Jurisdictional Statement — Schilb v. Kuebel

Supreme Court brief1972

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IN THE if

‘Supreme Court of the United States

Ocroser Term, , 1970 — 47 0- g oO

No. FS |

JOHN SCHILB, et al., .

: | Plaintiffs. Appellants; .

vs.

VINCENT P. KUEBEL, as Clerk of the Circuit Court

of St. Clair County, et al.,

Utentante Aveliees

On m appeal from the Supreme Court of - State a) Illinois

J URISDICTION AL STATEMENT

— 4 .

SAM S.PESSIN, | —- JOHN J. O'TOOLE,

25 Main Street, —s 111 West Washington S

Belleville, Illinois 62220. Chicago, Illinois 60602. =

. CORNELIUS F. DORE, . JOHN C. CASTANES,. f

. One North La Salle Street, . 69 West Washington Street, =

Chicago, Tlinois 60602. Chicago, Illinois 60602. |

| eee for Plaintiff s-Appellants.

KEENAN PRINTING COMPANY <P ses

INDEX

PAGE

Opinions Below ee er re 2

Furindiction .........c.seceseeeeeeesenes eee 2

Statute Involved ........5........ eee e tee eeee eee. 8

Questions Presented (pubeteewcaaauesd fies seeasheee 3

Statement Of The Case ...............-. eaeeene es 4

The Federal Questions Presented Are Substantial ... 6

I. The Imposition Of A Bail Cost On Only One

Segment Of A Class Seeking Pretrial Release

Is In Contravention Of The Decision Of This

Court In Rinaldi v. Yeager, 384, U.S. 305, .

BUS 11906). one ceyesnGecywas sent oeesssgcees 8

II. The Imposition Of Bail Costs On The Poor

And Non-Affluent While No Such Costs Are

Imposed On The Rich And Affluent Is In

Direct Contravention Of The. Spirit And

Principles Of Griffin v. Illinois, 351 U.S. 12

(1956), And “The Federal Bail Reform Act

OF 1906. eres yewcerees exe ss eas hb Gaees ces4 9

Ill. The Imposition Of A Bail Cost On An Ac-

eused Found Innocent Of A Crime Violates

The Spirit of Giaccio .v. Pennsylvania, 382

US. 399 (1966), And The Federal Bail Re-

* form Act Of 1966, ..c0s20s0svicieestedens. 11

Conclusion .............. Se eakees se eee weeikeen Oe

“Appendix A, Majority Opinion in Schilb v. Kuebel,

(October 7, 1970) ........ cee ee eee eee seen ee App. 1

AAA ROIS OS LBP bai AEC EEN: Ki BN Pe,

tl acl het Sa hoe ie

ii.

Appendix B, Dissenting Opinion in Schilb v. Kuebel

of Mr. Justice Thomas E. Kluczynski and Mr. Jus- —

tice. Walter V. Schaefer (December 3, 1970) .. App. 16 ©

Appendix C, Supreme Court of Illinois, Order of De-

cember 3, 1970 Denying Petition For Rehearing App. 19 —

Appendix D, Article 110 of The Illinois Criminal Code

[Ill. Rev. Stat. 1963, et seq., Cp. 38, Par. 110-1

i ene nC re ee ere ee App. 20

Appendix E, Senate Bill 2840, 88th Congress, Sec-

ond Session .:..... Has bee se cece e ole os yest .. App. 30

CITATIONS

CASES

Bandy v. U.S., 81 C. Ct. 197 (1960) .:.....-. ....3, 9, 10

Coppedge v. U.S., 369 U.S. 488 (1962) .........-. nee 8

Douglas v. California, 372 U.S. 353 (1963) .......... 9

Douglas v. Green, 363 U.S. 192 (1960) ............. 9

Giaccio v. Pennsylvania, 382 U.S. 399 (1966) .....: 3, 4, 11

Gideon v. Wainwright, 372 U.S. 335 (1963) ......... 9

Griffin v. Illinois, 351 U.S. 12 (1956) peekeuneans 3, 9 11.

y Malani v. Illinois, 386 U.S. 12 (1901) cxttaeevstives 9

Pointer v. Texas, 380 U.S. 400 (1965) ............. 9

Rinaldi v. Yeager, 384 U.S. 305 11906) vcedueeeecxs 3, 8

Stack v. Boyle, 342 US. 1 (ior) cece eens euaewees 10

CoNSTITUTIONAL PROVISIONS

Due Process and Equal Protection of the Laws Clauses

of the Fourteenth Amendment to the United States

Constitution. «2544055 + 45s eseays aes 2, 3, 4, 5, 8, 9, 11

aeer

STATUTES

Federal Bail Reform Act of 1966 (18 U.S.C. 3141-

BLOZ) cans Save sevewcawytssseswcssswnciues 3, 4, 7, 9, 10

Artiele 110 of The Hlinois Criminal Code (IlL Rev.

Stat. 1963 et seq., Cp. 38, Par. 110-1 et seq.) 1, 2, 3, 4,

5, 6, 7, 8, 9, 10, 11

Section 12.30.020 of Code of Criminal Procedure

(Alaska Stat. Ann. 1967, Ch. 30, Section 12.30.020 _

Section 763.16 of Bail (Iowa wade Ann. 1967, Seec-

tion 76 SG) gésscenveecsacecsx oyna esas seus es eeye

Sections 969.02 and 969.03 of Criminal Proceduré

(Wisconsin Stat. Ann. 1970, Ch. 969, Pars. 969.02-03

MISCELLANEOUS

Attorney General’s Committee on Poverty and the Ad-

ministration of Criminal Judicial Procedure (U.S.C.

Cong. And Admin. News 1966) ...... ween de oee aes

Congressional Record (Vol. 112 Con. Rec. 89th Con-

gress Second Session pp. 12488-12504) ...........

Hearing before: Committee on Judiciary, U.S. Senate,

Second Session, S. 2838, S. 2839 and S. 2840, August

4-6, 1964, pg. 364-statistics ...5............. eee

_Illinois, S.H.A. Ch. 38, See. 110, Committee Comments

National Conference on Bail and Criminal Justice,

May 27, 1964 ..... eT Te Te Sie hide teow eas

Senate Bills 2838, 2839, 2840, 88th Congress, 2nd Ses-

BON ovo ceceewun sus saw sian en es wes de asoeaes

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IN THE

Supreme Court of the United States

OctoBer TERM, 1970

No. —

JOHN SCHILB, et al.,

— -Platwntiffs-Appellants,

VS.

VINCENT P. KUEBEL, as Clerk of the Circuit Court

of St. Clair County, et al.,

| Defendants-Appellees.

On appeal from the Supreme Court of the State of Illinois

JURISDICTIONAL STATEMENT

Appellants appeal from the judgment of the Supreme

Court of Illinois which held the bail cost retention provi-

sion of the Illinois Criminal Code [Ill. Rev. Stat. 1963

ete. Cp. 38, Par. 110-7(f)] valid and not in contravention

of the Due Process and Equal Protection of the Laws

Clauses of the Fourteenth Amendment to the Constitution

‘of the United States.

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OPINIONS BELOW

The majority opinion of the Supreme Court of Illinois

was filed on October 7, 1970, with the dissent of Mr.

Justice Thomas E. Kluezynski and Mr.— Justice Walter

V. Schaefer noted (App. A, p. 1)..

On December 3, 1970 the w ritten dissenting opmion

was filed (App. B, p. 16) and appellant’s Petition for Re-

hearing was denied (App. C, p. 19).

The majority and dissenting opinions are reported at

46 Til. 2d 538 and 264 N.E. 2d 377.

J URISDICTION

This action was instituted by John Schilb, individually

and for all others similarly situate, who were charged

bail costs under Sec. 110-7(f) of the Illinois Criminal Code

[Ill. Rev. Stat. 1963 ete. Cp. 38, Par. 110-7(f)] (App. D,

p. 23).

The sonnplaint sought a declaratory judgment that Sec.

110-7(f) violates the Equal Protection of the Laws and

Due Process Clauses of the Fourteenth Amendment to the

Constitution of the United States (Ree. Ex. C-5). The

‘Cireuit Court of St. Clair County, Illinois, specifically

held Sec. 110-7(f) of the Illinois‘Criminal Code constitu- .

tional (Rec. Ex. C-18). An appeal was taken to the Su-

preme Court of the State of Illinois which on October (f

1970, affirmed the decision of the trial eourt (App. A,

p. 1).

A Petition for Rehearing was filed and thereafter, on

_ December 3, 1970, the Petition was denied (App. C, p. 19)

and the dissenting opinion of Mr. Justice Thomas E..

Kluezynski and Mr. Justice Walter V. Schaefer filed (App.

B, p. 16). A Motion for Reconsideration of the denial of

the. Petition for Rehearing was denied on January 14,

1971 (Ree. 138).

_ The Notice of Appeal to the Siprene Court of the

United States was filed on February 12, 1971 (Rec. 16).

