DELVIN C. PAYTON, et al., Plaintiffs-Appellants, v. COUNTY OF CARROLL, et al., Defendants-Appellees.
No. 05-3428
United States Court of Appeals For the Seventh Circuit
ARGUED JUNE 7, 2006—DECIDED JANUARY 18, 2007
Appeal from the United States District Court for the Northern District of Illinois, Eastern Division. No. 99 C 8514—Elaine E. Bucklo, Judge.
Before
WOOD, Circuit Judge. When a person is arrested in Illinois, he or she is arraigned, and when possible, the court releases the detainee either on bail or on personal recognizance. See
The present appeal is a sequel to an earlier one we heard, in which a putative class of former arrestees challenged those administrative fees on a variety of constitutional grounds. See Payton v. County of Kane, 308 F.3d 673 (7th Cir. 2002) (Payton I). In our earlier decision, we held (1) that the named plaintiffs had standing to
Plaintiffs urge strenuously that the district court‘s dismissal of the 12 counts flouted this cоurt‘s opinion in Payton I, which they read as a definitive holding that they had stated a claim for purposes of
I
With respect to the рlaintiffs’ challenge to the district court‘s ruling on the motion to dismiss, our review is of course de novo. County of McHenry v. Ins. Co. of the West, 438 F.3d 813, 817 (7th Cir. 2006). Our review of the court‘s decision to deny class certification is for abuse of discretion. Mace v. Van Ru Credit Corp., 109 F.3d 338, 340 (7th Cir. 1997). As the background facts in this case are uncontested, we proceed immediately to a consideration of the plaintiffs’ arguments on appeal.
A
We first take up the 12 counts that were dismissed for failure to state a claim upon which relief may be granted. Because there is some duplication of theory among those counts, we have grouped them here into five different сategories.
1. Count I: Excessive Bail
The Fourth Amended Complaint, which is the one that now governs the case, alleges in Count I that the Fee Act violates both the Eighth Amendment‘s prohibition on excessive bail and the rule of
As the district court recognized, the Supreme Court‘s decision in Schlib has some bearing on this case. There, the Court upheld an earlier Illinois bail law that permitted the court clerk, upon the conclusion of the trial, to retain as “bail bond costs” 1 percent of the specified bail or 10 percent of the amount actually deposited. Schlib, who had posted $75 to secure bonds of $500 and $250 on two charges, was acquitted at trial on one and conviсted on the other. When his bond was returned, the clerk deducted $7.50 for administrative costs. Schlib sued, claiming that the statute permitting this fee violated both the Due Process and the Equal Protection Clauses of the Fourteenth Amendment. The Supreme Court was unpersuaded. It held that the right to be free from a minor administrative cost like this was not fundamental and thus that rational basis review applied. From that, it was an easystep to uphold Illinois‘s decision to impose the fee, as well as its decision not to impose a fee in the distinguishable circumstances of release on personal recognizance and payment of the full amount of the bail. See 404 U.S. at 367-68. The Court noted that it did not have any question about the Eighth Amendment before it. Id. at 364-65.
The Eighth Amendment issue came before the Fifth Circuit in the case of Broussard v. Parish of Orleans, 318 F.3d 644 (5th Cir. 2003). For guidance, that court turned first to the Supreme Court‘s decision in Stack v. Boyle, 342 U.S. 1 (1951). There, the Court held that:
[l]ike the ancient practice of securing the oaths of responsible persons to stand as sureties for the accused, the modern practice of requiring a bail bond or the deposit of a sum of money subject to forfeiture serves as additional assurance of the presencе of an accused. Bail set at a figure higher than an amount reasonably calculated to fulfill this purpose is “excessive” under the Eighth Amendment.
Id. at 5. The Fifth Circuit also looked to the Supreme Court‘s later decision in United States v. Salerno, 481 U.S. 739 (1987), which dealt with the constitutionality of federal bail reform legislation. In that opinion, the Court underscored the fact that the amount charged for bail depends on what is at stake:
Nothing in the text of the Bail Clause limits permissible Government considerations solely to questions of flight. The only arguable substantive limitation of the Bail Clause is that the Government‘s proposed conditions of release or detention not be “excessive” in light of the perceived evil. Of course, to determine whether the Government‘s response is excessive, we must compare that response against the interest theGovernment seeks to protect by means of that response.
