Heather Isringhausen Gvillo Oct. 29, 2013, 2:50pm

The Fifth District Appellate Court has upheld the dismissal of a St. Clair County class action suit that claimed a $5 "neutral site" fee collected in civil case filings was unconstitutional.

Justice Richard Goldenhersh delivered the judgment of the court, with opinion on Oct. 24. Presiding Justice Stephen Spomer and Justice Thomas Welch concurred in the judgment and opinion.

Plaintiffs Andrea G. Smith-Silk and Thomas J. Koziacki, individually and on behalf of all others similarly situated, filed the original complaint on March 23, 2012 against Madison County Treasurer Kurt Prenzler, Madison County Circuit Clerk Mark Von Nida, St. Clair County Treasurer Charles Suarez, and St. Clair County Circuit Clerk Kahalah Dixon.

Shari Murphy of Wood River represented the plaintiffs.

They claimed that Public Act 91-811, otherwise known as the Neutral Site Custody Exchange Funding Act, is unconstitutional and requested the court to award them a refund of all fees collected, which would require class certification.

The Neutral Site Custody Exchange Funding Act was passed on June 13, 2000, and authorizes county boards to establish by ordinance an additional filing fee of between $1 and $8 in all civil cases to defray the cost of operating neutral site custody exchange centers.

Madison and St. Clair counties charge $5.

Defendants from both counties filed motions to dismiss the case presided over by now retired Circuit Judge Lloyd Cueto.

St. Clair County defendants argued that they were immune from prosecution according to the Local Government and Governmental Employees Tort Immunity Act, which was denied because the plaintiffs never alleged a tort.

Madison County defendants argued that the fee is constitutional, which the trial court granted, agreeing that the “rational basis exists for collection of the fee in that the fee assists the court in enforcing court orders, reduces litigation, and promotes judicial economy.”

The plaintiffs asked the court to reconsider on Aug. 2, 2012.

The trial court verified that the fee was constitutional, dismissed the case and entered a judgment in favor of the defendants and against the plaintiffs on Oct. 4, 2012.

The plaintiffs appealed the alleged sua sponte dismissal of the action and the finding of constitutionality of the fee. A sua sponte ruling generally refers to an order or decision in court made without request by any of the parties.

Goldenhersh held in the opinion that the trial court did not sua sponte rule on the constitutionality of the fee, but was ruling on the issue specifically raised by Madison County defendants. But if the trial court had made a sua sponte ruling, it was not improper for it to do so, Goldenhersh wrote.

“It is appropriate when ruling on a motion to dismiss for a court on its own initiative to consider the issue of whether a rational basis exists for the classification. … We believe the trial court correctly addressed the constitutionality of the fee, and we find no error in the procedural undertakings of the trial court in reaching and ruling on the question.”

Smith-Silk and Koziacki had argued that they understand the good intentions of the program, but claimed that they should not be required to fund a general welfare program.

“Plaintiffs contend that the fee charged to them and all litigants who pay filing or appearance fees in Madison and St. Clair Counties pursuant to the Act and to the corresponding ordinances is not a fee, but is in reality a tax,” Goldenhersh wrote.

He continued that while the plaintiffs argue that it is a tax, the statute specifically states that the charge is a “fee.”

Goldenhersh declared that court filing fees are proper if they are used for operation and maintenance of the courts.

“The General Assembly was not acting arbitrarily or capriciously when enacting this legislation,” Goldenhersh stated. “The stated purpose of the Act is not only to protect children, but also to lessen the burdens on courts caused by domestic disputes which can erupt during physical exchanges of children. Thus, the Act bears a rational relationship to the public interest.

Goldenhersh concluded by restating the appellate court’s affirmation that the fees have a rational basis in that “the fees allow for the creation of neutral site custody exchanges run amok.”

“By providing parents with neutral sites to physically exchange their children, counties are reducing litigation and promoting judicial economy. Accordingly, the fees challenged herein by plaintiffs are sufficiently related to the operation of the Illinois court system and survive the constitutional challenge raised by plaintiffs.”

St. Clair County Circuit Court case number 12-L-152

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