Illinois Official Reports
Appellate Court
Lipe v. O’Connor, 2014 IL App (3d) 130345
Appellate Court JAY LIPE, Individually and on Behalf of All Others Similarly
Caption 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 The constitutionality of the neutral site custody exchange fee assessed
(Note: This syllabus in defendant county on all civil litigants to provide neutral sites for the
constitutes no part of the exchange of children for visitation in domestic relations cases was
opinion of the court but upheld over plaintiff’s contentions that the fee unreasonably interfered
has been prepared by the with access to the courts and deprived civil litigants of property
Reporter of Decisions without due process, since the fee is imposed on all civil litigants, it
for the convenience of supports ancillary court services, the neutral sites alleviate the burdens
the reader.) 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 Appeal from the Circuit Court of Peoria County, No. 12-L-195; the
Review Hon. Richard D. McCoy, Judge, presiding.
Judgment Affirmed.
Counsel on Thomas G. Maag (argued) and Peter J. Maag, both of Maag Law Firm,
Appeal 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.
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