Gassman v. The Clerk of the Circuit Court of Cook County
2017 IL App (1st) 151738
Ill. App. Ct.2017Background
- Plaintiffs David Gassman and A.N. Anymous filed petitions to vacate dismissals for want of prosecution and were each charged a $90 filing fee under 705 ILCS 105/27.2a(g)(2); they paid under protest and sued the Cook County Clerk seeking mandamus relief and an accounting/refund.
- Section 27.2a(g) imposes different fee ranges for petitions to vacate or modify “any final judgment or order of court” depending on whether filed within 30 days or later.
- Gassman alleged a dismissal for want of prosecution is not a final order under Illinois law (citing S.C. Vaughan Oil Co. v. Caldwell), so the fee is unauthorized.
- The Clerk moved to dismiss under 735 ILCS 5/2-615 and 2-619 arguing (a) the statute applies to any order (final or not), (b) no private right of action exists, (c) actions are immunized/discretionary, and (d) res judicata/privity barred the suit because counsel had litigated similar challenges.
- Trial court dismissed under section 2-615 without explanation. The appellate court reviewed statutory construction de novo and reversed, directing plaintiffs to amend to remove fictitious names.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether §27.2a(g) authorizes fees for petitions to vacate nonfinal orders | §27.2a(g) applies only to final judgments or final orders; dismissals for want of prosecution are nonfinal | The word “final” modifies only “judgment,” so the statute covers any order of court (final or not) | The word “final” modifies both “judgment” and “order of court”; fees for petitions to vacate nonfinal orders are not authorized |
| Whether mandamus is an available remedy without an implied private right of action | Mandamus is proper to compel ministerial compliance with statute; no private right of action needed | Plaintiff must show a private right of action under the statute to pursue relief | Mandamus is appropriate to compel compliance; no private statutory right of action is required for mandamus |
| Whether statutory/common-law tort immunity defeats the claim | Relief sought is non-damages (mandamus/refund), so immunity does not bar it | Tort immunity shields public officials from related suits | Tort Immunity Act does not bar non-damage relief; collection of fees is ministerial, not discretionary, so immunity does not apply |
| Whether res judicata/privity bars the suit based on prior related cases | Prior cases do not produce preclusive judgments on the merits against Gassman; no privity | Prior cases (brought by same counsel) preclude relitigation via privity and prior rulings | Res judicata does not apply: prior dismissal(s) were moot or of unclear/ non-merits grounds, and identity of counsel alone does not establish privity |
Key Cases Cited
- S.C. Vaughan Oil Co. v. Caldwell, 181 Ill.2d 489 (1998) (dismissal for want of prosecution is not final until refile period expires)
- People ex rel. Senko v. Meersman, 2012 IL 114163 (mandamus compels nondiscretionary ministerial duties)
- Andrews v. Kowa Printing Corp., 217 Ill.2d 101 (statutory interpretation—plain meaning governs)
- Lewis E. v. Spagnolo, 186 Ill.2d 198 (mandamus standards and availability)
- Noyola v. Board of Education of the City of Chicago, 179 Ill.2d 121 (mandamus can be used to compel statutory compliance; private cause-of-action analysis differs for damages)
- River Park, Inc. v. City of Highland Park, 184 Ill.2d 290 (elements and effect of res judicata)
- Raintree Homes, Inc. v. Village of Long Grove, 209 Ill.2d 248 (refund/restitution is not barred by Tort Immunity Act)
- McCarthy v. Finley, 122 Ill. App.3d 401 (1984) (interpreted pre-1990 statutory language; inapposite to current statute)