                             ILLINOIS OFFICIAL REPORTS
                                           Appellate Court




                           Smith-Silk v. Prenzler, 2013 IL App (5th) 120456




Appellate Court              ANDREA G. SMITH-SILK and THOMAS J. KOZIACKI, Individually
Caption                      and on Behalf of All Others Similarly Situated, Plaintiffs-Appellants, v.
                             KURT PRENZLER in His Official Capacity as Treasurer of Madison
                             County, MARK VON NIDA, in His Official Capacity as Circuit Clerk of
                             Madison County, CHARLES SUAREZ, in His Official Capacity as
                             Treasurer of St. Clair County, and KAHALAH DIXON, in Her Official
                             Capacity as Circuit Clerk of St. Clair County, Defendants-Appellees.



District & No.               Fifth District
                             Docket No. 5-12-0456


Filed                        October 24, 2013


Held                         The constitutionality of the $5 “neutral site fee” imposed on all litigants
(Note: This syllabus         by defendant counties was upheld and the trial court’s dismissal of
constitutes no part of       plaintiff’s action challenging the fee was affirmed, since the fee provided
the opinion of the court     neutral sites for parents involved in domestic relations cases to physically
but has been prepared        exchange their children, thereby reducing litigation and promoting
by the Reporter of           judicial economy, and that relationship to the functions of the court
Decisions for the            system provided a basis for sustaining the fee.
convenience of the
reader.)


Decision Under               Appeal from the Circuit Court of St. Clair County, No. 12-L-152; the
Review                       Hon. Lloyd A. Cueto, Judge, presiding.


Judgment                     Affirmed.
Counsel on                  Thomas G. Maag and Peter J. Maag, both of Maag Law Firm, LLC, of
Appeal                      Wood River, for appellants.

                            Philip J. Lading, Anthony L. Martin, and Lawrence Hall, all of Sandberg,
                            Phoenix & von Gontard, P.C., of Edwardsville, for appellees Kurt
                            Prenzler and Mark Von Nida.

                            Alvin C. Paulson, of Becker, Paulson, Hoerner & Thompson, P.C., of
                            Belleville, for other appellees.


Panel                       JUSTICE GOLDENHERSH delivered the judgment of the court, with
                            opinion.
                            Presiding Justice Spomer and Justice Welch concurred in the judgment
                            and opinion.




                                              OPINION

¶1           Plaintiffs, Andrea G. Smith-Silk and Thomas J. Koziacki, individually and on behalf of
        all others similarly situated, filed a complaint in the circuit court of St. Clair County against
        defendants, Kurt Prenzler, in his official capacity as treasurer of Madison County, and Mark
        Von Nida, in his official capacity as circuit clerk of Madison County (Madison County
        defendants), along with Charles Suarez, in his official capacity as treasurer of St. Clair
        County, and Kahalah Dixon, in her official capacity as circuit clerk of St. Clair County (St.
        Clair County defendants), in which they challenged a $5 “neutral site fee” (fee) charged to
        all litigants in Madison County and St. Clair County, sought a refund of the fee paid by
        named plaintiffs, as well as an injunction against the collection of additional fees, and
        requested class certification. After a hearing, the circuit court found the fee constitutional and
        dismissed plaintiffs’ complaint against defendants. Plaintiffs now appeal. The Madison
        County defendants have filed a cross-appeal, but only in the alternative should we find the
        fee unconstitutional. For the following reasons, we affirm.

¶2                                          BACKGROUND
¶3          On June 13, 2000, our General Assembly passed Public Act 91-811, codified as the
        Neutral Site Custody Exchange Funding Act (Act) (55 ILCS 82/1 to 99 (West 2008)), which
        authorizes county boards to establish by ordinance an additional filing fee of between $1 and
        $8 in all civil cases to defray the cost of operating neutral site custody exchange centers. 55
        ILCS 82/15 (West 2008). Section 5 sets forth the reasons for passage of the Act as follows:

