v.
Erin C. WEINSTEIN, in Her Official Capacity as Clerk of the Circuit Court of Lake County and as a Representative of All Illinois Circuit Court Clerks, Defendant-Appellee.
[*403] [*18] ¶ 1 Plaintiffs, Richard and Ann Alderson, brought suit seeking mandamus and "other relief" against defendant, Erin C. Weinstein, in her official capacity as clerk of the circuit court of Lake County and as a representative of all circuit court clerks in the state. The trial court dismissed the Aldersons' complaint as moot and we affirm.
¶ 2 In 2015, the Aldersons filed a complaint in arbitration in the circuit court of Lake County. In January 2016, the Aldersons' complaint was dismissed for want of prosecution-a court order also known as a "DWP." Two weeks later, when the Aldersons sought to vacate the dismissal and reinstate the case, Weinstein's office charged them a $50 fee. The Aldersons' attorney paid the fee; the arbitration case was reinstated, it proceeded to judgment, and it is now closed. Alderson v. Nielson Development Inc., No. 15-AR-832 (Cir. Ct. Lake County). The Aldersons' case against the circuit clerk's office, however, was just beginning.
¶ 3 A section of the Clerks of Courts Act, applicable to Lake County, authorizes the circuit clerk to charge "a minimum of $50 and a maximum of $60" when a party files a "[p]etition to vacate or modify any final judgment or order of court" in most civil cases. 705 ILCS 105/27.2a(g)(1) (West 2016). The key word there is
final
-that is, that the fee applies only to final judgments-as for some time now it has been absolutely clear that a DWP does not become final until the one-year period to refile a claim has expired. See
S.C. Vaughan Oil Co. v. Caldwell, Troutt & Alexander
,
¶ 4 The Aldersons filed the instant lawsuit against Weinstein, both in her official capacity and as "a Representative of all Clerks of the Circuit Courts of all Counties within the State of Illinois." As the Aldersons' complaint noted, in
Gassman v. Clerk of the Circuit Court
,
¶ 5 Shortly after the Aldersons filed suit, Weinstein sent a $50 refund check to the Aldersons' attorney in the arbitration case and a check for $291 to the Aldersons' current attorney-a refund for the filing fees for the instant case. The arbitration attorney cashed Weinstein's $50 check; however, it appears that the Alderson's present attorney has not cashed the check for $291. In any event, after Weinstein issued the checks, she filed a motion to dismiss the Aldersons' complaint as moot. See 735 ILCS 5/2-619(a)(9) (West 2016). Attached to the motion was an affidavit from Weinstein that recited the foregoing and further stated that her office would no longer charge a filing fee for any petition or motion seeking to vacate or modify a DWP. Based on her affidavit, Weinstein's motion stated that there was nothing left to the Aldersons' suit; they had received everything they were entitled to, and the case was now moot.
¶ 6 After the motion to dismiss was filed, the Aldersons filed a motion requesting a hearing on class certification (see
¶ 7 The trial court determined that the case was moot and that none of the exceptions applied. The Aldersons appeal and we affirm.
¶ 8 At present, Illinois law draws no distinction between an accepted offer of tender and an unaccepted offer of tender. For example, in
Wheatley v. Board of Education of Township High School District 205
,
¶ 9 In
Barber
, our supreme court held that "the important consideration in determining whether a named representative's claim is moot is whether that representative filed a motion for class certification prior to the time when the defendant made its tender."
Id.
at 456,
¶ 10 Under
Barber
, then, this is a simple case. The record is clear that the Aldersons had not formally sought class certification before Weinstein tendered them financial relief and filed her motion to dismiss. That was, more or less, the end of this matter; as
Barber
explains, a putative class action is moot "where the named plaintiffs were granted the relief requested" prior to seeking class certification.
Barber
,
¶ 11 Here, the complaint alleged that the Aldersons were charged a $50 fee by the circuit clerk in excess of the clerk's statutory authority; the circuit clerk issued the Aldersons a refund and stated in an affidavit that she had implemented a policy to ensure that others would not be erroneously charged a fee when filing a motion to vacate a DWP. By any reasonable measure, the Aldersons have received what they basically sought
and more
, considering that they never requested a refund of their filing fees for the instant case ($291) and yet have received a check for that amount. See
Grimes v. Sage Telecom Communications, LLC
,
¶ 12 In addition, the Aldersons put the cart before the horse when they sought to treat Weinstein, in her official capacity, as a "representative" defendant. No allegation was made in the complaint as to why Weinstein is a representative for any other circuit clerk, let alone all other circuit clerks in the state, none of whom were joined as defendants.
Cf.
