No. 1-14-2864 Opinion filed March1, 2016 Second Division

IN THE

APPELLATE COURT OF ILLINOIS

FIRST DISTRICT

) Appeal from the Circuit Court STEVEN MARSHALL, as a Representative of All ) of Cook County. Others Similarly Situated, ) ) Plaintiffs-Appellants, ) No. 10 L 3070 ) v. ) ) The Honorable THE COUNTY OF COOK, ) LeRoy Martin, ) Judge, presiding. Defendant-Appellee. )

JUSTICE HYMAN delivered the judgment of the court, with opinion. Presiding Justice Pierce and Justice Simon concurred in the judgment and opinion.

OPINION

¶1 Steven Marshall sued Cook County alleging the county misused funds collected from

litigation fees by failing to use them for the purposes stated in the enabling statutes. The trial

court dismissed Marshall's third-amended complaint with prejudice under section 2-619.1 of the

Code of Civil Procedure (Code) (735 ILCS 5/2-619.1 (West 2012)) on the ground that Marshall

lacked standing—only the Cook County State's Attorney could bring the claim. Marshall

contends: (i) as a taxpayer, he has standing to sue the county to recover any funds not spent for

authorized purposes under the statute; and (ii) he should have been permitted to file a fourth- 1-14-2864

amended complaint and proceed on a mandamus action. We reject both contentions and affirm.

The enabling statutes do not provide for a private cause of action and in the absence of evidence

of Marshall's personal liability to replenish public revenues depleted by the alleged misuse, he

lacks standing to bring a taxpayer lawsuit. Further, after the circuit court dismissed his complaint

with prejudice, Marshall had no statutory right to amend, and the court correctly denied him

leave to amend his complaint

¶2 BACKGROUND

¶3 In 2010, Steven Marshall filed a complaint against Cook County alleging improper

diversion of fees that were to be used for providing security in Cook County circuit courts,

seeking a declaration that the county's conduct was unlawful and an order that the fees be

returned to those who paid them, placed in a fund under the control of the chief judge of the

circuit court, or by order of the supreme court, be used exclusively for the benefit of the judicial

branch.

¶4 Marshall filed two amended complaints in 2010 and then in September 2013, filed a

third-amended complaint, which was styled as a class action. The complaint alleged that he, and

others similarly situated, paid statutory fees when filing a first pleading, paper, or other

appearance in the circuit court of Cook County to: (1) defray the cost of court security (55 ILCS

5/5-1103 (West 2012)), (2) establish and maintain automated record keeping systems in circuit

court clerks’ offices in Illinois (705 ILCS 105/27.3a (West 2012)), and (3) establish and maintain

a document storage system in the circuit court clerks’ offices (705 ILCS 105/27.3 (West 2012)).

Marshall alleged that the county refused to use the fees for the specific purposes set out in the

enabling statutes and instead uses them for discretionary general revenue. He also alleged that

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without any statutory authority the county improperly diverts 9% from a series of court funds for

"Cook County Administration" which is designated as "Fund 883."

¶5 In count I, Marshall alleged an unauthorized taking of property in violation of

involving the county's use of the statutory fees as general revenue rather than for the

purposes authorized by statute. He asked for compensatory and exemplary damages and attorney

fees.

(2006). In counts II and III, Marshall asked that the county be compelled

to use the fees for their statutory purposes or return them to him and other litigants who paid

them. Count IV alleged the fees are a general tax and violate the Uniformity Clause of the

Illinois Constitution (Ill. Const. 1970, art. IX, § 4(a)) and asks that the fees be returned to him

and other litigants or placed in a fund under the control of the chief judge of the circuit court to

be used for the exclusive benefit of the judicial branch.

¶6 The county filed a combined motion to dismiss under section 2-619.1 of the Code asking

the court to strike that part of Marshall's complaint referring to a represented class and any

request for class certification, because Marshall was never granted leave to request class

certification. 735 ILCS 5/2-619.1 (West 2012). The county also asked that the complaint be

dismissed under section 2-615 of the Code on the ground that the enabling statutes do not

provide for a private right of action nor is plaintiffs' alleged injury one in which the statutes were

designed to prevent and thus plaintiffs have alleged no injury for which relief could be granted.

735 ILCS 5/2-615 (West 2012). The county further argued under section 2-619(a)(9) of the Code

that plaintiffs lack standing to assert their claims because the enabling statute does not recognize

a private right of action by a taxpayer and that because the county is the real party in interest,

only the State's Attorney has the power to bring these claims on behalf of the county. 735 ILCS

5/2-619(a)(9) (West 2012).