                                                   -2-
              “§ 5. Legislative findings. The General Assembly finds that the domestic relations
          area of law, and particularly child custody matters, frequently involves seemingly minor
          disputes between individuals that escalate into major social and legal problems without
          the intervention of neutral parties; these problems often result in emotional damage to
          the children involved and create an extra burden for the courts; there are compelling
          reasons for providing neutral sites for parents to exchange the physical custody of a child
          for purposes of visitation; and not-for-profit charitable organizations can make a
          substantial contribution to the expeditious implementation of child custody and visitation
          orders in this State.” 55 ILCS 82/5 (West 2008).
     Pursuant to the Act, in 2005, Madison County passed an ordinance imposing a $4 fee on all
     civil filings in order to support a neutral site exchange in Madison County. In 2008, the
     ordinance was amended to increase the fee to $5. St. Clair County also passed an ordinance
     imposing a $5 fee on all civil filings in order to support a neutral site exchange in St. Clair
     County.
¶4        On March 23, 2012, plaintiffs filed their complaint in the circuit court of St. Clair
     County, seeking a finding that the Act is unconstitutional, an injunction against collecting
     additional fees, and a refund of all fees collected, which would require class certification. In
     response, the St. Clair County defendants filed a motion to dismiss in which they argued they
     were immune from prosecution pursuant to section 2-203 of the Local Governmental and
     Governmental Employees Tort Immunity Act (Tort Immunity Act) (745 ILCS 10/2-203
     (West 2008)). The Madison County defendants filed a motion to dismiss or transfer venue
     to Madison County for the claims against Madison County, a motion to sever the claims of
     the Madison County defendants and St. Clair County defendants, a motion to strike class
     action allegations, and a motion to dismiss on the grounds that (1) the fee is constitutional,
     (2) the Madison County defendants are immune from suit, and (3) plaintiffs failed to comply
     with Illinois pleading requirements.
¶5        On June 12, 2012, all motions were argued with all parties present and represented by
     counsel. The circuit court took the matter under advisement. On July 6, 2012, the trial court
     entered an order denying the St. Clair County defendants’ motion to dismiss on the basis that
     the Tort Immunity Act did not apply because plaintiffs did not allege a tort. The trial court
     also denied the Madison County defendants’ motion to sever and motion to transfer venue.
     The trial court found the fee constitutional, noting that a rational basis exists for collection
     of the fee in that the fee assists the court in enforcing court orders, reduces litigation, and
     promotes judicial economy.
¶6        On August 2, 2012, plaintiffs filed a motion to reconsider and for clarification. Plaintiffs
     argued that there was no order dismissing the case and, thus, they were unsure as to the status
     of the case. Plaintiffs further argued that “by taking up the issue of constitutionality, without
     motion or briefing, [p]laintiff has been deprived of notice and the opportunity to be heard on
     the ultimate issue in this case, the constitutionality or unconstitutionality of the neutral site
     fee.” Plaintiffs also argued that a finding of constitutionality was contrary to our supreme
     court’s holding in Crocker v. Finley, 99 Ill. 2d 444, 459 N.E.2d 1346 (1984). On August 20,
     2012, the Madison County defendants filed a response to plaintiffs’ motion to reconsider and
     for clarification in which they argued that the constitutionality of the fee was raised by the

                                               -3-
       Madison County defendants in their motion to dismiss and it was proper for the trial court
       to make a ruling on the constitutionality of the fee.
¶7         On October 4, 2012, a hearing was conducted on plaintiffs’ motion to reconsider and for
       clarification, after which the trial court entered an order denying all motions to dismiss. The
       trial court also found the fee constitutional, dismissed the case, and entered judgment for
       defendants and against plaintiffs. Plaintiffs now appeal. The Madison County defendants
       have filed a cross-appeal in the alternative.

¶8                                            ANALYSIS
¶9          Plaintiffs contend that the fee charged to them and all litigants who pay filing or
       appearance fees in Madison County and St. Clair County pursuant to the Act and to the
       corresponding ordinances is not a fee, but is in reality a tax. Plaintiffs do not appeal the
       denial of defendants’ motions to dismiss, but appeal what they call the sua sponte dismissal
       of the action and the finding of constitutionality of the fee. Plaintiffs recognize the positive
       intentions behind the filing fee, but argue the legislature may not impose such fees on
       litigants where the funds collected ultimately go into the county treasury to fund what they
       allege is essentially a general welfare program.
¶ 10        We first address plaintiffs’ argument that the trial court improperly dismissed the action
       sua sponte. Here, the record shows that the Madison County defendants filed a motion to
       dismiss on the basis that the fee was constitutional. Plaintiffs responded to the motion, and
       a hearing was held on all pending motions. All parties were present and participated in
       arguments. Therefore, the trial court did not sua sponte rule on the constitutionality of the
       fee, but was ruling on an issue specifically raised by the Madison County defendants.
       Furthermore, even assuming arguendo that the trial court made a sua sponte ruling on the
       constitutionality of the fee, it was not improper for the trial court to do so.
¶ 11        Under the rational basis test, a court may on its own initiative articulate facts necessary
       to justify a legislative classification. Mount Prospect State Bank v. Village of Kirkland, 126
       Ill. App. 3d 799, 802, 467 N.E.2d 1142, 1145 (1984). The question of whether a rational
       basis for the classification exists is a question of law. Mount Prospect State Bank, 126 Ill.
       App. 3d at 802, 467 N.E.2d at 1145. It is appropriate when ruling on a motion to dismiss for
       a court on its own initiative to consider the issue of whether a rational basis exists for the
       classification. Mount Prospect State Bank, 126 Ill. App. 3d at 802, 467 N.E.2d at 1145. We
       believe the trial court correctly addressed the constitutionality of the fee, and we find no error
       in the procedural undertakings of the trial court in reaching and ruling on the question.
¶ 12        Addressing the substance of the trial court’s dismissal, we again note that the question
       of whether a rational basis for a legislative classification exists is a question of law. Because
       constitutionality is a pure question of law, the standard of review is de novo. Davis v. Brown,
       221 Ill. 2d 435, 443, 851 N.E.2d 1198, 1204 (2006); Lucas v. Lakin, 175 Ill. 2d 166, 171, 676
       N.E.2d 637, 640 (1997).
¶ 13        Section 15 of the Act provides as follows:
                “§ 15. Fund; fee; administration.


