Gassman v. Clerk of the Circuit Court of Cook County
2017 IL App (1st) 151738
| Ill. App. Ct. | 2017Background
- Plaintiffs David Gassman and A.N. Anymous paid $90 fees to the Cook County Clerk to file petitions to vacate dismissals for want of prosecution and sued the Clerk seeking mandamus and refund/accounting of improperly collected fees.
- The fees were assessed under 705 ILCS 105/27.2a(g)(2), which imposes higher fees for petitions filed more than 30 days after entry of a “final judgment or order of court.”
- Gassman alleges a dismissal for want of prosecution is not a final order until the one‑year refiling period expires under 735 ILCS 5/13‑217, so the Clerk lacked statutory authority to charge the fee.
- The Clerk moved to dismiss under section 2‑615 (and alternatively 2‑619), arguing the statute applies to any order of court (not only final orders), no private right of action exists, and various immunities or res judicata bar the suit.
- The trial court dismissed under 2‑615 without explanation; the appellate court reviewed statutory interpretation de novo.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether section 27.2a(g) authorizes fees for petitions to vacate nonfinal orders | "Final" modifies both "judgment" and "order"; fee applies only to final orders/judgments | "Final" modifies only "judgment," so fee applies to any order of court | Reversed — "final" modifies both; statute applies only to motions concerning final orders/judgments |
| Whether mandamus is a proper remedy (necessity of private right of action) | Mandamus can compel compliance with statute; no private right of action needed for equitable relief/refund | Plaintiff must show statutory private right of action to pursue relief | Held for plaintiff — mandamus appropriate to compel ministerial statutory compliance; private right not required |
| Whether tort immunity bars the claim | Statutory/common law immunity does not bar non‑damage equitable relief; fee collection is ministerial | Collection discretion or immunity shields Clerk | Rejected — Immunity inapplicable; statute prescribes ministerial duty to collect only authorized fees |
| Whether res judicata/privity from prior suits by same counsel bars suit | Prior cases do not have preclusive effect; one was moot and other unclear/lack of privity | Prior judgments or dismissals involving same counsel preclude relitigation | Rejected — Schacht was dismissed as moot (not on merits); Shaheen dismissal unclear and no showing of privity; burden on Clerk unmet |
Key Cases Cited
- S.C. Vaughan Oil Co. v. Caldwell, Troutt & Alexander, 181 Ill. 2d 489 (1998) (dismissal for want of prosecution is not final until one‑year refiling period expires)
- Noyola v. Board of Education of the City of Chicago, 179 Ill. 2d 121 (1997) (mandamus may compel public officials to comply with statutory duties; private right of action not required for such relief)
- People ex rel. Senko v. Meersman, 2012 IL 114163 (2012) (elements and use of mandamus to compel ministerial duties)
- Andrews v. Kowa Printing Corp., 217 Ill. 2d 101 (2005) (statutory interpretation and giving words their plain meaning)
- River Park, Inc. v. City of Highland Park, 184 Ill. 2d 290 (1998) (doctrine of res judicata and its elements)
- Raintree Homes, Inc. v. Village of Long Grove, 209 Ill. 2d 248 (2004) (refund/restitution is not barred by Tort Immunity Act and is distinguishable from damages)