Turnipseed v. Brown

• Decision Date: 04 May 2009
• Docket Number: No. 1-08-2571.,1-08-2571.
• Citation: 391 Ill. App. 3d 88,908 N.E.2d 546
• Parties: Darniece Bailey TURNIPSEED, Ramon Turnipseed and Raymond Thomas, Plaintiffs-Appellees, v. Dorothy BROWN, Clerk of the Circuit Court of Cook County in Her Official Capacity, and The County of Cook, Defendants-Appellants.
• Court: United States Appellate Court of Illinois

908 N.E.2d 546

391 Ill. App. 3d 88

Darniece Bailey TURNIPSEED, Ramon Turnipseed and Raymond Thomas, Plaintiffs-Appellees, v. Dorothy BROWN, Clerk of the Circuit Court of Cook County in Her Official Capacity, and The County of Cook, Defendants-Appellants.

No. 1-08-2571.

Appellate Court of Illinois, First District, First Division.

May 4, 2009.

Richard A. Devine, State's Attorney of Cook County, of Chicago (Patrick T. Driscoll, Jr., Deputy State's Attorney, Chief, Civil Actions Bureau, Paul A. Castiglione, Stephen L. Garcia, and Catherine M. Kelly, Assistant State's Attorneys, of Counsel), for Appellants.

Arthur T. Susman, Matthew Hurst, and Gina Lamancusa, Susman, Heffner & Hurst, John R. Wylie and Charles R. Watkins, Futterman Howard Watkins Wylie & Ashley, Chtd., and Elliot Zinger, Elliot Zinger & Associates, Chicago, for Appellees.

Presiding Justice ROBERT E. GORDONdelivered the opinion of the court:

Plaintiffs Darniece Bailey Turnipseed, Ramon Turnipseed, and Raymond Thomas seek to recover the interest that accrued on money that they deposited with defendant Dororthy Brown, the clerk of the circuit court of Cook County, in connection with bail bonds that they executed. In addition to suing defendant Brown, plaintiffs sued the county of Cook, a body politic,¹ which, plaintiffs allege, would be liable for any judgement issued against defendant Brown.

On August 19, 2008, the circuit court of Cook county granted plaintiffs' motion for class certification and denied defendants' motion to dismiss. On October 16, 2008, the appellate court granted defendants' petition for leave to appeal the trial court's grant of class certification. For the reasons discussed below, we reverse the orders granting class certification and denying defendants' motion to dismiss.

BACKGROUND

Plaintiffs allege that, on February 2, 2002, plaintiffs Darniece Bailey Turnipseed and Ramon Turnipseed deposited $100 with defendant Brown. The amount was 10% of the $1,000 bail that had been set for plaintiff Darniece Bailey Turnipseed in a criminal matter.

The Turnipseeds made their deposit pursuant to the Illinois Code of Criminal Procedure of 1963, which provides that a "person for whom bail has been set" may obtain his or her release by executing a bail bond and depositing with the clerk of the court "a sum of money equal to 10% of the bail," with a minimum deposit of $25. 725 ILCS 5/110-7(a) (West 2006).

Plaintiffs allege that defendant Brown placed the bail bond money in an interest-bearing account. Defendants concede that defendant Brown does place bail bond money in an interest-bearing account, as required by Cook County Ordinance No. 93-0-45. Section 34-4(b) of this ordinance provides that: "All elected and appointed public officials of Cook County are directed to invest public funds in their possession or for which they are custodians in interest-bearing accounts * * *." Cook County Taxpayers' Interest Assurance Ordinance No. 93-O-45 § 34-4(b) (November 16, 1993).

Plaintiffs allege that on April 3, 2002, all criminal charges against plaintiff Darniece Bailey Turnipseed were dropped for want of prosecution; and defendant Brown returned $90 to plaintiff Darniece Bailey Turnipseed. The returned amount ($90) was equal to the deposited amount ($100) minus 10% ($10) allowed by statute for costs. 725 ILCS 5/110-7(f) (West 2006) (clerk retains "as bail bond costs 10% of the amount deposited"). Plaintiffs allege that Brown did not pay the interest allegedly earned on the deposit. Plaintiffs allege, based upon information and belief, that defendant Brown transferred the interest to defendant Cook County.

Plaintiffs also allege that on December 17, 2003, plaintiff Raymond Thomas deposited $17,500 as bond for the $175,000 bail set for his brother. Plaintiffs allege that on November 22, 2005, defendant Brown returned $15,750 to "Mr. Thomas." Plaintiffs fail to specify whether "Mr. Thomas" in this instance refers to the plaintiff or to his brother. As with the Turnipseeds, the amount returned to Thomas was equal to the deposited amount, minus the 10% retained by defendant Brown for costs, as authorized by statute. 725 ILCS 5/110-7(f) (West 2006). Again, plaintiffs allege that defendant Brown did not pay the interest earned on the deposit.

