Madison County Circuit Judge Dennis Ruth granted a class of Illinois residents’ request to amend a complaint originally filed in 2015 involving a disputed $1 vendor processing fee for Firearm Owner’s Identification (FOID) card applications.
On Dec. 18, Ruth granted a motion to amend by interlineation filed by Wood River attorney Thomas Maag on behalf of the plaintiffs.
Maag seeks to add a request for an injunction, “barring defendant from charging any fee, for a FOID card application or renewal, over and above the total of $10.00 allowed by statute, unless defendant offers one or more reasonable mechanisms for the applicant to obtain a FOID card with only a $10 payment, without payment of additional fees and costs.”
Ruth also set a filing schedule in regards to pending summary judgment requests. He required Maag to respond to the defendants’ cross motion for summary judgment by Jan. 18, and the defendants are required to file a reply by Feb. 1.
Ruth scheduled a status conference for Feb. 24 at 1:30 p.m.
The defendants filed a cross-motion for summary judgment on Nov. 2.
They 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.
In their objection to the motion for leave to amend the complaint, defendants Chief Firearm Services Bureau Gregory Hacker, Treasurer Michael Frerichs and Attorney General Kwame Raoul argued that an amended complaint would require new summary judgment requests to address the new form of relief.
While the defendants’ summary judgment requests were filed in November, Maag’s summary judgment request as to the unlawfulness of the challenged FOID card fee has been pending for more than three years. Maag’s motion was filed in October 2017 and was taken under advisement in January 2019.
The defendants allege that adding injunctive relief would prejudice the parties and delay resolution of the proceedings.
“If plaintiff were allowed leave to amend, then this case starts from the beginning - with defendants being given the opportunity to move to dismiss, challenge class certification as to the new forms of relief, engage in any discovery relevant to the new allegations, and refile for summary judgment with the latest claim in mind.
The defendants argue that the request should be denied because the plaintiff has failed to establish facts supporting any cause of action, and the requested amendment “does not cure that deficiency.”
“Furthermore, the addition of injunctive relief, at this late state of the litigation, would prejudice defendants and significantly delay the proceedings.
“Plaintiff had multiple opportunities to amend at much earlier stages of the litigation, and does not explain why he choose (sic) to amend at this late stage,” the motion states.
Maag filed the motion for leave to amend the complaint on Nov. 5.
“That while plaintiff has been seeking an injunction throughout the case, there has been argument that such an injunction was not expressly called for in the ad damnum,” Maag wrote. “That in order to rectify this alleged oversight, and to clarify that the class is seeking this injunctive relief, plaintiff and the certified class think it best to amend to expressly and clearly include this requested relief.”
Maag filed the suit in Madison County Circuit Court on Oct. 15, 2015, for class representative 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 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.”
In his motion for summary judgment, Maag 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 state officials in office at the time filed a response to the motion 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.
They argued 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.
Madison County Circuit Court case number 15-L-1337