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¶7 After a hearing, the trial court granted the county’s motion to dismiss with prejudice. The

court found that "this is [not] a taxpayer case," that Marshall did not have standing, and that any

claim, if there is one, would need to be brought by the Cook County State's Attorney. Marshall

filed a motion to reconsider, in which he also asked the circuit court to hear his motion to

disqualify the State's Attorney and to grant him leave to file a fourth-amended complaint so that

the case could proceed as a mandamus action. The court denied the motion to reconsider,

reiterating that there is no private cause of action under the enabling statutes and that Marshall

lacked standing. The court also denied Marshall's motion to disqualify the State's Attorney.

¶8 Marshall now argues that the trial court erred in: (1) finding that he did not have standing

and that only the Cook County State's Attorney could bring a lawsuit challenging the county's

use of court fees; and (2) denying him leave to file a fourth-amended complaint so that he could

proceed with a mandamus action. The county asks us to affirm the dismissal of Marshall's

complaint and find that the circuit court did not err in refusing to grant Marshall leave to file a

fourth-amended complaint or his request that the State's Attorney be disqualified. Marshall did

not file a reply brief.

¶9 ANALYSIS

¶ 10 Standing

¶ 11 Marshall contends the trial court should have found that he, not the State's Attorney, had

standing. He asserts that the circuit court erred in finding that the absence of a private right of

action under the statutes to be grounds for dismissal because as a taxpayer, he has standing to file

a claim objecting to the misuse of public funds.

¶ 12 The Illinois Supreme Court has propounded a four-part test to determine if a statute

implies a private right of action. The following elements must be satisfied: (1) the plaintiff

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belongs to the class for whose benefit the statue was enacted; (2) the plaintiff's injury is one the

statute was designed to prevent; (3) a private right of action is consistent with the underlying

purpose of the statute; and (4) implying a private right of action is necessary to provide an

adequate remedy for the statute's violation. Fisher v. Lexington Health Care, Inc.,

(1999). See also Givot v. Orr,

(2001) (finding that cause of

action was not implied by statute where third and fourth elements not shown).

¶ 13 Marshall is not a member of the class intended to be benefited by the statutes—the

statutes are intended to benefit counties that want to reduce court security costs or establish and

maintain document storage or automated recordkeeping systems. Further, a private right of

action is inconsistent with that underlying purpose and not necessary to provide an adequate

remedy, as the circuit court noted, since the Cook County State's Attorney can bring an action for

any alleged violations. Thus, the circuit court correctly ruled that no private right of action exists

under the enabling statutes.

¶ 14 The doctrine of standing ensures that issues are raised only by parties with a real interest

in the outcome of the controversy. Wexler v. Wirtz Corp.,

(2004). To have the

requisite standing to maintain an action, a plaintiff must complain of some injury in fact to a

legally cognizable interest. Greer v. Illinois Housing Development Authority,

(1988). The alleged injury must be: (1) distinct and palpable; (2) fairly traceable to the

defendant's actions; and (3) substantially likely to be prevented or redressed by the requested

relief.

. The plaintiff need not "allege facts establishing that he [or she] has standing

to proceed" but "[r]ather it is the defendant's burden to plead and prove lack of standing."

Wexler,

. "A complaint may be involuntarily dismissed for lack of standing

pursuant to section 2-619(a)(9) of the Code." Lyons v. Ryan,

(2002).

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Dismissal is mandated where a plaintiff lacks standing, because that deficiency negates the very

cause of action. Wexler,

. We review an order dismissing a complaint for lack of

standing de novo (In re Estate of Schlenker,

(2004)) and may affirm on any

basis present in the record regardless of the basis relied on by the trial court. Wofford v. Tracy,

.

¶ 15 Marshall claims that as a taxpayer he possesses standing to challenge how the county

spends the court fees at issue. “Taxpayer standing is a narrow doctrine permitting a taxpayer the

ability to challenge the misappropriation of public funds." Illinois Ass'n of Realtors v. Stermer,

. "It has long been the rule in Illinois that citizens and taxpayers

have a right to enjoin the misuse of public funds, and that this right is based upon the taxpayers'

ownership of such funds and their liability to replenish the public treasury for the deficiency

caused by such misappropriation." Barco Manufacturing Co. v. Wright,

(1956). But, taxpayer standing turns on the plaintiff's liability to replenish public revenues

depleted by an allegedly unlawful government action. Barber v. City of Springfield,

(2011). "Such taxpayers have a legally cognizable interest in their tax liability,

their increased tax liability is a specific injury, and their injury is redressable by an injunction

against the challenged governmental expenditure of tax funds."

