Illinois Official Reports

Appellate Court

Lipe v. O’Connor, 2014 IL App (3d) 130345

Appellate Court 

Caption

JAY LIPE, Individually and on Behalf of All Others Similarly 

Situated, Plaintiff-Appellant, v. EDWARD O’CONNOR, as Treasurer 

of Peoria County, Illinois, ROBERT SPEARS, as Clerk of Peoria 

County, Illinois, Capacity as Clerk of Peoria County, Illinois, 

Defendants-Appellees.

District & No. Third District

Docket No. 3-13-0345

Filed April 10, 2014

Held

(Note: This syllabus 

constitutes no part of the 

opinion of the court but 

has been prepared by the 

Reporter of Decisions 

for the convenience of 

the reader.)

The constitutionality of the neutral site custody exchange fee assessed 

in defendant county on all civil litigants to provide neutral sites for the 

exchange of children for visitation in domestic relations cases was 

upheld over plaintiff’s contentions that the fee unreasonably interfered 

with access to the courts and deprived civil litigants of property 

without due process, since the fee is imposed on all civil litigants, it 

supports ancillary court services, the neutral sites alleviate the burdens 

resulting from disruptive visitation exchanges, any surplus was used 

for other court administrative justice actions, and there was no 

violation of the free access clause or the due process clause.

Decision Under 

Review

Appeal from the Circuit Court of Peoria County, No. 12-L-195; the 

Hon. Richard D. McCoy, Judge, presiding.

Judgment Affirmed.
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Counsel on

Appeal

Thomas G. Maag (argued) and Peter J. Maag, both of Maag Law Firm, 

of Wood River, for appellant.

Jerry Brady, State’s Attorney, of Peoria (Steven Giebelhausen 

(argued), Assistant State’s Attorney, of counsel), for appellees.

Panel JUSTICE O’BRIEN delivered the judgment of the court, with 

opinion.

Presiding Justice Lytton and Justice Carter concurred in the judgment 

and opinion.

OPINION

¶ 1 Plaintiff Jay Lipe, individually and on behalf of all others similarly situated, brought this 

action against defendants Edward O’Connor, treasurer of Peoria County, and Robert Spears, 

clerk of Peoria County (collectively Peoria County), challenging the constitutionality of an $8 

neutral site custody exchange fee assessed on all civil litigants in Peoria County. The trial court 

granted Peoria County’s motion to dismiss. Lipe appealed. We affirm.

¶ 2 FACTS

¶ 3 Plaintiff Jay Lipe filed a small claims action in Peoria County in June 2012 and was 

charged an $8 neutral site custody exchange fee. Lipe objected to the fee and paid it under 

protest. Also in June 2012, Lipe sought and was granted class certification and filed a class 

action complaint representing all Peoria County litigants who paid the $8 fee between June 15, 

2009 and the date of disposition. In the complaint, Lipe argued the fee unreasonably interfered

with access to the courts and deprived him and the other plaintiffs of property without due 

process.

¶ 4 Peoria County filed a motion to dismiss (735 ILCS 5/2-619 (West 2012)) and submitted the 

affidavit of John Flynn, the court administrator in Peoria County. In his affidavit, Flynn 

attested that the neutral site custody exchange fund was part of the court administrator’s 

budget, that funds were disbursed for the neutral site custody exchange, that any remaining 

funds were disbursed for “other court administrative justice action,” such as guardians 

ad litem, and that the chief judge was required to approve all disbursements.

¶ 5 Following a hearing, the trial court granted Peoria County’s motion to dismiss. The trial 

court found that the fee “ ‘serves to improve overall the administration of justice and was 

imposed for a court-related purpose,’ ” quoting Rose v. Pucinski, 321 Ill. App. 3d 92, 99 

(2001), and that the fee did not violate the due process or free access clauses of the Illinois 

Constitution of 1970 (Ill. Const. 1970, art. I, §§ 2, 12). Lipe appealed.
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¶ 6 ANALYSIS

¶ 7 The issue on appeal is whether the trial court erred when it granted Peoria County’s motion 

to dismiss, finding the neutral site custody exchange fee to be constitutional. Lipe argues that 

the neutral site exchange fee is an unconstitutional tax that bears no relation to his litigation 

and is improperly assessed to provide general revenue. Lipe also argues that the trial court 

improperly sua sponte converted Peoria County’s motion to dismiss to a summary judgment 

motion.

¶ 8 Initially, we reject Lipe’s assertion that the trial court sua sponte converted the motion to 

dismiss into a summary judgment motion. The trial court’s order disposing of the cause is 

titled, “Order Granting 2-619 Motion To Dismiss,” and expressly states that “the motion to 

dismiss is granted.”

