                                  2015 IL App (1st) 133035

                                                                         SECOND DIVISION
                                                                              June 16, 2015


No. 1-13-3035

MARK J. SCHACHT, M.D., Individually and as a            )                Appeal from the
Taxpayer and/or on Behalf of Recipients of Fees to be   )                Circuit Court of
Used to Finance Various Court Programs Within the       )                Cook County.
Circuit Court of Cook County; JOHN DOE 1, JOHN          )
DOE 2, JOHN DOE 3, and JOHN DOE 4, Individuals          )
Who Were Formerly Subject to the Juvenile Justice       )
System in Cook County and Who Were Denied the           )
Benefit of Various Programs Intended to Provide Them    )
With Relief, and on Behalf of all Cook County Taxpayers,)
                                                        )
         Plaintiffs-Appellants,                         )
                                                        )                No. 11 L 50579
v.                                                      )
                                                        )
DOROTHY BROWN, Not Individually But as Clerk of the )
Circuit Court of Cook County, TIMOTHY C. EVANS,         )
Not Individually But as a Judge of the Circuit Court of )
Cook County, and the COUNTY OF COOK, a Body             )
Politic,                                                )                Honorable
                                                        )                Thomas Allen,
         Defendants-Appellees.                          )                Judge Presiding.

       JUSTICE LIU delivered the judgment of the court, with opinion.
       Presiding Justice Simon and Justice Neville concurred in the judgment and opinion.

                                          OPINION

¶1     Plaintiffs, Mark J. Schacht and several John Does, appeal an order of the circuit court

dismissing their third amended complaint with prejudice pursuant to section 2-619(a)(9) of the

Code of Civil Procedure (Code) (735 ILCS 5/2-619(a)(9) (West 2012)). On appeal, plaintiffs

contend that the court erred in determining that they did not have standing to challenge the
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method in which the clerk of the circuit court of Cook County holds and remits certain court

fees. For the following reasons, we affirm.

¶2                                     BACKGROUND

¶3     The instant case was commenced by the Reverend Jesse Jackson, Sr. (Reverend Jackson),

Rainbow Push Coalition, Inc. (Rainbow Push), and John Does one through four (collectively,

John Does), against Dorothy Brown (Clerk) and the County of Cook (Cook County)

(collectively, defendants). Schacht later substituted for Reverend Jackson and Rainbow Push as

the plaintiff, and added Chief Judge Timothy C. Evans as a defendant. Chief Judge Evans was

eventually dismissed with prejudice from the suit. 1 Plaintiffs then filed the third amended

complaint, alleging, inter alia, that Dorothy Brown, as the clerk of the circuit court of Cook

County, is engaged in a practice of holding and remitting certain court fees in a manner not

authorized by law. Below, we recite those allegations that are pertinent to our disposition.

¶4     The Illinois General Assembly has passed legislation that authorizes counties in the State

of Illinois to impose certain charges that the clerk of the circuit court is tasked with collecting.

Some of these charges are to be imposed at the time an initial pleading or appearance is filed in a

civil case; others are imposed for violations of the Illinois Vehicle Code (625 ILCS 5/1-100 et

seq. (West 2012)) or take the form of "fees to be paid on judgments of guilty or grants of

supervision for a range of offenses from business offenses and petty offenses to felonies." The

clerk of the circuit court, in some cases, is tasked with remitting the proceeds of such fees to the

county treasurer; in other cases, the clerk is tasked with depositing the proceeds into accounts for

the operation of certain programs specified by the enabling legislation.




       1
         Chief Judge Evans continued to be named as a defendant in the caption only for the purpose of
preserving plaintiffs' appellate rights.
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¶5     Plaintiffs are taxpayers of Cook County, Illinois, and represent individuals who have paid

certain of these fees or whom the legislature intended to benefit from the collection of such fees.

Schacht is a Cook County resident who has paid "initial filing fees" in connection with litigation

in the circuit court of Cook County, and "Mandatory Fees and Costs" in connection with minor

traffic offenses. John Does are individuals who were formerly subject to the juvenile justice

system in Illinois and who have paid "fines" identified in the complaint. In addition, John Does

were allegedly eligible, at one time, to participate in a juvenile intervention program that should

have received, as funding, a portion of mandatory fees and costs and "fines imposed on

judgments of guilty and supervision in felony, misdemeanor, business and petty offenses."