¶ 16 Marshall presented no evidence showing that as a taxpayer he has been or will be liable

for increased taxes due to the collection and alleged misappropriation of fees that were supposed

to be allocated to court security, automated record keeping systems, and document storage.

Marshall contends that "taxpayers *** have the right to complain through the Illinois court

system and correct and recover for any misapplication of public funds." But, as noted, taxpayer

standing requires a specific showing that the plaintiff will be liable to replenish public revenues

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depleted by the misuse of those funds. Absent allegations that Marshall bears any liability or that

any pecuniary loss adversely impacts all taxpayers, he has no legally cognizable interest as a

taxpayer in the outcome of this lawsuit. Stermer,

(finding

plaintiffs failed to establish standing where they did not demonstrate they were responsible for

replenishing public revenues).

¶ 17 Marshall mistakenly relies on County of Cook ex rel. Rifkin v. Bear Stearns & Co.,

(2005), to support his standing argument. First, Rifkin is factually distinct. Rifkin

involves a derivative lawsuit filed by taxpayers on behalf of Cook County against third-party

defendants not a claim against the county. Further, the holding in Rifkin supports a finding that

the State's Attorney, rather than Marshall is the proper party to bring this action.

¶ 18 In Rifkin, plaintiffs sued Bear Stearns under Illinois statutory and common law to

recover, on behalf of Cook County, alleged improper overcharges Bear Stearns made in

orchestrating the county's bond refinancing plan.

. Plaintiffs brought breach of contract

and breach of fiduciary duty claims against the accounting firm that verified the accuracy of the

county's escrow account, and the financial advisors for the bond refinancing plan.

. The

basis for the statutory claim against Bear Stearns was article XX (Recovery of Fraudulently

Obtained Public Funds) of the Code (735 ILCS 5/20-101 et seq. (West 2004)). A private citizen

residing within the boundaries of the affected governmental unit is authorized to sue on behalf of

the governmental unit; provided however, he or she sends a certified letter to the appropriate

government official stating the intention to sue, and the official does not, within 60 days, sue,

send notice of a settlement, or state intention to sue within 60 days. 735 ILCS 5/20-104(b) (West

2004).

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¶ 19 The Illinois Supreme Court affirmed dismissal of the complaint based on lack of

standing. Section 20-104(b) was held unconstitutional to the extent it purported to confer

standing on private citizens to sue when the county (the only entity that would benefit from

plaintiffs' successful lawsuit) was the real party in interest. The State's Attorney is presumed to

act in the interests of the county, and his or her constitutional power to direct the county's legal

affairs may not be removed by statute. Rifkin,

. Plaintiffs lacked common law

taxpayer standing having not alleged the county was complicit in the alleged fraud.

.

¶ 20 Marshall notes that in Rifkin, the supreme court stated that in cases of alleged official

misconduct, "a public officer who has committed a breach of duty may be unable or unwilling to

make an objective, dispassionate decision about bringing suit and, in fact, may be able to prevent

the public body involved from filing an appropriate action. In those circumstances, a taxpayer

suit may provide the only means of remedying official misconduct."

. Marshall

asserts this language supports a finding that the proper party to bring this suit is the taxpayer. But

he fails to explain why the State's Attorney is not the proper party to bring this claim. The State's

Attorney, after all, is presumed to act in the interests of the county and has not been accused of

any misconduct or breach of fiduciary duty. Thus, under the holding in Rifkin, the proper party is

the State's Attorney, not Marshall.

¶ 21 Alternatively, Marshall contends that even if only the State's Attorney has been

authorized to bring the action under the enabling statutes, the State's Attorney has a conflict of

interest and should be disqualified. He asserts the State's Attorney representation of Cook

County renders her unable to be objective in a case involving allegations that the county

committed financial improprieties. He argues that the circuit court should have appointed a

special State's Attorney to represent the county. (We note that Marshall filed a motion to

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disqualify on August 12, 2013, and, although the disqualification issue was briefly argued,

nothing in the record shows that the circuit court ruled on that motion. Marshall raised the issue

again in his motion to reconsider, and the trial court denied the motion.)

¶ 22 A trial court's decision to grant a motion to disqualify will not be disturbed absent an

abuse of discretion. In re Marriage of Stephenson,

. A per se conflict of

interest exists when the same attorney appears during the same proceedings on behalf of different

clients. In re Darius G.,

(2010). In that situation, prejudice is presumed.

