## Illinois Official Reports

Appellate Court

Lipe v. O ’ Connor , 201 4 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,

Defendant s

- 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 p rovide 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.- 2

- 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 Gie belhausen (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 C ounty. 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 a ccess to the courts and deprived him and the other plaintiffs of property without due

process. ¶ 4 Peor ia 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 we re disbursed for the neu tral site custody exchange, that any re maining

funds we re 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. T he 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. Ap p. 3d 92, 99 (2001), and that the fee d id not violate the due process or free access clause s of the Illinois Constitution of 1970 (Ill. Const. 1970, art. I

, §§ 2, 12). Lipe appealed.- 3

- ¶ 6 ANALYSIS
¶ 7 The issue on appeal is w hether the trial court erred when it granted Peoria County ’ s motion to dismiss, finding the neutra l site custody exchange fee to be constitutional. Lipe argues that the neutral site exchange fee is an unconstitutional tax that bears no relat ion 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 convert ed 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 D ismissal is proper under section 2

- 619 of the Code of Civil Procedure (Code) when “ the claim asserted against defendant is barre d by other affirmative matter avoiding the legal effect of or defeating the claim. ” 735 I LCS 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 defe ndant 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 40 5. 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. Villag e 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 qual ifies 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. 5 5 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 ”- 4

- 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 L ipe 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 l itigants 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 g roup 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 serv ices. 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 prog ram. 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 t here 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 ex change fee is assessed on all civil litigants and support s 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 ex cluded 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 legis lative 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 s tate ’ 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

a dministration, Crocker is not controlling.- 5

- ¶ 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 o pen 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 resoluti on 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 fun d 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 t he

identical issue before th is 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 f und 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 connecte d 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 surv ives 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 rea sons, the judgment of the circuit court of Peoria County is affirmed.

¶ 20 Affirmed.