The jurisdiction of the Supreme Court of the United

States to review the judgment of.the Supreme Court of

Illinois by appeal is conferred by 28 U.S.C. 1257(2) and

sustained by Rinaldi v. Yeager, 384 US. 305 (1966) ;

Giaccio'v. Pennsylo ania, 382 U.S. 399 (1966).

_STAUTE INVOLVED

This cause involves the constitutionality of the bail

cost retention provision of Section 110-7(f) of Art. 110 of

the Illinois Criminal Code [Il]. Rev. Stat.. 1963 ete. Cp. 38, |

Par. 110-1 et seq.] (App. D, pp. 20-29). | | °

QUESTIONS PRESENTED

The following questions relating to the Due Process :

and Equal Protection of the Law Clauses of the Four-

teenth Amendment to the Constitution of the United

States are presented, by this appeal:

1. May a State impose a bail cost on only one segment

of a class seeking pretrial release without contravening

the decision of this Court in Rinaldi v. Yeager, 384 U.S.

305, 308 (1966) ?

2. May a State impose bail costs on the poor and non-

affluent while imposing no such costs on the rich and af- ©

fluent, without contravening the spirit and principles of

Griffin v. Illinois, 351 U.S. 12 (1956); Bandy v. U.S., 81

S. Ct. 197 (1960); and the Federal Bail Reform Act of |

1966 (18, U.S.C., 3141-3152) ? . ~

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3. May a State impose a bail cost on a person found

innocent of a criminal charge without violating the spirit

of Giaccio v. Pennsylvania, 382 U.S. 399 (1966); and, the

Federal Bail: Reform Act of 1966, (18, U.S.C., 3141-3152? —

STATEMENT OF THE CASE

The 73rd General Assembly of the State of Illinois

revised its statutory bail procedures by enacting Article

110 of the Illinois Criminal Code [IIl, Rev. Stat. 1963, Cp.

38, Par. 110-1 et seq.) (App. D, pp. 20-29).

Article 110 provides for the pretrial release of a crim-

inally accused in one of three ways: his own recognizance

(Section 110-2) (App. D, p. 20); deposit of 10% of the full

amount of bail (Section 110-7)- (App. D, pp. 22-24); or,

‘deposit of cash, stocks or bonds in the full amount of bail,

or pledging real estate in double the amount of bail (Sec-

tion 110-8) (App. D, pp. 24-27)..

This statute further provides for the ; lu position: of a

bail cost on {those released on deposit of 10% of: bail

[Section 110-7(f)] (App. D, p. 23). Conversely, under

either release on recognizance (Section 110-2) or on the

- deposit of the full amount of bail pee 110-8) no

costs are imposed. —

- On July 29, 1969, John Schilb individually and on be-

half of all others similarly situate, as a class, filed a Com-

plaint in Chancery alleging that the bail cost retention

provision of Section 110-7(f) of the I[linois Criminal

Code “* * * is unconstitutional and deprives said defend-

ants (in criminal proceedings) of their property without

due process of the law, and in violation of equal protec-

tion of the laws contrary to the 14th Amendment to the

Constitution of the United States * * *” (Ree. 1, C. 5).

The States Attorney of St. Clair County specifically de-

‘

nied the aforementioned allegation in his answer (Rec.

1, C. 11). Trial briefs were filed and the Federal Constitu-

ln questions were raised thérein.

The Circuit Court of St. Clair County on July 6, 1970

und the issues against the plainfffts, and “particularly

finds Section 110-7, Subparagraph (f) of the Criminal

Code proceedings i: constitutional” (Ree. 1, C..18).

An appeal was taken directly to the Supreme Court of

Illinois for as the opinion states: “The case involves sub-

stantial constitutional questions, giving this Court Juris-

diction on direct appeal” (App. A, p.1).

The Federal Constitutional questions were raised in the

Supreme Court of Illinois in the Appellants Brief (Ree. 2,

p. 2); contested in the Briefs filed for the defendants

(Ree. 3), and for Amicus Curiae (Rec. 6); and, reiterated

in the Reply Brief, (Ree. 5), Oral Argument, Petition for —

Rehearing (Rec.-10) and Motion for Reconsideration of

the denial of the Petition for Rehearing (Ree. 12).

These Federal Constitutional issues were noted in the

Opinion of the Supreme Court of the State of Illinois

(App. A, p. 3): «

“Plaintiffs contended that the cost retention pro-

vision of Section 110-7(f) of the Code of Criminal

Procedure is unconstitutional because it violates the

equal protection and due process clauses of the Four-

teenth Amendment to the Federal Constitution: * * *”

and the Court specifically ruled (App. A, pp. 14, 15):

“No unconstitutional discrimination is involved and

the legislative enactments are not in violation of

‘fundamental concepts of due process or equal pro-

tection of the law.”

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‘THE FEDERAL QUESTIONS PRESENTED

, ARE SUBSTANTIAL

“The Federal constitutional questions presented in this

appeal are substantial and require the plenary consider-

ation of this Honorable Court.

THE ISSUES PRESENTED ARE OF TIMELY

AND NATIONAL IMPORTANCE

In. recent “years there has been much disenchantment

with the inequalities of the bail system on both Federal

and State levels.

In 1963, the 73rd General Assembly of the State of

Illinois revised its bail proceedings by enacting Article

110 of the Illinois Criminal Code (Ill. Rev. Stat. 1963, Cp.

38, Par. 110-1 et seq.) (App. D, pp. 20-29), which pro-

vides for the pretrial release Of a criminally accused:

1. On his own recognizance (Bee. 110-2 (App. D, p.

20); |

2. Deposit of 10% of the full amount of bail (See. 110-

7) (App. D, pp. 22-24) ; | oo

3. Deposit of cash, stocks or bonds in the-full amount

of bail, or pledging real estate in double the amount of _

‘pail (Sec. 110-8) (App. D, pp. 24-27). |

Section 110-7 (f) (App. A, p. 23) of the statute imposes

a bail cost upon those released under Section 110-7—but

imposes no costs upon those released under Sections 110-

2 or 110-8.

Similarly, Senate bills. 2838, 2839, 2840 were introduced

into the 88th Congress which were a Federal counterpart

of Article 110. As in Mlinois, Senate Bill 2840 (App. ‘e,

PP. 30- 32) ae to impose a bail cost on :those” epee

‘

ing 10% of bail. These bills died in Committee; however,

the substance thereof was resubmitted in the 89th Con- ~

gress. as Senate Bill 1357 (Federal Bail Reform Ac :

1966)—-with one ‘major exception—S. 1357. removed

bail cost provision on those depositing 10%. of bail. Thus,

under Federal procedure no bail costs are imposed on any

segment of the class seeking pretrial release [18 U.S.C.

3146(a) (3)].

Subsequent to the enactment of the two fecscoing ‘sta-

tutes, several of the States enacted provisions permitting

cash deposits and release upon recognizance. Significantly

. three states have enacted 10% deposit provisigns. similar

to Section 110-7 and 18 U. S.C. 3146(a) (3).

Two of these states, Alaska’ and Iowa’, properly fol-

lowed the Federal Act and impose no oot on any seg:

ment of the class gaining pretrial freedom. However, last

July, Wisconsin® followed: Hlinois, in part, by imposing

_a bail cost on those depositing 10% who were found-guilty

- —but properly imposed no cost on the acquitted or dis-

charged.

. It is submitted that because of the pressing necessity of

bail reform, other states are enacting, or will enact, ‘pro-

gressive bail legislation. If the decision of the Supreme

Court of Illinois is permitted to stand, it, will serye as

precedent and inducement for states to impose unconstitu-

tional bail costs upon the citizens of the United States.

1.. Section 12.30.020 of Code of Criminal Procedure .

(Alaska Stat. Ann. Cp. 30, Section 12.30.020).

2 Section 763.16 of Bail (Iowa Code Ann. 1967, See-

tion 763.16).

3. Sections 969.02 and 969.03 of Criminal Procedure :

(Wisconsin Stat. Ann. 1970, Ch. 969, Pars. 969.02-03).

OSE Was HT et

THE IMPOSITION OF A BAIL COST ON ONLY ONE

SEGMENT OF A CLASS SEEKING PRE-TRIAL RE-

LEASE IS IN CONTRAVENTION OF THE DECI-

SION OF THIS COURT IN RINALDI V. YEAGER,

- 384, U.S. 305, 308 (1966).

Article 110 of the Illinois Criminal Code provides for

pretrial release upon an individual’s recognizance (Sec.

110-2); deposit of 10% of bail (See. 110-7); or, deposit of

full bail (Sec. 110-8).

All form a class to whom services are rendered by the

_ Clerk of the Court (App. A, p. 3). Yet, a bail cost is im-

posed only on those reteased by depositing 10% of full

bail—with the ultimate result that one segment bears the

burden of défraying the administration of all bail bonds.

Appellants submit that the aforementioned imposition

of costs on this one segment of the class is in direct con-

flict and indistinguishable from the decision of this Court

in Rinaldi v. Yeager, 384 U.S. 305, 308 (1966).

