Loop Mortgage Corp. v. County of Cook

Annotate this Case
                                                             First Division
                                                              July 21, 1997









No. 1-95-3830

LOOP MORTGAGE CORPORATION,      )       Appeal from the 
Indiv. and as Representative    )       Circuit Court
of a Class of Persons and       )       of Cook County.
Entities Similarly Situated,    )  
                                )
     Plaintiff-Appellant,       )       
                                )
               v.               )  
                                )
THE COUNTY OF COOK, and         )
JESSE WHITE, Recorder of Deeds  )
of Cook County,                 )       Honorable
                                )       Dorothy Kirie Kinnaird,
     Defendants-Appellees.      )       Judge Presiding.


     JUSTICE BUCKLEY delivered the opinion of the court:

     This action was brought as a class action by the named
plaintiff, Loop Mortgage Corporation, acting on its own behalf
and as representative of a class of persons and other entities
similarly situated, seeking a declaration that ordinance No.
195136 of the County of Cook is invalid because it exceeds the
powers granted to home rule counties by the Illinois Constitution
of 1970.  The County of Cook (the County) and the recorder of
deeds of Cook County (the Recorder) were named as defendants. 
The amended complaint was dismissed with prejudice pursuant to
section 2-619 of the Illinois Code of Civil Procedure.  735 ILCS
5/2-619 (West 1994). 
     Plaintiff appeals from the order of dismissal, raising the
following issues:  (1) whether the trial court erred in holding
that ordinance No. 195136 constitutes a valid exercise or
performance of a "power or function pertaining to the government
and affairs of Cook County" within the meaning of article VII,
section 6(a), of the Illinois Constitution (Ill. Const. 1970,
art. VII, 6(a)); and (2) if the ordinance is upheld, whether the
Recorder may lawfully collect a $2 fee for filing or recording a
tax billing information form in the absence of any statute or
county ordinance authorizing the imposition of such a fee.
     The ordinance at issue is ordinance No. 195136 and is
entitled an "Ordinance to Require the Filing of Changes to Tax
Billing Information" (the ordinance).  The Cook County board
adopted the ordinance on November 30, 1994, and made it effective
January 1, 1995.  The ordinance provides for the preparation and
filing of a tax billing information form (the form) in order to
facilitate the distribution of real estate tax bills to the
current owner or assessee of record.  The ordinance provides in
pertinent part:
          "Section 1.  It shall be the duty of persons
          seeking recordation to file a Tax Billing
          Information Form at the time of recordation
          of any instrument which relates to or causes
          a change in the assessee of record for real
          property located in Cook County ***."  Cook
          County Ordinance No. 195136 (eff. November
          30, 1994.
     The Cook County treasurer, the county collector, has the
sole and mandatory statutory duty of administering the system of
real property tax billing as required by the Illinois Property
Tax Code, sections 20-5, 20-10 and 20-15.  35 ILCS 200/20-5, 20-
10, 20-15 (West 1994).  Over 1,400,000 individual parcels of real
property are identified each year for assessment and taxation in
Cook County.  For the tax year of 1994, the county collector
issued 2,984,106 real property tax bills.  During the course of
an average business week, the county collector processes in
excess of 1,500 tax bill name and address changes.
     The Cook County board determined that, in order to
facilitate the collector's statutory duties, a tax billing
information form should be devised and its use implemented.  The
form, when completed and filed pursuant to the ordinance,
provides the collector with all of the information necessary to
prepare and accurately distribute real property tax bills to all
owners and assessees of record.  According to the affidavit of
Grace Neville, first deputy treasurer of Cook County, the
collector uses the information contained in the form to assure
that all real property tax payers in Cook County are mailed an
accurate and timely tax bill as required by law.  Ms. Neville's
affidavit further states that the recording of the form with the
office of the recorder of deeds provides a permanent record of
the changes contained in the form.
     The ordinance does not direct the actions of the Recorder
relative to the form, assess a fee for the filing of the form,
condition the recording of deeds on the filing of the form, or
penalize citizens for failure to comply with the ordinance.  Cook
County Recorder Jesse White states in his affidavit that it is
the policy of his office to accept deeds and other instruments of
conveyance for recordation without the additional presentation of
the form.  In the event that a citizen does tender the form when
a deed or other instrument of conveyance is presented for
recording, the corresponding fee for the recordation of the form
