Officials respond to summary judgment request in FOID card class action

By Heather Isringhausen Gvillo | Dec 21, 2017

State officials sued in a class action over an extra $1 FOID card fee argue that summary judgment is not proper because Illinois citizens cannot collect from the state a processing fee for firearm owner identification cards that was voluntarily paid to a third-party vendor.

Thomas Maag of Wood River filed the motion for summary judgment as to the unlawfulness of the challenged FOID card fee on Oct. 18 on behalf of the plaintiffs.

He argues that “it is undisputed that there exists no mechanism for anyone to obtain a Firearm Owner’s Identification Card upon the payment of a $10.00 fee, as it is undisputed that the only payment system that Defendants use to collect the fee charges $11.00. Defendant has not articulated any reason, justification or excuse as to why they can legally charge $11.00 for a FOID card.”

Maag asks the court to enter summary judgment on the issue of the overcharge and to enjoin the defendants from charging or collecting the fee. He also asks the court to order the defendants to disgorge and refund the fees.

Firearms Services Bureau Chief Jessica Trame and Illinois Treasurer Michael Frerichs filed a response to the plaintiffs’ motion for summary judgment on Dec. 8 through assistant attorney general Joshua Ratz.

Ratz argues that the Department of State Police “has authority to require applications and payments for FOID Cards to be submitted electronically, and that authority necessarily extends to the ability to contract with private vendors that charge fees for services rendered to the applicants.”

Ratz explains that the vendor processes FOID card applications, collects the application fee and remits the payments to the Illinois State Treasurer. Then for its services, the vendor charges a $1 service fee that is disclosed on the application website.

“That $1.00 service fee is never in the control of the State, but is rather collected and retained by the third-party vendor,” the response states.

Ratz adds that any method of application to the Illinois State Police carries extra costs exceeding the $1 service fee. Submitting an application by mail would incur costs for postage, envelopes, paper and printing. An application in person would incur travel expenses.

“Neither the Illinois State Police nor the State collect or receive the challenged service charge, and the state is not required to make the process of applying for a FOID Card and the tendering of application fees cost-free or subsidize the utilization of third-party services by applicants in tendering the application and fee,” the response states.

Ratz argues that the plaintiffs are not entitled to recover payments made to the third-party vendor because the vendor because the payments were for services rendered by the vendor as the plaintiffs’ agents.

He adds that the plaintiffs did not seek to apply by any other method and do not seek relief in their lawsuit that would require an alternative application method.

Ratz also argues that the plaintiffs are not entitled to recover payments from the defendants that were not made to the defendants, and they may not recover voluntary payments to the third-party vendor made with full knowledge of the facts and circumstances.

“In this case, there is no allegation or evidence that Plaintiffs were deprived of their free will in paying their service charges, and no allegations that Plaintiffs filed a protest or demanded other means of submitting their payment.

“Plaintiffs will likely argue that because Plaintiffs cannot exercise their Second Amendment right without obtaining a FOID Card, the service charge made to the vendor should be considered compulsory, but that argument fails.

“A person is not compelled to apply for a FOID Card, or own or carry a firearm, or otherwise exercise his or her Second Amendment rights,” the response states.

Further, Ratz wrote that the plaintiffs’ claims against the defendants in their official capacities are actually claims against the state – which are barred by sovereign immunity – “and a judgment in favor of Plaintiffs would directly subject the State to liability and deplete the State treasury, as Plaintiffs concede on the first page of their motion with their request for a finding of liability.”

Maag filed the suit Oct. 15, 2015, for plaintiff Gary Patrick Sterr and “all persons who applied for a FOID card from March 15, 2015, through and including the date of final judgment and paid a fee in excess of $10.00 when applying for said FOID card.”

In the complaint, Maag wrote that Sterr was charged the extra dollar as a convenience fee through the Illinois E-pay program for processing applications online. He 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.

Madison County Circuit Judge Dennis Ruth scheduled a case management conference for Jan. 31 at 9 a.m.

Madison County Circuit Court case number 15-L-1337

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Illinois State Police Illinois State Treasurer Maag Law Firm, LLC Madison County Circuit Court

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