Payton, Delvin C. v. County of Kane

In the
United States Court of Appeals
For the Seventh Circuit
____________
No. 00-3789
DELVIN C. PAYTON, et al.,
Plaintiffs-Appellants,
v.
COUNTY OF KANE, et al.,
Defendants-Appellees.
____________
Appeal from the United States District Court
for the Northern District of Illinois, Eastern Division.
No. 99 C 8514—Elaine E. Bucklo, Judge.
____________
ARGUED OCTOBER 31, 2001—DECIDED SEPTEMBER 3, 2002
____________
Before BAUER, COFFEY, and DIANE P. WOOD, Circuit
Judges.
DIANE P. WOOD, Circuit Judge. Delvin Payton and five
other former arrestees who were released on bail from
Illinois county jails filed this putative class action to
dispute the counties’ practice (authorized by Illinois law)
of imposing a bail fee, above and beyond the set bail
amount, as a condition for release on bail. The plaintiffs
moved for the certification of a plaintiff class including
all individuals affected by the procedure in 19 named
counties, while the defendants moved to dismiss the entire
case. The district court agreed with the defendants, dis-
missed the action, and denied as moot the motion for class
certification. For the reasons set forth in this opinion, we
reverse and remand for further proceedings.
2 No. 00-3789
I
For several years, at least 19 out of Illinois’s 102 coun-
ties have followed a practice of charging a “bail fee” to
detainees who are released on bail or on their own recogni-
zance. This fee varies between $1 and $45, depending on
the county, and is collected above any bail amount that
is due.
In 1999, the Illinois General Assembly passed Illinois
Public Act 91-0094, amending the Counties Code and
providing that bond fees may be added to the required
bond. The section was codified as part of the Illinois Bond
Statute, 725 ILCS 5/110-7(b), as amended (the Act). The
Act, which became effective on January 1, 2000, pro-
vides that “[t]he fees of sheriffs in counties of the first
and second class, except where increased by county ordi-
nance under this Section, shall be as follows: [. . .] For
taking special bail, $1 in each county.” 55 ILCS 5/4-5001.
The Act also empowers county boards to increase the
statutory fee by ordinance “if the increase is justified by
an acceptable cost study” showing that the minimum $1
fee is not “sufficient to cover the costs of providing the
service.” 55 ILCS 5/4-5001. Dealing with the deposit of
bond, 725 ILCS 5/110-7(b) provides that “[u]pon depositing
this sum and any bond fee authorized by law, the person
shall be released from custody subject to the conditions
of the bail bond” (emphasis added). The plaintiffs allege
that the fee is imposed even when the detainee is released
on her own recognizance without posting bail. Regardless
of county-specific increases, every detainee posting bond
in Illinois is charged at least the statewide $1 minimum.
Kane County charges an $11 fee, DuPage County charges
$15, and all other counties charge between $1 and $45.
Plaintiffs Payton, Wallace, Cannon, and Clay were
confined to the Kane County jail after February 1, 1998,
and were granted bail by the Circuit Court of the Six-
No. 00-3789 3
teenth Judicial Circuit. They were required to pay an $11
bond fee per bond posted before their release from cus-
tody. Plaintiffs Corson and Carson were confined to the
DuPage County jail after October 1, 1997, and were granted
bail by the Circuit Court of the Eighteenth Judicial Cir-
cuit. They paid a $15 bond fee for each bond posted as a
condition of release from custody.
No plaintiffs are named who were charged a bond fee by
any county other than Kane and DuPage. The complaint
alleges, however, that these fees were imposed on an
unknown number of individuals. Based on the generality
of the practice, as now mandated by the Act, the named
plaintiffs sought to represent a class consisting of (a)
all persons confined to the county jail of each defendant
county, on or after the inception of the bond fee practice,
who posted a cash bond and paid a bond fee to secure
their pretrial release from jail; (b) all persons confined to
the county jail of each defendant county who were granted
personal recognizance bonds and paid a bond fee to secure
their pretrial release; (c) all persons confined to the coun-
ty jail on or after the inception of the bond fee practice
who do not have the funds to pay the bond fee to secure
their pretrial release but can otherwise satisfy the
bond requirements; and (d) all persons confined to the
county jail of each county on or after January 1, 2000, who
have posted or will post bail to obtain pretrial release.