In Broussard, the Fifth Circuit observed that the case before it “concern[ed] neither the State‘s attempt to deny bail nor an extremely high bail amount. Rather, it concerns relatively modest fees imposed, over and above the amount of bail, on all arrestees who exercise bail.” 318 F.3d at 651. Although the court conceded that the fees did not advance a compelling interest like public safety, it pointed out on the other hand that “[i]t is also clear that the restriction . . . does not implicate the kind of excessiveness of past decisions.” Id. The deprivation imposed by the fees, in short, was “more theoretical than actual,” in the absence of any evidence of an arrestee who was otherwise able to make bail but who could not because of the administrative fee. Id.
We see the Illinois system in much the same way. The arrеstees claim that the administrative fees infringe on their federally protected right to bail, and they point to one statement in Payton I where we said it is “hard to see how they could have failed to state a claim under the notice pleading regime of [Rule 8].” 308 F.3d at 676. They distinguish Schlib on the ground that the fee there was imposed after trial, while theirs is a condition of pre-trial release. Their comment on Broussard is that the Louisiana statute at issue there provided for “remedies and procedures not available under the Illinois statute.” Finally, they complain that the Illinois fees are arbitrary, cаuse a delay in release, are discretionary from county to county, sometimes prevent people from leaving jail, are not returned if one is found innocent, and cannot be waived.
The panel expressed interest in the last of these points, and in response to a question from the bench, the partieshave filed supplemental memoranda on the question whether Illinois law provides a means to waive the administrative fee. That research and our own reveals that at one time, the Illinois Code of Criminal Procedure explicitly permitted an incarcerated defendant who owed a fine or costs that he could not pay to file an affidavit to that effect and be released with a waiver of the amount due. See 38 Ill. Rev. Stat. ¶ 180-6 (1972) (repealed by P.A. 80-741, § 1, eff. Oct. 1, 1977). It is unclear, and ultimately not important, whether that former statute would have applied to the fees present here. The county defendants argue that under existing law, there are at least two ways by which an indigent defendant may obtain a waiver of the fee. They rely primarily on
Interesting though this question of state law is, we conclude that we have no need to resolve it here. First, as the district court pointed out, Illinois courts enjoy con-siderable discretion in setting the amount of bond to begin with. The indigent defendant will care about the sum of the amount that must be posted to obtain release and the amount of the administrative fee, not how much each component is. Thus, we agree with the district court that even аpart from Rule 298 and inherent power,
Plaintiffs’ attacks on the system in Illinois fail for several reasons. First, there is no indication that judges set bail at the maximum point that would be non-excessive, such that the addition of the modest administrative fee tips the balance and makes the bail constitutionally excessive. If, for example, bail of $1,000 is reasonable, it would be absurd to say that bail of $1,001, or $1,050, is automatically excessive. Second, Illinois law permits detainees to file a motion for reduction of bail,
2. Counts II, III, and VIII: Due Process
The district court dismissed these counts because it concluded that “charging arrestees a fee in exchange for providing a service simply does not implicate the Constitutiоn.” In addition, it recalled from its excessive bail analysis that the fee is de minimis, that arrestees usually have the alternative of paying their bond to the clerk without the fee (assuming that the clerk‘s office is open—a qualification the plaintiffs believe is important), and that arrestees may petition to have their bail reduced. The plaintiffs do see a due process problem here: they assert, in Count II, that the counties never established “policies, procedures, waivers, hearings, or other process whereby the Plaintiffs . . . may secure their pre-trial releasе without paying the bond fees,” in violation of the federal and state constitutions. Count III makes essentially the same arguments with respect to the arrestees’ “property interest in the bond fee paid to Defendants to secure their pre-trial release” and focusing on the lack of procedures for obtaining a refund of the fee paid for those who ultimately are found innocent or otherwise are discharged. Count VIII adds the allegation that there is no policy or procedure for those who post bond or obtain release on personаl recognizance, but do not have enough for the fees, to obtain release.
