dissenting:
The majority holds unconstitutional, on due process grounds, the venue statute applicable to actions brought by the Illinois State Scholarship Commission on delinquent and defaulted student loans. The majority further determines that such actions must be brought in either the borrower’s county of residence or the county where the loan was obtained. I do not agree with the majority’s reasoning or its result, and therefore I respectfully dissent.
In the present case, the plaintiff class members, who are recipients of loans issued under this State’s student loan program, challenged the practice of the Illinois State Scholarship Commission of bringing actions on delinquent and defaulted loans in Cook County. (The State Scholarship Commission is now known as the Illinois Student Assistance Commission. (Ill. Rev. Stat. 1989, ch. 122, par. 30 — 15.3.)) Many of the loan agreements signed by the borrowers contained forum-selection clauses specifically making Cook County the exclusive venue for actions on the contracts. In addition, the Commission is required by law to maintain an office in Chicago (Ill. Rev. Stat. 1987, ch. 122, par. 30 — 15.3(e)), and the processing of loan applications in Cook County might be considered part of the underlying transaction and hence a basis for placing venue there under the general venue provision of section 2 — 101 of the Code of Civil Procedure (Ill. Rev. Stat. 1987, ch. 110, par. 2 — 101 (venue proper in defendant’s county of residence or county where underlying “transaction or some part thereof occurred”)).
While the present matter was pending in the circuit court, the legislature amended a portion of the statutory scheme that governs the student loan program, the Higher Education Student Assistance Law (Ill. Rev. Stat. 1987, ch. 122, pars. 30 — 15.1 through 30015.13; Ill. Rev. Stat. 1989, ch. 122, pars. 30 — 15.1 through 30 — 24), to expressly provide that venue over such actions would lie in Cook County. Effective January 1, 1988, the following provision was added to section 30 — 15.12 of the Student Assistance Law: “The Commission shall file any and all lawsuits on delinquent and defaulted student loans in the County of Cook where venue shall be deemed to be proper.” (Ill. Rev. Stat. 1987, ch. 122, par. 30 — 15.12.) Until that time, the Student Assistance Law had been silent on the venue question. Following enactment of the special venue clause, the plaintiffs amended their complaint to include a challenge to the new provision.
The parties filed cross-motions for summary judgment, and the trial judge granted the plaintiffs’ motion and denied the defendants’. The trial judge invalidated the venue provision found in section 30 — 15.12 and ordered the Commission to bring future actions in either the borrower’s county of residence or the county where the loan was obtained. The judge also ruled that the forum-selection clauses in the student loan agreements were violative of public policy and therefore unenforceable.
The majority affirms the circuit court’s judgment in all material respects. It should be noted that while the circuit court based its rationale on the asserted indigency of the plaintiff class members, the court did not limit its relief to that group, but rather invalidated the statute on its face. In the present appeal the majority likewise relies on the indigency of the class as the basis for its holding but fails to tailor its decision accordingly. The majority holds that the venue provision found in section 30 — 15.12 of the Student Assistance Law denies indigent borrowers access to the courts and therefore violates the due process guarantees of the Federal and State Constitutions (U.S. Const., amend. XIV; Ill. Const. 1970, art. I, §2). Invoking the general venue provision of section 2 — 101 of the Code of Civil Procedure, the majority determines that actions on delinquent and defaulted student loans must be brought in either the borrower’s county of residence or the county where the loan was obtained. In so holding, the majority rejects the Commission’s argument that the processing of loan applications in Cook County constitutes part of the underlying transaction and thus may serve to establish venue there under section 2— 101. The majority also concludes that the venue-selection clauses found in many, if not all, of the student loan agreements are void as contracts of adhesion.
The determination by statute of where venue may lie has invariably been treated as “a matter resting within the province of the legislature.” (Chappelle v. Sorenson (1957), 11 Ill. 2d 472, 476.) Although this court has intimated that a venue statute might be so unreasonable or burdensome as to work a denial of due process (see Mapes v. Huleher (1936), 363 Ill. 227, 231), there does not appear to have been a case, until now, in which such a statute has been held invalid, at least for any of the grounds asserted here (see Stein, Styles of Argument and Interstate Federalism in the Law of Personal Jurisdiction, 65 Tex. L. Rev. 689, 705 n.76 (1987)). As I shall demonstrate below, the majority’s abrupt departure from settled practice cannot be supported.