In Rinaldi, New Jersey, by statute, afforded all unable

to procure a transcript of their criminal trials, a free

transcript for the purpose of appeal. However, it went

one step further and provided that one incarcerated in

the penitentiary after the affirmance of his conviction was

required to repay the cost of the transcript. No corres-

ponding charge was imposed on parolees, probationers, or ,

those given a suspended sentence.

in the Opinion by Mr. Justice Stewart, expressing the

view of 8 members of the Court, it was held (p. 308) that

a statute imposing costs on only one segment of a class is

in violation of the Equal Protection Clause of the Four-

teenth Amendment to the Constitution of the United

States. |

_ Section 110-7(f) of Illinois Criminal Code is‘equally un-

constitutional for .it imposes a cost on only one segment

. of the class afforded a service by the Clerk of the Court.

II.

_ THE IMPOSITION OF BAIL COSTS ON THE POOR

AND NON AFFLUENT WHILE NO SUCH COSTS

ARE IMPOSED ON THE RICH AND AFFLUENT IS

IN DIRECT CONTRAVENTION OF THE SPIRIT

AND PRINCIPLES OF GRIFFIN V. ILLINOIS, 351,

U.S. 12 (1956), AND THE FEDERAL BAIL REFORM

ACT OF 1966.

This Court has consistently held that a person cannot

be penalized in a quest for justice due to a lack of wealth.

Griffin v. Illinois, 351 U.S. 12 (1956);-Gideon v. Wain-

wright, 372 U.S. 335 (1963); Douglas v. Green, 363 US.

192 (1960); Pointer v. Texas, 380 US. 400 (1965); Doug-

las v. California, 372 U.S. 353 (1963); Coppedge v. U.S.

369 U.S. 488 (1962); and, Malani v. Illinors, 386 U.S. 12

(1967).

In relation to the.Griffin doctrine, Mr. Justite Douglas

in Bandy v. U.S., 81'S. Ct., 197 (1960) (bail application)

- made it eminently clear that when discussing “rich man

—poor man,” the poor man is not necessarily destitute,

but rather, a man without “enough property to pledge for

. his freedom”’.

Poverty, therfore, in relation to bail, is merely whether

‘one possesses sufficient assets to meet the bond set by the.

Court. . °

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It has been established that as the amount of bail in-

creases the percentage of those able. to obtain pretrial re-

lease significantly decreases (Hearing before Committee

on Judiciary, U.S. Senate, 88th Congress, 2d Session, 8.

9838, S. 2839, and S. 2840, Aug. 4-6, 1964, pg. 364-Sta-

tistics). As Mr. Justice Thomas E. Kluezynski and Mr.

Justice: Walter V. Schaefer, in their dissent in-the jnstant

case stated: (App. B, p. 16); “This Court must take judi-

cial notice of the fact many defendants cannot afford to

pay the full amount of bail.” Accord.* |

It was this concept that led to the passage of the Fed-

eral Bail Reform Act of 1966, and Article 110 of the Tili-

nois Criminal Code. These statutory provisions enable

those unable to afford the full amount of bail to exercise

their constitutional right to pretrial freedom [Stack v.

_ Boyle, 342 U.S. 1 (1951)], by depositing 10% of the full

_ amount of bail. &s

Since many defendants in criminal cases lack “enough

property” to deposit the full amount of bail, they have

no choice. but to deposit 10% or remain inearcerated and

suffer the pitfalls attendant thereto. Bandy v. U:S.,81 S.

Ct.-197 (1960).

Upon these non-affluent, Illinois imposes a bail cost

(Section 110-7). No such cost is imposed by the Federal.

Act [18 U.S.C. 3146(a)(3)]. In addition, Illinois imposes

no bail costs on the rich or affluent who can afford the

4. Bail Reform Act of 1966 (18 U.S.C. 3141-3152);

Congressional Record (Vol. 112 Con. Ree. 89th Congress,

Second Session pp. 12488-12504); S.H.A. Ch. 38, Sec. 110,

Committee Comments; Attorney General’s Committee on

Poverty and the Administration of Criminal Judicial: Pro-

cedure (U.S.C. Cong. and Admin. News 1966); National

Conference on Bail and Criminal Justice, May 27, 1964.

full amount of bail (Section 110-8). Thus, those least

able to afford it, the poor and non-affluent, who have no

choice but fo remain in jail or deposit 10% of bail, are un-

constitutionally “penalized in a quest for justice due to a

lack’ of wealth”. Griffin v. Illinois, 351 U.S. 12, (1956).

III.

THE IMPOSITION OF A BAIL COST ON AN AC-

CUSED FOUND INNOCENT OF A CRIME VIO.

LATES THE SPIRIT OF GIACCIO V. PENRe==

VANIA, 382 U.S. 399 (1966).

There is ‘an. additional aspect of the bail cost provision

of Section 110-7(f), which is legally and socially shock-

ing. An innocent person accused of a crime, put to the ex-

pense-and anguish of a trial, and then discharged, is as-

sessed a cost for exercising his constitutional right to re-

lease pending trial.

In Giaccio v. Pennsylvania, 382 U.S. 399 (1366), Mr.

Justice Stewart and Mr. Justice Fortas, in concurring

opinions (p. 451-2), stated that the imposition of a cost

upon an innocent accused violates the most rudimentary

concept of the Due Process Clause of the Fourteenth

Amendment to the Constitution of the United States. Is

this not the law of the land?

viol Be Ache mS ER

CONCLUSION

For the foregoing reasons this Court should note prob-

able jurisdiction in this case and give plenary .considera-

tion to the substantial constitutional questions presented.

Respectfully submitted,

SAM S. PESSIN, JOHN J. O'TOOLE,

25 Main Street,

111 West Washington Street,

Belleville, Mlinoig 62220. - Chicago, Illinois 60602.

CORNELIUS F. DORE,

One North La Salle Street,

Chicago, Illinois 60602.

JOHN C. CASTANES,

39 West Washington Street,

- Chicago, Illinois 60602.

Attorneys for Plaintiff s-Appellants.

Jun ei

APPENDIX A

MAJORITY OPINION

Docket No. 42845—Agenda 47—March, 1970 .

JOHN Scuut et al., Appellants, vs. Vincent P. Kveset,.

Cireuit Clerk, et al., Appellees.

‘Mr. Justice Burt delivered the opinion of the court:

Plaintiffs appeal from an order of the circuit court of

St. Clair County dismissing their complaint against de-

fendants, clerk of the circuit court of St. Clair County,

county treasurer of St. Clair County and county of St.

Clair, in a class action wherein plaintiffs alleged that

the cost retention provisions of section 110—7(f) of the

Code of Criminal Procedure of 1963 (Ill. Rev. Stat. 1963,

ch. 38, par. 110—7(f) are unconstitutional, and sought |

recovery on behalf of all those who had been charged

with: and had paid bail bond costs under the statute in —

question in the circuit court of St: Clair County from

and after the effective date of the act. The case involves

substantial constitutional questions, giving this court. jur-

isdiction on direct appeal.

The cause was submitted in the trial court on a stipula-

tion of facts which we summarize here to the extent neces-

sary for purposes of this decision. The act in question was

adopted on August 14, 1963. Since that time Vincent P.

Kuebel, clerk of the cireuit court of St. Clair County, and |

Minus Js Joseph, treastrer of said county, and their

predecessors in office, acting under the statutory provi-

sions, have collected from plaintiff, John Schlib, and many.

other defendants in criminal actions, who were acquitted

by trial courts of their respective charges, a sum equal to

10% of their respective deposits of bail security. These

collections were made in good faith by those officials in

ONT ATT RE Te I RIG RE tLe EIN! aD a

AU GSES ES,

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PEROT AUR GND BIER Oe

accordance with their oaths of office as understood by

them and under color of authority of the act. The exact: -

account of all of said collections are present in the rec-

ords of said offices and should be agreed upon by the

parties for subsequent purposes in the event the court

shall award the relief sought by plaintiffs.

On January 16, 1969, Schlib was arrested and ‘charged

with leaving the scene of an accident, on which he posted

$50 cash bail security and obstructing traffic on which $25 -

cash bail was posted. He was found guilty of one charge

and not guilty of the other. He was charged and paid, in

addition to any fine, $5 and $2.50, or a total of $7.50 as

cost charges for such bail. A large number of other de-

fendants have paid the 10% bail charge required by the

statute after being found guilty (whether by trial or on

plea) or upon being found not guilty (either by trial or

dismissal.) It was agreed that the essential questions of

fact, as concerns the issue, are similar as to all defendants

in all crifninal cases in said circuit court, since the effec-

tive date of the act, who posted cash bail security, and

that questions of law are similar. in all such cases also as

they pertain to the issues, . -particularly the claim of un-

constitutional collection of bail bond costs which is com-

‘mon to the interest of such defendants in criminal cases

in said court.

