SUPREME COURT OF ILLINOIS
538 N.E.2d 520, 128 Ill. 2d 147, 131 Ill. Dec. 145 1989.IL.411
Appeal from the Appellate Court for the First District; heard in that court on appeal from the Circuit Court of Cook County, the Hon. Harold A. Siegan, Judge, presiding.
JUSTICE CLARK delivered the opinion of the court. WARD and CALVO, JJ., took no part in the consideration or decision of this case.
DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE CLARK
This case raises the issue of whether a clerk of court who holds a litigant's funds pursuant to a court order pending resolution of the litigation has a duty to deposit those funds in an interest-bearing account.
The facts in this case are not in dispute. In 1981, appellee, Mary S. Madlener, was named a defendant in an interpleader action filed by an insurance company. The court in the case ordered the insurance company to deposit the amount of its admitted liability with appellant, Morgan M. Finley, the clerk of the circuit court of Cook County (the Clerk). Because the court did not specify that the funds should be deposited into an interest-bearing account, the Clerk placed them into a non-interest-bearing demand checking account.
Thereafter, a settlement agreement was reached whereby appellee was to receive a certain share of the insurance proceeds deposited with the Clerk and the interpleader action was to be dismissed. The court, in its order dismissing the case on June 10, 1982, instructed the Clerk to pay appellee her share of the proceeds. The order had originally stated that appellee was entitled to the proceeds "plus any interest accrued thereon," but the interest provision was stricken by the court. The Clerk then distributed to appellee her share of the proceeds, without interest. No appeal was taken from the court's order dismissing the action.
On July 8, 1982, appellee sent a letter to the Clerk demanding payment of the interest due on the funds which had been deposited by the insurance company. When the Clerk did not respond to the letter, appellee instituted a class action lawsuit against the Clerk in the circuit court of Cook County, contending that the Clerk's failure to place funds in interest-bearing accounts constituted a breach of a fiduciary duty owed by the Clerk as a public official. On April 18, 1986, the circuit court dismissed the complaint with prejudice for failure to state a cause of action and denied appellee's motions for summary judgment and class certification.
The appellate court reversed the dismissal of appellee's complaint, finding that as a public official, the Clerk owes a fiduciary duty to the people he represents. (161 Ill. App. 3d 796, 798.) The court stated that, as a fiduciary, the Clerk has a duty to place litigants' funds in interest-bearing accounts. (161 Ill. App. 3d at 800.) However, the court also recognized that the Clerk frequently needs to withdraw deposited funds on short notice and that interest-bearing accounts may not exist that would allow such withdrawals upon demand. As a result, the court remanded the case to the circuit court to determine "whether there are financial institutions which will accommodate the lerk's needs with a demand account that also pays interest." (161 Ill. App. 3d at 800.) The court also held, however, that even if the circuit court were to find that such institutions exist, appellee would not be entitled to retrospective relief. (161 Ill. App. 3d at 803.) Finally, the court concluded that it could not, at that stage in the proceedings, address the question of class certification. 161 Ill. App. 3d at 804.
One Justice Dissented from the court's opinion for three reasons. First, the Dissent thought that appellee's action constituted an impermissible collateral attack upon the Judge's order in the interpleader action because appellee could have requested in the original action that the court order the Clerk to place the funds in an interest-bearing account. (161 Ill. App. 3d at 804-05 (McMorrow, J., Dissenting).) Second, the Dissent could find no legal basis to support the majority's Conclusion that the Clerk has a fiduciary duty to deposit litigants' funds in interest-bearing accounts. (161 Ill. App. 3d at 806 (McMorrow, J., Dissenting).) Finally, the Dissent argued that the "determination of comprehensive supervision over the lerk's placement of all custodial funds in general" should be made by legislative enactment or supreme court rule rather than by an individual trial court Judge. 161 Ill. App. 3d at 807 (McMorrow, J., Dissenting).
We granted the Clerk's petition for leave to appeal (107 Ill. 2d R. 315). The Clerk seeks reversal of the appellate court's finding that the Clerk has a legal duty to place litigants' funds in interest-bearing accounts without court orders to that effect. The Clerk also argues that appellee's lawsuit constitutes an improper collateral attack upon the order of the Judge in the interpleader action, and that the question of how litigants' funds should be deposited should be determined by legislation or judicial rulemaking rather than by the circuit court Judge on remand. Appellee, on the other hand, urges us to affirm the appellate court's finding with respect to the Clerk's fiduciary duty, but to reverse the court's determination that appellee is not entitled to retrospective relief. Appellee also claims that we should certify this case as a class action and hold that appellee is entitled to summary judgment.
We first address the issue of whether a clerk of court has a fiduciary duty to deposit litigants' funds held by the clerk pursuant to court order pending resolution of the litigation into interest-bearing accounts. We note initially that no case has been called to our attention that establishes such a duty on the part of any government official, absent a statute so providing. While the appellate court below cited People v. Savaiano (1976), 66 Ill. 2d 7, and City of Chicago ex rel. Cohen v. Keane (1976), 64 Ill. 2d 559, in support of its Conclusion that such a duty exists (161 Ill. App. 3d at 798), neither case stands for the proposition that government officials have a duty to invest funds in interest-bearing accounts. Rather, both cases concern a statutorily created fiduciary duty of public officials to avoid self-dealing and conflicts of interest in transactions between the government and the private sector. Savaiano, 66 Ill. 2d at 15; Keane, 64 Ill. 2d at 565; see Ill. Rev. Stat. 1987, ch. 24, par. 3-14-4; Ill. Rev. Stat. 1987, ch. 102, par. 3.
In Savaiano, the defendant was a county board member who participated on the county's behalf in negotiations that led to the eventual purchase of property which the defendant himself owned. (Savaiano, 66 Ill. 2d at 14.) Keane involved a city alderman who allegedly took advantage of his office to purchase at scavenger tax sales property which the city was planning to purchase and develop. The alderman then used his government position to influence the city to purchase the properties that he himself had already purchased at tax sales. (Keane, 64 Ill. 2d at 561-62.) This court ...