¶6     Plaintiffs allege that funds collected by the Clerk as mandatory fees and costs were never

remitted as required by their enabling legislation. Specifically, they claim that the following fees

were not remitted as required by law: the court automation fee (705 ILCS 105/27.3a (West

2012)); document storage fee (705 ILCS 105/27.3c (West 2012)); court system fee (55 ILCS 5/5-

1101(a), (c) (West 2012)); mental health court fee (55 ILCS 5/5-1101(d-5) (West 2012)); youth

diversion program fee (55 ILCS 5/5-1101(e) (West 2012)); drug court fee (55 ILCS 5/5-1101(f)

(West 2012)); operation and administrative fund fee (55 ILCS 5/5-1101(f) (West 2012)); peer

court fee (55 ILCS 5/5-1101(e) (West 2012)); children's advocacy center fee (55 ILCS 5/5-

1101(f-5) (West 2012)); and children's waiting room fee (705 ILCS 105/27.7 (West 2012)).

¶7     In count I, plaintiffs request a return of the court automation, document storage, and

children's waiting room charges, which, they allege, amount to "court taxes" in violation of the

Illinois Constitution. In count II, plaintiffs seek a mandatory injunction that would require the

Clerk to collect the alleged "court taxes" and remit them to the Cook County treasurer, and that

would require the treasurer to disburse those funds in accordance with the enabling legislation. In



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count III, plaintiffs request a return of all fines that were improperly collected. In count IV, they

request a mandatory injunction that would require the Clerk to collect the subject fines and remit

them to the Cook County treasurer, and that would require the treasurer to disburse those funds

in accordance with the enabling legislation. In count V, plaintiffs request an injunction "to

compel defendants to comply with the requirements of law in the performance of the duties that

they were elected to uphold and fulfill." Finally, in count VI, plaintiffs seek to permanently

enjoin Cook County from diverting money to the operation and administrative fund and "Fund

883."

¶8      On May 13, 2013, defendants filed a combined motion to dismiss pursuant to section 2-

619.1 of the Code (735 ILCS 5/2-619.1 (West 2012)), asserting, inter alia, that plaintiffs lacked

standing to challenge the fees identified in the complaint. First, defendants argued that the fees

under section 5-1101 of the Counties Code (55 ILCS 5/5-1101 (West 2012)) were, in fact,

"fines" that could not be challenged by plaintiffs under People v. Graves, 235 Ill. 2d 244 (2009).

Second, they argued that none of the fee statutes provided plaintiffs with a private right of action

to enforce the proper collection and remittance of the underlying fees.

¶9      On August 20, 2013, the circuit court entered a written order dismissing the third

amended complaint with prejudice on the grounds that plaintiffs lacked standing to bring their

claims. The court concluded that none of the fee statutes implied a private right of action; that

plaintiffs could not challenge criminal "fines" that were imposed against them; and that plaintiffs'

claim for an injunction was moot because they had "no protectable interest against the Clerk and

the County."

¶ 10    We granted plaintiffs leave to file a late notice of appeal. We thus have jurisdiction

pursuant to Illinois Supreme Court Rules 301 (eff. Feb. 1, 1994) and 303 (eff. May 30, 2008).



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¶ 11                                     ANALYSIS

¶ 12   "A complaint may be involuntarily dismissed for lack of standing pursuant to section 2-

619(a)(9) of the Code." Lyons v. Ryan, 201 Ill. 2d 529, 534 (2002). We review an order

dismissing a complaint for lack of standing de novo (id.), and may affirm on any basis present in

the record (Malinksi v. Grayslake Community High School District 127, 2014 IL App (2d)

130685, ¶ 6).