The parties further apres that there was a bona fide

dispute between them brought without collusion; that it

is impractical if not impossible to join all members of

the class to which plaintiff belonged as parties; that this

action would avoid undue and unnecessary multiplicity

of actions and that plaintiff, Schlib, brings the action in ©

a representative capacity for and on behalf of each mem-

ber of the class whose interests are similar who would

proportionately share in the expenses of the litigation.

In addition to including in their stipulation the entire

provisions of section 110—7, the parties refer to section

110-8 (Ill. Rev. Stat. 1969, ch. 38, par. 110—8) and state

that it provides in essence for depositing of cash, stocks

or bonds in the full amount of bail or pledging interests

in real estate in double the amount of bail fixed without

payment of any fee and that actual costs of administering

the provisions of sections 110—7 and 110—8 are substan-

tially the same but that there may probably be a slightly

- higher cost attendant upon administering section 110—8.

Finally, the parties agreed that the amount of bail in

each particular case is not fixed by the clerk or treasurer

but by a judge whose discretion is not guided by statute,

rule of court or any fixed standard; that various judges

fix the amount of bail for the same types of offenses at

various and divers amounts, without relationship as to

guilt or innocence of the particular defendant and without

relationship of the particular offense and the bail fixed.

Plaintiffs contend that the cost retention provision of

section 110—7(f) of the Code of, Criminal Procedure is

unconstitutional because it violates the equal-protection

and due-process clauses of the fourteenth amendment to

the Federal constitution and section 2 of article II of the

constitution of Illinois. Specifically it is urged that the

cost retention provision creates a discriminatory disparity

within a homogeneous class; that it operates to create an

unconstitutional disparity between the affluent and non-

affluent.anc that it is unconstitutional as creating a dis-

parity among those obtaining release by the deposit of

' 10% of the amount of bail, Additionally it is claimed that

the provision is illegal and void as in violation of section

19 of article II of the Illinois constitution because it

amounts to requiring an assessment of costs against a

discharged defendant. Defendants argue that these claims

of unconstitutionality are without merit. They,’ also _sug-

gest that there is no basis for the bringing of a ‘class ac-

.tion under the facts here involv ed.

ee ee ee

- Criminal Procedure (Tl. Rev. Stat. 1963, ch. 38,.

In 1963: the General Assembly enacted oe aad of

pars. 100

—1 et seq.) Among its comprehensive provisiors are those

of article 10 relative to bail in criminal cases. (Ml. Rev. .

‘Stat. 1963, ch. 38, pars. 110—1 to 110—5 inclusive.) Sec-

tion 110—2 provides for the release of an accused on his

own recognizance where from all the circumstances the

eourt is of the opinion that the accused will appear as re-

quired either before or after conv iction. The statute im-

poses criminal sanctions for failure to appear as required

--. as well as provisions for forfeiture and collection. (Ill.

Rev. Stat. 1963, ch. 38, par. 110—2.) Section 110—7 repre-

sents a new departure in dealing with the problems of »

bail in this State. It provides that a person for whom bail

-has been set shall | execute a bail bond and deposit with

the clerk of the court*a sum of money equal to 10% of

the bail upon the deposit of which he shall be releas&d

subject to the conditions of the bond which involve for-

feiture of the full amount for nonappearance as well as

the imposition of a criminal penalty. Section 110-47(f)

provides for a return of 90% of the bail deposit when the

conditions of the bond have been performed and the ac-

cused. has been discharged ffom all obligations, with the

stipulation that the clerk’ shall retain as bail bond costs -

10% of the amount deposited. (ill. Rev. Stat. 1963, ch. 38,

pars. 110—7(a) (b), (f).) The amount retained represents

one percent of the amount of bail originally set by the

court. Section 110—8 provides for a different type of pro-

cedure in posting bail from that prescribed in section 110

“

¢ 5

—7. It provides that “in liew” of the bail deposit provid-

ed for in section 110—7 any person for whom bail has -

been set may execute, the hail bond with or without sur-

- eties, which bond may be secured by a deposit with the’)

clerkof an amount equal to the hail, of cash, or ieee

and bonds, or by real estate situated in this State with

unencumbered equity not exempt, owned by the accused

or sureties worth double the amount of bail set in the

bond. (Ill. Rev. Stat. 1963, ch. 38, par, 110—8.) With the

exception of certaiy’ changes not directly Anvolved in the

questions presented in this appeal the foregoing statutory

provisions remain substantially the same at this time and

the three alternative means or methods specified in article

10 constitute the only ways in which release on bail can

be had in this State. See: Ill. Rev. Stat. 1969, ch. 38, pars.

110—2, 110—7, 110—8.

The above legislative enactments represent substantial

reforms in bail practices in this State and came about

only ‘afer extensive studies of certain evils inherent in

our ‘former system and a comparison with practices in

the Federal courts and in other. jurisdictions. (See Com-

mittee Comments, -S.H.A., ch. 38 § 110—1 et seq. 298 et

seq. )From this rather extensive and revealing discussion

it appears that the central purpose: of the legislature in

enacting sections 110—7 and 110—8 was to severely re-

strict the activities of professional bail bondsmen who

customarily collected 10% of theeamount of a bond as a

fee which was retained whether or not the conditions of

the bond were met by the accused. The prevalence of this

— Rractice was noted in our opinion in People ex rel. Gendron

V. Ingram, 34 Ill: 2d 623, 626, in which this Court ‘sus-

tained the constitutionality of the 1965 amendment to sec-

‘tion 110°-1(g) of the Code of Criminal Procedure making

‘ sections, 110—7 and 110—8 the exclusive means of posting

(

bonds in criminal cases in this State. In short, as the Com-

mittee Comments show, the object of the statutes was to

reduce the cost of liberty to: arrested persons awaiting

trial. One of the matters noted in connection with the

former practice was that the pecuniary loss deterrent to

jumping bail which was its central.idea was simply not

working in a system where payment of a bond premium

was required without regard to performance of conditions.

At the same time certain studies showed that, in spite of

collecting a 10% fee, actual judgment on forfeitures paid

by professional bondsmen amounted to only one per cent

of the bonds written. It was reasoned, therefore, by those.

who studied the problem that a much fairer system would

-result if a plan such as that provided by section 110—7

were evolved with an accused, who has faithfully per-

formed the conditions of his bond, retaining substantially — =

the amount formerly pocketed by the professional , bonds-

man while allowing to the courts a reasonable fee as bond

costs for handling bail bonds and offsetting the monetary

amount of any loss resulting from the occasional bail

jumpers where the professional bondsman under the for-

mer system might have forfeited the amount of bail.

Otherwise stated, the ultimate objective of this reform

was to regain from professional bondsmen. the control of:

bail releases and restore such control to the courts where

it rightfully belongs. (See Bowman, The Illinois Ten Per

Cent Bail Deposit Provision, 1965 Ill. L. Forum 39, 36-37.)

As the author’ points out, the scheme devised in this State

has since been copied in bills introduced in other States

and in Congress. As finally adopted the bill passed by ~

Congress eliminated the 10% retention of the eash de-

posit, (18 U.S.C. 3146(a)(3).) But New York’s applicable

legislation provides that cash, stocks and bonds may be

deposited in-lieu of bail and that a fee of two per cent

for receiving, keeping and paying out the same may be

charged. See: N.Y. Code of Criminal Procedure, vol. 66,

see. 586.

Plaintiffs’ first point is that section 110—7(f) .of the

Code of Criminal Procedure ds unconstitutional because it

requires those seeking release under the provisions of sec-

tion .110—7 to pay bond costs, whereas those who use

either section 110—2 (recognizance) or section 110—8

(deposit of full amount in eash or securities or pledge of

real estate in double the amount) are not required to

. pay any costs whatever. In this connection plaintiffs

- argue that all accused are sut generis, for each seeks pre-

trial release, and that to require payment of costs as a

condition of pretrial freedom in the one case and not in

the others constitutes an unconstitutional discrimination

among the members of a homogenous class.

With respect to plaintiffs’ position on unconstitutional

classification it will be observed that it rests entirely upon

the assumption that there is no basic or reasonable differ-

ence between those obtaining release under sections 110—

2, 110—7 and 110—8. It is said that all are accused of

crime and seek release from pretrial custody and that the

difference in their treatment relative to cost is a violation

of fundamental concepts of équal protection and due proc-

ess. In other words, the argument is that because the re-

sult of release is sought in each case there is but one class

of persons who must be treated alike. However, though

the end result may be release in all cases, whatever course

may be followed, it-must be apparent, we believe, that the

means by which release is sought is entirely different in

each of the sections of the statute in question. This is not

only factually so but historically the legislative approach

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tions of the statute to meet specific separate problems.