I
In invalidating section 30 — 15.12 as violative of due process, the majority rests its determination on an analysis of the following circumstances:
“[F]irst, the private interest that will be affected by the official action; second, the risk of an erroneous deprivation of such interest through the procedures used, and the probable value, if any, of additional or substitute procedural safeguards; and finally, the Government’s interest, including the function involved and the fiscal and administrative burdens that the additional or substitute procedural requirement would entail.” (Mathews v. Eldridge (1976), 424 U.S. 319, 335, 47 L. Ed. 2d 18, 33, 96 S. Ct. 893, 903.)
The majority concludes that the private interest implicated in the present case is the right of access to the courts; that the special venue provision applicable to actions on student loans operates to deny that right, and that alternative measures would adequately protect the class members’ interests; and, finally, that the State’s interest in having such actions brought in a single forum is comparatively slight. Weighing those circumstances in the balance, the majority concludes that the venue clause found in section 30 — 15.12 of the Student Assistance Law must yield to the contrary interests of the student borrowers. In my view, none of the majority’s conclusions may be sustained, and I would uphold the statute.
A
With regard to the first circumstance of the Mathews test, the majority finds that the private interest affected by the challenged statute is a due process right of access to the courts. In reaching that conclusion, the majority erroneously equates the private interest of the individual class members in having collection actions brought in convenient forums with a right of judicial access. I cannot concur in the majority’s unwarranted extension of that right.
The majority believes that the private interest implicated in the present action is the right of access to the courts, as expressed in Boddie v. Connecticut (1971), 401 U.S. 371, 28 L. Ed. 2d 113, 91 S. Ct. 780, and its progeny. (See Ortwein v. Schwab (1973), 410 U.S. 656, 35 L. Ed. 2d 572, 93 S. Ct. 1172 (per curiam); United States v. Kras (1973), 409 U.S. 434, 34 L. Ed. 2d 626, 93 S. Ct. 631.) In Boddie, the plaintiff class, consisting of indigent persons who wished to file, for divorce, challenged a Connecticut statute requiring the payment of certain fees as a prerequisite to bringing such an action. The Court held that the fee requirement denied the plaintiffs due process by unduly restricting their access to the courts. (Boddie, 401 U.S. at 382, 28 L. Ed. 2d at 122, 91 S. Ct. at 788.) In reaching that conclusion, the Court emphasized the fundamental nature of the marital relationship and the absence of nonjudicial alternatives to divorce proceedings. Thus, without payment of the necessary court fee, the plaintiff class members could not avail themselves of “the exclusive precondition to the adjustment of a fundamental human relationship.” Boddie, 401 U.S. at 383, 28 L. Ed. 2d at 122, 91 S. Ct. at 788.
Subsequent Supreme Court decisions evaluating a civil litigant’s right of access to the courts have hewed to Boddie’s focus on the fundamental nature of the underlying interest and the absence of alternative means of vindicating that interest. (See Ortwein, 410 U.S. at 658-60, 35 L. Ed. 2d at 575-76, 93 S. Ct. at 1173-75; Kras, 409 U.S. at 443-46, 34 L. Ed. 2d at 635-36, 93 S. Ct. at 637-38.) In Kras, the Court ruled that imposition of a filing fee on persons seeking discharge in bankruptcy did not deprive such persons of access to the courts. The Court first determined that a bankrupt’s interest in the elimination of his burden of debts “does not rise, to the same constitutional level” as the marital interest implicated in Boddie. (Kras, 409 U.S. at 444-45, 34 L. Ed. 2d at 635, 93 S. Ct. at 638.) The Court next declared that judicial process was not the exclusive remedy for a debtor seeking adjustment of his debts. (Kras, 409 U.S. at 445-46, 34 L. Ed. 2d at 636, 93 S. Ct. at 638.) The Court therefore concluded that the fee requirement did not violate the right of judicial access expressed in Boddie.
In Ortwein, the Court again found Boddie distinguishable and rejected a challenge to the imposition of court filing fees on indigent persons seeking judicial review of State agency decisions reducing their welfare benefits. The Court found that the interest of the recipients in increased welfare benefits had “far less constitutional significance” than the interest implicated in Boddie. (Ortwein, 410 U.S. at 659, 35 L. Ed. 2d at 575, 93 S. Ct. at 1174.) In addition, the Court noted that the recipients had been afforded an alternative remedy in the form of pretermination hearings that did not require the payment of a fee. (Ortwein, 410 U.S. at 659-60, 35 L. Ed. 2d at 576, 93 S. Ct. at 1174.) The Court concluded that the filing fee requirement did not deny the recipients access to the courts.