is charged pursuant to the fee schedule set by state law.
     On February 10, 1995, plaintiff filed a single-count
complaint for declaratory and injunctive relief contending that
the ordinance is unconstitutional.  Substantively, plaintiff
complained that the adoption of the ordinance is neither
authorized by the General Assembly nor a proper exercise of home
rule power because the collection of real estate property taxes
does not pertain to the government and affairs of Cook County
within the meaning of article VII, section 6(a), of the Illinois
Constitution of 1970.  Ill. Const. 1970, art. VII, 6(a). 
Paragraph 6 of the complaint alleges that, as a condition
precedent for recording its deed, plaintiff was required by
defendant Recorder to file the form and pay a $2 fee.
     On April 28, 1995, defendants filed a motion to dismiss,
along with the affidavits of Grace Neville and Jesse White.  On
May 19, 1995, at the hearing on defendant's motion to dismiss,
plaintiff presented a counteraffidavit of its counsel's
paralegal, Kim Whitman.  Ms. Whitman states that on February 9,
1995, while she was at the Recorder's office, the deputy recorder
told her that a deed would not be accepted for recording unless
it was accompanied by the form and a $2 fee paid.  Ms. Whitman
further states that on May 12, 1995, she returned to the
Recorder's office with her employer and plaintiff's counsel, Mr.
Arnold Flamm, to present a deed for recordation.  This time, Mr.
Flamm was told by the deputy recorder that the deed would be
recorded without the filing of the form.  They then recorded the
deed without filing the form.
     Following argument of the motion, the trial court dismissed
the complaint without prejudice because it failed to state a
cause of action.  Specifically, the trial court found that there
was not a sufficient case in controversy in light of the facts
presented in the affidavits.  The court found that the ordinance
did not impose a duty upon the Recorder and the Recorder's policy
of not treating the filing of the form as a condition precedent
to the recording of a deed conflicted with the contrary
statements made by Ms. Whitman in her affidavit.  
     On June 14, 1995, plaintiff filed an amended complaint
containing five counts.  The first count realleges the
allegations of the original complaint with respect to the
constitutional infirmity of the ordinance under article VII,
section 6(a), of the Illinois Constitution.  That count, however,
also includes several new allegations:
     (1)  there is in existence no statute or ordinance that
authorizes the Recorder to collect a $2 fee for filing or
recording the form;
     (2)  relying on Ms. Whitman's affidavit, it is alleged that
on two separate occasions, plaintiff's agent was specifically
informed by deputy recorders that the filing of the form and
payment of the $2 fee were conditions precedent to the recording
of a deed that caused a change in the address of the assessee;
     (3)  on some date between May 8, 1995, and May 12, 1995,
defendant Recorder 
          "in an attempt to defeat or delay the relief
          prayed for in this action, secretly adopted a
          policy that the filing of the Form and
          payment of the $2.00 fee were 'voluntary' -
          i.e., if a prospective user of the Recorder's
          services specifically asked whether the
          filing of the forms and payment of the fee
          were conditions precedent to recording the
          deed or asked if there was any legal
          obligation to make that filing and payment,
          he or she would be given a negative answer
          and permitted to record the deed without the
          Form" -
notwithstanding the unambiguous language of the ordinance, which
imposes a duty to file the form upon persons seeking recordation,
and notwithstanding the fact that section 3 of the ordinance
specifically requires that a stamped copy of the form be filed
with the Recorder at the time that the deed is presented for
recordation; and
     (4)  the Recorder has made absolutely no effort to make his
supposed change of policy known to the public, with the
consequence that almost all of the users of his office have
continued to do their duty by filing the form and paying the fee.
     Counts II through V of the amended complaint are all
predicated upon the Recorder's failure to publicly reveal his
supposed change of policy, and they allege, respectively,
violations of the Consumer Fraud and Deceptive Business Practices
Act (815 ILCS 505/1 et seq. (West 1994)), violation of fiduciary
duty, the common law tort of fraudulent concealment, and
violation of the federal civil rights laws.
     On September 11, 1995, defendants filed a motion to dismiss
the amended complaint pursuant to section 2-619 of the Illinois
Code of Civil Procedure.  735 ILCS 5/2-619 (West 1994). 
Defendants contended that the amended complaint was substantially
insufficient at law because the ordinance is a proper exercise of
the County's home rule powers within the meaning of article VII,
section 6(a), of the Illinois Constitution. 