Although some of the arguments plaintiffs are presenting were not before the Supreme Court in Schlib, otherswere. In Schlib, the Court found that the administrative fee before it did not offend due process even though it was imposed on
The same things can be said of the Illinois system before us. We add that nothing in Payton I undermines this conclusion. It is important, in this conneсtion, not to confuse standing analysis with analysis on the merits. We found in Payton I that the named plaintiffs had standing to litigate whether a due process violation (and all the other alleged violations) had occurred, not that any particular part of the complaint was vulnerable to a dismissal on
Eldridge held that:
identification of the specific dictates оf due process generally requires consideration of three distinctfactors: First, the private interest that will be affected by the official action; second, the risk of an erroneous deprivation of such interest through the procedures used, and the probable value, if any, of additional or substitute procedural safeguards; and finally, the Government‘s interest, including the function involved and the fiscal and administrative burdens that the additional or substitute procedural requirement would entail.
Because our review is de novo, we have chosen to review these factors despite plaintiffs’ lack of attention to them. The private interest that is affected by the official action here is the detainee‘s liberty interest. Although, for the reasons we have already given, we think it unlikely that most people‘s liberty interests are affected at all by these fees, this case reaches us from a dismissal under
3. Count IV: Equal Protection
The district court dismissed Count IV as duplicative of Count VII, which it permitted to continue. The counties point out that although the plaintiffs included Count IV in their list of rulings covered by their appeal, they never addressed it in their opening brief; that means, the counties argue, that it is now waived. Plaintiffs sеem to agree with the district court‘s assessment: Count IV is somehow merged into Count VII, and thus nothing particular needs to be said about it here. The equal protection theory in Count IV contrasted those who must pay the administrative fee with those who do not need to do so, while Count VII claims that the bond fee is not equal among all detainees, that the setting of bond is arbitrary and capricious, and that the process irrationally treats some detainees differently from others. The overlap between Count IV and Count VII is obvious; we therefore will also treat anything in Count IV as covered by Count VII.
4. Counts V, VI, X: Unauthorized Collection of the Fee
The district court had little to say about this part of the case, holding only that these claims were not redressablein federal court. It is true that all three on their face seem primarily to raise state-law issues: Count V contends that the county ordinances and policies were not authorized by state law; Count VI asserts that before January 1, 2000, Illinois law “neither authorized the Sheriff of any county to receive a fee for taking bonds in criminal cases nor authorized the Sheriff of any county to collect a bond fee” or “to detain persons until a bond fee is рaid,” and that the 2000 state legislation is impermissibly retroactive and violates the Eighth Amendment; Count X alleges a violation of Illinois‘s separation of powers provisions, which are found in
On appeal, plaintiffs focus on the retroactivity issue and the effect of the 2000 legislation. To the extent that Counts V and VI deal with whether the practice of collecting an administrative fee was authorized prior to the Fee Act and whether the Act was retroactive, we can consider these arguments together. Illinois follows the same rules as the federal system with respect to retroactivity. See McGinley v. Madigan, 851 N.E.2d 709, 717-18 (Ill. App. Ct. 2006) (stating that Illinois follows Landgraf v. USI Film Products, 511 U.S. 244 (1994)). Under Landgraf, the court first looks to see whether the legislature clearly indicated what the temporal reach of the new law should be. If no such clear indication exists, a procedural change in the law may be applied retroactively, but a substantive change will be prospective only. In Taylor v. County of Peoria, 727 N.E.2d 700 (Ill. App. Ct. 2000), the court held that Peoria County‘s decision to increase the administrative fee from $1 to $15 did not affect a vested right. Id. at 702. In so ruling, the court said that “[a]mending the Counties Code and the Criminal Code to
To the extent that these counts raised issues purely under state law, the district court should have considered whether they fell within its supplemental jurisdiction. See
5. Counts IX, XI, XII, XIII
The district court also dismissed Counts IX (retroactivity) and XI (unlawful use of the funds collected to compensate sheriff‘s office personnel) for lack of redressability. It dismissed Count XII (funds illegally obtained and then converted by defendants) because the plaintiffs did not identify specific funds that had been converted, and it dismissed Count XIII (request for injunction against the Fee Act) because plaintiffs failed to establish that they or others would suffer irreparable harm and had no adequate remedy at law. The argument on appeal covering these four counts is exactly five lines long, with a few extra sentences on Count XIII that merely reiterate the uncontroversial proposition that sovereign immunity does not shield state officials who act unconstitutionally from an injunction. This is not enough to preserve these issues here; they too are waived.
