According to Article VI, Section 14 of the Illinois Constitution, “[t]here shall be no fee officers in the judicial system.” Section 15-1504.1 of the Code of Civil Procedure imposes a $50 filing fee in residential mortgage foreclosure cases, 2% of which is retained by the clerk of the court in county where the case is filed.

Does the statute violate the fee officer clause? In Walker v. McGuire, a unanimous Illinois Supreme Court held in an opinion by Justice Theis that the answer was “no.” Our report on the oral argument is here.

Walker began with a putative class complaint against the defendant, the clerk of the Will County Circuit Court, challenging the constitutionality of the filing fee and the Foreclosure Prevention Program funded by the fee. The plaintiff argued that the fee violated separation of powers, equal protection, due process, the uniformity clause and the fee officer clause. The State intervened to defend the statute. The court ultimately granted the plaintiffs’ motion for summary judgment, holding that the filing fee violated the fee officer clause because the clerk retained a small portion of the money.

The Supreme Court reversed. The Court found that the plain language of Section 14 was at least somewhat equivocal. On the one hand, the section as a whole appeared to deal with the compensation of judges. On the other hand, the clause itself referred to fee officers “in the judicial system,” and clerks were certainly officers of the judicial system. So the Court turned to the history of the provision.

The fee officer provision was originally part of the 1962 Constitution. At that time, it said “There shall be no masters in chancery or other fee officers in the judicial system.” When the clause was readopted as part of the 1970 constitution, the reference to “masters in chancery” was dropped as being superfluous. Masters in chancery, the Court explained, were appointed by a court of equity, and frequently took testimony, considered evidence, and recommended findings of fact and conclusions of law to the court. The problem was that the master’s fees were paid by the parties, and added substantially to the cost of litigation. One writer noted that actions in chancery sometimes wind up being settled simply because the client didn’t have the money to pay the master, and eliminating those costs was considered a significant step towards reducing the cost of litigation.

The Court concluded that the clause was aimed at officers who had a direct role in the adjudicative process, and whose compensation was paid directly by the litigants. Since court clerks are nonjudicial officers, they are not subject to the fee officer clause, and the Circuit Court was reversed.

Image courtesy of Flickr by Daniel X. O’Neil (no changes).