     In ruling on the motion, the trial court first dismissed
counts II through V with prejudice, finding that none stated a
cause of action.  The court found no evidence of any deceptive
practice or fraudulent concealment, nor any showing of a
fiduciary duty.  The court also did not find that this incident
rose to the level of a constitutional violation.
     Finally, the court dismissed count I with prejudice, finding
that the home rule provisions of the Illinois Constitution are
not violated by the ordinance.  The court held that the ordinance
"is really to assist the Cook County Collector in making the
necessary changes that he has to make in order to find out who
the proper assessee of real estate is."  The ordinance imposes no
duties on the Recorder and "does not constitute an unauthorized
and unlawful exercise of the County's home rule powers due to the
fact that the Recorder is charging $2.00 if a person wishes to
record [the form]."
     On appeal, we must first determine whether the subject
matter of the ordinance is a "power or function pertaining to the
government and affairs of Cook County" within the meaning of
article VII, section 6(a), of the Illinois Constitution.  Article
VII, section 6(a) provides the following:
          "Except as limited by this Section, a home
          rule unit may exercise any power and perform
          any function pertaining to its government and
          affairs including, but not limited to, the
          power to regulate for the protection of the
          public health, safety, morals and welfare; to
          license; to tax; and to incur debt."  Ill.
          Const. 1970, art. VII, 6(a).
     It is undisputed that Cook County has an interest in the
efficient operation of any and all of the offices that it funds. 
The county board is the manager of county funds and business and
is ultimately responsible to the public for the total operation
of county government.  Heller v. County Board of Jackson County,
71 Ill. App. 3d 31, 38 (1979).  The county board adopted and
implemented the ordinance in order to increase the efficiency of
the collector's office.  Since the efficient operation of the
collector's office pertains to county "government and affairs,"
it is the proper subject of regulation under the home rule
provision of the Illinois Constitution.  See American Health Care
Providers, Inc. v. County of Cook, 265 Ill. App. 3d 919, 925-26
(1994) ("An exercise of power pertains to the home rule unit's
government and affairs where it relates to problems that are
local in nature rather than State or national").
     The County's interest in the efficiency of the collector's
operations becomes more clear when the details of its office are
considered.  In the tax year of 1994, the collector issued
2,984,106 real property tax bills and processed more than 1,500
tax bill name and address changes in an average business week. 
By directing citizens to file the form, the county board assures
that the collector has the correct billing information for
processing.
     Aside from increasing the efficiency of a county-funded
office, there are other compelling factors showing that the
ordinance pertains to the government and affairs of the County
and is a proper exercise of home rule powers.  First, the
ordinance does not modify or substitute any portion of the state
statutes on real property tax bills.  That is, the ordinance does
not attempt to alter or direct the process by which real property
taxes are collected.  Its purpose is merely to assist the
collector in the compilation of accurate and updated billing
information.  Nor does the ordinance impact or implicate the
interests of other governmental taxing bodies.  This
distinguishes the ordinance from other ordinances held to have
exceeded the home rule power.  See e.g., Chicago Bar Ass'n v.
County of Cook, 102 Ill. 2d 438, 467 N.E.2d 580 (1984) (the
county exceeded its home rule powers where it altered the number
of commissioners on the county board of tax appeals and the
procedure by which the board made its decisions regarding the
assessment of property taxes); Bridgman v. Korzen, 54 Ill. 2d 74,
295 N.E.2d 9 (1972) (the county acted both for itself and other
taxing bodies in the process of collecting and distributing tax
monies where the ordinance altered the installment schedule for
the payment of real estate taxes).
     We must reject plaintiff's claim that the $2 fee charged by
the Recorder for filing or recording the form renders the
ordinance unlawful.  We find that the trial court correctly
determined that the ordinance is a proper exercise of the
County's home rule powers in that it assists the county treasurer
in the operation and duties of his office.  The imposition of a
$2 filing fee does not change that fact.  
     Since neither of plaintiff's briefs addressed the legal
issues raised in counts II through V of plaintiff's amended
complaint, this court need not consider those claims on appeal.  
     For the foregoing reasons, the judgment of the circuit court
of Cook County is affirmed.
     Affirmed.
     O'BRIEN and GALLAGHER, JJ., concur.


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