2015 IL 116226

IN THE

SUPREME COURT

OF

THE STATE OF ILLINOIS

(Docket Nos. 116226, 116825 cons.) 

JASON S. MARKS et al., Appellees, v. MARY ELLEN VANDERVENTER et al., 

Appellants. 

Opinion filed May 21, 2015.

JUSTICE BURKE delivered the judgment of the court, with opinion. 

Chief Justice Garman and Justices Freeman, Thomas, Kilbride, Karmeier, and 

Theis concurred in the judgment and opinion. 

OPINION

¶ 1 At issue is the constitutionality of a $10 Rental Housing Support Program 

surcharge collected by the recorder of deeds for the recordation of any real 

estate-related document in a county. 55 ILCS 5/3-5018 (West Supp. 2013). When 

originally enacted, the surcharge imposed by section 3-5018 of the Counties Code 

was $10 and provided that $1 of each surcharge shall be retained by the county in 

which it was collected. 55 ILCS 5/3-5018 (West 2006). Plaintiffs filed a class 

action lawsuit in the circuit court of Lake County challenging the surcharge as 

unconstitutional. In the course of this litigation, the General Assembly amended 

section 3-5018, imposing a $9 surcharge to fund the Rental Housing Support 
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Program and imposing a separate $1 recordation fee to be paid to the county in 

which it was collected. Pub. Act 98-5, § 5 (eff. Mar. 22, 2013) (amending 55 ILCS 

5/3-5018). The trial court below held both the original and amended versions of the 

statute to be unconstitutional. Defendants appealed directly to this court pursuant to 

Supreme Court Rule 302(a)(1) (Ill. S. Ct. R. 302(a)(1) (eff. Oct. 4, 2011)). We now 

reverse the trial court’s orders and remand for further proceedings consistent with 

this opinion. 

¶ 2 BACKGROUND

¶ 3 Plaintiffs, Jason Marks and Lauren Marks, filed their complaint against Mary 

Ellen Vanderventer, recorder of deeds of Lake County, and Lake County itself, 

alleging that the preamended version of the $10 Rental Housing Support Program 

state surcharge was unconstitutional. They asserted that the statute created an 

unconstitutional fee office in violation of article VII, section 9(a), of the Illinois 

Constitution of 1970 (Ill. Const. 1970, art. VII, § 9(a)). Plaintiffs also alleged that 

the statute violated the equal protection and due process clauses (Ill. Const. 1970, 

art. I, § 2), as well as the uniformity clause in the state constitution (Ill. Const. 1970, 

art. IX, § 2). Plaintiffs requested relief in the form of a refund of the surcharges paid 

by them, exemplary damages, attorney fees, and costs. The trial court below 

certified a class of plaintiffs and a class of defendants consisting of the recorders of 

deeds in each of the counties in the state. The State of Illinois was allowed to 

intervene in the matter. 

¶ 4 As enacted in 2005, section 3-5018 required the recorder to collect a $10 

surcharge, or fee, from an individual for the recordation of any real estate-related 

document. The statute provided that $9 of the surcharge was to be submitted to the 

State for purposes of the Rental Housing Support Program. The remaining $1 was 

to be retained by the county in which it was collected and deposited into the 

county’s general revenue fund. 55 ILCS 5/3-5018 (West 2010). Of that $1, 50 cents 

was allocated “for the costs of administering the Rental Housing Support Program 

State surcharge and any other lawful expenditures for the operation of the office of 

the recorder and may not be appropriated or expended for any other purpose.” Id.

¶ 5 Plaintiffs filed a motion for partial summary judgment. The trial court granted 

the motion and held that the statute, as written, created an impermissible fee office 
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in violation of article VII, section 9(a), of the Illinois Constitution, and, thus, was 

unconstitutional on its face. 

¶ 6 Section 3-5018 was amended by the legislature, effective March 22, 2013. 55 

ILCS 5/3-5018 (West Supp. 2013). As amended, section 3-5018 imposes a $9 

Rental Housing Support Program surcharge, to be collected by the recorder and 

submitted to the State. A separate provision requires the recorder to charge a $1 fee 

for the recordation of any real estate-related document, 50 cents of which shall be 

deposited in the county’s general revenue fund, and 50 cents of which shall be 

deposited in the recorder’s automation fund. Id. Plaintiffs filed an amended 

complaint challenging the $9 surcharge as unconstitutional on due process, equal 

protection, and uniformity grounds. 1 The trial court granted partial summary 

judgment to plaintiffs and held the amended statute unconstitutional based on 

violations of the due process and uniformity clauses in the Illinois Constitution. 