The named plaintiffs, of course, have suffered directly
only from the conduct of (respectively) the counties of
Kane and DuPage.
The district court granted the defendants’ motion to
dismiss on September 25, 2000, finding that the named
plaintiffs lacked standing to pursue the entire lawsuit.
It did not reach the question of class certification.
4 No. 00-3789
II
Plaintiffs present three issues for review. First, they
claim that the class has standing to sue all defendants
who are “juridically linked” together, in that they all fol-
low the Illinois bail fee statute, even if not all members
of the class suffered injury from a particular defendant
county. Second, they argue that the district court erred
in denying their motion for class certification, asserting
that it should have allowed the plaintiffs to proceed as a
class at least against the two counties that had directly
injured them. Third, if all else fails, they argue that at
the very least the court should not have dismissed their
second amended complaint between individually named
plaintiffs and the counties that actually released them, as
those are run-of-the-mine § 1983 cases. Logic dictates
that we analyze the issues in reverse order, for if the
plaintiffs fail on the more limited issues, they certainly
cannot prevail on their broader claims.
We review a dismissal for lack of standing de novo. Rifkin
v. Bear Stearns & Co., Inc., 248 F.3d 628, 631 (7th Cir.
2001). As the class certification request was denied as
moot, there is nothing for us to review on that point other
than the correctness of the mootness decision, which is
affected by the district court’s standing ruling. Those
present legal questions which we will review de novo.
A. The Individual Cases
The named plaintiffs set forth individual claims against
DuPage and Kane Counties—the counties from whose
jails they were released upon posting of bond and the
payment of the contested bond fee. It is hard to see how
they could have failed to state a claim under the notice
pleading regime of FED. R. CIV. P. 8, which the Supreme
Court recently re-emphasized in Swierkiewicz v. Sorema
N.A., 534 U.S. 506, ___, 122 S. Ct. 992, 998 (2002). See also
No. 00-3789 5
Walker v. Thompson, 288 F.3d 1005, 1010 (7th Cir. 2002)
(Ripple, J., concurring). In their complaint, Payton, Wallace,
Cannon, and Clay allege that they were confined after
February 1, 1998, to the county jail of Kane County, and
Corson and Carson allege that they were confined in the
DuPage County jail. The six individuals further allege that
they were required to pay a bond fee ranging between
$11 and $15 to the respective counties as a condition of
their release. This policy, they claim, violates their rights
under the Eighth and Fourteenth Amendments to the U.S.
Constitution, thus entitling them to relief under 42 U.S.C.
§ 1983.
The district court did not mention any grounds for
the dismissal of the individual claims of these named
plaintiffs against Kane and DuPage Counties, nor did it
explain why it thought that they lacked standing to sue.
“Article III requires that the plaintiff has suffered an ‘in-
jury in fact’ which is fairly traceable to the challenged
action of the defendant and ‘likely,’ as opposed to merely
‘speculative,’ to be ‘redressed by a favorable decision.’ ” Doe
v. County of Montgomery, 41 F.3d 1156, 1159 (7th Cir. 1994)
(citations omitted); see also Lujan v. Defenders of Wildlife,
504 U.S. 555, 560-61 (1992). The individuals easily meet
these requirements: at the very least, they suffered a
monetary injury when they were required to make the
extra payment; the injury is traceable to the policy of each
jail; and it can be redressed by a lawsuit.
It appears instead that what the district court meant
to say was that the plaintiffs lacked “standing” to bring
a class action. However, putting to one side the prob-
lem inherent in conflating the standing inquiry with the
inquiry under Rule 23 about the suitability of a plaintiff
to serve as a class representative, the proper remedy
for this shortcoming is not dismissal of the entire action,
but rather an order denying class certification and per-
mitting the case to continue as an individual suit. We
6 No. 00-3789
accordingly reverse this part of the district court’s order
and remand for the reinstatement of the individual actions.