¶ 13   Plaintiffs contend that the circuit court erred when it concluded that they lacked standing

to challenge the manner in which the Clerk holds and remits certain court fees. According to

plaintiffs, the court misconstrued the nature of this lawsuit by determining that plaintiffs sought

to enforce a private right of action under the fee statutes when, in fact, they sought relief "as

taxpayers, as well as individuals directly impacted by the failure of Defendants to utilize [court]

funds as required by law." Plaintiffs maintain that, as taxpayers and individuals affected directly

by defendants' actions, they have standing to pursue their claims.

¶ 14   The doctrine of standing ensures that issues are raised only by those parties with a real

interest in the outcome of the controversy. Wexler v. Wirtz Corp., 211 Ill. 2d 18, 23 (2004). To

have the requisite standing to maintain an action, a plaintiff must complain of some injury in fact

to a legally cognizable interest. Greer v. Illinois Housing Development Authority, 122 Ill. 2d 462,

492 (1988). The alleged injury must be: (1) distinct and palpable, (2) fairly traceable to the

defendants' actions, and (3) substantially likely to be prevented or redressed by the grant of the

requested relief. Id. at 492-93. Furthermore, the plaintiff is not required to "allege facts

establishing that he has standing to proceed"; "[r]ather, it is the defendant's burden to plead and

prove lack of standing." Wexler, 211 Ill. 2d at 22. Dismissal is mandated where a plaintiff lacks

standing, because such a deficiency negates the very cause of action. Id.



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¶ 15   Plaintiffs claim that they have standing, as taxpayers, to challenge the manner in which

the Clerk holds and remits the court fees in question, citing County of Cook ex rel. Rifkin v. Bear

Stearns & Co., 215 Ill. 2d 466 (2005). In Bear Stearns, the plaintiffs, taxpayers of Cook County,

filed a derivative action on behalf of the county to recover overcharges made by the defendant in

connection with certain advance refunding bond transactions. Bear Stearns, 215 Ill. 2d at 468-69.

Section 20-104(b) of the Code allowed residents within a governmental unit to bring an action

for damages authorized under article XX on behalf of the governmental unit provided that certain

requirements were met. Id. at 471-72. The circuit court found article XX unconstitutional and

dismissed the plaintiffs' complaint. Id. at 468. In affirming the circuit court's ruling, the supreme

court held that "the State's Attorney has the exclusive power to represent the County in litigation

when the County is the real party in interest" and that "section 20-104(b) *** [was]

unconstitutional to the extent it purport[ed] to confer standing on private citizens to sue when the

County is the real party in interest." Id. The supreme court further held that plaintiffs "lack[ed]

standing to assert common law taxpayer claims when no claim is made that the alleged injury

resulted from the act of any public official." Id. at 483.

¶ 16   Plaintiffs do not rely on the holdings reached in the Bear Stearns decision as support for

their standing argument. Rather, they cite to parts in the supreme court's analysis where the court

distinguished Bear Stearns from two prior cases, Fergus v. Russel, 270 Ill. 304 (1915), and City

of Chicago ex rel. Konstantelos v. Duncan Traffic Equipment Co., 95 Ill. 2d 344 (1983), where

the court permitted taxpayer suits. In distinguishing Bear Stearns from Fergus and Duncan

Traffic Equipment Co., the supreme court observed that the plaintiffs had "cited no case where

this court permitted a common law taxpayer suit to proceed absent some breach of duty by a

public official." Bear Stearns, 215 Ill. 2d at 480.



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¶ 17   In addition, the court observed the following about its ruling in Bear Stearns:

               "[T]his is a recognition of the likelihood that a public officer who has

               committed a breach of duty may be unable or unwilling to make an

               objective, dispassionate decision about bringing suit and, in fact, may be

               able to prevent the public body involved from filing an appropriate action.

               In those circumstances, a taxpayer suit may provide the only means of

               remedying official misconduct. On the other hand, when there has been no

               breach of duty by a public officer, the appropriate public officials will be

               reasonably certain to pursue claims for injuries to the public treasury, thus

               rendering a taxpayer suit unnecessary." Id. at 480-81.

