Appeal from the Circuit Courts> of Du Page and Lake Counties;
the Hon. John S. Teschner and the Hon. Alvin Ira Singer, Judges,
JUSTICE NASH DELIVERED THE OPINION OF THE COURT:
The principle question presented by these consolidated cases is whether the 10% bail bond costs retained by the clerk of the circuit court, as authorized by section 110-7(f) of the Code of Criminal Procedure of 1963 (Ill. Rev. Stat. 1979, ch. 38, par. 110-7(f)), violate article VII, section 9(a), of the 1970 Illinois Constitution. Ill. Const. 1970, art. VII, sec. 9(a).
The Du Page County appeal is from dismissal of a purported class action brought by plaintiffs James Walker and Ronald Klimer, on behalf of themselves and all others similarly situated in that county, and the Lake County appeal is brought by plaintiffs Fred Lauth, Laverne Krensky and Jeffrey Krensky from the dismissal of their similar purported class action in that county. In each case plaintiffs sought declaratory judgment that the costs which had been retained (or in Kliner's case, will be retained) by the circuit clerk from their bail deposit after disposition of their underlying cases violated the constitutional prohibition that compensation and expenses of officers and employees of units of local government shall not be based upon the funds disbursed or collected by them. In each case plaintiffs sought refund of all bail bond costs so retained by the respective circuit clerks since the effective date of the 1970 constitution. The Du Page County case joined as defendant only the circuit clerk while in Lake County the circuit clerk, county treasurer and the County of Lake were made defendants. The trial court in each case granted defendant's motion to dismiss the complaint and plaintiffs appeal.
We consider first the contention of defendants in each case that principles of collateral estoppel bar plaintiffs, other than Kliner in the Du Page County appeal, from maintaining these actions, and, as to Kliner, that no actual controversy is present to support an action for declaratory judgment.
In the Lake County case the complaint alleged, inter alia, that each plaintiff had posted sums equal to 10% of the bail fixed after being arrested for ordinance or statute violations. After disposition of their cases, each plaintiff received a refund from the circuit clerk of 90% of the sums so deposited as bail with the clerk retaining as bail bond costs 10% of the amount deposited. In the Du Page County case the complaint alleged plaintiff Walker was arrested December 4, 1979, and, after bail was set at $100,000 by the court, he deposited $10,000 with the circuit clerk to secure his release under the 10% bail bond provision. That thereafter plaintiff Walker was discharged from his obligation under his bond and $9,000, or 90%, was returned to him, or his assignee, while the circuit clerk retained $1,000 as bail bond costs pursuant to section 110-7(f). As to plaintiff Kliner, the complaint alleged that after his arrest on March 11, 1981, he deposited $6,000 (10% of the bail set) with the circuit clerk pursuant to the statute which the circuit clerk presently holds pending disposition of that underlying case and his bond remains in effect. Kliner also alleged that $600, or 10% of the bail deposited by him, would be thereafter retained by the circuit clerk as costs upon disposition of that case.
Neither complaint alleged that any objection to the retention of the bail bond costs by the circuit clerk was made by plaintiffs in the trial court in those underlying cases which were completed or that appeals had been taken from the judgments there entered after their disposition.
• 1 We conclude that the present action attacking the disposition of the bail deposited by each plaintiff, except Kliner, constitutes an attempt to avoid the rule against collateral attack of a judgment. The trial courts> in each completed case had jurisdiction over the disposition of the bail deposited by virtue of section 110-7(f) (Ill. Rev. Stat. 1979, ch. 38, par. 110-7(f)) and plaintiffs were required to raise the issues sought to be presented here before those courts> in which the judgments were entered. (See Morgan v. Finley (1982), 105 Ill. App.3d 80, 83-84, 433 N.E.2d 1047, 1048-49; Sanner v. Champaign County (1980), 88 Ill. App.3d 491, 497, 410 N.E.2d 656, 660.) If plaintiffs had done so those portions of the judgments directing disposition of defendant's bail deposit could have been considered by a reviewing court on a direct appeal. See People v. Castile (1981), 87 Ill.2d 73, 76, 429 N.E.2d 495, 496.
Accordingly, in the Lake County appeal and that portion of the Du Page County appeal brought by plaintiff Walker, the trial court will be affirmed as the complaints contained no allegations attacking the jurisdiction of the courts> entering the underlying judgments and thus failed to state a cause of action. See DeBruyn v. Elrod (1981), 84 Ill.2d 128, 137-38, 418 N.E.2d 413, 417-18.
• 2 A different question is presented as to whether plaintiff Kliner may pursue this action in the Du Page County appeal. Defendant contends Kliner's cause is not ripe for determination in declaratory judgment as the underlying case still pends and no actual controversy regarding the return of Kliner's bail deposit presently exists. (Howlett v. Scott (1977), 69 Ill.2d 135, 141, 370 N.E.2d 1036, 1038; Greene v. Village of Reynolds (1976), 35 Ill. App.3d 998, 1000, 342 N.E.2d 834, 836.) We do not agree.
Plaintiff Kliner would appear to be in the immediate danger of sustaining direct injury by the loss of 10% of his bail deposit to the circuit clerk as costs, and we conclude that an actual controversy is present sufficiently to permit this action. If Kliner fulfills the obligation of his bond and the circuit clerk then follows the statute, the clerk will undoubtedly retain the challenged bail deposit costs as he is charged to do under the statute. (See Illinois Gamefowl Breeders Association v. Block (1979), 75 Ill.2d 443, 450, 389 N.E.2d 529, 531, and Underground Contractors Association v. City of Chicago (1977), 66 Ill.2d 371, 375, 362 N.E.2d 298, 300.) We will, therefore, consider the issues presented by Kliner's appeal.
We note that the constitutionality of the administrative cost provision contained in section 110-7(f) has been upheld by our supreme court in Schilb v. Kuebel (1970), 46 Ill.2d 538, 264 N.E.2d 377, aff'd (1971), 404 U.S. 357, 30 L.Ed.2d 502, 92 S.Ct. 479, as conforming to fundamental concepts of due process and equal protection of the law. It was again upheld in Andrews v. Danaher (1976), 62 Ill.2d 268, 342 N.E.2d 49, against the claim the State unlawfully imposed upon an accused a fee for exercising his constitutional right to bail. The arguments advanced by plaintiff here were not considered in those cases. However, in Sanko v. Carlson (1977), 69 Ill.2d 246, 249, 371 N.E.2d 613, 615, the court rejected as without merit an argument that the fee charged by the clerk of the circuit court for filing a tax objection violated article VII, section 9(a), of the constitution.
Plaintiff Kliner contends that article VII, section 9(a), of the constitution prohibits fees based upon "funds disbursed or collected" and, as the funds for bail bond costs are paid into the county treasury from which the clerk's office is funded, it is an unconstitutional county fee. Plaintiff argues that section 9(a) prohibits all fees received by the county which are based upon funds disbursed or collected, even if not collected by a county officer. Defendant essentially contends that the restrictions of article VII, section 9, relate only to officers and employees of units of local government and do not apply to the clerk of the circuit court.
Section 110-7 of the Code of Criminal Procedure of 1963 provides for the posting of bail for release from custody by a person who has been arrested and for whom bail has been set by the court upon executing a bail bond and depositing with the clerk of the circuit court a sum of money equal to 10% of the bail. It further provides:
"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, 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 ...