Illinois Supremes Strike Foreclosure Filing Fee Under State Free Access Clause

Steven D. Schwinn, University of Illinois Chicago School of Law

The Illinois Supreme Court ruled this week that the state's $50 filing fee for residential mortgage foreclosure cases violated the state constitutional Free Access Clause. (H/t Prof. Ann Lousin, author of The Illinois State Constitution, part of the Oxford series.) The ruling means that the state can no longer collect the fee from mortgage foreclosure plaintiffs--and can no longer use the revenues to address foreclosure problems and to "help people who needed help with their mortgage situation and in our foreclosure-plagued society."

The case, Walker v. Chasteen, pitted the state's $50 filing fee for mortgage foreclosure plaintiffs against the state constitution's Free Access Clause. The state adopted the "add on" fee in order to address the mortgage foreclosure crisis of 2010. In particular, the state directed that revenues would go to state programs designed to reduce foreclosures and to "repair or rehabilitat[e] . . . abandoned residential property." The court clerk retains 2% of the fee.

Mortgage foreclosure plaintiffs challenged the fee as violating the state's Free Access Clause. This Clause, a fairly common one in state constitutions (but with no parallel in the text of the U.S. Constitution), protects the right to access the courts. The Illinois version says,

Every person shall find a certain remedy in the laws for all injuries and wrongs which he receives to his person, privacy, property, or reputation. He shall obtain justice by law, freely, completely, and promptly.

(If that sounds familiar, it's because state free-access clauses trace directly from Article 40 of Magna Carta, and Coke's and Blackstone's commentaries on it. They were a mainstay of early state constitutions, and the language was reflected in Marbury v. Madison. Oh, and free-access, especially to remedy violations of human rights, is a universally recognized international human right.)

The court ruled that the fee violated free access. The court said that the fee operated as a "litigation tax," and that it wasn't sufficiently related to the purpose of the fee, under rational basis review:

The charge here has no direct relation to expenses of a petitioner's litigation and no relation to the services rendered. Rather, the charge is assessed solely to raise revenue for the Foreclosure Prevention Fund and the Abandoned Residential Property Fund.

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We therefore hold that there is no rational basis for imposing this filing fee on mortgage foreclosure litigants, requiring them to bear the cost of maintaining a social welfare program [the programs to reduce mortgage foreclosures in the state], while excluding other classes of taxpayers from the burden. The statutes therefore violate the free access clause.

Justice Theis dissented, arguing that "it is evident that the charges at issue here are indeed rationally related to tackling a foreclosure 'tsunami' affecting the ability of the court system to function. Simply put, that is all that is required to sustain rational basis review."