State Con Law Case of the Week: Bipolar Rights Disorder
Last month the Illinois Supreme Court managed to roll into one opinion the right to a remedy, the rational-basis test, and a loss for the government. The court did a lot of things right along the way, but its choice to employ a rational-basis standard is an unfortunate reminder of the myopic and unimaginatively bipolar view of rights that some judges have today.
The case, Walker v. Chasteen, was a challenge to a $50 fee the Illinois legislature applied to mortgage foreclosure cases in 2010 amidst the Great Recession’s housing crisis. The fee funded various efforts addressing the waive of foreclosures, including providing housing counseling for those in default on their mortgages and cleaning up and rehabilitating abandoned property.
Two individuals who wanted to foreclose on mortgages, along with classes they represented, challenged the fee on various grounds, including under Article I, Section 12 of the Illinois Constitution, the Free Access Clause. They argued that the clause protects the right to use the courts to remedy private wrongs, and a court fee is only permissible if it goes to pay for the administration of the courts themselves. If not it’s simply an impermissible tax—a tax on the right to a remedy itself.
The clause’s language, especially its second sentence, will be familiar to fans of Magna Carta’s “Golden Passage”:
Every person shall find a certain remedy in the laws for all injuries and wrongs which he receives to his person, privacy, property or reputation. He shall obtain justice by law, freely, completely, and promptly.
As I’ve discussed here before, this provision—like similar provisions in many state constitutions—guarantees the ancient “right to a remedy.” And the court recognized just that, calling out a veritable Bingo card of right to a remedy sources, including the American Revolution, the Glorious Revolution of 1688, William Blackstone, Edward Coke, Magna Carta itself, and even Professor A.E. Dick Howard’s canonical book on its impact, The Road From Runnymede, and Professor Benjamin Clover’s excellent recent article The First Amendment Right to a Remedy.
With that kind of a romantic wind-up about a constitutional right you’d expect some fireworks, right? Something YOLO-like along the lines of Fiat justitia ruat caelum (“Let justice be done though the heavens fall”).
But no. Instead, the court applied, of all things, the rational-basis test. It said it had two choices, and two choices only: strict scrutiny and rational basis. And went with the latter.
Readers of the blog will be familiar (perhaps all-too-familiar) with the rational-basis standard. Under its most extreme version, courts must make up legitimate reasons for a law if the government fails to provide them and can speculate about facts (that don’t have to actually be true) that the legislature might have believed when adopting the law. Now, versions of rational basis differ, and sometimes courts—even the U.S. Supreme Court—apply a form with a bit more scrutiny. But even then judges are supposed to heavily defer to the government concerning a law’s constitutionality.
So how could the Illinois Supreme Court apply a standard like that, when the right at issue in its own words is so central to our constitutional order? For the flimsiest of reasons.
First, because the fee doesn’t “involve a suspect classification such as race, national origin, or gender. In cases not involving a suspect classification, the rational basis test applies.” This is criminally misleading. Yes, in federal equal protection cases the rational basis test applies. If this was a challenge under the Fourteenth Amendment to the fee and it didn’t involve a “suspect class” then, sure, the court would apply rational basis. But it wouldn’t under a First Amendment challenge. Or the Fourth Amendment’s protection against unreasonable searches and seizures (where, thankfully, “reasonable” doesn’t mean “rational basis”). Or the Sixth Amendment’s Confrontation Clause. Simply put, the “suspect classification” question is an equal protection distinction and has no business watering down rights in other areas.
Second, without elaboration the court asserted that while there is a “fundamental right” to access the courts, there isn’t a fundamental right to access them without expense. This apparently means that unless the legislature completely bars a plaintiff from filing a lawsuit the right isn’t really at issue, and so rational basis applies. This kind of reasoning is unfortunately common in rights cases, but it’s deeply wrong. Most of the time when a right is threatened it is not completely prohibited. In many cases invoking the right to earn a living, for example, the plaintiff isn’t legally prohibited from working a trade. It’s that the government has thrown up unjustified barriers that make it difficult or impossible as a practical, but not per se, matter, to work in the occupation of one’s calling. When IJ and the monks of St, Joseph Abbey successfully challenged Louisiana’s requirement that you need a full-blown funeral director’s license to sell a casket the monks could have wasted thousands of dollars and hours on getting that license. They didn’t. But they challenged the barrier anyway, and rightfully won.
This application of the rational-basis test in a case challenging a fee inhibiting the right to a remedy stands in sharp contrast to a similar case at the Missouri Supreme Court which I wrote about here last month. There the court applied a “reasonableness” standard, and concluded the fee was unconstitutional, but the standard wasn’t the rational-basis test. It was a standard giving some deference to the government but allowing a real opportunity for a plaintiff to prove their case and win. That and so many other cases—including those applying real, but intermediate, scrutiny of various kinds—demonstrate we don’t live in a bipolar world of rights. But ignoring these other options, the court in Walker said it only had two choices, and went with the one where the government overwhelmingly wins.
An Irrational $50
And yet . . . and yet, the plaintiffs won. The court applied an Illinois case from the 1980s that stated a court fee must be related to court administration and services. If the fee is not connected to those things it is “simply too remote” and therefore unreasonable. And here the foreclosure programs, such as counseling and cleaning up foreclosed properties, were very disconnected from courts handling foreclosure cases. Thus, the fee failed the rational-basis test.
This will be news to many, including us at IJ who lost a rational-basis case at the same court a couple years ago in a challenge to Chicago’s food truck restrictions, LMP Services v. City of Chicago. With far broader deference to the government, the court there declared the city’s ordinance constitutional even though it was a transparent way to protect restaurants at the expense of their mobile competitors. The one dissenting justice in Walker even cited LPM Services and argued that of course helping prevent foreclosures and the harm they cause through counseling and fixing up properties was connected to courts servicing foreclosure actions under the test’s expansive standard.
This is not to say the court should have applied the standard from LPM Services. It absolutely should not have. But it is to point out the uneven way the rational-basis test is often applied. The better way, of course, would be to give the right to a remedy—and many other rights, including the right to earn a living—real scrutiny in assessing whether the government has infringed on our liberties. Let’s hope other courts, and perhaps the Illinois Supreme Court, provide that remedy in the future.
Anthony Sanders is the director of IJ’s Center for Judicial Engagement.