B. Class Action Against DuPage and Kane Counties
It is also unclear why the district court thought that
the proposed class action against DuPage and Kane Coun-
ties could not go forward (at least to the point of a Rule
23 certification decision), since named representatives
from each of those jails were before the court, and the
existence of the state law strongly suggests that these
were not the only people who paid a release fee. Indeed,
on the same day as it dismissed the present action, the
district judge granted class certification in two cases
based on the same occurrences, one brought by plaintiffs
challenging Kane County practices (Coleman v. County of
Kane, No. 00-C-295, 2000 U.S. Dist. LEXIS 17438 (N.D. Ill.
Sept. 26, 2000)) and the other challenging DuPage County
practices (Ringswald v. County of DuPage, No. 00-C-296,
2000 U.S. Dist. LEXIS 17437 (N.D. Ill. Sept. 26, 2000)). The
district court did not offer a reason why the named plain-
tiffs in this case failed to satisfy the requirements of class
certification, unlike those in Ringswald and Coleman, nor
did it discuss whether those two actions in some way
precluded the certification requested here. The defendants
in Ringswald and in Coleman were granted summary judg-
ment on the federal claims on October 11, 2001. We ex-
press no opinion on the effect that the outcome of these
cases might have on the merits of the suit at bar. We note
only that a determination of the propriety of class certifica-
tion should not turn on likelihood of success on the merits.
See West v. Prudential Secs., Inc., 282 F.3d 935, 938 (7th
Cir. 2002); Bieneman v. City of Chicago, 838 F.2d 962, 964
(7th Cir. 1988). (It is a different matter if the proposed
named plaintiff loses on the merits prior to certification,
but we do not have that situation here yet.)
No. 00-3789 7
Given our reversal of the dismissal of the individual
actions, we also reverse the district court’s judgment
dismissing the putative class actions against DuPage and
Kane Counties and remand for further appropriate pro-
ceedings. On remand, the parties must consider among
other things the possible consequences of the outcome in
Ringswald and Coleman for this suit.
C. Class Action Against Other 17 Counties
We turn now to the thorniest issue in this case: the
propriety of maintaining a suit against the other 17 coun-
ties, for which we have no specific named plaintiffs.
We can dispose at the outset of one of the appellants’
arguments. They contend that the district court should
have certified both a plaintiff and a defendant class.
App. Br. at 11. But no one really asked for certification of
a defendant class of 19 counties, or all Illinois counties,
and thus we cannot fault the district court for failing to
do so. The motion for class certification filed on April 17,
2000, discusses only the requirements for a plaintiff
class and argues only the Rule 23 requirements with
respect to the plaintiffs. Even though the motion con-
cludes by asking summarily for “an order certifying this
action be maintained as a class action with regard to
both plaintiffs and defendants,” the motion was insuf-
ficient to serve as a proper request for a defendant class.
Moreover, it is too late to request such certification for
the first time on appeal. Defendant classes must be
treated with great care in any event, as we have noted
in the past, see Ameritech Ben. Plan Comm. v. Communica-
tion Workers of Am., 220 F.3d 814, 820 (7th Cir. 2000),
Henson v. East Lincoln Township, 814 F.2d 410, 412-
15 (7th Cir. 1987); they certainly should not be created
without full consideration.
But if the defendant counties, 19 in all, are not linked as
a class, how can they all be sued by a class represented
8 No. 00-3789
by six named plaintiffs who have direct claims against
only two of them? In some sense, this is a classical prob-
lem of standing: to bring a valid case, a plaintiff must al-
lege that a defendant—the very defendant sued—has
somehow wronged her in a legally cognizable way. See
Lujan v. Defenders of Wildlife, 504 U.S. 555, 560-61 (1992).
The conduct complained of must be “fairly . . . traceable
to the challenged action of the defendant, and not . . .
the result of the independent action of some third party
not before the court.” Id. at 563 (citation in brackets omit-
ted). And whatever else Payton and the other plaintiffs
may show the counties of Kane and DuPage did to them,
no one is claiming that, for instance, Effingham County
in any way harmed one of the named plaintiffs.
