Two Illinois officials seek summary judgment alleging sovereign immunity in a class action involving a disputed $1 vendor processing fee for Firearm Owner's Identification (FOID) card applications.
On Nov. 2, Chief of the Firearm Services Bureau of the Illinois State Police Gregory Hacker and Illinois Treasurer Michael Frerichs filed a cross-motion for summary judgment through Attorney General Kwame Raoul.
The motion states that the $1 fee in dispute is now a 50-cent charge for electronic checks.
The defendants argue that the “plaintiff’s request for damages is barred by sovereign immunity, and because plaintiff has not alleged any non-barred claim against defendants based on the challenged vendor processing fee.”
“Here, plaintiff seeks monetary damages against defendants in their official capacities as state officers for alleged wrongful collection of fees. Because this claim for damages is predicated exclusively on defendants’ official role as state employees, plaintiff’s suit is a suit against the state itself,” the memorandum in support of summary judgment states.
It continues that the complaint does not identify any other form of relief other than damages against the state, warranting summary judgment.
Class representative Gary Patrick Sterr also filed a motion for summary judgment through attorney Thomas Maag of Wood River, which was argued in January. Madison County Circuit Judge Dennis Ruth entered an order stating the issue had been taken under advisement, but no rulings have been entered.
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.
The defendants filed a response to the plaintiffs’ motion for summary judgment on Dec. 8, 2017, arguing 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.
Maag also filed a motion to segregate and sequester funds on Aug. 12. The motion is still pending.
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.”
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.
The state previously argued that it does not receive the $1 fee collected for processing.
“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.
Maag filed the suit in Madison County Circuit Court on 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 filed an application for a FOID card on Oct. 6, 2015, and 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 the state 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.
For example, he wrote that in 2011, the state received 321,000 FOID applications.
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.
Madison County Circuit Court case number 15-L-1337