¶ 7 Defendants appealed both rulings directly to this court, and the appeals were 

consolidated. Karen Yarbrough, Cook County recorder of deeds, was given leave 

to intervene in this appeal. 

¶ 8 ANALYSIS

¶ 9 I. Fee Office

¶ 10 Plaintiffs claimed in the circuit court that the $1 portion of the $10 surcharge to 

be retained by the county pursuant to the preamended version of section 3-5018 

violated the constitutional proscription against fee offices. They alleged in their 

complaint that, “[b]y permitting a portion of these fees to be taken and kept by each 

Recorder of Deeds as part of the collection process, this taking or ‘skimming off’ as 

it has been termed by the Illinois Supreme Court violates the prohibition against 

creation of a fee office prohibited by Article VII Section 9(a).” The circuit court 

struck down the preamended statute as unconstitutional solely on the basis that the 

$1 fee retained by the counties created an unconstitutional fee office. 

¶ 11 Article VII, section 9(a), of the Illinois Constitution of 1970 provides: 

 1

The amended complaint added Adam Moore and Lisa Moore as plaintiffs, individually and on 

behalf of a class of similarly situated individuals.
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“(a) Compensation of officers and employees and the office expenses of 

units of local government shall not be paid from fees collected. Fees may be 

collected as provided by law and by ordinance and shall be deposited upon 

receipt with the treasurer of the unit. Fees shall not be based upon funds 

disbursed or collected, nor upon the levy or extension of taxes.” Ill. Const. 

1970, art. VII, § 9(a). 

¶ 12 Section 9(a) of article VII thus prohibits a “fee office,” whereby the 

compensation of officers and employees, and office expenses, are paid from the 

fees collected. For example, in DeBruyn v. Elrod, 84 Ill. 2d 128, 133-36 (1981), this 

court held that the constitutional prohibition on fee offices prohibited the sheriff’s 

office from retaining fees pursuant to section 1 of “An Act to provide for the fees of 

the sheriff ***” (Ill. Rev. Stat. 1977, ch. 53, ¶ 71). The statute provided, among 

other things, for a commission to the sheriff of 3% on all sales of real and personal 

estate made through the execution or judgment of a court. Id. The sheriff was 

statutorily authorized to collect the fees for services he provided in connection with 

sales under a decree of foreclosure, sales in connection with the execution of 

judgments, and redemptions. We held that the statute clearly violated article VII, 

section 9(a), because the sheriff was allowed to retain a portion of the fees as 

compensation for services provided. Id. at 136. 

¶ 13 The fee office provision in article VII, section 9(a), also is intended to prevent a 

local governmental unit from retaining, or “skimming off,” a portion of taxes 

collected for another taxing body as a fee for the service of collecting those taxes. 

City of Joliet v. Bosworth, 64 Ill. 2d 516, 521-24 (1976). See also Schlessinger v. 

Olsen, 102 Ill. 2d 497, 502-03 (1984) (a statute imposing a tax is in violation of the 

fee office provision where “the taxes were properly imposed but a government 

entity other than the taxing body collected the tax and retained a percentage for 

itself”); Saltiel v. Olsen, 77 Ill. 2d 23, 27 (1979) (“the collection by one 

governmental entity of a tax due to a different entity has been regarded as a fee 

imposed by the former, rather than as a distribution of tax revenues after they have 

been collected”); Goldstein v. Rosewell, 65 Ill. 2d 325, 327-29 (1976). In these 

so-called “skimming” or “diversion” cases, this court has held that the remedy for 

the constitutional violation is that the unlawfully diverted revenues must be 

returned to the governmental entity which imposed the tax. Schlessinger, 102 Ill. 2d 

at 502. 
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¶ 14 In Goldstein, for instance, the statute provided that the treasurer of each county 

shall retain and pay into the county treasury 4% of all taxes paid pursuant to the 

inheritance and transfer tax act (a state tax), “in full for all services and expenses 

rendered, incurred or paid by the county or any of its officers, agents, or employees, 

in collecting and paying the same.” (Internal quotation marks omitted.) Goldstein, 

65 Ill. 2d at 328. In other words, the statute allowed the county treasurers to “skim 

off” 4% of the taxes due to the State as fees for their collection of the taxes. This 

court rejected the defendants’ argument that the purpose of the statute was to 

provide for a legislative method of distributing state revenues to the counties. 

