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FOURTH DIVISION
MARCH 22, 2001     

PRESIDING JUSTICE HARTMAN delivered the opinion of the court:

This appeal challenges the constitutionality of funding themandatory arbitration program under the Code of Civil Procedure (Code) section2-1009A (735 ILCS 5/2-1009A (West 1998) (section 2-1009A)) in Cook County, whichexacts a $10 charge on all circuit court civil filings of cases. The charge isimposed even for causes that are statutorily and by rule precluded from usingthe arbitration system funded by the fee. Plaintiffs are litigants who werecompelled to pay the fee when they filed their lawsuits for various causes ofaction, but did not qualify as users of the arbitration system. Defendants arethe clerk of the circuit court of Cook County, who charges for and collectscourt fees, and the treasurer of the state of Illinois, who administers thecourt fees collected by the clerk. The circuit court granted defendants' Codesection 2-615 (735 ILCS 5/2-615 (West 1998) (section 2-615)) motion fordismissal and denied plaintiffs' motion for summary judgment. 735 ILCS 5/2-1005(West 1998). Plaintiff appeals.

The legal issue presented is whether the imposition of a feeupon a class of litigants who are specifically excluded from receiving thebenefit of the program funded with the fee violates various provisions of theIllinois Constitution.

Section 5/2-1001A of the Code (735 ILCS 5/2-1001A (West 1998)(section 2-1001A)), authorizes the creation of a court-annexed mandatoryarbitration system in Illinois, as follows:

"The Supreme Court of Illinois, by rule, may provide formandatory arbitration of such civil actions as the Court deems appropriate inorder to expedite in a less costly manner any litigation wherein a party assertsa claim not exceeding $50,000 or any lesser amount as authorized by the SupremeCourt for a particular Circuit, or a judge of the circuit court, at a pretrialconference determines that no greater amount than that authorized for theCircuit appears to be genuinely in controversy."

Illinois Supreme Court Rule 86(b) (155 Ill. 2d R. 86(b)),declares that civil actions are subject to mandatory arbitration "if eachclaim therein is exclusively for money in an amount or of a value not in excessof the monetary limit authorized by the Supreme Court for that circuit or countywithin that circuit, exclusive of interest and costs."

To fund the mandatory arbitration program, the Legislatureenacted section 2-1009A, which provides:

"Filing fees. In each county authorized by the SupremeCourt to utilize mandatory arbitration, the clerk of the circuit court shallcharge and collect, in addition to any other fees, an arbitration fee of $8,except in counties with 3,000,000 or more inhabitants the fee shall be $10, atthe time of filing the first pleading, paper or other appearance filed by eachparty in all civil cases, but no additional fee shall be required if more thanone party is represented in a single pleading, paper or other appearance.Arbitration fees received by the clerk of the circuit court pursuant to thisSection shall be remitted within one month after receipt to the State Treasurerfor deposit into the Mandatory Arbitration Fund, a special fund in the Statetreasury for the purpose of funding mandatory arbitration programs and suchother alternative dispute resolution programs as may be authorized by thecircuit court rule for operation in counties that have implemented mandatoryarbitration, with a separate account being maintained for each county." 735ILCS 5/2-1009A (West 1998).

According to statute and rule, then, although only thoseactions involving exclusive claims for money not in excess of $50,000 arearbitrable, the mandatory arbitration program authorizes collection of a filingfee from each litigant in all civil cases which utilize the system, regardlessof whether a particular case is arbitrable, or not.

On September 15, 1998, plaintiffs filed a class-actioncomplaint in the circuit court, in which they asserted that they were requiredto pay the mandatory arbitration fee in filing complaints for specificperformance, probate and dissolution of marriage despite the fact that none ofthose matters were eligible for arbitration proceedings. Plaintiffs additionallyalleged that the clerk of the circuit court collects the mandatory arbitrationfee in other actions filed in the circuit court, such as adoption matters, taxcases and foreclosure proceedings, which also are not eligible for arbitration.Further, plaintiffs contended that the clerk of the circuit court does notpermit new actions to be filed if the arbitration fee is not paid and refusesrequests to waive payment of the fee. Plaintiffs alleged that section 2-1009Aviolates the Illinois Constitution, specifically, the due process, free access,uniformity and equal protection clauses.

Defendants moved to dismiss the action under section 2-615for failure to state a cause of action, asserting that the mandatory arbitrationfee was constitutional because its burden fell equally on all civil lawlitigants in Cook County and was related to the overall operation andmaintenance of the court system in Illinois.

On January 6, 1999, plaintiffs moved for summary judgment,relying upon the facts alleged in their complaint, and added an argument notpled, namely, that the mandatory arbitration fee violated the free access clauseof the Illinois Constitution.

The circuit court granted defendants' motion to dismiss,denied plaintiffs' motion for summary judgment, and denied as moot plaintiffs'motion to certify the class, in light of the court's ruling on the merits.Plaintiffs timely filed their notice of appeal.