. The supreme court has held that the only situations in which the State's Attorney or the

Attorney General could be considered to be interested so as to authorize appointment of a special

Attorney General or State's Attorney are where (1) he or she is interested as a private individual;

and (2) he or she is an actual party to the litigation. See Environmental Protection Agency v.

Pollution Control Board,

(1977). The State's Attorney is not an actual

party in this litigation, and the record does not support a finding that she has a private individual

interest in the litigation. Thus, the circuit court did not abuse its discretion in denying Marshall's

motion to disqualify.

¶ 23 Marshall also contends that in granting the motion to dismiss, the circuit court mistakenly

accepted the County's argument that under Zammaron v. Pucinski,

(1996)

and Rose v. Pucinski,

(2001), the County may use litigation fees in any way it

deems appropriate regardless of the language in the enabling statutes. First, neither case stands

for that broad proposition. Zammaron held that a court automation surcharge was constitutional

absent evidence that that funds obtained from the surcharge were being used for non-court

related purposes. Zammaron,

. And in Rose, the court held that funding a

mandatory arbitration program through a fee on all circuit court civil filings including in cases

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that did not qualify for mandatory arbitration was not unconstitutional. Rose,

. More significantly, however, is that the circuit court did not rely on either case in reaching its

decision. Though both parties raised arguments about the applicability of Zammaron and Rose

during the hearing on the County's motion to dismiss, the trial court's orders granting the motion

and denying Marshall's motion to reconsider do not mention either case. Nor did the court

discuss those cases during oral argument. Because the circuit court found that Marshall lacked

standing and that the enabling statutes do not provide for a private right of action, discussion of

those cases or their applicability to Marshall's claims, was wholly unnecessary.

¶ 24 Mandamus

¶ 25 Lastly, Marshall asserts the circuit court should have granted his request to file a fourth-

amended complaint, which was included in his motion to reconsider. Marshall sought leave to

amend his complaint “to conform to the proofs that Defendant has failed to properly use the

funds collected under the relevant statute" and to proceed as a mandamus action.

¶ 26 Section 2-616(a) of the Code provides that at any time before final judgment, the court

may permit amendments on just and reasonable terms to enable the plaintiff to sustain the claim

brought in the suit. 735 ILCS 5/2-616(a) (West 2012). In considering whether a circuit court

abused its discretion in ruling on a motion for leave to file an amended complaint, the reviewing

court considers the following factors: “(1) whether the proposed amendment would cure the

defective pleading; (2) whether other parties would sustain prejudice or surprise by virtue of the

proposed amendment; (3) whether the proposed amendment is timely; and (4) whether previous

opportunities to amend the pleadings could be identified.” (Internal quotation marks omitted.)

Compton v. Country Mutual Insurance Co.,

(2008). “Whether to allow

an amendment of a complaint is a matter within the sound discretion of the trial court, and,

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absent an abuse of that discretion, the court's determination will not be overturned on review.”

Village of Wadsworth v. Kerton,

(2000).

¶ 27 The entry of final judgment cuts off the plaintiff's statutory right to amend a complaint.

See Tomm's Redemption, Inc. v. Hamer,

. Section 2-616(a) of the

Code allows amendments before a final judgment. 735 ILCS 5/2-616(a) (West 2012). After final

judgment, however, a complaint may only be amended to conform the pleadings to the proofs.

735 ILCS 5/2-616(c) (West 2012).

¶ 28 Dismissal of a complaint with prejudice is final. See DeLuna v. Treister,

(1999). Marshall's request to file a fourth-amended complaint came after the entry of a final

judgment. Although Marshall characterizes his request as one “to conform the pleadings to the

proofs,” what he seeks is to amend so he can proceed with a mandamus action. Once final

judgment has been obtained, section 2-616(c) bars a plaintiff from either adding new claims and

theories or correcting other deficiencies. Tomm's Redemption,

.

Thus, the trial court properly denied his motion.

¶ 29 Marshall's reliance on Lawson v. Hill,

(1979), for the proposition that

“the greatest liberality should be applied in allowing amendments and that the most important

question is whether the amendment will be in the furtherance of justice” is misplaced. In

Lawson, the issue was whether the trial court “abused its discretion in allowing plaintiff to

amend his pleadings at the close of the evidence” (id. at 844), not after a final judgment. We

conclude that the denial of leave to amend to proceed as a mandamus action was not a manifest

abuse of the circuit court's discretion.

¶ 30 Affirmed.

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