Rather, the statutory scheme constituted a diversion of state funds, and was “clearly 

a fee based upon funds collected.” Id. at 329. This court emphasized the intent of 

the drafters of the 1970 Illinois Constitution to “ ‘preclude counties from seeking, 

in any form, reimbursement from the various taxing bodies for county services 

rendered in the collection of taxes.’ ” Id. at 330 (quoting City of Joliet v. Bosworth, 

64 Ill. 2d 516, 524 (1976)). The constitutional debates showed “a concern of the 

delegates over the faulty fiscal picture presented by financing county expenses 

through the use of a ‘skim off’ of revenues from other taxing bodies.” Id.

¶ 15 In contrast to the above examples, section 3-5018 does not run afoul of the 

prohibition against fee offices in article VII, section 9(a). The statute directs that $1 

of the $10 Rental Housing Support Program state surcharge be deposited in the 

county’s general revenue fund. This is consistent with the second sentence of 

section 9(a), which provides that fees collected by county officers “shall be 

deposited upon receipt with the treasurer of the [local governmental] unit.” Ill. 

Const. 1970, art. VII, § 9(a). Section 3-5018 further directs the county to apply 50 

cents from each dollar for administering the surcharge and for “any other lawful 

expenditures for the operation of the office of the recorder.” 55 ILCS 5/3-5018 

(West 2010). The statute not only directs the recorder to deposit the dollar with the 

county treasurer but sets forth directions on how the county may spend the dollar. 

Unlike the sheriff in DeBruyn, the recorder of deeds neither retains the dollar nor 

has discretion to determine how it is spent. Thus, the recorder acts merely as a 

conduit to the county treasurer, which is not a violation of the fee office prohibition. 

See Gadeikis v. Yourell, 169 Ill. App. 3d 1033, 1035-36 (1988) (statute providing 

that a fee collected by the recorder was to be deposited by the county treasurer into 

a special fund for a computerized document storage system complied with the 

constitutional intent that accounting, appropriation, and disbursement of funds for 

the recorder’s office was kept separate from the collection of fees). 
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¶ 16 Moreover, section 3-5018 does not violate the prohibition in article VII, section 

9(a), against the “skimming” of funds belonging to another governmental entity. 

We first note that plaintiffs concede in their brief that the preamended statute did 

not skim or divert any state funds. Plaintiffs state that “the $1 surcharge retained by 

the local entities was not intended to be kept, paid to the State, or otherwise 

‘skimmed,’ ” and that “the disputed $1 fee paid to the local entities under the 

original statute was not and was never intended to be paid to the State of Illinois to 

support this Program.” To the extent that the circuit court found the statute 

unconstitutional based on a skimming or diversion of state funds, however, we 

reject this proposition. This court noted in Goldstein that article VII, section 9(a) 

does not bar “the common and accepted practice of sharing of State revenues with 

local governmental units.” Goldstein, 65 Ill. 2d at 329. 

¶ 17 The statutory provision in the case at bar is distinguishable from the provision 

in Goldstein. In that case, we held that the statute unlawfully allocated to the 

“counties and not the State *** the fees earned by the county treasurer in the 

collection of the taxes under the Act.” Id. at 328. The statute thus authorized the 

treasurer to skim 4% of the state taxes imposed by the General Assembly elsewhere 

in the statute. In contrast, section 3-5018 did not authorize county recorders to 

retain a percentage of the funds they collected under other statutory provisions. 

Rather, the General Assembly clearly provided for a legislative allocation of $9 to 

be submitted to the State and a separate allocation of $1 to be retained by the 

county. This does not constitute a fee for the collection of taxes imposed by another 

governmental body. Accordingly, section 3-5018 does not violate article VII, 

section 9(a) of the Illinois Constitution. 

¶ 18 II. Uniformity Clause

¶ 19 The circuit court below held that the $9 surcharge for the State’s Rental 

Housing Support Program imposed by the amended version of section 3-5018 

violates the uniformity clause of the of the Illinois Constitution. The uniformity 

clause provides that “[i]n any law classifying the subjects or objects of 

non-property taxes or fees, the classes shall be reasonable and the subjects and 

objects within each class shall be taxed uniformly.” Ill. Const. 1970, art. IX, § 2. To 

survive a uniformity clause challenge, a “nonproperty tax classification must (1) be 

based on a real and substantial difference between the people taxed and those not 
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taxed, and (2) bear some reasonable relationship to the object of the legislation or to 

public policy.” Arangold Corp. v. Zehnder, 204 Ill. 2d 142, 153 (2003). “This is a 

narrow inquiry, and we will uphold a taxing classification as long as ‘a set of facts 

“can be reasonably conceived that would sustain it.” ’ ” Grand Chapter, Order of 

the Eastern Star of the State of Illinois v. Topinka, 2015 IL 117083, ¶ 11 (citing 

Empress Casino Joliet Corp. v. Giannoulias, 231 Ill. 2d 62, 73 (2008), quoting 

Geja’s Cafe v. Metropolitan Pier & Exposition Authority, 153 Ill. 2d 239, 248 

(1992)). 

