Mattern v. Industrial Commission ( 1991 )

PRESIDING JUSTICE McCULLOUGH,

dissenting:

The Commission should not be required to pay money to file a review proceeding with itself.

Under section 19(b) a party must “file” a petition for review within 15 days.

In the instant case, the petition for review was not filed. The mailing which contained the petition for review did not have sufficient postage and the appellant does not assert that it did. Because of postage due, the Commission clerk refused the mailing.

In Elles v. Industrial Comm’n (1940), 375 Ill. 107, 30 N.E.2d 615, the supreme court held that where the clerk “filed” the review action without receiving the fee in advance, the failure to pay did not deprive the circuit court of jurisdiction.

Likewise, in Hanks v. Floyd (1977), 51 Ill. App. 3d 1048, 367 N.E.2d 483, the plaintiff mailed a complaint for filing to the clerk of the circuit court but the filing fee was not enclosed. The plaintiff in an accompanying letter notified the clerk the filing fee would be paid promptly upon receipt of the billing statement. During a subsequent telephone conversation, an employee of the clerk’s office agreed to file the complaint on November 15. On November 17, the fee was received by the clerk, who then changed the file stamp to November 17, two days after the statute of limitations had expired. The court held that “Although by statute the fees of the clerk of the circuit court ‘shall be paid in advance’ [citation], this language has been interpreted to be merely directory, not mandatory.” (Hanks, 51 Ill. App. 3d at 1050, 367 N.E.2d at 484.) The Hanks court concluded by saying although the filing fee was not paid, the clerk has authority to file the complaint.

Here the Commission clerk did not file the petition for review but refused the mailing. Whether the Commission clerk has a petty cash fund or other monies on hand to pay out in such cases is unknown. The Commission has no duty to accept a mailing with postage due. Query, would the majority result be the same if the Commission clerk had no petty cash fund or resources to pay the $0.20?

Elies and Hanks said the payment of the filing fee was directory, not mandatory. In both cases, the clerk could have refused to file the pleading but did not.

We are not talking about the Commission filing a pleading without receiving a fee. We are requiring the Commission clerk to pay money out of its funds for postage — in order to receive an envelope, determine the contents and file a pleading — which is the responsibility of the party seeking review.

In Ayala v. Goad (1988), 176 Ill. App. 3d 1091, 531 N.E.2d 1040, the clerk of the circuit court testified to a courtesy policy notifying lawyers when complaints were sent by mail without the filing fee enclosed. The clerk would file the documents, notify the attorney involved, and if payment was not received, would scratch out or otherwise remove the filing notations from the document. As stated in Hanks and Elles, the Ayala court stated:

“It is well established that the statutory requirement that filing fees be paid in advance is directory rather than mandatory and, therefore, it is not a necessary predicate for the trial court to acquire jurisdiction of a case. (In re Marriage of Savas (1985), 139 Ill. App. 3d 68, 74, 486 N.E.2d 1318, 1323.) Although a filing fee has not been paid, the clerk has the authority to file a complaint, and it is now clear that the payment in advance of a filing fee is not a condition precedent to the filing of a complaint for statute of limitations purposes. Hanks v. Floyd (1977), 51 Ill. App. 3d 1048, 1050, 367 N.E.2d 483, 484.” (Ayala, 176 Ill. App. 3d at 1095, 531 N.E.2d at 1043.)

The Ayala court further stated that “the clerk may refuse to accept a document unless the fee is paid.” Ayala, 176 Ill. App. 3d at 1095, 451 N.E.2d at 1043.

The petitioner argues that the physical location of the Commission office makes the parties in compensation cases dependent upon mail service. Arrington v. Industrial Comm’n (1983), 96 Ill. 2d 505, mentions problems with delays in mail service, but the supreme court determined such problems do not excuse compliance with the structures of the Workers’ Compensation Act. The Arrington court stated:

“We recognize the hardship that strict compliance with section 19(f)(1) imposes upon attorneys whose offices are located at a distance from the office of the Industrial Commission. Quite often delays in mail service make it difficult for an attorney to mail his check to the Industrial Commission and receive a receipt back in time to file the praecipe for certiorari with the circuit clerk within 20 days of the receipt of notice of the decision of the Commission. The clear language of the statute does not permit this court to ignore its mandate.” Arrington, 96 Ill. 2d at 511-12, 451 N.E.2d at 869.

Here, there is no evidence to show the Commission clerk knew what was enclosed in the mailing, specifically that it was a petition for review. There was no duty to accept the “postage due” envelope. The mandate of the majority will require the Commission clerk to pay “postage due” and accept all mailings. Such a procedure just will not work. It is not a duty or prerogative of the Commission clerk to guess what the mailing is, pay the postage due, and, if it is a petition for review, file it.