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June 10, 2005.

DELVIN C. PAYTON, EVAN WALLACE, LARRELL CANNON, REGINALD CLAY, AARON S. CORSON, and PHILLIP O. CARSON, on behalf of themselves and as representatives of the class herein defined, Plaintiffs,
THE COUNTY OF KANE, et al., Defendants.

The opinion of the court was delivered by: ELAINE E. BUCKLO, District Judge


This is an action filed by former detainees in the county jails of two Illinois counties, DuPage and Kane. Before the court is plaintiffs' amended motion for class certification (the "motion"). The Fourth Amended Complaint (the "complaint") alleges that state legislation enabling certain Illinois counties to impose additional bond fees on persons who post criminal or civil bonds is invalid and void because the legislation, on its face and as applied, violates the equal protection and due process clauses of the federal and state Constitutions. Additional provisions of the Illinois Constitution are also implicated by the complaint.

The legislation at issue is an Act of the Illinois General Assembly (P.A. 91-94) (the "Act"), which amended 725 ILCS 5/110-7 and 55 ILCS 5/4-5001. Plaintiffs contend that 725 ILCS 5/110-907 is unconstitutional because it requires that to secure pre-trial release, detainees must first pay (where assessed) additional fees ("additional bond fees") above the amount of bail set by the court, and that 55 ILCS 5/4-5001 is unconstitutional because it allows counties to set the additional bond fees.

  On October 11, 2001, I denied a prior motion for class certification herein and dismissed the case on the ground that the plaintiffs lacked standing to represent the putative class. The Seventh Circuit reversed. Payton v. Kane County, 308 F.3d 673 (7th Cir. 2002). The Seventh Circuit instructed me to make an explicit analysis of whether or not the plaintiffs meet the requirements of Fed.R.Civ.P. 23 for the maintenance of class actions, and also required that, on remand, the parties consider the consequences on the present action of my holdings in Coleman v. County of Kane, 196 F.R.D. 505 (N.D.Ill. 2000) and Ringswald v. County of DuPage, 196 F.R.D. 509 (N.D.Ill. 2000).

  On remand, on January 28, 2004, I dismissed all counts of the complaint except for Count VII for failure to state a claim. I allowed Count VII to stand only to the extent that it alleges unequal application of the Act between counties.

  Statutory Background and Practices

  Prior to 1964, professional bondsmen provided bail bonds for detainees in the Illinois criminal justice system who could not, or did not wish to post the bond set by the court from their own funds. As the United States Supreme Court noted in Schlib v. Kuebel, 404 U.S. 357, 359-60 (1973),
The results were that a heavy and irretrievable burden fell on the accused, to the excellent profit of the bondsman, and that professional bondsmen, and not the courts, exercised significant control over the actual workings of the bail system.
  In 1963, Illinois enacted predecessor legislation to the statute presently designated as 725 ILCS 5/110-7. Under the 1963 statute, a detainee could eliminate the professional bondsman and secure his release if he executed a bail bond and deposited with the clerk of the court cash equal to 10 percent of the bail set by the court or $25, whichever was the greater. If the conditions of the bond were performed, the clerk returned to the accused 90 percent of the amount deposited, retaining the other 10 percent (one percent of the bail) as "bail bond costs." These provisions applied to all detainees, whether guilty or innocent, who availed themselves of the 10 percent cash bond, but did not apply to persons released on their own recognizance. The purpose of the fees was to help defray the costs incurred by the courts in processing bonds.

  In Schlib v. Kuebel, 264 N.E.2d 377, 382 (Ill. 1970) the Illinois Supreme Court affirmed dismissal of a class action challenging the 1963 statute. It noted that, "[t]he requirement of a fee to help defray the cost of administrative services in the courts is a traditional and basic concept recognized as valid by this court." The United States Supreme Court affirmed the Illinois Supreme Court's decision, stating that retention of 1 percent of the bond by the court "smacked of administrative detail" and did not violate the equal protection and due process provisions of the federal Constitution. Schlib v. Kuebel, 404 U.S. 357, 365 (1973). See also Broussard v. Parish of Orleans, 318 F.3d 644, 657 (5th Cir. 2003) (arrestees' interest in being free from nominal bond fees charged in Jefferson Parish, Louisiana was minimal and outweighed by government's interest in funding the bail bond system and maintaining cost effective procedures).

  For many years prior to 2000, Illinois county sheriffs were authorized to collect fees "[f]or taking all bonds on legal process, criminal or civil." 55 ILCS 5/4-5001. The fees allowed to the sheriffs varied in amount. Illinois law classifies counties by population. Counties with populations of less than 25,000 persons are designated counties of the first class, those containing populations of more than 25,000 but less than 1,000,000 are designated counties of the second class, and counties with a population exceeding 1,000,000 are designated counties of the third class. 55 ILCS 5/4-1001. Prior to January 1, 2000, sheriffs of counties of the first and second classes were authorized by statute to collect a one dollar fee for taking all bonds on legal process, while counties of the third class could collect a five dollar fee. 55 ILCS 5/4-5001 and 55 ILCS 5/4-12001 (1993). Kane and DuPage Counties are counties of the second class.

  Illinois revised its statute in 1999. The 1999 Act provides sheriffs of counties of the first and second classes with a means of recouping their bond-related administrative expenses more fully. It does so by amending 55 ILCS 5/4-5001 to provide that (a) the sheriffs may collect a bond fee for taking bonds in both civil and criminal cases, and (b) that the fees charged by the sheriffs may be increased [from the $1.00 fee] if the increase is authorized by law. The Act also amended 725 ILCS 5/110-7 to provide in subsection (b) thereof that "upon depositing the sum (10% of the bond set by the court) and any bond fees authorized by law, the [detainee] shall be released." (emphasis added)

  The bond fees now charged by Illinois counties of the first and second classes vary in amount from $1.00 to $45.00. Enforcement of the fees is not uniform from county to county. Plaintiffs allege that Kane and DuPage Counties will not release a detainee until the bond fee has been paid; most of the other defendants do not condition release on payment of the bond fee despite the statutory authorization to do so. Some counties impose the bond fees on parties who are released on their own recognizance; others do not. In instances where detainees are allowed to secure their pre-trial release without paying the bond fees, some counties waive or forgive the fees, while others may seek to recover the fees later by judicial process.

  The Parties and Class Definition

  Although thirty-nine Illinois counties are named as defendants in this action, none of the six named plaintiffs alleges contacts with any county except Kane or DuPage. Plaintiffs Payton, Wallace, Cannon, and Clay allege that they were each compelled to pay an $11.00 bond fee above and beyond their bail in order to secure their pre-trial release from confinement in the Kane County Jail after February 1, 1998. Plaintiffs Corson and Carson were each compelled to pay a $19.00 bond fee above their respective bail amounts in order to secure pre-trial release from the DuPage County Jail after October 1, 1997.

  The motion requests the certification of four subclasses of persons confined to one of defendants' county jails who were required to pay a bond fee to secure their pretrial release. They also seek certification of a defendant class of counties that have imposed administrative fees. Plaintiffs ask me to "certify an opt-out plaintiff and defendant class pursuant to Rule 23(b)(3), or in the alternative, a hybrid plaintiff and defendant class pursuant to Rule 23(b)(2) for plaintiffs' injunctive ...

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