We note, preliminarily, that although the denial of a motionfor summary judgment is not ordinarily appealable, such a denial is reviewablewhere the case is on appeal before the appellate court from a final judgment,such as a motion to dismiss which has been granted, as in the present case,where there has been no evidentiary hearing or trial, and the party seeking suchreview has not in any way prevented or avoided hearing or trial. See ArangoldCorp. v. Zehnder, 187 Ill. 2d 345, 357, 718 N.E.2d 191 (1999); InternationalAssociation of Machinists and Aerospace Workers, District Lodge No. 140 v.Chesire/A Xerox Co., 125 Ill. App. 3d 350, 352, 465 N.E.2d 981 (1984); FremontCasualty Insurance Co. v. Ace-Chicago Great Dane Co., 317 Ill. App. 3d 67,72-73, 739 N.E.2d 85 (2000); DePluzer v. Village of Winnetka, 265 Ill.App. 3d 1061, 1064-65, 638 N.E.2d 1157 (1994).

A circuit court's decision with respect to theconstitutionality of a statute is reviewed de novo. Brown's Furniture,Inc. v. Wagner, 171 Ill. 2d 410, 420, 665 N.E.2d 795 (1996). A strongpresumption of constitutionality attaches to legislative enactments. Best v.Taylor Machine Works, 179 Ill. 2d 367, 377, 689 N.E.2d 1057 (1997). Theparty who challenges a statute's constitutionality bears the heavy burden ofclearly establishing the violation alleged. People v. Jeffries, 164 Ill.2d 104, 111, 646 N.E.2d 587 (1995).

I

Plaintiffs initially contend that constitutional due processis contravened where a fee or litigation tax is imposed upon parties who areexcluded from its benefits, citing Crocker v. Finley, 99 Ill. 2d 444, 459N.E.2d 1346 (1984) (Crocker).

In Crocker, the Illinois Supreme Court struck downlegislation authorizing a $5 circuit court filing fee to fund a domesticviolence program. The supreme court found the $5 charge violated the IllinoisConstitution's due process and equal protection clauses because there was norational relationship between imposition of the fee and litigants which wouldsupport funding of a general welfare program. Plaintiffs correctly assert thatthe litigation tax in Crocker fell on a narrow class of persons who wereforced to bear the cost of a program provided to members of the publicgenerally, although the purpose of the tax was unrelated to the litigation.Plaintiffs point out that the present case is the obverse of Crockerbecause it involves funding for a litigation-related benefit that is availableonly to a limited number of litigants depending on the nature of their cases.

Significantly, the supreme court also made clear in Crockerthat court filing fees and litigation taxes properly may be imposed for purposes"relating to the operation and maintenance of the courts." 99 Ill. 2dat 454. In explaining the provision securing the right to collect court filingfees, the court noted:

"'The constitution does not guarantee to the citizen theright to litigate without expense, but simply protects him from the impositionof such terms as unreasonably and injuriously interfere with his right to aremedy in the law or impede the due administration of justice; ***.'" Aliv. Danaher, 47 Ill. 2d 231, 236, 265 N.E.2d 103 (1970) (Ali), quotingWilliams v. Gottschalk, 231 Ill. 175, 179, 83 N.E. 141 (1907) and Adamsv. Corriston, 7 Minn. 456, 461 (1862).

The $5 Crocker fee was too remote from anycourt-related purpose to withstand constitutional analysis. The case subjudice clearly is distinguishable from Crocker because the mandatoryarbitration fee does not exist to fund a general welfare program; rather, it ispurportedly integrally related to the operation and maintenance of the courtsystem in general.

In Ali, cited in the foregoing paragraph and quote,the supreme court upheld a $1 fee imposed on every litigant for the maintenanceand operation of the county law library as constitutional (47 Ill. 2d at 237),finding insignificant the fact that all persons paying the library fee might notactually use the library facilities in the particular litigation. The courtemphasized the fact that the library remained available to litigants if neededand found that the presence of such facilities is conducive to theadministration of justice and may have constituted an improvement. Ali,47 Ill. 2d at 237.

Similarly, in Zamarron v. Pucinski, 282 Ill. App. 3d354, 668 N.E.2d 186 (1996) (Zamarron), the appellate court upheld anautomation fee surcharge as constitutional although fees collected in the civiljustice system were used to finance the criminal justice system. The courtreasoned that the proper functioning of the criminal courts benefits the overalladministration of justice. Zamarron, 282 Ill. App. 3d at 360. In itsanalysis of the constitutional challenge there, the court stated:

"Notably, the concept of a unified court system embodiedby our state constitution further weakens the plaintiffs' fragmented view of oursystem of justice. Our constitution provides that '[c]ircuit [c]ourts shall haveoriginal jurisdiction of all justiciable matters except when the Supreme Courthas original and exclusive jurisdiction ***.' [citation] [Article VI,