¶ 18   We have reviewed Bear Stearns and the cases cited therein, and do not believe that they

support plaintiffs' assertions regarding their standing in this case. Bear Stearns involved a

situation which is not at issue here, i.e., whether taxpayers may bring derivative actions on behalf

of the county against third-party defendants. Fergus and Konstantelos are also distinguishable in

that neither involved a common law taxpayer action to challenge the appropriation of court fees.

¶ 19   "Taxpayer standing is a narrow doctrine permitting a taxpayer the ability to challenge the

misappropriation of public funds." Illinois Ass'n of Realtors v. Stermer, 2014 IL App (4th)

130079, ¶ 29. The long-standing rule in Illinois is "that citizens and taxpayers have a right to

enjoin the misuse of public funds, and that this right is based upon the taxpayers' ownership of

such funds and their liability to replenish the public treasury for the deficiency caused by such

misappropriation." Barco Manufacturing Co. v. Wright, 10 Ill. 2d 157, 160 (1956). "The key to

taxpayer standing is the plaintiff's liability to replenish public revenues depleted by an allegedly

unlawful government action." Barber v. City of Springfield, 406 Ill. App. 3d 1099, 1102 (2011).



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"Such taxpayers have a legally cognizable interest in their tax liability, their increased tax

liability is a specific injury, and their injury is redressable by an injunction against the challenged

governmental expenditure of tax funds." Barber, 406 Ill. App. 3d at 1102.

¶ 20   Here, plaintiffs have not directed us to any evidence showing that they, as taxpayers,

have been or will be liable for increased taxes as a result of the Clerk's collection and alleged

misappropriation of any fees that were allocated or intended for specific juvenile intervention

programs. Plaintiffs argue that taxpayers have an "inherent right to complain of a misapplication

of public funds"; however, as noted above, our case law on taxpayer standing requires a specific

showing that the plaintiffs will be liable to replenish public revenues depleted by the Clerk's

alleged retention or misuse of said funds. In the absence of any allegation that such liability

would result or that any resulting pecuniary loss would adversely impact all taxpayers, we can

only conclude, under the circumstances, that plaintiffs have no legally cognizable interest as

taxpayers in the outcome of this lawsuit. Illinois Ass'n of Realtors v. Stermer, 2014 IL App (4th)

130079, ¶ 30 (finding that plaintiffs failed to establish standing where they did not demonstrate

that they were responsible for replenishing public revenues).

¶ 21   Plaintiffs argue that they also have standing to bring their claims because they were

directly impacted by the failure of defendants to utilize court funds as required by law. In their

third amended complaint, plaintiffs allege that John Does were formerly subject to the juvenile

justice system and eligible to participate in a juvenile intervention program that was to be funded

by a portion of mandatory fees and costs and "fines imposed on judgments of guilty and

supervision in felony, misdemeanor, business and petty offenses." Plaintiffs allege that because

the funds collected as mandatory fees and costs were not remitted as required by statute, John

Does were deprived of the opportunity to participate in such juvenile intervention program. As



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discussed below, we do not believe that these allegations establish that plaintiffs have standing to

bring their claims.

¶ 22   Assuming, arguendo, that John Does have suffered an injury to a legally cognizable

interest by being deprived of participation in the juvenile intervention program, we do not see

how such injury could be prevented or redressed by the grant of the requested relief. Plaintiffs

seek the return of "fines" paid by John Does and injunctions that would require the Clerk and

County to comply with the statutes authorizing those fines. There is no allegation, however, that

by paying the "fines" in question, John Does were entitled to participate in the juvenile

intervention program. That is, return of any fines paid by John Does would not serve to

remunerate them for their lost opportunity to participate in the juvenile intervention program(s)

because such fines were not paid for the purpose of securing eligibility for the program(s).

Rather, as plaintiffs acknowledge, the purpose of the fines is and has always been to provide the

county with a means of funding various court programs.

¶ 23   Similarly, we find that an injunction against the Clerk and Cook County would not

redress or prevent any injury allegedly suffered by John Does. John Does are no longer subject to

the juvenile justice system. Therefore, any benefit from an injunction issued in this case would

have only prospective application, and would not redress their specific injuries from the alleged

withholding or other related misconduct.