The real question, therefore, is whether for standing
purposes we may look only to the named plaintiffs, or
if, once the requirements of Rule 23 are met, the true
plaintiff is the class as a whole. If the latter is true, then
the question arises whether it is enough that some mem-
bers of the class were injured by at least one named
defendant. (There is obviously no logistical reason why
all 19 counties cannot be named as separate defendants.)
The plaintiffs argue that both of those propositions are
correct: the class action device does indeed entitle the
group as a whole (represented by people from less than
all counties) to sue all 19 counties, and it is enough that
someone in the class was injured by one of the defen-
dants. In this respect, they invoke the so-called “juridical
link” doctrine, which would entitle them to sue all sim-
ilarly situated counties in a single case if they can
show that their injuries arise out of a common legal rule
(the Act) that is binding on, and followed to various degrees
by, all the named counties.
The juridical link doctrine arose out of the Ninth Circuit’s
decision in La Mar v. H & B Novelty & Loan Co., 489
F.2d 461 (9th Cir. 1973). LaMar held that a plaintiff
No. 00-3789 9
without a cause of action against a specific defendant
cannot “ ‘fairly and adequately’ protect the interests of
those who do have such causes of action,” for purposes of
Rule 23(a). Id. at 466 (citations omitted). Nevertheless,
and relevantly to our case, the court went on to hold that
if the plaintiffs as a group—named and unnamed—have
suffered an identical injury at the hands of several par-
ties related by way of a conspiracy or concerted scheme,
or otherwise “juridically related in a manner that sug-
gests a single resolution of the dispute would be expedi-
tious,” the claim could go forward. Id.This court has never addressed the juridical link doc-
trine squarely, even though several district courts with-
in this circuit have accepted it. See, e.g., Weiss v. Win-
ner’s Circle of Chicago, Inc., No. 91 C 2780, 1995 WL
755328, at *2 (N.D. Ill. Dec. 14, 1995); Hopson v. Schilling,
418 F. Supp. 1223, 1238 (N.D. Ind. 1976). We are skeptical
that the use of this terminology is conducive to sound
analysis of the kind of problem presented here: the real
issues are whether the plaintiff class was injured by the de-
fendants, and if so, whether the claims of the proposed
named plaintiffs are representative. Post-LaMar cases
from other courts have suggested that if all the defendants
took part in a similar scheme that was sustained either
by a contract or conspiracy, or was mandated by a uni-
form state rule, it is appropriate to join as defendants
even parties with whom the named class representative
did not have direct contact. See, e.g., Moore v. Comfed Sav.
Bank, 908 F.2d 834, 838-39 (11th Cir. 1990); Fallick v.
Nationwide Mut. Ins. Co., 162 F.3d 410, 423-24 (6th Cir.
1998). See also Murer v. Montana State Comp. Mut. Ins.
Fund, 849 P.2d 1036, 1039 (Mont. 1993) (a “juridical link
[exists] where the various defendants are related instru-
mentalities of a single state, such as various law enforce-
ment agencies”).
10 No. 00-3789
In Fallick, the Sixth Circuit, using juridical link analysis,
concluded that once a plaintiff had established a claim
against one of the named defendants, the rest of the
determination about the suitability of class certifica-
tion would proceed as usual under Rule 23. Id. at 423.
The court reasoned that, in the presence of the concerted
action contemplated in LaMar, it is not necessary that
each named plaintiff have individual standing to sue each
named defendant. Instead, a plaintiff who has standing
to sue at least one of the named defendants also “has
standing to challenge a practice even if the injury is of
a sort shared by a large class of possible litigants.” Id.
Similarly, the Eleventh Circuit in Moore held that a
group of named plaintiffs could bring a claim against
several defendants—including those against whom the
named plaintiffs did not have a direct claim—finding that
they were needed for “complete relief” because of their
linked action. 908 F.2d at 838-39. As reported in Moore,
the district court had stated in the opinion below that
“[o]ther named plaintiffs could be supplied to match with
each named defendant but it would be unwieldy to do so.
Each plaintiff and the defendants have connection to
each other through Land Bank equity. The case is simpler
and more economical with the class of plaintiffs and the
named defendants.” Id. at 838. The court also noted that
“juridical links” were most often found when a state or local
statute required common action.
