relief and from which no adequate opportunity is afforded the payor to effectively resist the demand for payment. Duress may be implied.
In Norton v. Chicago, 293 Ill. App. 3d 620 (1997), the plaintiffs challenged a $3 penalty fee they paid on parking fines. This court found the voluntary payment doctrine did not bar their claims, despite failure to pay under protest, because the demand notices sent by the defendant city were coercive in that they threatened further legal action, entry of a default judgment plus court costs and action to recover further amounts or demand the maximum fine allowed by law.
In addition, the notice directed, without any legal basis, that the plaintiffs were not to contact the traffic court and misinformed them that “no information will be given or payment accepted at” the court.
The appellate court thus reversed the grant of summary judgment against the plaintiffs.
Next, in Raintree Homes v. Long Grove, 389 Ill. App. 3d 836 (2009), the trial court found in favor of the plaintiff developer in its declaratory judgment action challenging a village ordinance that required payment of impact fees as a condition of obtaining building permits.
The appellate court agreed that the developer paid the fees under duress. The majority held that necessity and protest were not the only bases for recoupment; it disagreed with the notion advanced by the dissenting justice that “recoupment of payments made under duress has been either limited to items or services that constitute necessities or allowed only when there has been a protest.”
The court also rejected the argument that recovery was barred because the plaintiff paid the impact fees for years before it sued. It found there was a business compulsion to continue doing business in the village and pay the impact fees because the plaintiff would have gone out of business, breached its contracts with third-party customers, it had “substantial commitments” in land there and without the permits it could not have legally built homes in the village. That the plaintiff’s business was profitable did not render the payment of fees voluntary.
We find Norton and Raintree instructive in the present case.
Although plaintiffs here did not pay under protest, it is indisputable that they would have forfeited the ability to challenge the interlocutory orders if they had not paid the filing fee as the clerk would have refused to accept their motions.
In addition, we are not persuaded by defendants’ argument that the approximately $60 fee could not be impliedly coercive because it is a small amount compared to one hour of reasonable attorney fees in the Chicago market.
Defendants do not cite to any authority holding that the amount of the unlawful fee is a relevant consideration. Indeed, case law points in the opposite direction.
Accordingly, we find that the trial court erred in holding that plaintiffs’ claims were insufficient to plead duress and failed to show they were denied access to a service that was necessary to them.
At a minimum, the circuit court should not have resolved the issue of duress as a matter of law on the pleadings, as it is generally a question of fact.
Implied cause of action under the Clerks of Courts Act
We note that in Gassman, the clerk argued, as it does here, that there was no implied private right of action under Section 27.2a(g).
The plaintiff in Gassman sought a writ of mandamus to compel the clerk to cease collecting the unauthorized fees, to return all fees previously collected and for an accounting of all fees collected. This court held that it was not necessary to infer a private right of action because the plaintiff was not seeking tortlike relief or damages, but instead the plaintiff’s suit for mandamus was the proper vehicle.
The plaintiff was not attempting to impose tort liability on the clerk, but to compel public officials to comply with the language of the statute, and therefore the plaintiff was “entitled to pursue a mandamus action to compel the officials’ compliance with the law, and no private right of action is necessary.” Id. ¶ 25.
To the extent that plaintiffs here are requesting a declaration that imposition of the filing fees is unlawful and seek a return of the fees collected pursuant to Section 27.2a(g), plaintiffs’ claim can be construed as one for restitution, and not attempting to impose tort liability or damages on the clerk.
As our [S]upreme [C]ourt has explained, restitution is available in both cases of law and equity and “the concepts of restitution and damages are quite distinct, but sometimes courts use the term damages when they mean restitution.” Raintree Homes v. Long Grove, 209 Ill. 2d 248 (2004) (quoting 1 Dan B. Dobbs, Law of Remedies § 3.1 (2d ed. 1993)).
“Damages differs from restitution in that damages is measured by the plaintiff’s loss; restitution is measured by the defendant’s unjust gain.” Id.
Here, we find that plaintiffs do not have a basis to pursue a private action to impose tort liability on defendants, and consequently, they do not have a basis upon which to seek damages to compensate for costs and expenses beyond restitution. However, plaintiffs can proceed with a declaratory action, similar to the mandamus action pursued by the plaintiffs in Gassman.
Much like the mandamus action by the plaintiffs in Gassman, plaintiffs here need not pursue a private right of action under the Clerks of Courts Act in seeking the equitable relief of a declaratory judgment and return of the fees unlawfully imposed in the form of restitution.
Affirmed in part, reversed in part, and remanded.