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November 14, 1985


The opinion of the court was delivered by: Getzendanner, District Judge:


In this action, plaintiff Gary Dotson seeks a declaratory judgment that the Illinois Criminal Victims' Escrow Account Act, Ill.Rev.Stat., ch. 70, ¶¶ 401-410 (1982), may not be applied to him without violating the ex post facto clauses of the United States Constitution, Article I, Section 9, Clause 3 and Article I, Section 10, Clause 1. The named defendants are James H. Donnewald, the Illinois state treasurer, and Neil F. Hartigan, Illinois state attorney general. The matter is currently before the court on the motion of defendants to dismiss for failure to allege an actual controversy, or, alternatively, to state a claim upon which relief can be granted. For the reasons set forth herein, the motion is granted.


Plaintiff was indicted and convicted for the crime of rape and aggravated kidnapping against a certain Cathleen Crowell, now known as Cathleen Crowell Webb. The crime allegedly took place on the evening of July 9, 1977. On or about March 14, 1985, Cathleen Webb confessed to agents of the Cook County State's Attorney's Office that she had fabricated her original testimony, and that plaintiff was innocent of the crime for which he was convicted. The recantation resulted, among other things, in a commutation of plaintiff's sentence to time served plus three years mandatory supervised release.

Webb's recantation was nationally televised and reported extensively in the press and media. So were plaintiff's continued efforts to clear his name. After plaintiff's release from prison, he entered into an agreement with authors in which he granted certain literary rights to his life story. Plaintiff is also involved in negotiations concerning a film depiction of his life story, including the events surrounding his false accusation, subsequent imprisonment, and eventual release.

Two months subsequent to plaintiff's conviction and about 26 months after his alleged crime occurred, the Illinois Criminal Victims' Escrow Account Act, Ill.Rev.Stat., ch. 70, ¶¶ 401-410, went into effect. That Act provides a mechanism whereby commercial proceeds from crimes resulting in death or physical injury will be made available to the victims of the crimes. The pertinent language of the statute reads as follows:

  Any person who has been charged with or convicted of
  a crime in this State, involving a victim as
  described in Section 2.3, who contracts with a
  person, or the representative or assignee of such
  person, with respect to the depiction of the crime in
  a movie, book, magazine article, radio or television
  production, or live presentation of any kind, or with
  respect to that person's thoughts, feelings,
  opinions, or emotions regarding the crime, shall file
  a copy of such contract with the Treasurer. The
  person with whom the person charged or convicted has
  contracted shall pay over to the Treasurer any money
  which would otherwise, by terms of the contract, be
  owing to the person charged or convicted or his
  representatives. The Treasurer shall establish by
  deposit, within 3 days of receipt of such moneys, an
  escrow account in the name of the person charged or
  convicted for the benefit of and payable to any
  victim of crimes committed by such person. A victim
  who brought a civil action within 2 years of the date
  of the establishment of the escrow account shall be
  entitled to an amount . . . equal to the amount of an

  unsatisfied judgment or a partially satisfied
  judgment against the person or his representative
  entered in a court of competent jurisdiction in an
  action arising out of a crime committed by the

Ill.Rev.Stat., ch. 70, ¶ 403. If no civil actions are pending against the charged or convicted criminal within two years of the time the account is established, the funds shall be released to the convicted or charged person. Id. at ¶ 406.

On July 29, 1985, an amendment to the aforesaid Act was passed by a majority of the State legislature. Senate Bill 1289. This amendatory legislation would have added language to the above statute to prohibit the escrow account funds from ever becoming the property of the purported criminal, and providing instead that the funds after two years be released into a Violent Crime Victims' Assistance Fund to be established in the State Treasury.

On August 16, 1985, Governor James Thompson signed Bill 1289 but returned it to the General Assembly with specific recommendations for change. Under Illinois law, the bill is considered in the same manner as a vetoed bill, ILL. CONST., art. 4, § 9(e), and will not take effect unless and until both houses of the Illinois legislature vote to accept the Governor's recommendations for change, and the Governor certifies his acceptance upon representation. None of these contingencies has occurred, and the amendatory legislation is not law.

Based on public statements given by certain state legislators, plaintiff and some of the entities with whom he is contracting believe that the state "may seek to enforce" the Escrow Account Statute against him. Plaintiff brought the present action to declare the statute as applied to him ex post facto, and thus to declare any such attempt at enforcement unconstitutional.

Case or Controversy

Defendants' chief argument, and one which this court finds dispositive, is that plaintiff has failed to allege the existence of an actual "case or controversy" within the Article III jurisdiction of this court. In his response memorandum, plaintiff concedes that the applicability of the amendatory legislation is not yet ripe for decision, and seeks relief only with respect to the applicability of the statute as enacted in 1979. Plaintiff nowhere alleges, however, that defendants have enforced or even attempted to enforce the provisions of that Act to his detriment. Plaintiff does allege that public statements by state legislators lead him to believe in such a possibility, but nowhere alleges the contents of these statements, the dates on which they were allegedly made, or the persons making the statements.

Article III of the Constitution limits the exercise of judicial power to "cases" and "controversies." Aetna Life Insurance Co. v. Haworth, 300 U.S. 227, 239, 57 S.Ct. 461, 463, 81 L.Ed. 617 (1937); J.N.S., Inc. v. State of Indiana, 712 F.2d 303, 305 (7th Cir. 1983). This limitation applies to actions brought under the Declaratory Judgment Act, ...

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