(See Committee Comments, 8.H.A., ch. 38 § 110—1 et seq.

p. 298 et seq.) Thus section 110—2 providing for release on

the aceused’s own recognizance was designed to meet a

condition revealed by factual studies which proved that

the great majority of persons released on bail have no

intention of: violating bail and will appear for trial. The

studies further developed a second premise, that to the

extent that pecuniary loss is a deterrent, such financial

loss should be minimized in the case of the person who

appears for trial. Section 110—7 (deposit of 10% of the

amount. fixed for bail with a return of 90% of the deposit

on- performance of conditions) was designed specifically

to: fulfill the needs shown by the second premise‘and cur-

tail the activities of the professional bondsman. This sec-

tion, by its wording, is obviously designed as the princi-

pal method to be used in giving bail. Section 110—8 pro-

vides for a method which may be used in “lieu of the bail

deposit provided for in section 110—7” and, according to

the comment, is designed primarily to meet the need of

a method of posting relatively small amounts of cash bail

in traffic cases and the like. It is stated in the above ref-

erence at p. 324: “It should always be kept in mind, how-

ever, that section 110—7 provides for one type of proced-

ure in posting ail, section 110—8 another.”

It appears that the legislature did not consider itself

as dealing with a single problem—i.e., a provision of pro-

cedures for those entitled to bail generally. Instead it re-

garded situations possibly giving rise to separate needs

and sought to accommodate those requirements. As to

section 110—7, as already related, it sought to reduce the

cost ‘of bail and the high incidence of “bail gouging” by

we SE KERR EAT.

to the problems presented was to design the different sec-

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providing a method whereby any citizen accused of crime

might have his liberty pending trial with a ‘minimum of

cost. On the other hand, it was careful to recognize and

protect the rights of those who could and should be re-

leased upon ther own recognizance within the limits of

judicial discretion without any bond cost whatever. In

none of the provisions in question is release conditioned

upon the payment of hail costs in advance nor ean pay-

ment of the one percent fee ultimately deducted under

section 110—7(f) be considered a condtion precedent to

the selection of section 110—7 as the method of acquir-

ing release. The only condition precedent to release under

the provisions of section 110—7 is the payment of 10%

of the amount of -bail as fixed -by the court, and plaintiffs

disclaim any thought of questioning the constitutionality

of that requirement, for they say that the sole question

before the court: is. the constitutionality of subparagraph ;

(f) of section 110—7. Further, they say: “The plaintiffs é

herein wish to make it eminently clear that they do not.

in any cn fault the principles: of Article 110 of the t

AIRONET IE IY FR TIO

Illinois Code, /they do however, take exception to the cost

provision of Se tion 110—7(f) which is patently uncon-

stitutional.” The ultimate question on this portion of the

case is, therefore, whether the provisions of subsection

(f) of section 110—7 are fatal to an otherwise admittedly

valid legislative classification as provided in the three

sections in question and particularly that of section 110

—7. .

This court has held that the test whether a legislative

act affords equal protection to all persons affected by it

is “whether the legislative enactment requires the same

means and methods to be employed alike by the persons

composing the class affected so that the law operates uni-

formly. on all persons similarly situated.” (Reif v. Barrett,

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355 Ill. 104, 121.) Where a law affects all members of the

same class alike it is not objectionable as constituting

class legislation. (Smith v. Hill, 12 Ill. 2d 588, 598.) Un- .

der article 10 of the Code of Criminal Procedure as -pres-

ently enacted those entitled to bail have a choice of three

methods to be used in securing release,- and the choice is -

entirely voluntary and without compulsion. Those who

elect to secure release by the deposit of 10% of the

amount of bail under the provisions of section 110—7 con-

stitute a separate class under the legislative plan and pur-

pose as already indicated. They are not automatically

placed in this class or eategory by the law. They join only

"by the exercise of their own volition. Presumably they

know that the amount deposited will be subject to de-

duction and we know of no law or constitutional provision

which would preclude their being required to pay a rea-

sonable. amount for the privilege extended to those who

elect to come into this class. The 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. See: People ex rel. Flanagan v. Mc-

Donough, 24 Ill. 2d 178, 180-181.

Plaintiffs also contend that the cost retention provision

of section 110—7(f) creates an unconstitutional disparity

between the affluent and nonaffluent. It is said for a sup-

posed example that accused “A” availing himself of sec-

tion 110—8 deposits the full amount of-bond and pays no

cost, w hereas accused “B”, lacking sufficient property, ob-

tains“his release by depositing 10% of the full amount of

bond under section 110—7 and is assessed a cost. It is

argued that accused “B” is thus assessed a cost merely

because his lack of affluence makes him unable to obtain

his release by depositing the full amount under the pro-

visions of section 110—8. Without stating any factual

source, plaintiffs further state that “a considerable per-

centage of individuals, like accused ‘B’ have no choice

but to seek release on their own recognizance under Sec-

tion 110—2 or the 10% provision of Section 110—7” be-

cause they have neither cash nor real estate in sufficient

amount to post the full amount of their bail. These are

said to be “poor men” who should not be discriminated

against due to their lack of wealth. Plaintiffs say that if

the size of a deposit for bail is the distinguishing factor

which rendered this group different from those who de-

posit the full amount of bail, there is an unconstitutional

differentiation which is not cognizable in law and cre-

ates a disparity based on wealth. In support of their po-

sition plantiffs cite a number of cases such as Griffin v.

Illinors, 351 U.S. 12;-100 L. Ed. 891, 76 S. Ct. 085, estab-

. lishing the general proposition that the individual cannot:

be penalized in his quest for-justice due to lack of wealth.

Defendants concede the validity of this principle but deny

that it is applicable under the facts: presented here.

The difficulty with plaintiffs’ position is that it is based

DEnaAraly on the assumption that a majority or ‘at least

“a large percentage” of those seeking bail would prefer

to elect to proceed under section 116—8 but lack the finan-

cial means to do so and are therefore forced against their

wills to ask for bail under section 110—7 by posting the

deposit. We find no support for this assumption in any of

the stipulated facts. As we view the situation it is just

as reasonable to assume that most of those eligible would |

elect to perfect bail under section 110—7 because of the

convenience it affords and the very small cost of only one ©

percent actually involved. Proceedings under section 110

—8 necessarily involve tying up money and property for

an indefinite period. In the case of a large bond the

amount pledged would be -in proportion and the conse-

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quent economic loss through deprivation of the oppor-

tunity to invest these funds could be considerable. It is

reasonable to suppose, therefore, that even the relatively |

affluent would prefer to make bail under section 110—7.

In any event we do not believe it can reasonably be said

that choice between the means to be used is necessarily

dictated by wealth or lack of wealth of the accused.

Where questions of classification are involved the rea-

sons justifying the classification need not appear on the

face of the statute and the classification will be upheld if

any state of facts can reasonably be conceived to sustain

it. The burden therefore rests upon one who assails the

statute to negate the existence of such facts. (Thorpe v.

Mahin, 43 Til. 2d 36, 45; Department of Revenue v. War-

ren Petroleum Corp., 2 Ill. 2d 483, 489-490.) As already -

indicated, we believe that facts can reasonably be con-

ceived to sustain the legislation here involved as against

plaintiffs’ argument that there is necessarily a discrim-

- ination based on wealth. We find nothing in. plaintiffs’

argument which reasonably tends to negate the existence

of those facts and certainly there is nothing by way of

concrete evidence which does so.

As to plaintiffs’ argument that the cost retention pro-

vision of section 1ft0—7(f) creates a disparity among

those obtaining release by the deposit of 10% of the.

"amount of bail, it is said that accused “A” whose bond

is set at $10,000 must deposit $1,000 and that upon ful-

fillment of conditions he receives a refund of $900 with

the result that he has paid a cost of $100. “B” on the

other hand, whose bond is fixed at only $1,000, deposits

$100 and receives a refund of $90-resulting in a cost of

only $10. It is clatmed that there is no rational basis for’

this difference. While the dollar amount in the supposed

cases is different, each has paid an amount: equal to one

percent of his bail and thereforé there is payment of the

same proportionate amount in each case. Plaintiffs pre-

sent no authority which sustains the proposition that en-

acting a charge in the same proportion in such cases in-

volves unconstitutional discrimination and we know of

no authority which would support this claim. Historically

many fees and charges for the services of court officers

have been fixed in proportion to the amount involved. As ~

far as we know there has been no suggestion of unconstitu-

tional action in such eases as long as all persons similarly

situated are charged in the same proportion and at the

same rate: Flat rates are also found in the freld of taxa-

tion, as defendants suggest, including income taxes, - re-

tailers’ occupation taxes; real-estate taxes, use taxes, and

inheritance and transfer. taxes. The constitutionality of

these enactments has heen repeatedly sustained by the

courts.

