Alton property owner, S&J Real Property seek order declaring substitution of judge rule as unconstitutional

By Heather Isringhausen Gvillo | May 2, 2019


S&J Real Property seeks an order declaring a Third Judicial Circuit Court rule regarding substitution of judges in class actions as unconstitutional in a suit against the City of Alton alleging residents’ titles were slandered by the delivery of grass-cutting liens.

Plaintiff S&J Real Property filed a motion for leave to file a second amended complaint on April 5 through attorney Shari Murphy of The Law Offices of Shari L. Murphy LLC in Wood River.

The plaintiff argues that Ruth violated class plaintiff Marilyn Dilly’s right under the Illinois and United States Constitution when he denied her request for a substitution of judge on March 22. Dilly was added as a plaintiff in the first amended complaint.

“Leave to amend is to be freely granted to do substantial justice, and the amendment likely must be done in this lawsuit to avoid res judicata issues,” the motion states.


Pierce  

The plaintiff’s proposed second amended complaint was filed April 8 and included a count “complaining of Dennis R. Ruth in his official capacity as Madison County Circuit Court judge.”

In the proposed amended complaint, Dilly seeks an order declaring Third Judicial Circuit Local Rule 4.01 as unconstitutional and be enjoined from further enforcement.

Third Judicial Circuit Local Rule 4.01 “denies plaintiffs equal protection and due process of the law under the United States Constitution and Illinois Constitution by treating plaintiffs as inferior to defendants in their ability to exercise multiple substitutions of judge without cause; constitutes special legislation that targets one type of litigation to be different or inferior to other non-class action types of cases, a violation of the Illinois Constitution, and violates the United States Constitution by infringing on First Amendment rights of persons to associate as a group without discrimination,” the proposed amended complaint states.

The plaintiff argues that prior to Ruth’s March 22 ruling, he referenced that the purpose of the court rule “was to curtail repeated substitutions of judges by plaintiffs in class actions.”

Dilly filed the motion for a substitution of judge on Feb. 20.

Defendant the City of Alton filed a response to the plaintiff’s motion for substitution of judge on Feb. 26 through attorney Charles Pierce of Pierce Law Firm PC in Belleville.

Alton argues that substitution of judge is improper after the court denied S&J Real Property’s motion for a substitution of judge on Jan. 4. The defendant had previously argued that the plaintiff’s request for a substitution “is a classic case of a party trying to ‘test the waters.’”

“Given that S&J Real Property, the original putative class plaintiff in this matter, has filed a motion for substitution of judge, further motions for substitution are not allowed,” the response states.

In a Feb. 27 memorandum in support of its motion for substitution of judge, Dilly argues that Ruth made no rulings after the amended complaint adding Dilly was filed.

“By its mandatory terms, this court has no discretion to deny Marilyn Dilly’s motion for substitution of judge,” the memorandum states.

Ruth denied Dilly’s motion on March 22 and set a hearing on the defendant’s motion to dismiss.

Then on April 25, S&J Real Property filed a motion to continue the hearing.

Alton filed its motion to dismiss the first amended complaint on Jan. 16, arguing that S&J Real Property lacks standing to bring the case because it voluntarily paid the lien at issue.

“Under the Voluntary-Payment Doctrine, 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,” the motion states.

As for Dilly, the City of Alton argues that she lacks standing to assert her claim because she was tendered proper notice of the lien by certified mail.

“Simply stated, this case is fatally defective. Not only has the plaintiff waited too long to file it but, even had it been timely failed, there is simply no cause of action against the City for slander of title. The Illinois legislature has granted cities absolute immunity for such claims.

“Moreover, plaintiff lacks standing to bring this claim as they have not shown any injury and have voluntarily made payment,” the motion states.

According to the plaintiffs’ complaint, a lien is required for removal costs of neglected weeds and grass on a parcel of land and must be served either personally or by certified mail to whomever was sent the property tax bill for the parcel in the taxable year immediately preceding the removal. Otherwise, the removal cost is not a lien on the parcel.

S&J Real Property owns a property located at 946 Union Street in Alton.

The city allegedly recorded a grass cutting lien on the property for mowing and weed eating in the amount of $108.70, the suit states.

Dilly owns a property located at 1261 State Street in Alton.

The city allegedly recorded a grass cutting lien on the property for mowing and weed eating in the amount of $74.19, the suit states.

St. Clair County Circuit Court case number 18-L-1084

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Organizations in this Story

Madison County Circuit Court Pierce Law Firm, P.C. The Law Offices of Shari L. Murphy, LLC

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