                                                  -4-
                (a) In any county, a neutral site custody exchange fund may be established by the
           passage of an ordinance by the county board.
                (b) In each county in which a county board has enacted an ordinance authorizing a
           neutral site custody exchange fund to be established, the county board shall set a fee to
           be collected by the clerk of the circuit court on all civil case filings of not less than $1 nor
           more than $8 to be paid by the plaintiff at the time of the filing of the case and by the
           defendant at the time of filing an appearance. The county board shall review the amount
           of the fee on an annual basis and shall increase the amount of the fee, not to exceed the
           $8 maximum, if the demand for neutral site custody exchanges requires additional
           funding.
                (c) In each county in which a county board has enacted an ordinance authorizing a
           neutral site custody exchange fund to be established, the clerk of the circuit court shall
           charge and collect a neutral site custody exchange fund fee as established by the county
           ordinance. The fee shall be paid by the parties to the action at the time of filing the first
           pleading in all civil cases. The fees shall not be charged in any proceeding commenced
           by or on behalf of a unit of local government.
                The fees shall be in addition to all other fees and charges of the clerk, shall be
           assessable as costs, shall be remitted by the clerk monthly to the county treasurer, and
           shall be deposited monthly by the county treasurer in the neutral site custody exchange
           fund established under this Section. Each such clerk shall commence the charging and
           collection of the fee upon receipt of written notice from the county board that a neutral
           site custody exchange fund has been established.” 55 ILCS 82/15 (West 2008).
       The instant case presents a matter of statutory interpretation in that the statute states that the
       $5 charge is a “fee,” whereas plaintiffs contend it is, in fact, a tax.
¶ 14       The fundamental rule of statutory construction is to ascertain and give effect to the
       legislature’s intent. Michigan Avenue National Bank v. County of Cook, 191 Ill. 2d 493, 503-
       04, 732 N.E.2d 528, 535 (2000). Courts, therefore, should consider a statute in its entirety,
       keeping in mind the subject it addresses and the legislature’s objective in enacting it. People
       v. Davis, 199 Ill. 2d 130, 135, 766 N.E.2d 641, 644 (2002). The best indication of legislative
       intent is the statutory language, giving that language its plain and ordinary meaning. Illinois
       Graphics Co. v. Nickum, 159 Ill. 2d 469, 479, 639 N.E.2d 1282, 1287 (1994). Statutes carry
       a strong presumption of constitutionality. People ex rel. Ryan v. World Church of the
       Creator, 198 Ill. 2d 115, 120, 760 N.E.2d 953, 956 (2001). The Act specifically calls the
       charge a fee, but plaintiffs nevertheless argue that the charge is actually a tax, not a fee. In
       support thereof, plaintiffs rely on Crocker v. Finley, 99 Ill. 2d 444, 459 N.E.2d 1346 (1984).
¶ 15       In Crocker, the plaintiffs challenged the constitutionality of a $5 fee charged to all
       petitioners in dissolution of marriage proceedings. The $5 fee was assessed in addition to the
       usual filing fees and, pursuant to statute, was collected to fund shelters and other services for
       victims of domestic violence. Our supreme court struck down the statute, finding the $5
       charge violated the Illinois Constitution’s due process and equal protection clauses because
       there was no rational relationship between the imposition of the fee and the litigants. The
       supreme court noted that the services were available to all adults and their dependents who


