Schlessinger v. Olsen

On September 29, 1978, the plaintiffs, Shirley Schlessinger and Portia Kern, filed a complaint in the circuit court of Cook County challenging the constitutionality of an amended version of the Real Estate Transfer Tax Act (the Act) (Ill. Rev. Stat., 1978 Supp., ch. 120, par. 1003). This court had previously declared unconstitutional an earlier version of the Act. (See Saltiel v. Olsen (1979), 77 Ill.2d 23.) The plaintiffs alleged in the six-count complaint that they were representing all others who had paid the tax, or, alternatively, all Illinois taxpayers. The plaintiffs made a motion for a preliminary injunction or a temporary restraining order and for class certification on January 16, 1979. The defendants then moved to strike and dismiss the complaint. On April 6, 1979, the judge denied the motion to strike and dismiss and issued a preliminary injunction. In the same order, the trial judge had made findings certifying the action as a class action. These findings were stricken from the order, however. The plaintiffs again moved for class certification, and the defendants moved for reconsideration of their motion to strike and dismiss the complaint. On April 17, 1979, the trial judge denied the motion seeking class action certification based on defendants' objection that any class certification would be premature until discovery was completed. Thereafter, on May 22, 1979, the trial judge granted the motion to reconsider, vacated the order of April 6, 1979, and granted defendants' motion to strike and dismiss the complaint. That order was appealed by the plaintiffs. The appellate court vacated the circuit court's judgment and remanded the cause for determination of the certification issue prior to any final judgment on the merits. (89 Ill. App.3d 583, 591.) We allowed the defendants' petition for leave to appeal. 73 Ill.2d R. 315.