Finally, there is the contention that the cost -provision

of section 107—7(f) is illegal and:-void because it amounts

-to an assessment of court costs against a discharged de-

fendant. Plaintiffs cite Wells v. McCullock, 13 Tll. 606, and

Giaccio v. Pennsylvania, 382. U.S. 399, 15 L. Ed. 2d 447,

86 S. Ct. 518, on this point. Wells involves'an attempt to

impose on an acquitted defendant court costs he has made

in his defense. The court, relying largely upon the pro-

visions of the statute relative to disposition of the ques-

tion of costs in such cases, held that the defendant was

‘not liable for their payment. In Giaccio the validity of a

Pennsylvania statute authorizing the jury to impose the

costs of a criminal prosecution on an acquitted defendant

in a misdemeanor case was in question. The court held

the statute unconstitutional on the ground of vagueness.

and the absence of any standards sufficient to enable a

her

Pe Pe eT FPR eee Pm

: -

defendant to protect himself against arbitrary and dis-

criminatory imposition of costs by a jury. But it did not

say, that the imposition of such costs would be unconsti-

tutional in any event. However, whatever the rule might

be as to the imposition of court costs on an acquitted or

discharged defendant, it has no application here. The

payment of costs for prosecution is governed by an en-

tirely different statute from that dealing with costs

charged for the administration of bail bonds. The statute

concerning the latter, as already observed, is section 110

__7 of the Code of Criminal Procedure. Costs of .prosecu-

tion in criminal cas: are provided for in section 180—3 ©

of the Code of Criminal Procedure as follows: “When any

person is convicted of an offense under any statute; or at

common law, the court shall give judgment that the of-

fender pay the.costs of the prosecution.” (Ill. Rev. Stat.

1969, ch. 38, par. 180—3.) This statute. obviously refers

only to court costs and has no reference to ‘bond costs

which are chargeable regardless of what subsequen‘ly oc-

curs in the prosecution of the case and regardless «f_the

guilt or innocence of the accused. It may be conceded that

court costs sustained in his defense may not: properly be

assessed against an accused who has won his discharge

or acquittal but that has no bearing whatever on bond

costs and the retention of a percentage of such costs is

net tantamount to the assessment of court costs against

a discharged defendant. | :

In conclusion we find that the classifications provided

for in the statutes here involved bear a reasonable rela-

tion to the objects sought to be accomplished and are uni-

form as .to all members of a particular class sought to be

_affected. No unconstitutional discrimination is involved

15 a os

and the legislative enactments are not in violation of fun-

damental concepts of due process or equal protection of

the law. Since the conclusion we have reached favors con-

stitutionality it becomes unnecessary to discuss the other

question raised, i.e., the propriety of a class action.

The judgment of the circuit court of St. Clair County .

is affirmed. |

Judgment affirmed.

Kluezynski and Schaefer, J.J., dissenting.

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APPENDIX B

DISSENTING OPINION

Mr. Justice Kiuczyysxt, dissenting:

I cannot agree with the conclusions of the majority

opinion. oa 2

Through Griff v. Illinois, 351 U.S. 12, 100 L. Ed.

891, 76 S. Ct. 585, and its progeny, it has become well es-

tablished that the equal-protection and due-process clauses

of the fourteenth amendment require that a defendant not

be penalized in a criminal proceeding due to a lack of

wealth. I believe that this type of penalty exists in the

treatment -of various defendants under sections 110—7 and

1108 of the Code of Criminal Procedure. A disparity of |

treatment results because under 110—7 the clerk retains

1% of the bail as a‘cost whereas under 110—8 or 110—2,

no costs are involved. It is discriminatory in that some

defendants cannot voluntarily choose under which bail -

provision they will be released. The defendant who, be-

cause of lack of wealth, cannot meét the requirements of

-110—8 and who cannot qualify for release under 110—2,

is forced to seek relief under 110—7, the only section

which involves a cost. The majority would have us be- _

lieve that there are no nonaffluent defendants or that if

given the choice most defendants would choose section

110—7 for economic reasons. This court must take ju-

dicial notice of the fact that many defendants cannot af-

ford to pay the full amount of the bail. Plaintiff has cited ©

many authorities (Bail Reform Act of 1966, 18 U:S.C.

3141-3152; Congressional Record, vol. 112 Con. Ree. 89th \ -

Congress, Second Session pp. 12488-12504; S.H.A. ch. 38, /

art. 119, Committee Comments, p. 298; Attorney General’s

Committee on Povery and the Administration of Criminal

Judicial Procedure, U.S.C. Cong. and Admin. News 1966;

National Conference on Bail and Criminal Justice, May

27, 1964) for the Rroposition that as the amount of bail

increases, the percentage of defendants who can pay the

full amount of the bail decreases. In addition, the Com-

mittee Comments (S.H.A. ch. 38, art. 110, at p. 300) state

that section 110—8 is an dlternative to 110—7 for “those

who have the means.” Once it is established that certain

defendants are not financially able to proceed under see-

tion 11D—8, it is no longer significant that most or. all

defendants would elect to proceed under section 110—7,

The important consideration is not what section they

would elect, but rather whether every defendant has a

choice of the two sections. Realizing that certain defend- |

ants have no choice but to pay a cost under 110—7, while

other financially able defendants can elect to pay nothing

under 110—8, I must find that the sections in question

deny equal protection and due process. ; .

Further, in Giaccio v. Pennsylvania, 382 U.S. 399, 15 L.

Ed. 2d 447, 86 S. Ct. 518, the United States Supreme

Court considered’ the question whether a defendant may

be punished after finding him. not guilty. The concurring

opinion specifically found: “* * * the Due Process Clause |

of the/Fourteenth Amendment does not permit a State to

impos¢ a penalty or costs upon a defendant whom the

jury Kas found not guilty of any offense with which he

- has been charged.” (382 U.S. at 405.), This same concept

has n recognized in Illinois in our constitution, case

| 1 legislative énactment. Section 19 of article II of

the Illinois constitution provides that every person “ought

to obtain, by law, right and justice freely, and without

being o liged to purchase i, * * +” Any defendant who

a 7

ee ee

‘is forced through economic circumstances to proceed un-

der section 110—7 is “obliged” to pay costs for his con-

stitutional right to pretrial liberty in violation of this pro-

vision. |

This court, in, Wells v. McCullock, 13 Ill. 606, held that

a party who is ‘indicted under the Criminal Code, and is

acquitted, is not liable for costs. While it is true that the

case involved the interpretation of a statute then in ef-

fect, a statute similar to it is presently in effect. (Ill. Rev.

Stat. 1963, ch. 58, par. + 32:) The court in Wells found that

“An acquittal, or other legal discharge, absolves the de-

fendant from the payment of all costs.” (Emphasis add-

ed.) (13 Ill. at 608.) Any cost, whether it be termed court

cost or administrative cost, is an expense in a criminal de-

- fense, and if the defendant is acquitted, imposing such a

cost, in my opinion, violates the due-process clause and .

‘section 19 of article II of the Illinois constitution.

Mr. Justice ScHAEFER joins in ‘this dissent.

APPENDIX C |

(SEAL)

STATE OF ILLINOIS

. Office Of — 8

CLERK OF THE SUPREME COURT

Springfield 62706

_December 3, 1970

JUSTIN TAFT

| Clerk

Mr. Sam S. Pessin

_ 25 West Main Street

_ Belleville, Illinois 62220

Dear Mr. Pessin:

In Supreme Court today, in Case No. 42845 entitled:

° John Schlib, Indv.,; ete.,

appellant

“Vs. ;

Vincent P. Kuebel, as Clerk of the

Circuit Court of St. Clair County,

et al., etc., .

_ appellees

Petition for Rehearing: Denied

IT am enclosing the dissenting opinion of Mr. Justice

Kluezynski concerning the above entitled cause.

. Very truly yours,

/S/ JUSTIN TAFT,

Clerk of the Supreme Court.

ee Qe SRE ch RON PE PE a

APPENDIX D

ARTICLE 110. BAIL

110—1. § 110-1. Definitions.) (a) “Security” is that

which is required to be pledged to insure the payment of

bail. :

(b) “Surety” is one who executes a bail bond and

binds himself to pay the bail if the person in custody fails

to comply with all conditions of the bail bond.

110—2. § 110-2. Release on Own Recognizance.) When

from all the circumstances the court is of the opinion that

the accused will appear as required either before or after

conviction the accused may be released on his own recog-

nizance. A failure to appear as required by such recog-

nizance shall constitute an offense subject to the penalty

provided in Section 32—10 of the “Criminal Code of

1961,” approved July 28, 1961,.as heretofore and _ here-

after amended, for violation of the bail bond, and any

obligated sum fixed in the recognizance shall be forfeited

and collected in accordance with sub-section (g) of See-

tion 110—7 of this Code.

This Section shall be liberally construed to effectuate

the purpose of relying upon criminal sanctions instead of

financial loss to assure the appearance of the accused.

110—3. § 110-3. Issuance of Warrant.) Upon failure to

comply with any condition of a bail bond or recognizance

the court having jurisdiction at the time of such failure . |

may, in addition to any other action provided by law, is- t

sue a warrant for the arrest of the person at liberty on

bail or his own recognizance.

110—4. §110-4. Bailable Offenses.) -(a) All persons shall

be bailable before conviction, except when death is a pos-

sible punishment for the offense charged and the proof

is evident or’ the presumption great that the person is

guilty of the offense.