                                                   -5-
       are the subjects of domestic violence, and there was no requirement that the recipients of the
       services be married or divorced. Yet the legislature chose to tax dissolution petitioners as a
       means of funding the programs, thereby causing members of that class to bear the cost of
       maintaining this public welfare program, while excluding other classes of taxpayers who
       would also benefit from the programs. Crocker, 99 Ill. 2d at 456-57, 459 N.E.2d at 1351-52.
¶ 16        However, our supreme court also made it clear in Crocker that court filing fees and
       litigation taxes may be properly imposed if done so for purposes “relating to the operation
       and maintenance of the courts.” Crocker, 99 Ill. 2d at 454, 459 N.E.2d at 1351. Explaining
       the provision securing the right to collect court filing fees, the supreme court stated:
            “ ‘ “ ‘The constitution does not guarantee to the citizen the right to litigate without
            expense, but simply protects him from the imposition of such terms as unreasonably and
            injuriously interfere with his right to a remedy in the law or impede the due
            administration of justice ***.’ ” ’ (Ali v. Danaher (1970), 47 Ill. 2d 231, 236[, 265
            N.E.2d 103, 106] (quoting Williams v. Gottschalk (1907), 231 Ill. 175, 179, [83 N.E. 141,
            142-43,] and Adams v. Corriston (1862), 7 Minn. 456, 461); [citation].)” Crocker, 99 Ill.
            2d at 455, 459 N.E.2d at 1351.
       The $5 fee in Crocker was too remote from any court-related purpose to withstand
       constitutional analysis. The fee in the instant case, however, is distinguishable from the $5
       fee in Crocker because, here, the fee does not fund a general welfare program as plaintiffs
       contend but is specifically related to improved operation of the courts.
¶ 17        Section 5 of the Act specifically states:
                “§ 5. Legislative findings. The General Assembly finds that the domestic relations
            area of law, and particularly child custody matters, frequently involves seemingly minor
            disputes between individuals that escalate into major social and legal problems without
            the intervention of neutral parties; these problems often result in emotional damage to
            the children involved and create an extra burden for the courts; there are compelling
            reasons for providing neutral sites for parents to exchange the physical custody of a child
            for purposes of visitation; and not-for-profit charitable organizations can make a
            substantial contribution to the expeditious implementation of child custody and visitation
            orders in this State.” (Emphasis added.) 55 ILCS 82/5 (West 2008).
       The General Assembly was not acting arbitrarily or capriciously when enacting this
       legislation. The stated purpose of the Act is not only to protect children, but also to lessen
       the burdens on courts caused by domestic disputes which can erupt during physical
       exchanges of children. Thus, the Act bears a rational relationship to the public interest and
       passes the rational relationship test.
¶ 18        We find the instant case similar to Ali, cited in the quote above from Crocker. In Ali, our
       supreme court upheld a $1 fee imposed on every litigant for the maintenance and operation
       of the county law library as constitutional and found it insignificant that all persons paying
       the library fee might not actually use the library facilities in the particular litigation. The Ali
       court emphasized that the library remained available to litigants if needed and found the
       presence of such facilities conducive to the administration of justice and may have
       constituted an improvement. Ali, 47 Ill. 2d at 237, 265 N.E.2d at 106.

                                                  -6-
¶ 19       Similarly in Rose v. Pucinski, 321 Ill. App. 3d 92, 746 N.E.2d 800 (2001), our colleagues
       in the First District upheld the funding of a mandatory arbitration program through the
       imposition of a $10 fee for all circuit court civil filings (735 ILCS 5/2-1009A (West 1998)),
       including a marriage dissolution case that did not qualify for mandatory arbitration. In
       finding that fee constitutional, the Rose court noted that “the creation of a mandatory
       arbitration system benefits the overall administration of justice by easing the backlog of cases
       in circuit courts.” Rose, 321 Ill. App. 3d at 98, 746 N.E.2d at 805.
¶ 20       In the instant case, we agree with the trial court that the fees charged by both Madison
       County and St. Clair County have a rational basis in that the fees allow for the creation of
       neutral site custody exchanges, thereby reducing the burden on courts caused by litigation
       stemming from custody exchanges run amok. By providing parents with neutral sites to
       physically exchange their children, counties are reducing litigation and promoting judicial
       economy. Accordingly, the fees challenged herein by plaintiffs are sufficiently related to the
       operation of the Illinois court system and survive the constitutional challenge raised by
       plaintiffs.

¶ 21                                    CONCLUSION
¶ 22       For the foregoing reasons, we affirm the order of the circuit court of St. Clair County
       dismissing the action. Because of our decision, we need not consider the Madison County
       defendants’ cross-appeal.

¶ 23      Affirmed.




                                                 -7-