Finally, relying on Moore, the Supreme Judicial Court
of Massachusetts recently endorsed the juridical link
doctrine for a plaintiff class in which the named plaintiffs
were not directly harmed by all the named defendants,
analogizing the analysis to that performed under permis-
sive joinder. See Weld v. Glaxo Wellcome Inc., 746 N.E.2d
522, 530 (Mass. 2001). See generally William D. Henderson,
Cmt., Reconciling the Juridical Links Doctrine with the
Federal Rules of Civil Procedure and Article III, 67 U. CHI.
No. 00-3789 11
L. REV. 1347 (2000) (discussing the juridical link doc-
trine in the context of the rules on joinder and class ac-
tions).
In our case, given that the bail bond fee is imposed
pursuant to a state statute, and that county sheriffs are
for this purpose an arm of the state, see Scott v. O’Grady,
975 F.2d 366, 371 (7th Cir. 1992), it is reasonable for
the putative plaintiff class to try to hold all counties
accountable within one suit. The constitutionality of a
bond fee (whether it is $1 or $45) should not differ from
one county to the next, when such a fee is imposed pursu-
ant to the same statute.
We come therefore to the central issue in this case, which
is whether these named plaintiffs may represent a class
that includes people from the other 17 named counties. We
have begun our analysis with the question of class certifica-
tion, mindful of the Supreme Court’s directive to con-
sider issues of class certification prior to issues of stand-
ing. See Ortiz v. Fibreboard Corp., 527 U.S. 815 (1999):
“the class certification issues are . . . logically antecedent
to Article III concerns, and themselves pertain to stat-
utory standing, which may properly be treated before
Article III standing. Thus the issue about Rule 23 cer-
tification should be treated first.” Id. at 831 (citations
omitted). This involves defining the class and assessing
whether the proposed class representatives can satisfy
all four requirements of Rule 23(a), and at least one of
the categories of Rule 23(b).
Because the district court never undertook this inquiry,
it would be premature for this court to do so without a
proper record. We note only 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 indi-
12 No. 00-3789
vidual county. The numerosity, commonality, and ade-
quacy of representation factors will also require further
development on remand, subject to whatever ruling the
court may make with respect to the related class actions
and with respect to the individual claims. Because this
action was pending at the time the Ringswald and Coleman
suits were decided, and because the plaintiffs here
are seeking monetary relief in part, the court will also
need to consider whether the other litigation is capable of
barring claims that would have required the procedural
protections of Rule 23(b)(3), including especially the right
to opt out of the related case.
We close with a few observations about the use of the
class action device to consolidate claims that are common
to plaintiff class members, where the defendants have
not had the same interactions with each member of the
class. We understand Ortiz to rest on the long-standing
rule that, once a class is properly certified, statutory
and Article III standing requirements must be assessed
with reference to the class as a whole, not simply with
reference to the individual named plaintiffs. The certifica-
tion of a class changes the standing aspects of a suit,
because “[a] properly certified class has a legal status
separate from and independent of the interest asserted
by the named plaintiff.” Whitlock v. Johnson, 153 F.3d
380, 384 (7th Cir. 1998). See also United States Parole
Comm’n v. Geraghty, 445 U.S. 388, 404 (1980); Franks v.
Bowman Transp. Co., Inc., 424 U.S. 747, 753 (1976);
Sosna v. Iowa, 419 U.S. 393, 399 (1975). The Supreme
Court underscored in Sosna the independent legal status
of class actions from the original plaintiff and held that,
where a class has been properly certified, even the moot-
ness of the named plaintiff’s individual claim does not
render the class action moot—very much a standing
inquiry. 419 U.S. at 399-401. See Franks, 424 U.S. at 753-
55 (applying Sosna even though the named plaintiff’s
No. 00-3789 13
claim did not involve an issue “capable of repetition, yet
evading review”). In Geraghty, the Court extended this
principle and held that a class action does not become
moot upon expiration of the named plaintiff’s substan-
tive claim even when class certification was denied in the
district court, 445 U.S. at 404, and the named plaintiff
could continue to argue on appeal for reversal of the dis-
trict court’s denial of class certification despite the
mootness of his individual claim. See id. at 404-05. We
conclude that the plaintiffs may be entitled to represent
a class suing all 19 defendant counties if, under the rea-
soning of LaMar and its progeny, they fulfill all the re-
quirements of Rule 23.
