A class of Illinois FOID card holders again seeks to segregate and sequester a disputed $1 overcharge, arguing that the program can operate without the additional fee as the state has “swept millions of dollars” from the fund.
Attorney Thomas Maag of Wood River filed the renewed motion to segregate and sequester funds on Aug. 12 on behalf of the class.
Maag requests the court to order the state to open a segregated fund “in which to deposit all sums of money paid by an applicant to apply for a FOID card, or to renew same, over $10.00, and to sequester said excess funds into said segregated account, and to enjoin defendants from spending, using or transferring said excess funds, unless and until further order of this court.”
Class representative Gary Patrick Sterr filed an application for a Firearm Owner’s Identification Card (FOID) on Oct. 6, 2015, and was charged $11, which is more than the $10 application fee. Sterr disputes the $1 overcharge.
Maag wrote in the motion that early in the case, he moved to segregate and sequester the disputed overcharge. His motion was denied “based on the representation of the state that it would not claim any sort of sovereign immunity defense, or other defense, if the court ultimately ruled against it on the merits.”
The motion states that an estimated $40,000 in excess fees is charged per month to Illinois class members.
“In theory, those funds were being deposited into a trust fund to fund FOID operations.
“Since that time, defendant has both reneged on its representation concerning assertion of defenses to bar payment, and the State has swept millions of dollars from the very fund that is supposed to fund the FOID program, and which the state represented to this court, would be egregiously affected if this court were to sequester the challenged funds.
“That clearly, as the FOID fund is being ‘swept’ by the state, it can operate without the $1.00 fee,” Maag wrote.
In response to Maag’s previous motion to segregate into an escrow account the $1 convenience fee, Attorney General Lisa Madigan’s assistant Bilal Aziz argued that such an order would be an improper pre-judgment and would violate state law.
The state previously argued that it does not receive the $1 fee collected for processing, which allegedly goes to a third party vendor.
“Defendants have already demonstrated in their first response that the State does not exercise control over the service fee and therefore cannot segregate those fees,” Aziz wrote. “In response, Plaintiff appears to abandon his request to segregate those funds and now makes clear that he seeks to reach funds other than the challenged $1.00 fee, specifically the $10.00 application fees. Affecting those funds would not only violate sovereign immunity, but would also affect the Legislature’s plenary authority to direct the expenditure of state funds.”
Aziz wrote that the legislature has said the state should direct $6 of the fee to the Wildlife and Fish Fund; $1 to the State Police Services Fund for the Firearm Transfer Inquiry Program and $3 to the State Police Firearm Services Fund.
Prior to Maag’s motion, the case had been inactive since January when Madison County Circuit Judge Dennis Ruth entered an order noting that the plaintiff’s summary judgment request had been argued and taken under advisement. A case management conference had been set and continued.
Maag seeks summary judgment as to the unlawfulness of the challenged FOID card fee.
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, 2017, through assistant attorney general Joshua Ratz.
Ratz argues in the response that a private vendor processing FOID card applications collects the application fee and remits the payments to the Illinois State Treasurer. The vendor charges a $1 service fee that is disclosed on the application website.
Ratz argues that the plaintiffs are not entitled to recover payments made to the third-party vendor because the payments were for services rendered by the vendor as the plaintiffs’ agents.
Maag filed the suit Oct. 15, 2015, for 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.
In June 2017, Ruth granted class certification after concluding that the prerequisites for maintenance of a class action are met and certification is appropriate for the “fair and efficient adjudication of the controversy.”
Class certification was granted more than a year after the motion was filed.
The class consists of “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.”
Madison County Circuit Court case number 15-L-1337