Vandermyde v. Cook Cnty.

• Docket Number: 1-23-0413
• Decision Date: 20 February 2024
• Citation: 2024 IL App (1st) 230413 U
• Parties: DONALD TODD VANDERMYDE and ANA ZAVALA, individually and on behalf of all others Similarly situated, Plaintiffs-Appellants, v. COOK COUNTY, ILLINOIS, a body politic, MARIA PAPPAS, as Treasurer of Cook County, Illinois, and KENNETH HARRIS, as Interim Director of the D`epartment of Revenue of Cook County, Defendants-Appellees.
• Court: Appellate Court of Illinois

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2024 IL App (1st) 230413-U

DONALD TODD VANDERMYDE and ANA ZAVALA, individually and on behalf of all others Similarly situated, Plaintiffs-Appellants, v. COOK COUNTY, ILLINOIS, a body politic, MARIA PAPPAS, as Treasurer of Cook County, Illinois, and KENNETH HARRIS, as Interim Director of the D`epartment of Revenue of Cook County, Defendants-Appellees.

No. 1-23-0413

Court of Appeals of Illinois, First District, Second Division

February 20, 2024

This order was filed under Supreme Court Rule 23 and is not precedent except in the limited circumstances allowed under Rule 23(e)(1).

Appeal from the Circuit Court of Cook County.No. 22 CH 05563Honorable Eve M. Reilly, Judge Presiding.

PRESIDING JUSTICE HOWSEdelivered the judgment of the court.Justices McBride and Cobbs concurred in the judgment.

ORDER

HOWSE PRESIDING JUSTICE

¶ 1Held: We reverse the circuit court's order dismissing this case with prejudice and remand for further proceedings; the trial court erred when it determined it was bound by a prior decision of this court which was reversed by our supreme court; after reversal the prior judgment has no precedential value.

¶ 2Cook County imposes a special retail tax on the purchase of firearms and firearm ammunition.The firearm and firearm ammunition taxes are paid by the purchaser.Plaintiffs filed a complaint in which they contend that the taxing ordinance is unconstitutional because it violates their Second Amendment rights, and they seek money damages for themselves and for other similarly situated individuals for having been forced to pay the allegedly unconstitutional tax.Defendants filed a motion to dismiss the complaint, which was granted and plaintiffs now appeal.

¶ 3 For the following reasons, we reverse the dismissal of the complaint and remand the case to the circuit court for further proceedings.

¶ 4 BACKGROUND

¶ 5 In 2012, Cook County passed an ordinance called the Cook County Firearm and Firearm Ammunition Tax Ordinance.SeeCook County OrdinanceNo. 12-O-64(adopted Nov. 9, 2012)(codified at Cook County Code of Ordinancesart. XX, §§ 74-665 through 74-677).Under the ordinance, consumers are required to pay a $25 tax on the purchase of each firearm bought from a firearm retailer in Cook County.Cook County Code of Ordinancesch. 74, art. XX, § 74-668(adopted Nov. 9, 2012).Three years later, on November 18, 2015, Cook County adopted an additional tax, taxing consumers for each cartridge of ammunition they purchase.Cook County OrdinanceNo. 15-6469(adopted Nov. 18, 2015), (codified at Cook County Code of Ordinancesch. 74, art. XX, § 74-668(eff. June 1, 2016).The ordinance imposes a $0.05 per cartridge tax on centerfire ammunition and $0.01 per cartridge tax on rimfire ammunition.Id.

¶ 6 A group of plaintiffs challenged the taxes by filing suit in the Circuit Court of Cook County in 2015.DPE Services v. Ali, 2015 CH 18217(Cir. Ct. Cook Cty., Dec. 17 2015).The plaintiffs in that case sought a declaratory judgment and injunctive relief as they contended that the ordinance was unconstitutional.Id.The circuit court denied the plaintiffs' motion for summary judgment and granted summary judgment to the defendants.Id.The plaintiffs appealed.On appeal, the plaintiffs argued, among other things, that the taxes were unconstitutional under the Second Amendment to the U.S Constitution(U.S. Const. Amend. II. (West 2022)) and that the taxes violated the Uniformity Clause of the Illinois Constitution(Ill. Const. 1970, art. IX, § 2(West 2022)).Guns Save Life, Inc. v. Ali, 2020 IL App (1st) 181846, ¶¶ 46, 70.A division of this court held that the taxes did not violate the Second Amendment, and it further held that the taxes withstood scrutiny under the Uniformity Clause.Id.Our supreme court reversed, holding that the taxes violated the Uniformity Clause.Guns Save Life, Inc. v. Ali, 2021 IL 126014, ¶ 41.Because the Court found the ordinances to be unconstitutional under the Uniformity Clause, it expressly refrained from addressing the plaintiffs' Second Amendment arguments.Id.at ¶¶ 18, 39.