The majority acknowledges that the right of access articulated in Boddie, Kras, and Ortwein is relatively narrow, but the majority suggests nonetheless that other Federal courts have recognized an expanded right. (139 Ill. 2d at 44-45.) The majority is able to marshall only scant support for such a proposition, however, and the authorities offered by the majority in support of its rationale are readily distinguishable. The cases simply have found, under circumstances demonstrably different from those involved here, overreaching or burdensome conduct by one litigant resulting in the denial of another party's access to the courts. (See Harrison v. Springdale Water & Sewer Comm’n (8th Cir. 1986), 780 F.2d 1422 (admittedly frivolous condemnation counterclaim filed by local authorities in response to landowners’ action for damages to property implicates landowners’ right of judicial access); Hyland v. Shapiro (5th Cir. 1983), 708 F.2d 967 (actions by local authorities in concealing prosecutor’s murder of plaintiffs’ daughter interfered with plaintiffs’ right to bring wrongful death claim against murderer and thus denied plaintiffs judicial access); McCoy v. Goldin (S.D.N.Y. 1984), 598 F. Supp. 310 (provision in city’s wage agreement with certain municipal employees requiring signatories to waive statutory right to litigate wage determination violated employees’ right of judicial access).) At most, those decisions suggest that conduct by a party may in certain cases be so oppressive or outrageous that it effectively deprives an opposing party of judicial access. The two State court cases cited by the majority (139 Ill. 2d at 44-45) are similarly unpersuasive in the present context. See Patrick v. Lynden Transport, Inc. (Alaska 1988), 765 P.2d 1375 (State statute requiring nonresident plaintiffs to post bond to cover costs and attorney fees for which they might later be liable violative of equal protection guarantee of State constitution); Bush v. Reid (Alaska 1973), 516 P.2d 1215 (State statute barring prison parolees from bringing civil actions violative of Federal and State constitutional rights of access to courts).
In essence, the majority confuses the convenience of a particular forum to a particular party with the right of judicial access. Here, the private interest of the plaintiff class members may be described as “an interest in personally appearing in a local court.” (Phillips v. Pennsylvania Higher Education Assistance Agency (3d Cir. 1981), 657 F.2d 554, 564.) Phillips considered a similar court-access argument by indigent recipients of student loans who resided more than 200 miles from the Pennsylvania county in which actions on their loans were filed. In holding that the plaintiff class members’ right of access to the courts was not implicated by the location of the actions, the Phillips court noted, “We find no cases recognizing any general right to appear personally in local courts and reject any contention that such an interest is substantial.” Phillips, 657 F.2d at 564.
In addition, it cannot be said that the plaintiff class members, once they were unable to repay their student loans, had no alternative to being sued. Contrary to the majority’s assertion (139 Ill. 2d at 45), court proceedings are the last step in a series of steps taken by the Commission against delinquent borrowers. Before the Commission may file suit, it is required by Federal guidelines to make several contacts with a borrower concerning the status of the loan and must advise the borrower of the consequences of nonpayment. (See 34 C.F.R. §682.410 (1989).) Federal law also establishes circumstances in which a borrower may be eligible for deferment or forbearance of repayment. (See 20 U.S.C. §1078 (1988); 34 C.F.R. §§682.210, 682.211 (1989).) In the proceedings below, Kenneth Vick, the Commission’s acting manager of litigation services, stated in an affidavit that the Commission issues a number of demand-for-payment requests to a delinquent borrower and files suit only if the borrower fails to respond to the requests or refuses to ■ cooperate in setting up an affordable repayment plan. It may also be noted that the record in the present case discloses numerous examples of voluntary repayment plans negotiated by borrowers and the Commission after actions on the loans were filed. Thus, there is no support for the majority’s assertion that court proceedings are the sole remedy afforded to borrowers who experience difficulty in repaying their student loan obligations.
Unlike the majority, then, I do not interpret the right of access to the courts, applied in the context of the present proceedings, as carrying with it the requirement that an indigent person be sued in a convenient forum. Precedent clearly demonstrates that the right of access expressed by the Court in Boddie is implicated only when the affected interest is fundamental and no other mechanism exists that may afford adequate relief. (See Ortwein, 410 U.S. at 658-60, 35 L. Ed. 2d at 575-76, 93 S. Ct. at 1173-75; Kras, 409 U.S. at 443-46, 34 L. Ed. 2d at 635-36, 93 S. Ct. at 637-38.) It is clear that the case before us does not present such a situation. The challenged statute reflects the legislature’s assessment of where venue lies in an action of this type. As I have stated, such a determination normally rests within the province of the- legislature. By deriving from Boddie and its progeny an overarching right of judicial access — one that is both independent, of the interest asserted and heedless of other available remedies — the majority has, I submit, raised severe and unnecessary obstacles to future procedural rulemaking, by either this court or the legislature.