Defendant Dorothy Brown is the clerk of the circuit court of Cook County, and she is sued in her official capacity. Plaintiffs allege that defendant Brown is charged with supervising and administering the collection, management and return of bail bond deposits. Plaintiffs also allege that defendant County of Cook would be required to pay any judgment entered in this case against defendant Brown in her official capacity, since the county funds the clerk's office.

Plaintiffs' second amended complaint is the complaint at issue in this appeal. It alleges that section 110-7(f) of the Illinois Code of Criminal Procedure (725 ILCS 5/110-7(f) (West 2006)) prohibits defendant Brown from paying interest on bail bond money to the individuals who deposited it.

Section 110-7(f) provides in relevant part:

"When the conditions of the bail bond have been performed and the accused has been discharged from all obligations in the cause, the clerk of the court shall return to the accused or to the defendant's designee by an assignment executed at the time the bail amount is deposited, unless the court orders otherwise, 90% of the sum which had been deposited and shall retain as bail bond costs 10% of the amount deposited. However, in no event shall the amount retained by the clerk as bail bond costs be less than $5." 725 ILCS 5/110-7(f) (West 2006).

Subsection (f), quoted above, requires the clerk to pay 90% of the bail amount to "the accused or to the defendant's designee." The subsection is completely silent about interest. Although subsection (f) is detailed in many respects, it does not use the word "interest" once. However, defendants admit that defendant Brown does not pay any interest earned on bail bond money.

Subsection (f) requires the clerk to pay the required amount to either "the accused or to the defendant's designee." Plaintiffs failed to allege in their complaint whether the brother of Raymond Thomas assigned his bail money to plaintiff Raymond Thomas. If no assignment was executed, then plaintiff Raymond Thomas was not owed any money by defendant Brown. The complaint also does not allege whether plaintiff Darniece Bailey Turnipseed assigned her bail money to plaintiff Ramon Turnipseed.

The second amended complaint seeks: (1) declaratory relief that subsection (f) is facially unconstitutional; (2) compensation for the alleged taking of plaintiffs' and the class' private property, namely the interest that accrued on the bail bond money while it was held by defendant Brown; and (3) injunctive relief to prevent further constitutional violations.

Count I alleges that the alleged failure to pay interest is a taking of property in violation of section 15 of article I of the Illinois Constitution, as well as the fifth and fourteenth amendments to the United States Constitution. Section 15 of article I of the Illinois Constitution provides that: "[p]rivate property shall not be taken or damaged for public use without just compensation as provided by law." Ill. Const. 1970, art. I, § 15. Similarly, the fifth amendment to the United States Constitution provides that "private property [shall not] be taken for public use, without just compensation." U.S. const., amend. V. These clauses are commonly known as the "takings clauses." Empress Casino Joliet Corp. v. Giannoulias, 231 Ill.2d 62, 81, 324 Ill.Dec. 491, 896 N.E.2d 277 (2008). The fifth amendment is made applicable to the states by the fourteenth amendment. U.S. Const., amend. XIV; Kelo v. City of New London, 545 U.S. 469, 472 & n. 1, 125 S.Ct. 2655, 2658 & n. 1, 162 L.Ed.2d 439, 447 & n. 1 (2005) ("the Takings Clause of the Fifth amendment to the [United States] Constitution" is "made applicable to the States by the Fourteenth Amendment"); Empress Casino, 231 Ill.2d at 80, 324 Ill. Dec. 491, 896 N.E.2d 277.

Count II alleges a federal constitutional tort, pursuant to 42 U.S.C. § 1983 (2000). Section 1983 provides that if a person acts "under color" of state law and thereby deprives another of a right secured by the United States Constitution, he or she "shall be liable to the party injured." 42 U.S.C. § 1983.

The second amended complaint describes the proposed class as follows:

"All persons who deposited bail bond funds with the Clerk of the Circuit Court of Cook County pursuant to the Illinois Code of Criminal Procedure, and whose bail bond funds were returned to them during the period from October 18, 1999 through the date of final judgment in this action."

The proposed class is limited to those persons "whose bail bond funds were returned to them." Subsection (f) provides many reasons why bail bond money may not be returned. 725 ILCS 5/110-7(f) (West 2006). It states in relevant part:

"Bail bond deposited by or on behalf of a defendant in one case may be used, in the court's discretion, to satisfy financial obligations of that same defendant incurred in a different case due to a fine, court costs, restitution or fees of the defendant's attorney of record. In counties with a population of 3,000,000 or more, the court shall not order bail bond deposited by or on behalf of a defendant in one case to be used to satisfy financial obligations of that same defendant in a different case until the bail bond is first used to satisfy court costs and attorney's fees in the case in which the bail bond has been deposited and any other unpaid child support obligations are satisfied. * * *

At the request of the defendant the court may order such 90% of defendant's bail deposit, or whatever amount is repayable to defendant from such deposit, to be paid to defendant's attorney of record." 725 ILCS 5/110-7(f) (West 2006).

Thus, bail bond money may be used to...