I’m of two minds about Jillian Jacobsen’s unsuccessful class action suit against the County Clerk of Du Page County, and the Treasurer and the Attorney General of Illinois. She was suing for the five dollars extra that the Clerk charged her for a marriage license that was required by Public Act 95-711. The five bucks goes to the Married Families Domestic Violence Fund. Of course when you are suing for 5 bucks,you try to make it a class action lawsuit, which would bring in all 102 county clerks as defendants. By class action lawsuit standards, though, it would not have amounted to all that much. Over the years that I found statistics for, there tend to be around 80,000 marriages a year in Illinois. At five dollars a pop that does not add up to huge numbers.
Given what many couples, even those of modest means, spend on weddings (According to this site, which may be biased, the average couple spends over $25,000 not including the honeymoon), presumably you could make up the 5 dollars with a small cut in some other area of the wedding budget. If you are Catholic, I would ask, no beg, that you not stiff the altar boys on their tip. You have no idea how much that occasional windfall was appreciated by the skinny kid in Fariview NJ, who used to hump 126 copies of the Hudson Dispatch around town every morning. Of course it’s not the five bucks. It is the principle of the thing:
The plaintiff’s complaint, as amended, alleged that the $5 portion of the marriage license fee that went to the Fund violated the Illinois Constitution’s guarantees of due process and equal protection as well as its tax uniformity requirement. Specifically, the complaint alleged that the $5 charge did not survive strict scrutiny for purposes of due process and equal protection for several reasons: 1) it must be paid and cannot be waived; (2) the fee is an unreasonable burden on marriage because it directly and significantly impedes one’s ability to obtain a marriage license, given that the General Assembly may raise the fee to any amount it wishes; and (3) the charge neither serves a compelling government interest nor is narrowly tailored to achieve the State’s purpose in creating the Fund.
Before I get into the lawyerly stuff, I want to show you where the money goes, but I need to mention one lawyerly thing about the program. Apparently, funding the program with a marriage license surcharge would not past constitutional muster, if it could be used to help any old victims of domestic violence. That would be funding a general welfare program with a tax on a specific class of people. The fund can only be used to fund services to people who are the victims of marital domestic violence. How do you manage that ?
The legislature has appropriated $400,000 from the fund each year. The attorney general’s office accepts competitive grant proposals (Sorry you are too late for the next fiscal year). Last year the money was split among five not-for-profits. Among them are “Heartland Alliance” serving Cook County and “Land of Lincoln” serving the 65 counties of southern Illinois. It doesn’t say how the money was split up. For ease of discussion, I am going to assume equally. The not-for-profits are supposed to use the money to provide free domestic violence legal advocacy, assistance, or services to married or formerly married victims of domestic violence related to order of protection proceedings, dissolution of marriage proceedings, declaration of invalidity of marriage, etc, etc.
Here are the controls that need to be in place to be certain the funds from the Married Persons Domestic Violence Fund do not go astray:
Grantees shall submit financial and activity reports every three months to the Administrator detailing costs and expenditures, fiscal summary, names of funded staff persons, requested revisions, reallocations and adjustments, clients served, services provided, and revisions, if any, of time-tables and activities to reflect the current program status and future activity. Grantees must also submit the resume of any funded staff person no later than October 15 of the funded year. All accounting entries of a grantee must be supported by appropriate source documents, recorded in books of original entry, and posted to a general ledger on a monthly basis. Grant funded staff persons must be attorneys licensed to practice law in Illinois or supervised by an attorney licensed to practice law in Illinois.
It is possible that there is another organization with a similar name that I did not find, but I am reasonably sure that “Heartland Alliance” must be Heartland Alliance for Human Needs and Human Rights. The have the infrastructure to handle this kind of grant. Their Form 990 shows that they have a chief financial officer, a chief of corporate compliance officer, a director of financial compliance, a director of litigation and a controller. That is somewhat north of $500,000 in payroll out of their 20 million in revenue. Sadly, because we fund social services with this hodge podge of programs, they probably need all those people and the $35,638 labelled accounting in the expense schedule is probably a screaming bargain.
Land of Lincoln Legal Assistance Foundation is smaller than Heartland. Their 990 shows just over seven million in total revenue of which just short of $800,000 goes to their domestic violence program. Somehow or other they have to make sure that the $80,000 +/- from the fund is just going to help married victims. If I was their auditor I might have to figure out a way to test that. I am not their auditor. Thank God for small blessings.
Except for some fraud and error here and there, which is inevitable, all those five dollar charges are making their way to legal assistance to married domestic violence victims. The untraceable overhead to the program is absorbed elsewhere. In the offices of the 102 clerks, some clerical effort in the treasurer’s office, a little more work in the attorney general’s office where they review the grant proposals, disburse the funds and review the required reports. Then there is the effort at the not-for-profits to prepare the applications, including possibly some not-for-profits that made applications in vain and the further effort to segregate the funds, not to mention explaining to some line person actually charged with doing something that they have to worry about whether the restraining order they are getting is for an ex-spouse, because if it is not, it has to come out of another program. Maybe if we could make it a hundred bucks instead of five it would be worth it along with an excise on shacking up to fund a program for non-marital domestic violence, which brings me to the lawyerly stuff in the decision.
If the charge were a hundred, the Court might have made a different decision:
Although we acknowledge that the legislature may raise this fee in the future, we decline to speculate regarding how high the legislature could raise the fee before it would constitute a significant impediment to the right to marry.
In the end the Court let the tax stand:
Rather, based on the facts before us, we cannot say that a $5 fee on a marriage license constitutes a significant burden on the right to marry. Thus, we will apply the rational basis test. Applying that test, we believe that the legislature’s imposition of a small charge on marriage license applicants is reasonably related to the Fund’s narrow purpose of helping married victims of domestic violence leave violent marriages. As we find that the tax bears a rational relationship to a legitimate legislative purpose, the plaintiff’s due process claim fails.
I have not been able to discern who it is that thought taking an extra five bucks from each newly married couple to fund domestic violence programs, specifically for married people, was a good idea. It seems like something that might occur to radical feminists and admittedly does have a certain logic to it. I would think that defenders of traditional marriage might find the whole thing more disturbing than allowing gay marriage, but the decision has not attracted much notice. Hopefully, I’ll get some comments that will shed a little more light.
You can follow me on twitter @peterreillycpa.
Originally published on Forbes.com on July 7th, 2012