¶ 24   Plaintiffs ask us to consider the dissenting opinions in two supreme court decisions where

they were denied leave to file petitions for an original writ of mandamus. The first dissent was

issued in a case filed by plaintiffs against the same defendants named in the instant case. Schacht

v. Brown, No. 114850 (Ill. Dec. 28, 2012) (Freeman, J., dissenting, joined by Burke, J.) (Schacht

Mandamus I). The second dissent was issued in a case filed by Schacht against the Clerk and



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other Cook County officials. Schacht v. Preckwinkle, No. 117158 (Ill. Feb. 18, 2014) (Freeman,

J., dissenting, joined by Burke, J.) (Schacht Mandamus II). Justice Freeman, joined by Justice

Burke, disagreed in both cases with the majority's decision to deny plaintiffs leave to file a

petition for writ of mandamus.

¶ 25   In both of these cases, the supreme court denied the petition for leave to file a complaint

for writ of mandamus without comment, leaving the dissent to discern two reasons for the

majority's decisions, one of which was standing. In Schacht Mandamus I, the dissent found that

at the plaintiffs "were not obligated to raise" the grounds for their standing in the case in their

motion, and that the denial of leave to file a complaint, in that case, was improper given the lack

of "adequate briefing and argument." Schacht Mandamus I, No. 114850, order at 3. The dissent

observed that "Illinois law recognizes that taxpayers such as [plaintiff/plaintiffs] here can bring

suit to challenge a public official's withholding of funds appropriated to remedy matters deemed

important by the legislature" and that "the Clerk's alleged misappropriation of public finds

constitutes an actual or threatened injury to a legally cognizable interest," based on this prior

precedent. Id. Noting that "[t]he Cook County State's Attorney represents the Clerk and,

accordingly, cannot pursue this claim," the dissent explained that a taxpayer derivative action

was the "only means of remedying the misconduct" in that case. Id.

¶ 26   The dissent in Schacht Mandamus I also applied the criteria for standing to the facts

presented in that case and found:

               "[T]he claimed injury is, first, distinct and palpable. Plaintiffs include John

               Does 1 through 4. They contend that they are persons who, as litigants in

               the circuit court of Cook County, were denied the benefit of the programs

               that should have been funded pursuant to the appropriated funds giving



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               rise to this motion. Second, plaintiffs' claimed injury is fairly traceable to

               the actions of the Clerk, who has withheld the funds necessary to finance,

               operate, and administer the programs from which plaintiffs would benefit.

               Third, plaintiffs' claimed injury is likely to be prevented and redressed by

               the grant of the writ of mandamus, which would simply order the clerk to

               perform her nondiscretionary duty to turn over the appropriated funds to

               the Cook County Treasurer for their designated purposes." Id. at 3-4.

¶ 27   In Schacht Mandamus II, the dissent expressed concern that "the intervening year ha[d]

demonstrated the continued failure of the County and the Clerk to obey statutory funding

requirements." Schacht Mandamus II, No. 117158, order at 3. Justice Freeman noted, "If these

worthy programs and similar efforts, such as bail reform, are to result in lasting solutions, the

County and the Clerk should simply obey the law and fund these programs, rather than expend

resources to defend themselves in court." Id. at 3-4.

¶ 28   We acknowledge the valid public concern expressed by the dissent in both Schacht

mandamus cases; however, we cannot apply the dissent's rationale to this case in the absence of a

certainty that the supreme court's denials of leave to file petitions for mandamus relief in those

cases were based on grounds exclusive of a lack of standing. Moreover, we do not believe that

the plaintiffs in this case, who claim they are asserting the matter as individual taxpayers and not

as a derivative action, have alleged grounds to establish either (i) a direct injury that may be

remedied or (ii) individual liability for the alleged depletion of funds intended for the juvenile

intervention programs. Accordingly, we cannot find error in the circuit court's decision to

dismiss plaintiffs' third amended complaint based upon a lack of standing.




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¶ 29   For the reasons stated, we affirm the order of the circuit court of Cook County dismissing

plaintiffs' third amended complaint with prejudice.

¶ 30   Affirmed.




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