(b) A person charged with an offense for which death

is a possible punishment has the burden of-proof that he.

should be admitted to bail.

~ 110—. § 110-5. Determining the Amount of Bail.)

(a) The amount of bail shall be:

(1) Sufficient to assure compliance with the conditions

sat forth in the bail bond;

(2) Not oppressive;

(3) Commensurate with the nature of the offense

charged;

(4) Considerate of the past criminal acts and con-

duct of the defendant;

(5) Considerate of the financial ability of the accused.

6) When a person is charged with an offense punish- .

able by fine only the amount of the bail shall not exceed

double the amount of the maximum penalty..-

and only a fine has been imposed the amount of the bail

shall not exceed double the amount of the fine.

110—6. § 110-. Reduction or Increase of Bail.)

(a) Upon application by the State or the defendant the

court before which the proceeding is pending may increase

or reduce the amount of bail or may alter the conditions

of the bail bond.

a Reasonable notice of such application red the ue

fendant shall be given to the State. |

2 aa RA, MRSS Gs he a sa '

’

“ee

shall be given to the defendant, except as provided in

subsection (d).

(d) Upon verified application by the State stating

facts or circumstances constituting a breach or a threat-

ened breach of any of the conditions of the bail bond the

court may issue a warrant commanding any peace officer

to bring the defendant without unnecessary delay before

the court for a hearing on the matters set forth in the ap-

plication. At the conclusion of the hearing the court

110—7. § 110-7. Deposit of Bail Security.) (a) The . —

person for whom bail: has been set shall execute the bail |

bond and deposit with the clerk of the court before which

the proceeding is pending a sum of money equal to 10%

of the bail, but in no event shall such deposit be less than

$25. |

-(b) Upon depositing this sum the person shall be re-

‘leased from custody subject to the conditions of the bail

bond. |

or is thereafter filed in or transferred to a court of com-

petent jurisdiction the latter court shall continue the orig-

inal bail in that court subject to the provisions of Section

110—6 of this Code. . |

(d) After conviction the court may order that the

original bail stand as bail pending appeal or deny, in-

crease or reduce bail.” ° _

(e) After the entry of an order by the trial court al-

lowing or denying bail pending appeal either party may

apply to the reviewing court having jurisdiction or to a-

justice thereof sitting in vacation for an order increasing

23 >

or decreasing. the amount of bail or allowing or denying

bail pending appeal. oo .

(f) 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 90% of the sum which had been deposited

and shall retain as bail bond costs 10% of the amount de-

posited.

(s) If the accused does not comply with the conditions

of the bail bond the court having jurisdiction shall en-

ter an order declaring the bail to be forfeited. Notice of

such order of forfeiture shall be mailed forthwith by the

court to the accused at his last known address. If the ac-

cused does not appear and surrender to the court having

jurisdiction within 30 days from the date of the forfeiture

or within ‘such period satisfy the court that appearance

and. surrender by the accused is impossible and without

his fault the court shall enter judgment for the State

against the accused for the amount of the bail and costs

of the court proceedings. The deposit made in accordance

with subsection (a) shall be ayplied to the payment of

costs. If any amount of such deposit remains after the

payment of costs it shall be applied to payment of the

judgment and transferred to the ‘treasury of the mu-

nicipal corporation wherein the bond was taken if the

offense was a violation of any penal ordinance of a po-

litical subdivision of this State, or to the treasury of the

county wherein the bond was taken if the offense was

a violation of any penal statute of this State. The balance

of the judgment may be enforced and collected in the

same manner as’a judgment entered in a civil action.

(h) After a judgment for a fine and court costs or

either is entered in the prosecution of a cause in which a

deposit had. been made in accordance with subsection (a)

the balance of such deposit, after deduction of bail bond

costs, shall be applied to the payment of the judgment.

As amended by act approved July 31, 1967. L. 1967, p.

——, H.B. No. 862. - 3

110—8: § 110-8. Cash, Stocks, Bond | and Real Estate

as Security for Bail.) (a) In lieu of the bail deposit pro-

vided for in Section 110—7 of this Code any person for,

whom bail has been set may execute the bail bond with or

without sureties which bond may be secured:

(1). By a deposit, with the clerk of the court, of an

amount equal to the required bail, of cash, or stocks and

bonds in which.trustees are authorized to invest trust

funds under the laws of this State; or

(2) By real estate situated in this State with unen-

-cumbered equity not exempt owned by the accused or

sureties worth double the amount of bail set in the bond.

b) If the bail bond is secured by cash or stocks and

bonds the acéused or sureties shall file with the bond’a

sworn schedule which shall contain:

“ (1) A list of the stocks and bonds deposited describ-

ing each in sufficient detail that it may be identified ;

(2) The market value of each stock and bond.

(3) The total market value of the ox and bonds

listed;

(4) A statement that.the affiant is the sole owner of

the stocks and bonds listed and they are not exempt from

execution;

(5) A statement that such stocks and bonds have not

previously been used or accepted as bail in this State dur-

ing thé 12 months preceding the date of the — bond;

and ;

. 25

(6) A statement that such stocks and bonds are se-

curity for the appearance of the accused in accordance

with the conditions of the bail bond.

cused or sureties shall file with the bond a sworn sched-

ule which shall contain:

(1) A legal description of the real estate;

(2) A description of any and all encumbrances on the

_Teal estate including the amount of each and the holder

thereof;

(3) The market value of the unencumbered equity

owned by the affiant; - , |

(4) A statement that the affiant is the sole owner of

such unencumbered equity and that it is not exempt from

execution;

(5) A) statement that the real estate has not ‘previous-

ly been used or accepted as bail in this State during the

- 12 months preceding the date of the bail bond; and .

(6) A statement that the real estate is security for

the appearance of the aceused in accordance with the con-

ditions of the bail bond.

(d) The sworn. schedule shall constitute 4 material

part of the bail bond. The affiant commits perjury if in the

sworn schedule he makes a false statement which he does

not believe to be true: He shall be prosetuted and pun-’

ished accordingly, or, he may be punished for contempt.

(e) <A certified copy of the bail bond and schedule of

real estate shall be filed immediately by the court in the

office of the registrar of titles or recorder of deeds of the

county in which the real estate is situated and the State ~

shall have a lien on such real estate from ‘the time such

copies are filed in the office of the registrar of titles or

Die AI ABE Pe toe,

recorder of deeds. The registrar of titles or recorder of

deeds shall enter,-index and record (or register as the

case may -be) such bail bonds and schedules. without. re-

quiring any advance fee, whith fee shall be taxed as costs

in the proceeding and paid out of such costs when collect-

(f) When the conditions of the bail bond have been

performed and the accused has been discharegd from his —

obligations in the cause, the clerk of the court shall return

to him or his sureties the deposit of any cash, stocks or

bonds. If the bail bond has been secured by. real estate the -

clerk of the court shall forthwith notify in writing the

registrar of titles or recorder of deeds and the lien of the

bail bond on the real estate shall be discharged.

(g) If the accused does not comply with the conditions

of the bail bond the court having jurisdiction shall enter

an order declaring the bail to be forfeited. Notice of such

order of forfeiture shall be ‘mailed forthwith by the clerk

- of the court to the accused and his sureties at their last

- known address. If the accused does, not appear and. sur-.

render to the court having jurisdiction within 30 day”

from the date.of the forfeiture or within such period sat-

isfy the court that appearance and surrender by the ac-

cused is impossible and without his fault the court shall —

enter judgment for the State against the accused and his

sureties for the amount of the bail and costs of the pro-

ceedings. o

(h) When judgment is entered in favor of the State

‘on any bail bond the State’s Attorney shall have execution

issued on the judgment forthwith and deliver same to the

_ sheriff to be executed by levy on the cash, stocks or bonds

deposited with the clerk of the court. d the real estate

described in the bail bond schedule. The cash shall be

RAKE Ae NA IRAN ROE it nds tt a RBS

e .

used to satisfy the judgment and costs and paid into the’

treasury of the municipal corporation wherein the bail’

bond was taken if the offense was a violation of any penal

ordinance of a political subdivision of this State, or into

the treasury of the county wherein the bail bond was tak-

en if the offense was a violation of any penal statute of

this State.’'The stocks, bonds and real estate shall be sold

in the same manner as in execution sales in civil actions

and the proceeds of such sale shall be uxed to satisfy all

court costs, prior encumbrances, if any, and from the bal-

ance a sufficient amount to satisfy the judgment shall be

paid into the treasury of the niunicipal corporation where-

in the bail bond was taken if the offense was a violation

of any penal ordinance of a political subdivision of this ;

State, or into the treasury of the county wherein the bail

bond was taken. if the offense was a violation of any; penal

statute of this State. The balance shall be returned to the

owner. The real estate.so sold may be redeemed in the

‘Same manner as real estate may be redeemed after ju-

dicial or execution sales jp civil actions.