B
The second part of the Mathews test requires consideration of “the risk of an erroneous deprivation of the [affected] interest through the procedures used, and the probable value, if any, of additional or substitute procedural safeguards” (Mathews, 424 U.S. at 335, 47 L. Ed. 2d at 33, 96 S. Ct. at 903). The majority concludes that the challenged venue provision poses a substantial risk of erroneous deprivation and that alternative safeguards, such as the recognition of additional venues for the Commission’s actions, would afford the plaintiff class members sufficient protection.
The majority believes that operation of the venue provision contained in section 30 — 15.12 of the Student Assistance Law will threaten to deny the indigent class members the opportunity to present their defenses to actions brought against them by the Commission. But unlike Peralta v. Heights Medical Center, Inc. (1988), 485 U.S. 80, 99 L. Ed. 2d 75, 108 S. Ct. 896, on which the majority relies, it is undisputed in the present case that the plaintiff class members do receive notice of the proceedings against them and are afforded an opportunity to defend their interests. There is no contention here that the plaintiffs are denied those most basic requirements of due process (see Armstrong v. Manzo (1965), 380 U.S. 545, 550, 14 L. Ed. 2d 62, 65, 85 S. Ct. 1187, 1190; Mullane v. Central Hanover Bank & Trust Co. (1950), 339 U.S. 306, 314, 94 L. Ed. 865, 873, 70 S. Ct. 652, 657), as was the defaulted party in Peralta.
As I have already stated, litigation is the last step taken by the Commission in its collection efforts against borrowers who encounter difficulty in repaying their student loans. Before commencing an action against a borrower, the Commission, as required by law, attempts to work out an alternative repayment plan with the borrower. Moreover, a borrower may in certain cases obtain deferment or forbearance of repayment. Thus, means already exist, short of litigation, by which borrowers may resolve their disputes with the Commission. If present procedures pose a risk that a borrower’s defenses may go unheard, it arises from the class members’ asserted inability to procure counsel in a distant forum and travel there to defend their interests. But such a risk is inherent even in the remedy ordered by the circuit court and adopted by the majority in the present appeal. Because the Commission may, under today’s decision, bring an action in the county where the loan was obtained, an indigent borrower who is not á resident of the particular forum might still find himself forced to defend an action in an inconvenient place.
The majority construes the venue provision of section 30 — 15.12 of the Higher Education Student Assistance Law as placing venue over student loan collection cases exclusively in Cook County. Under that interpretation, transfer on forum non conveniens ground would not be available to a borrower, and the majority thus finds the statute to be in irreconcilable conflict with our general venue provisions, under which such intrastate transfers are permitted as a matter of common law. (See Torres v. Walsh (1983), 98 Ill. 2d 338, 347-51.) In addition, the majority fears that our recognition of the validity of section 30 — 15.12 would only encourage other State agencies to secure the enactment of special venue provisions for actions involving them, a practice that the majority condemns. In making these observations, the majority appears to be offering a separate reason for not giving effect to the venue provision found in section 30 — 15.12: that the statute cannot be reconciled with the general venue rules of section 2 — 101 and is inconsistent with long-standing practice in this State. 139 Ill. 2d at 53, 57-58.
The language of section 30 — 15.12 does not clearly compel the majority’s conclusion that the provision places venue exclusively in Cook County. In my view, the provision may be interpreted instead as requiring the initiation of such actions in Cook County but not precluding their later transfer to another forum. When statutory language is reasonably susceptible of different interpretations, one favoring its constitutionality is normally preferred. (People v. Orth (1988), 124 Ill. 2d 326, 334; Cronin v. Lindberg (1976), 66 Ill. 2d 47, 60.) But even if it is assumed that the statute establishes venue exclusively in Cook County, and thus forbids transfer to another county on forum non conveniens grounds, such a construction does not place the special venue provision in irreconcilable conflict with section 2 — 101 or counter the established practice in this jurisdiction.
The majority’s rejection of section 30 — 15.12 because of a supposed conflict with our other venue statutes is untenable. Even if the provisions were deemed to be inconsistent with one another, we would not be warranted in disregarding section 30 — 15.12. Rather, applying the familiar rules of statutory construction, we would readily conclude that the venue clause found in section 30 — 15.12, as the more recent enactment and the more specific provision, must prevail. See Secretary of State v. Mikusch (1990), 138 Ill. 2d 242, 254.