¶ 9 Dismissal is proper under section 2-619 of the Code of Civil Procedure (Code) when “the 

claim asserted against defendant is barred by other affirmative matter avoiding the legal effect 

of or defeating the claim.” 735 ILCS 5/2-619(a)(9) (West 2012). On review of a section 2-619 

motion to dismiss, the questions are whether there are genuine issues of material fact and 

whether the defendant is entitled to judgment as a matter of law. Bruss v. Przybylo, 385 Ill. 

App. 3d 399, 405 (2008). The reviewing court must accept all well-pleaded facts as true and 

make all reasonable inferences in the plaintiff’s favor. Bruss, 385 Ill. App. 3d at 405. This 

court reviews the trial court’s grant of a motion to dismiss de novo. Porter v. Decatur 

Memorial Hospital, 227 Ill. 2d 343, 352 (2008).

¶ 10 When examining the constitutionality of a statute, courts will ordinarily apply the rational 

basis test. Village of Lake Villa v. Stokovich, 211 Ill. 2d 106, 122 (2004). Under the rational 

basis test, a court will uphold a statute if it bears a rational relationship to a legitimate 

legislative purpose and is not arbitrary or unreasonable. Stokovich, 211 Ill. 2d at 122. Courts 

presume statutes to be constitutional, and the party challenging the statute’s constitutional 

validity bears the burden to clearly demonstrate a constitutional violation. Napleton v. Village 

of Hinsdale, 229 Ill. 2d 296, 306 (2008). A reviewing court has a duty to uphold a statute as 

constitutional when reasonably possible. Napleton, 229 Ill. 2d at 306-07. The constitutionality 

of a statute is an issue of law we review de novo. Burger v. Lutheran General Hospital, 198 Ill. 

2d 21, 31 (2001).

¶ 11 The free access clause of the Illinois Constitution of 1970 provides that “[e]very person 

shall find a certain remedy in the laws for all injuries and wrongs,” and “shall obtain justice by 

law, freely, completely, and promptly.” Ill. Const. 1970, art. I, § 12. The free access clause 

serves to protects litigants from the imposition of fees that interfere with their rights to a 

remedy in the law or impede the administration of justice. Rose v. Pucinski, 321 Ill. App. 3d 

92, 99 (2001). The free access clause qualifies the due process standard by imposing the 

additional requirement that court filing fees be related to the operation and maintenance of the 

court system. Rose, 321 Ill. App. 3d at 99. If legislation is found constitutional under the free 

access clause, it is also constitutional under the broader due process standard. Rose, 321 Ill. 

App. 3d at 99.

¶ 12 The Neutral Site Custody Exchange Funding Act (Act) authorizes counties to assess a 

neutral site custody exchange fee on all initial filings in civil cases. 55 ILCS 82/15 (West 

2012). The Act requires that any fees collected but not disbursed for the neutral site be used for 

“the administration of justice in the county.” 55 ILCS 82/20(c) (West 2012). The legislative 

findings as expressed in the Act state there are “compelling reasons for providing neutral sites”
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to exchange children for visitation and that domestic relations cases often escalate into “major 

social and legal problems,” resulting in “emotional damage to the children involved and 

creat[ing] an extra burden for the courts.” 55 ILCS 82/5 (West 2012).

¶ 13 Lipe relies on Crocker v. Finley, 99 Ill. 2d 444 (1984), as authority that the neutral site 

custody exchange fee is unconstitutional. In Crocker, the court found that a $5 fee imposed on 

divorce litigants to support domestic violence shelters was violative of the free access clause 

and due process. Crocker, 99 Ill. 2d at 457. The Crocker court determined that the fee 

amounted to a tax because it was a means to raise general revenues from a select group of court 

users and that there was an insufficient connection between the fee imposed and court 

operations. Crocker, 99 Ill. 2d at 455. The court also found the fee was an arbitrary use of 

police powers and did not comport with due process. Crocker, 99 Ill. 2d at 457.

¶ 14 We have considered Crocker, but find that Crocker is distinguished from the instant case.

In Crocker, the fee at issue was one facet of a comprehensive statutory scheme designed to 

combat domestic violence and identified funding sources, such as the fee, for domestic 

violence shelters. Crocker, 99 Ill. 2d at 449. The fee was imposed only on parties applying for 

a marriage license or seeking a dissolution of their marriage, excluding others who could also 

benefit from domestic violence services. Crocker, 99 Ill. 2d at 450. There was no significant 

connection between the parties who paid the fee and use of the domestic violence shelters.