B
As we had directed it to do, the district court on remand took up the question whether it should certify a plaintiff class including the arrestees in all of the counties other than DuPage and Kane. As part of that inquiry, it considered whether the four subclasses requested by the named plaintiffs were appropriate. It also looked at whether a defendant class of all the counties in Illinois should be created. Applying
The Act is no longer at the heart of this action; instead it is the allegedly unconstitutional implementation of the Act by counties еach acting on its own interests and by means of it[s] own devising. It is undisputed that each county independently determined how much to charge, why, and under what circumstances. Whether an individual county did so in an arbitrary and capricious manner is therefore a question which must be answered on a county-by-county basis, and it is possible that some counties violated equal protection standards and others did not. No plaintiff‘s claim could be, or is, typical of so broad a class as plaintiffs seek to establish.
Although the district court did not spell it out, one can infer that the same reasoning lay behind its refusal to certify the requested defendant class.
Plaintiffs first argue that if we were to reverse the district court‘s dismissal of the 12 claims we have already discussed, we would definitely need to order class certification. We have decided, however, to affirm that part of the district court‘s judgment, and so we turn to the second argument, which is that the court erred when it refused to find that the named plaintiffs‘claims were typical of the claims
The counties respond that the plaintiffs presented no evidence or affidavits in support of their class allegations, contrary to this court‘s recommendation in Szabo v. Bridgeport Machines, Inc., 249 F.3d 672 (7th Cir. 2001). Furthermore, the counties argue, the claims are not typical because the variance from county to county is significant. For example, plaintiffs allege that in Kane County arrestees are detained because they cannot pay the bond fee, but affidavits from several other counties indicate that arrestees are not detained if they can make bail but are unable to pay the fee. In addition, the counties point out, the named plaintiffs from DuPage County were both acquitted, but they propose to represent those who were convicted.
In Payton I, we observed that “Rule 23(a) inevitably requires consideration of the typicality of the claims presented by the named parties (Rule 23(a)(3)), which allows exploration of the question whether the essence of the suit relates to the state statute or if the named representatives’ claims are more particular to each county.” 308 F.3d at 680. In Szabo, we acknowledged the Supreme Court‘s holding in General Telephone Co. v. Falcon, 457 U.S. 147 (1982), that “similarity of claims and situations must be demonstrated rather than assumed.” 249 F.3d at 677. As the Supreme Court put it in Falcon, “[s]ometimes the issues are plain enough from thepleadings to determine whether the interests of the absent parties are fairly encompassed within the named plaintiff‘s claim, and sometimes it may be necessary for the court to probe behind the pleadings before coming to rest on the certification question.” 457 U.S. at 160.
Here, the district court did not abuse its discretion in finding that the named plaintiffs’ claims were not typical of those of plaintiffs detained in other counties. Particularly because, at this stage, a court would have to examine whether the individual county acted arbitrarily and capriciously in setting its bond fee, whether it released people who made bond but did not pay the fee, whether the judges effectively set bond and fees taking into account the total financial burden on the arrestee, and other individualized factors, the district court‘s conclusion that the prerequisites for either a plaintiff or a defendant class were not met strikes us as entirely reasonable. This conclusion makes it unnecessary for us to comment on the various subclasses the plaintiffs wanted to certify.
II
For these reasons, we AFFIRM the judgment of the district court dismissing all but Count VII from the Fourth Amended Complaint, and refusing to certify any class on Count VII with respect to the claims made against the 37 counties other than DuPage and Kane.
A true Copy:
Teste:
Clerk of the United States Court of Appeals for the Seventh Circuit
USCA-02-C-0072—1-18-07