Madison - St. Clair Record

Thursday, October 17, 2019

Ruth denies request for defense litigation plans in MC FOID class action

By Heather Isringhausen Gvillo | Apr 25, 2016

Madison County Circuit Judge Dennis Ruth denied an Illinois resident’s motion to compel the state’s treasurer and Firearms Services Bureau chief to provide their litigation plans and personal information on all Illinoisans who were charged $1 more than state statute allows when they applied for a firearm owner idenficiation card (FOID).

Wood River attorney Thomas Maag filed the class action on Oct. 15 for plaintiff Gary Patrick Sterr, who says he was charged the extra dollar in October as a convenience fee through the Illinois E-pay program for processing applications online.

Represented by Attorney General Lisa Madigan, Jessica Trame and Michael Frerichs responded to the plaintiff’s motion to compel on March 31, arguing that Sterr “does not provide a substantive legal response to Defendants’ objection, and the Court should deny the Motion, name, mailing address, and/or email address, of any putative class member in this case.”

Trame, Firearms Services Bureau chief, and Frerichs, Illinois treasurer, argue that Sterr is not entitled to the defendants’ counsel’s legal theories, mental impressions or litigation plans.

In his motion to compel, Sterr asked the defendants to state the legal authority by which an additional fee can be charged for a FOID card.

The defendants objected.

“Specifically, Plaintiff does not assert that he is seeking factual material, but rather insists that legal authority be presented,” Assistant Attorney General Bilal Aziz wrote in the response.

They explained that Sterr intends to file a summary judgment motion and seeks to know what defenses may be raised to his motion.

“As discussed, discovery is not intended to allow litigants to delve into the legal theories of opposing counsel. Instead, parties use discovery to develop facts to assist in proving their legal theory,” Aziz wrote.

“It is not Defendants’ counsel’s role to guess what legal support Plaintiff will advance and evaluate the merits, or lack thereof, of Plaintiff’s claims for Plaintiff’s benefit. Therefore, Plaintiff has not identified a legal basis upon which the undersigned can be compelled to turn over attorney work-product, and the Motion should be denied,” he continued.

The defendants further argue that Sterr’s request for the personal information of “over 124,000 non-parties” is burdensome, premature and would invade the privacy of the individuals. They say the request would be unnecessarily expensive before the court even determines if the class should be certified.

On April 1, Ruth denied Sterr’s Feb. 16 motion to compel for being premature. However, he ordered the defendants to retain and preserve the personal identification information for those who applied for a FOID card on or after March 2015.

Further, Trame and Ferichs responded to Sterr’s motion to segregate on April 1, stating that they lack the capacity to comply with his request. They explain that “no named party over which the Court has personal jurisdiction currently has possession of the monies Plaintiff’s motion seeks to segregate.”

Instead, the $1 processing service fee is paid to a third-party vendor.

“Put simply, any payments to the State of Illinois under the E-pay system are remitted to the Office of the Illinois Treasurer, which then distributes that money to the appropriate state fund and the State does not receive any $1.00 service charges in connection with the FOID program.

“Thus, Defendants cannot comply with the plaintiff’s requested Order. The $1.00 service fee compensation to the third-party vendor for processing applicants’ application fee payments is never in the possession of either Defendant. Plaintiff clearly requests that the $1.00 service fee charges is what he wants segregated,” the response states.

Sterr has until May 6 to reply to the response. A motion hearing is set for May 13 at 9 a.m.

In his complaint, Maag argues that statute 430 ILCS 65/5 expressly states that the FOID fee is $10.

By charging an additional $1, he claims Trame is unilaterally imposing a 10 percent surcharge on FOID cards without statutory authority. 

He further claims it is impossible to get a FOID card without paying the extra fee on top of the $10 mandatory cost (except for certain members of the military who are exempt all together) because the Firearms Services Bureau stopped accepting paper applications that allowed people to mail $10 checks or money orders.

"Defendants have charged a minimum of ten thousand people, and possibly substantially more, well into the hundreds of thousands or millions of class members," Maag wrote.

In 2011, the state received 321,000 FOID applications, he wrote.

Maag notes that in order to lawfully possess a firearm in Illinois, "it is generally required to have in a person's possession a currently valid" FOID card.

The plaintiff also asked the court to certify the case as a class action. Maag seeks to represent a class including anyone who applied for a FOID card any time in 2015 and who paid a fee in excess of $10.

Trame and Frerichs objected to the class definition in their April 15 response to Sterr’s motion for class certification. They argue that the proposed class definition is too vague and potentially overbroad. They ask that the class be more specifically defined.

The defendants proposed a class certification to include “all persons who applied for a Firearm Owners Identification card from March 15, 2015, through and including the date of final judgment, and paid a $1.00 payment processing service fee in addition to a $10.00 application fee upon submission of that application.”

Madison County Circuit Court case number 15-L-1337

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