Gaffney v. Shell Oil Co.
,
¶ 13 We note that, for purposes of mootness, our supreme court has consistently relied on decisions of the Seventh Circuit Court of Appeals that made no distinction
[*406]
[*21]
between accepted and rejected offers of settlement. See,
e.g.
,
Ballard
,
" 'When a plaintiff rejects such an offer-however good the terms-her interest in the lawsuit remains just what it was before. And so too does the court's ability to grant her relief. An unaccepted settlement offer-like any unaccepted contract offer-is a legal nullity, with no operative effect. As every first-year law student learns, the recipient's rejection of an offer "leaves the matter as if no offer had ever been made." Minneapolis & St. Louis R. Co. v. Columbus Rolling-Mill ,119 U.S. 149 , 151 [7 S.Ct. 168 ,30 L.Ed. 376 ] (1886). [The rule in question] specifies that "[a]n unaccepted offer is considered withdrawn." Fed. Rule Civ. Proc. 68(b). So assuming the case was live before-because the plaintiff had a stake and the court could grant relief-the litigation carries on, unmooted.' " Campbell-Ewald Co. v. Gomez , 577 U.S. ----, ----,136 S.Ct. 663 , 670,193 L.Ed.2d 571 (2016) (quoting Genesis Healthcare ,569 U.S. at 81 ,133 S.Ct. 1523 (Kagan, J., dissenting) ).
¶ 14 Our supreme court has not yet considered whether, in light of
Campbell-Ewald
, Illinois courts should continue to draw no distinction between accepted and rejected settlement offers when determining whether a case is moot. That question, as Justice Kagan points out, has a number of practical consequences for both individual litigants and certified-class plaintiffs. See
Genesis
,
¶ 15 That said, even if Illinois were to adopt the
Campbell-Ewald
approach, any distinction between accepted and rejected offers would likely matter little in this case. As noted earlier, the Aldersons concede that their attorney in the arbitration case (
i.e.
, their agent) cashed Weinstein's $50 refund check for the filing fee. The amount of the check represented the full damages the Aldersons had requested, and its cashing could be reasonably construed as an acceptance of the settlement-or at the very least, a failure to
[*407]
[*22]
reject it. See generally
Bruemmer v. Compaq Computer Corp.
,
¶ 16 The Aldersons' final argument is that, even if their complaint is moot (and as we have explained, it is), their claims should still be considered under two exceptions to the mootness doctrine. True enough, "Illinois courts have found exceptions to the mootness doctrine in actions where there is substantial public interest [citation] or where the issues were likely to recur but unlikely to last long enough to allow appellate review to take place [citation]."
Wheatley
,
¶ 17 As to the first exception, this case simply is not a matter of substantial public concern. Although this case did involve a public official, a decision on its merits would be of no more guidance to circuit clerks than that already issued by the Appellate Court, First District, in
Gassman
,
¶ 18 We also reject the Aldersons' assertion-under the public-interest exception, under the harms-evading-review exception, and as part of their argument that they
need
a writ of
mandamus
-that we should not take Weinstein at her word that she will not continue to collect the fee. As we have explained before, when the defendant is a public official, "greater stock is placed in their acts of self-correction, as long as they appear genuine."
LaSalle National Bank, N.A. v. City of Lake Forest
,
¶ 19 Moreover, we are not persuaded by the Aldersons' reliance on the litigation in another case, McGovern v. Brin, 16-CH-1249 (Cir. Ct. Lake County), a suit brought against Weinstein's predecessor in office. As best we can determine from the limited record the Aldersons have provided of the McGovern proceedings, it appears that in the McGovern suit the plaintiffs failed to appear in a foreclosure action, and a default judgment of foreclosure was entered against them. Six months later, when the McGoverns sought to vacate the judgment in court, Weinstein's office charged them a $75 fee to do so. The McGoverns later sued Weinstein on grounds similar to the Aldersons'. Contrary to the Aldersons' claim, however, the McGovern matter does
not
show that Weinstein has adopted "inconsistent positions as to her 'new policy.' " Again, a DWP becomes final one year after it is entered.
S.C. Vaughan Oil
,
¶ 20 The Aldersons' reliance on the exception to mootness for cases capable of repetition that elude judicial review is also untenable. For one thing, the exception generally applies when the subject is likely to arise again between the same litigants (see
Weinstein v. Bradford
,
¶ 21 Pursuant to Barber , the Aldersons' case is moot, and no exception applies to save it. Accordingly, the judgment of the circuit court of Lake County, which dismissed the complaint, is affirmed.
¶ 22 Affirmed.
Justices Jorgensen and Burke concurred in the judgment and opinion.