Crocker, 99 Ill. 2d at 450. The fee ultimately went into the state treasury to fund a general 

welfare program. Crocker, 99 Ill. 2d at 451. Significantly, the Crocker court determined the fee 

was in fact a tax. Crocker, 99 Ill. 2d at 452. It distinguished the tax from a fee, finding a fee was 

compensation for services rendered by public officers, while a tax was for general revenue 

purposes. Crocker, 99 Ill. 2d at 452. It determined that the relationship between marital parties 

and domestic violence was too remote to support validity of the fee. Crocker, 99 Ill. 2d at 454.

Because the fee imposed did not relate to a marriage license or dissolution petition, the fee was 

held unconstitutional. Crocker, 99 Ill. 2d at 455. In addition, because there was no rational 

basis to impose the tax only on parties seeking marriage licenses or dissolutions, it was an 

arbitrary use of the police and taxing power and could not satisfy due process. Crocker, 99 Ill. 

2d at 457.

¶ 15 Here, the neutral site custody exchange fee is assessed on all civil litigants and supports

ancillary court services. The fee is used to compensate for services that allow parents to use 

neutral sites to exchange custody for visitation. The fee is not imposed on civil litigants who 

are excluded from the services; rather, the neutral exchange sites are open to all parties who are 

court-ordered to use them. Unlike the domestic violence shelters in Crocker, the neutral 

exchange sites are related to the court system, as recognized in the legislative findings that 

provide the neutral exchange sites contribute to the “expeditious implementation” of custody 

and visitation orders. The neutral site custody exchange service alleviates extra burdens on the 

court that result from disruptive visitation exchanges. Also unlike Crocker, the $8 neutral site 

custody exchange fee is not deposited into the state’s general revenue but is expressly limited 

to use for the administration for justice in the charging county. The court administrator attested 

that any surplus in the fund is used for “other court administrative justice actions, such as 

guardians ad litem, and not for general welfare programs.” Because there is a sufficient 

connection between the neutral site custody exchange fee and Peoria County court 

administration, Crocker is not controlling.
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¶ 16 The fee charged Lipe and other civil litigants is more like the fees held constitutional in Ali 

v. Danaher, 47 Ill. 2d 231 (1970), Wenger v. Finley, 185 Ill. App. 3d 907 (1989), Zamarron v. 

Pucinski, 282 Ill. App. 3d 354 (1996), Mellon v. Coffelt, 313 Ill. App. 3d 619 (2000), and Rose 

v. Pucinski, 321 Ill. App. 3d 92 (2001). In Ali, a $1 law library fee charged on all civil litigants 

was determined not to violate the free access clause because the library was open to all 

litigants, whether they used it or not, and the library was “conducive to a proper and even 

improved administration of justice, which benefits every litigant.” Ali, 47 Ill. 2d at 237. 

Similarly, in Wenger, a fee assessed to fund dispute resolution centers was upheld as it related 

to the operation and maintenance of the court. Wenger, 185 Ill. App. 3d at 915. Likewise, a fee 

to fund court automation was found to benefit the entire court system in Zamarron, 282 Ill. 

App. 3d at 360, and a fee to fund arbitration was found to benefit the overall administration of 

justice in Mellon, 313 Ill. App. 3d at 631, and Rose, 321 Ill. App. 3d at 99.

¶ 17 The recent decision in Smith-Silk v. Prenzler, 2013 IL App (5th) 120456, addressed the

identical issue before this court. The plaintiff there filed an action challenging the neutral site 

fee charged civil litigants in Madison and St. Clair Counties. Smith-Silk, 2013 IL App (5th) 

120456, ¶ 9. As argued here, the plaintiff asserted the fee was an improper tax use to fund a 

general welfare program and was violative of the plaintiff’s constitutional rights to free access 

and due process. Smith-Silk, 2013 IL App (5th) 120456, ¶ 9. The court distinguished Crocker

and held that the neutral site fee was sufficiently connected to the operation of the court 

system, finding that the neutral site custody exchanges reduced the burden on the courts and 

promoted judicial economy. Smith-Silk, 2013 IL App (5th) 120456, ¶ 20.

¶ 18 Likewise, we find the $8 neutral site custody exchange fee does not violate the free access 

clause. The legislature determined that neutral custody exchange sites served to improve the 

administration of the courts from which all litigants, including Lipe, benefit. Because the 

neutral site custody exchange fee survives constitutional scrutiny, due process is also satisfied. 

Lipe’s due process claim necessarily fails as well as his challenge under the free access clause.

The trial court did not err in granting Peoria County’s motion to dismiss.

¶ 19 For the foregoing reasons, the judgment of the circuit court of Peoria County is affirmed.

¶ 20 Affirmed.