(1) No stocks, bonds or real estate may be used or ac-

cepted as bail bond security in this State more than once

in any 12 month period. As amended by act approved :

July 31, 1967. L. 1967, p. —_, H.B. No. 862.

110—9. § 110-9, Taking of Bail kx Peace Officer.) When

bail has been set by a judicial 0 icer for a particular of-

fense or offender any sheriff or other peace officer may

take bail in accordance with the provisions of Section 110

—? or 110—8 of this Code and release the offender to ap-

pearance in accordance with the conditions ‘of the bail

‘bond, the Notice to Appear or the Summons. The officer

shall give a receipt to the offender for the bail so taken

and within a reasonable timé deposit such bail With the

clerk of the court having jurisdiction of the offense.

110—10. § 110—10. Conditions of Bail Bond.) (a) Ifa

persog is admitted to bail before conviction the condi-

tions of the bail bond shall be that he will: |

(1) Appear to answer the charge in the court having

jurisdiction on a day certain and thereafter as odered by

the court until-discharged or final order of the court;

(2) Submit himself to _ orders and process of the

court; and

(3) Not depart this-State without ‘leave.

(b) If the defendant is admitted to bail after convic-

tion the conditions of the bail bond shall be that he will:

( 1) Duly prosecute his appeal;

(2) Appear at such time and place as the court may

direct; ’

(3). Not depart this State without leave of the court

and ©

(4) If the judgment is ‘affrmed or the cause reversed

and remanded for a new trial, forthwith surrender to the

officer from whose custody he was bailed.

110—11. § 110—11. Bail on a New Trial.) If the judg-

ment of conviction is reversed and the cause remanded

for a new trial the trial court may order that the bail

stand pending such trial, or reduce-or increase bail.

- 110—12..§ 110—13. Persons Prohibited from Furnishing

_ Bail Security.) No attorney at law practicing in this State

and no Official authorized to admit another to bail or to”

_accept bail shall furnish any part of any security for bail

in any criminal action or any proceeding nor shall any

such person act as surety for any accused admitted to

bail.

110—14. § 110—14. Credit for In cabal: on Bailable .

Offense.) Any person incarcerated on a bailable offense

: Sid Oars eee

who does not supply bail and against whom a fine is lev-

ied on conviction of such offense shall be‘allowed a. credit

of $5 for each day so incarcerated prior to conviction ex-

cept that in no case shall the amount so allowed or cred-

_ ited exceed the amount of the fine. -

110—15. § 110—15. Applicability of: Provisions for Giv-

ing and Taking Bail.) The provisions of Sections 110—7

and 110—8 of this Code’ are exclusive of other provisions

all cases where a person is admitted to bail the provisions

of Sections 1L0—7 and 110—8 of this Code shall be appli-

cable.

However, the Supreme Court may, by rule or order,

prescribe a uniform- schedule of amounts of bail in speci-

fied traffic and conservation cases, quasi-criminal offenses,

and misdemeanors. Such uniform schedule may provide

that the éash’ deposit provisions of Section 110—7 shall

‘not apply to bail amounts established for alleged viola-

tions punishable by the fine alone, and the schedule may

further provide that in specified traffic cases a valid IIli-

of law for the giving, taking, or enforcement of bail. In

nois chauffeur’s or operator’s license must be deposited, .

in addition to 10% of the amount of the bail specified in

the schedule.: As amended by act approved Aug. 14, 1967.

L. 1967, pi —, S.B. No. 1168, a anes

‘ | ee

ee ier

GBReecrelc see toon. Bheneaag RA isa et

APPENDIX E

ssth CONGRESS

2d Session .

7 S. 2840

‘IN THE SENATE OF THE UNITED STATES

. May 14 (legislative day, March 30), 1964 °

Mr. Ervin (for himself, Mr. Hruska, Mr. Fong, Mr. Bayh,

- Mr. Williams of New Jersey, and Mr. Johnston) intro-

duced the following bill; which was read twice and. re-

ferred to the Committee on the Judiciary. —

A BILL

To further implement the constitutional right to bail by

permitting persons | admitted: to bail to make a cash de-

posit with the court in lieu of providing securities or

other collateral security. °

‘Be it enacted by. the Senate and House oF Representa:

tives of the United States of America.in Congress assem-

bled, That (a) chapter 207 of title 18, United States Code,

is amended by adding at the end thereof a new section as

follows: 3 ; fi

“83147. Cash deposit

“(a) Whenever the amount of bail has been fixed in ihe

ease of any person charged with an offense against the

United States, such person shall execute a bond for his

appearance, and, in lieu of providing other collateral se-

curity or sureties, may deposit in the registry of the court

a sum equal to 10 per centum of the amount of bail so

terete ee

\ r

— BOSE tet

fixed. Upon the deposit of such sum such person shall be

released from custody subject to the conditions of this

bond. :

“(b) If there is no breach of condition of a -bond given

by any person as provided in subsection (a), the court

shall release such person from the obligation ‘of the bond,

jl-.

but shall retain 10 per centum. of the sum deposited by

such person to defray bail “bond costs. The balance of such

deposit shall, no judgment for court costs and/or fine be--

ing entered against such person, be returned to him. In the

event judgment for court costs and/or fine is entered

against such person, the balance of such deposit shall be

first applied to the payment of such judgment.

_“(e) If there is a breach of condition of a bond given

by any person as provided in subsection (a), the court

Shall declare a forfeiture of the full amount of the bail

fixed in the case of such person. Notice’ of the forfeiture

shall- be mailed to such person at his last known address,

and, if such person does not appear as required within

thirty days after the mailing of such notice and the for-

feiture is not set aside by the court, the court shall render

judgment of default against such person in the full amotnt

of the bail. The court may direct that any such forfeiture

be set aside if, under all the circumstances, it appears that

“justice: does not require the enforcement thereof. Any

judgment of default against such person shall be enforced

by all available ‘proexgses of the court, and the amount

deposited by such person in the registry of the court shall

be applied to the payment of costs and the balance thereof

shall be applied to th judgmnt.

a i ia sey CPT Sinha

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el FORE KM

i steumbbiedgpeiaih aia RAO

Craton Por TO OOD i Sd we bg XE a

bie acts ahi

‘ Be te a ads ver “am oe .

SE aa Dice WRF tie Mp ging RR et BE ARE CRN aE Ri als BANA

“(d) Nothing in this section shall limit in any way the

application of section 3146 of this title to any person.”

(b) The analysis of chapter 207 of title 18, United

States Code, is amended by inserting at the end thereof

the following: |

“3147. Cash deposit.”

PON LET IT TER EP hays He

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US fF

FILED

MAR 20 1971

IN THE

£. ROBERT SEAVER, CLERK

Supreme Court of the United States — :

Noriti— § 70—-FO -

| | | f

JOHN SCHILB, et al., "eS :

Plaintiffs-Appellants,

; :

VS.

VINCENT P. KUEBEL, as Clerk of the Ct-Cout :

of St. Clair County, et al., :

Defendants-A ppellees.

' , \ -

- On appeal from the Supreme Court \

of the State of Illinois

MOTION TO DISMISS

ROBERT H. RICE,

State’s Attorney of St. Clair County,

Court House,

Belleville, Illinois 62220 (Adams 3-0930),

Attorney for Defendants-A ppellees. -

Epwarp V. HanraHan,

State’s Attorney of Cook County.

Evcene H. Wipmay, |

Assistant State’s Attorney,

St. Clair County, Dlinois.

THomas E. Brannican,

Assistant State’s Attorney,

Cook County, Dlinois,

of Counsel.

Printed by Authority of the State of Llincis <j ses

SUBJECT INDEX

- Motion to, dismiss .......... es aueeus beduecess on: 1

I. The Illinois Supreme Court correctly held that

- the cost provisions of Illinois’ statutory scheme

providing for-pretrial release of criminal de-

fendants does not violate the Equal Protection ;

Clause ..2........ cece eneceee vere es S

II. The Illinois Supreme Court correctly held that

the cost provision of Ilinois’ statutory scheme

providing’ for pretrial release of criminal de-

fendants does not violate the Due Process

Clause .............,.. one estes wa ses er es Q°

Conclusion hee feeuee ‘eye eeeneehasctes Saesaeeae . 120

- CITATIONS .

Bandy v. U. S.,.82 S. Ct. 11 (1961) .......0..... aes 8

Douglas v. California; 372 U.S. 353 (1963) ..... Pee «8

Giaccio v. Pennsylvania, 382-U.S. 399 (1966) itatee a? 10

McDonald v. Board of Election, 3h U.S. 802 (1969) 8.9

McInnis v. Shapiro, 293 F. Supp. 327 (N-D. Il. , 1968)

aff'd, 394 U.S. 322 (1969). ..... ere ete. 8

Rinaldi v. Yeager, 384 U.S. 305 (1966) eee oe 4

_ Williams v. Shaffer, 222 Ga. 334, 149 S.E. 2d 668, -

cert. denied, 385 U.S. 1037, 87 S. Ct. 772 (1967) .. 8 -

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.