¶ 20 In 2005, the General Assembly enacted the Rental Housing Support Program 

Act. 310 ILCS 105/1 et seq. (West 2012). The Rental Housing Support Program 

state surcharge in section 3-5018 was intended to fund the program. The goals of 

the legislation challenged by plaintiffs can be found in the General Assembly’s 

legislative findings, enacted at the same time as the amended version of section 

3-5018: 

“The General Assembly finds that in many parts of this State, large numbers of 

citizens are faced with the inability to secure affordable rental housing. Due to 

either insufficient wages or a shortage of affordable rental housing stock, or 

both, many families have difficulty securing decent housing, are subjected to 

overcrowding, pay too large a portion of their total monthly income for housing 

and consequently suffer the lack of other basic needs, live in substandard or 

unhealthy housing, or experience chronic housing instability. Instability and 

inadequacy in housing limits the employability and productivity of many 

citizens, adversely affects family health and stress levels, and impedes 

children's ability to learn; such instability produces corresponding drains on 

public resources and contributes to an overall decline in real estate values. 

Unaffordable rental rates lead to frequent tenant turnover and difficulty filling 

vacancies, resulting in unstable income streams for rental property owners, the 

limited ability of owners to properly maintain their properties, substandard 

rental housing, and greater rates of foreclosure. High tenant turnover, poorly 

maintained properties, vacant and abandoned properties, and overcrowded 

housing negatively impact the safety and health of communities and the real 

estate values within such communities. Among others, the program created by 

this Act benefits (i) all individuals who record real estate related documents by 

helping to stabilize real estate values in the State, (ii) rental property owners by 

subsidizing the portion of rent that many of their tenants are unable to pay, (iii) 

those individuals who own real estate in the State by providing an option for 
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affordable rental housing should they one day face foreclosure, and (iv) tenants 

who participate in the program by providing them with rental assistance and the 

ability to achieve financial stability so that they are able to become property 

owners themselves. It is the purpose of this Act to create a State program to help 

localities address the need for decent, affordable, permanent rental housing.” 

310 ILCS 105/5 (West 2012) (amended by Pub. Act 98-5, § 10 (eff. Mar. 22, 

2012)). 

¶ 21 Based on these legislative findings, we find that there is a reasonable 

relationship between the individuals subjected to the Rental Housing Support 

Program surcharge and the object of the legislation. The surcharge applies to 

parties who record real estate-related documents. It is reasonable to conclude that 

parties who have a legal interest in real estate will benefit from the stable and 

improved property values created by the program, in ways that the general public 

may not. In addition, owners of rental property may stand to benefit from a 

reduction in vacancies and a more certain revenue stream. 

¶ 22 The circuit court below found, however, that the claimed benefit of the general 

improvement of real estate values bears no relation to the limited class of persons 

who are forced to bear the burden of the fee. The court held that funding the 

program “more properly belongs on the backs of the entire population and not this 

class who does not cause or contribute to the ‘evil’ which the State intends to 

remedy.” The circuit court misconstrues the standard by which courts evaluate 

uniformity challenges. As this court recently held: 

“this court has never required perfect reciprocity between the payment of a tax 

and the receipt of a benefit from that tax. On the contrary, ‘ “[n]othing is more 

familiar in taxation than the imposition of a tax upon a class or upon individuals 

who enjoy no direct benefit from its expenditure, and who are not responsible 

for the condition to be remedied.” ’ [Citation.] And because of this, this court 

has ‘repeatedly held that a tax may be imposed upon a class even though the 

class enjoys no benefit from the tax.’ [Citation.] Again, the operative inquiry in 

uniformity cases is not whether there is perfect reciprocity between payment of 

the tax and distribution of the tax, but rather only whether the taxing 

classification bears ‘some reasonable relationship’ to the object or purpose of 

the tax. (Internal quotation marks omitted.) [Citation.]” (Emphasis in original.) 

Grand Chapter, Order of the Eastern Star of the State of Illinois v. Topinka, 

2015 IL 117083, ¶ 15. 
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Thus, even if the burden caused by imposition of the surcharge falls on a group who 

neither benefits from the surcharge nor caused the problems to be remedied by the 

surcharge, the surcharge may be constitutionally valid so long as there is a rational 

relationship between the object of the legislation and the classification at issue. 