There is no need in the present case, however, to apply those canons of construction, for the different statutes may be reconciled without recourse to interpretive tools. Section 2 — 103(c) of the Code of Civil Procedure provides, “Any action which is made local by any statute must be brought in the county designated in the statute.” (Ill. Rev. Stat. 1987, ch. 110, par. 2 — 103(c).) That provision, which the majority fails to discuss, is intended to preserve the primacy of specialized venue statutes over the more general measures. (See Ill. Ann. Stat., ch. 110, par. 2 — 103, Historical & Practice Notes, at 81 (Smith-Hurd 1983).) Applied to the present case, section 2 — 103(c) would allow us to give effect to the separate venue provision found in section 30 — 15.12 of the Higher Education Student Assistance Law. Thus, contrary to the majority’s view, the venue statutes are reconcilable and form a consistent whole; we should not presume that the legislature intended the challenged provision to be a nullity.
C
The third circumstance under the Mathews test requires consideration of the State’s interest in the challenged practice and the effect on that interest of the use of alternative procedures. Analyzing this aspect, the majority finds that the State’s interest in the present system is comparatively weak. That conclusion, however, ignores the record evidence of the Commission’s growing caseload and slights the State’s interest in having these matters handled in a central office in a single forum.
The State has a legitimate interest in pursuing the repayment of student loans in an expeditious manner, for compliance must be had with certain Federal regulations to ensure continued reimbursement for the State’s losses under the student loan program (see 34 C.F.R. §§682.406, 682.414(c) (1989)). The location of the Commission’s actions in one county serves an important part in achieving those goals. There, the necessary paperwork may be processed by a trained central staff. Consideration is also owed to the crush of litigation faced by the Commission. According to the information in the record, the Commission had some 5,000 active cases at the time the present matter was pending in the circuit court. Moreover, the Commission expected its caseload to quadruple within three years. In requiring that actions on delinquent and defaulted student loans be brought throughout the State, today’s decision will substantially increase the heavy administrative burden already borne by the Commission. I would conclude that the State has a strong interest in centralizing collection actions in a single county and that the alternative procedures decreed by the majority will thwart that interest.
II
In my view, the majority misconstrues the right being asserted by the plaintiff class members, ignores the place of section 30 — 15.12 in the realm of Illinois venue statutes, and underestimates the State’s interest in centralized control over actions on delinquent and defaulted student loans. In sum, I do not believe that the venue provision contained in section 30 — 15.12 of the Higher Education Student Assistance Law unconstitutionally denies the plaintiff class members access to the courts.
Indeed, the majority’s analysis ultimately proves too much. Consistent application of the majority’s logic would compel the invalidation of other special venue provisions and even the general venue statute on which the majority purports to rely. The majority’s analysis suggests a right of an indigent in a civil matter to have a claim resolved in a local court. Recognition of such a right would, of course, eliminate any basis for venue apart from the defendant’s county of residence. Thus, under the majority’s analysis, an action against an indigent defendant must be brought in the defendant’s home county; by the same token, an indigent plaintiff must be entitled to bring an action in his home county. The majority offers no explanation of where venue would properly lie for an action brought against indigent defendants of different counties, or for an action brought by an indigent plaintiff of one county against an indigent defendant of another.
I would also reject the plaintiff class members’ alternative challenge to the provision on equal protection grounds. The statute does not affect a fundamental interest of the plaintiff class, and it bears a rational relationship to the State’s legitimate goal of centralizing actions on student loans in one location. (See United States v. Kras (1973), 409 U.S. 434, 446-49, 34 L. Ed. 2d 626, 636-38, 93 S. Ct. 631, 638-40.) Finally, if it is assumed that the venue provision contained in section 30 — 15.12 would not be applicable to proceedings pending at the time it took effect (but see Sanelli v. Glenview State Bank (1985), 108 Ill. 2d 1), a point I do not decide, I would undertake only a case-by-case consideration of the plaintiff class members’ separate challenges to the Commission’s practice, before the effective date of that statute, of filing such actions in Cook County. The Commission’s earlier practice apparently rested on two grounds, either one of which could be sufficient to sustain a finding of venue: the inclusion of venue-selection clauses in many of the student loan agreements, making venue a matter of contract between the parties (see The Bremen v. Zapata Off-Shore Co. (1972), 407 U.S. 1, 32 L. Ed. 2d 513, 92 S. Ct. 1907; Calanca v. D & S Manufacturing Co. (1987), 157 Ill. App. 3d 85), and the processing of student loan applications in Cook County, satisfying the requirements of the general venue statute (see Ill. Rev. Stat. 1987, ch. 110, par. 2 — 101 (venue proper in county of defendant’s residence or county where part of underlying transaction occurred)). From the record before us, it appears that the circumstances of the individual class members with regard to these alternative grounds for venue may be fact-specific to their own situations.
For the reasons stated, I respectfully dissent.
CHIEF JUSTICE MORAN and JUSTICE RYAN join in this dissent.