¶ 7 The gist of the supreme court's ruling in Guns Save Life concerned the tax classification for the firearm and ammunition taxes and the County's justification for the taxes.Id.at ¶¶ 19-20.The County's proffered justification for the taxes was to fund the "staggering economic and social cost of gun violence in Cook County."Id.at ¶ 22.The Court explained that, because the ordinances burdened a fundamental right protected by the Second Amendment, heightened scrutiny on the tie between the tax classification and the object of the legislation was required.Id.at ¶ 36.Under that higher level of scrutiny, the Court concluded the firearm and ammunition taxes were not sufficiently tied to the County's stated objective because the ordinance did not require the taxes to be used exclusively to address the cost of gun violence.Id.at ¶¶ 37-38.

¶ 8Cook County went back to the drawing board and amended the ordinance to address the constitutional violation found by the supreme court.The County left the firearm and ammunition taxes themselves unchanged, but to address the Uniformity Clause issue found by the supreme court, the County ordered the tax proceeds collected from the two taxes from November 4, 2021 forward to be directed into a special purpose equity fund to pay for "gun violence prevention programs as well as operations and programs aimed at reducing gun violence."Cook County Code of Ordinancesch. 74, art. XX, § 74-677(adopted Nov. 4, 2021).This case was filed after the ordinance was amended.Plaintiffs are seeking another determination that the ordinance is unconstitutional, and they are also now seeking money damages because they were required to pay the alleged unconstitutional tax when they purchased firearms and ammunition in the past.

¶ 9PlaintiffsDonald Todd Vandermyde and Ana Zavala are Illinois residents who purchased ammunition or firearms in Cook County and thus were obliged to pay taxes in accordance with the Cook County Firearm and Firearm Ammunition Tax Ordinance.Plaintiffs allege in their complaint that the firearm and ammunition taxes violate the Second Amendment.Plaintiffs seek damages for being made to pay the allegedly unconstitutional tax, and they seek to represent other similarly situated individuals in a class action against defendants.

¶ 10Defendants responded to the suit with a motion to dismiss.In the motion, defendants argued: (1) the result in this case is controlled by the part of this court's prior decision upholding the ordinance in question that was not addressed by the supreme court; (2)plaintiffs fail to allege sufficient facts to go forward on their claim; (3)plaintiffs improperly seek an advisory opinion because the previous version of the ordinance has already been declared unconstitutional by the supreme court; (4)plaintiffs are not permitted to use Section 1983 and federal law to recover damages against the County for its taxation ordinances; and (5) the ordinance is permissible under the Supreme Court's fee jurisprudence.^[1]¶ 11 In its ruling, the trial court relied on only one of the arguments raised-that the outcome is controlled by our decision in the prior appeal.The circuit court reasoned that, in the other case, the appellate court found that the statute did not violate the Second Amendment.Although the supreme court found the ordinance unconstitutional on uniformity grounds, the trial court determined the supreme court allowed the appellate court's ruling on the Second Amendment issue to stand.The trial court issued a two-page written order granting defendants' motion to dismiss.The trial court explained that it was granting the motion to dismiss because "the First District Appellate Court already determined that these additional County taxes on the purchase of guns and ammunition do not infringe upon any protected Second Amendment right"(citingGuns Save Life, 2020 IL App (1st) 181846, ¶ 59).The trial court relied on this court's finding that, after analyzing the text of the Second Amendment, the taxes at issue did not restrict ownership of firearms or ammunition.Id.at ¶¶ 54-57.The trial court found that it was bound by this court's decision in Guns Save Life and, therefore, granted the motion to dismiss with prejudice.Plaintiffs filed this appeal.

¶ 12 ANALYSIS

¶ 13 The motion to dismiss at issue on appeal contains arguments under both section 2-615andsection 2-619 of the Illinois Code of Civil Procedure as is permitted under section 619.1 of the Code which allows a defendant to file a combined motion directed at a pleading.735 ILCS 5/2-619.1(West 2020).When a trial court dismisses a complaint, under either section of the Code, we review the trial court's decisionde novo.Sandholm v. Kuecker,2012 IL 111443, ¶ 55.

¶ 14 A section 2-615 motion to dismiss attacks the sufficiency of a complaint and raises the question of whether a complaint states a cause of action upon which relief can be granted.Fox v. Seiden,382 Ill.App.3d 288, 294(2008).All well-pleaded facts must be taken as true, and any inferences should be drawn in favor of the non-movant.735 ILCS 5/2-615(West 2020);Hammond v. S.I. Boo, LLC(In re County Treasurer &Ex-Officio County Collector), 386 Ill.App.3d 906, 908(2008).Plaintiffs are not required to prove their case at the pleading stage; they are merely required to allege sufficient facts to state all elements that are necessary to constitute each cause of action in their complaint.Visvardis v. Eric P. Ferleger, P.C.,375 Ill.App.3d 719, 724(2007).A section 2-615 motion to dismiss should not be granted unless no set of facts could be proved that would entitle the plaintiff to...