¶ 23 The circuit court also found that section 3-5018 violates the uniformity clause 

because there was no evidence that ownership of real property contributed to the 

high cost of rental housing or that providing rental assistance would specifically 

benefit those who acquire title to real property. However, the General Assembly 

has no evidentiary burden and is not required to produce facts in support of its 

justification for the statute. Wirtz v. Quinn, 2011 IL 111903, ¶ 83. Instead, once the 

governmental entity has offered a reason for its classification, the plaintiff has the 

burden to show that the defendant’s explanation is insufficient as a matter of law or 

unsupported by the facts. Id. Plaintiffs have failed to do so. Accordingly, we 

reverse the circuit court’s order finding that section 3-5018 is unconstitutional 

under the uniformity clause in article IX, section 2. 

¶ 24 III. Due Process Clause

¶ 25 The circuit court below held the statute unconstitutional for the additional 

reason that it violated the due process clause in our state constitution. Ill. Const. 

1970, art. I, § 2. When analyzing a substantive due process claim, this court should 

first determine “the nature of the right alleged to be infringed by the government’s 

action.” Napleton v. Village of Hinsdale, 229 Ill. 2d 296, 307 (2008) (citing In re 

R.C., 195 III. 2d 291, 302 (2001)). The classification of the right affected 

determines the level of scrutiny to be applied to the statute. Id. (citing In re D.W.,

214 Ill. 2d 289, 310 (2005)). Generally, courts will apply the rational basis test. Id. 

(citing Tully v. Edgar, 171 Ill. 2d 297, 304 (1996)). Under this test, a statute will be

upheld if it bears a rational relationship to a legitimate legislative purpose and is 

neither arbitrary nor unreasonable. Id. (citing Village of Lake Villa v. Stokovich,

211 Ill. 2d 106, 122 (2004), and Tully, 171 Ill. 2d at 304). If, however, the statute

makes a classification based on race or national origin or involves a fundamental 

right, it will be subject to strict scrutiny. Id. (citing Stokovich, 211 Ill. 2d at 122, and

McLean v. Department of Revenue, 184 Ill. 2d 341, 354 (1998)). In that case, the

statute must be narrowly tailored to serve a compelling state interest. Id. (citing

R.C., 195 Ill. 2d at 303). 
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¶ 26 Plaintiffs initially contend that the statutory surcharge implicates a fundamental 

right because property interests are involved and, therefore, strict scrutiny is 

required. However, the plaintiffs cite no authority for this proposition and the case 

law is to the contrary. See, e.g., Estate of Cowser v. Commissioner, 736 F.2d 1168, 

1173 n.3 (7th Cir. 1984) (“Many laws have indirect but nonetheless potentially 

significant effects on property. Such indirect effects do not subject them to strict 

scrutiny.”). We will therefore apply rational basis review.

¶ 27 Plaintiffs maintain that the surcharge is “unsupported and unsupportable and 

irrational.” We disagree. By helping provide affordable housing to low-income 

Illinois families throughout the State, the statute provides needed housing security 

to Illinois residents. In addition, by providing financial stability to vulnerable 

residents, lowering tenant turnover by subsidizing rents, and providing a more 

stable income stream to landlords, the statute decreases the number of vacant and 

abandoned buildings and increases the opportunities for building owners to 

maintain their property. This improves property values. The statute thus bears a 

rational relationship to the legitimate goals of providing affordable rental housing 

and the maintenance and improvement of property values. Accordingly, we 

conclude that the surcharge is reasonably related to legitimate government interests 

and, therefore, survives rational basis review. 

¶ 28 IV. Equal Protection 

¶ 29 Although the circuit court did not reach the issue, the plaintiffs also challenged 

the constitutionality of the statute based on a violation of the equal protection 

clause. Ill. Const. 1970, art. I, § 2. We see no need to reach this issue. The 

uniformity clause imposes more stringent limitations than the equal protection 

clause on the legislature’s authority to classify the subjects and objects of taxation. 

Allegro Services, Ltd. v. Metropolitan Pier & Exposition Authority, 172 Ill. 2d 243, 

249-50 (1996). Thus, if a tax is constitutional under the uniformity clause, it is 

constitutional under the equal protection clause. Id. Because we have upheld the 

constitutionality of section 3-5018 under the uniformity clause, it is not necessary 

to address whether the statute passes muster under the equal protection clause. 
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¶ 30 CONCLUSION

¶ 31 For the foregoing reasons, the judgments of the circuit court are reversed and 

the cause is remanded for further proceedings consistent with this opinion. 

¶ 32 Reversed and remanded.