This question of “standing” is just one part of a rather
complex network of rules regulating class actions, under
which the named plaintiff is the critical actor for some
purposes, every individual member of the class is relevant
for other purposes, and the class as a whole is the focal
point for yet other purposes. For instance, the citizen-
ship requirement for purposes of diversity jurisdiction in
a class action hinges entirely on the citizenship of the
named plaintiffs. See Supreme Tribe of Ben-Hur v. Cauble,
255 U.S. 356 (1921). Until the enactment of 28 U.S.C.
§ 1367, in contrast, amount in controversy rules had to
be satisfied by each member of the class, according to
Zahn v. International Paper Co., 414 U.S. 291, 301 (1973);
there is currently a split in the circuits on the question
whether § 1367 legislatively overruled Zahn. Compare
Stromberg Metal Works, Inc. v. Press Mech., Inc., 77 F.3d
928, 930-31 (7th Cir. 1996) (Zahn overruled by § 1367); and
Rosmer v. Pfizer Inc., 263 F.3d 110, 114 (4th Cir. 2001)
(same); with Trimble v. Asarco, Inc., 232 F.3d 946, 962
(8th Cir. 2000) (Zahn still good law despite § 1367); and
Meritcare v. St. Paul Mercury Ins. Co., 166 F.3d 214, 218-
20 (3d Cir. 1999) (same). See also Free v. Abbott Labs., 529
U.S. 333 (2000) (Court divides 4-4 on this issue). The class
14 No. 00-3789
is treated as an entity for purposes of claim preclusion, as-
suming that it was adequately represented. See, e.g., Tice
v. American Airlines, 162 F.3d 966, 972 (7th Cir. 1998).
We see no reason to truncate potentially efficient uses
of the class action device when they are otherwise not
prohibited and here the class action device may be superior
to 19, or 102, different cases in each Illinois county chal-
lenging the effects of the same state statute. Compare
In re Bridgestone/Firestone, Inc., 288 F.3d 1012, 1014-15
(7th Cir. 2002). A Rule 23 analysis, which was never per-
formed in this case, may suggest that there is little trou-
ble with the named plaintiffs representing this class un-
der a standard “commonality” or “adequacy of representa-
tion” inquiry—considerations we leave to the district
court. Most importantly, there are cases where appropri-
ate relief may only be obtained through one broad suit,
and it will be impossible to find a named plaintiff to
match each defendant. See, e.g., Ragsdale v. Turnock, 841
F.2d 1358 (7th Cir. 1988). If the defendants with whom
the named representative did not interact directly
are following a common statute (and this common factor
assures that the representative has the same legal claim
as the unnamed parties—or, to use the terminology
other courts have adopted, the defendants are “juridical-
ly linked”), we see nothing in either standing doctrine
or Rule 23 that automatically precludes use of the class
action device.
This is not a case where the named plaintiff is trying
to piggy-back on the injuries of the unnamed class mem-
bers. That, of course, would be impermissible, in light of
the fact that “a named plaintiff cannot acquire standing
to sue by bringing his action on behalf of others who
suffered injury which would have afforded them standing
had they been named plaintiffs; it bears repeating that
a person cannot predicate standing on injury which he
does not share. Standing cannot be acquired through the
No. 00-3789 15
back door of a class action.” Allee v. Medrano, 416 U.S.
802, 828-29 (1974) (Burger, C.J., dissenting). See also
O’Shea v. Littleton, 414 U.S. 488, 494 (1974); Bailey v. Pat-
terson, 369 U.S. 31, 32-33 (1962). These putative represen-
tatives were personally injured by the operation of the
very same statute that caused the injuries to all other
members of the proposed class.
IV
For the foregoing reasons we REVERSE the judgment of
the district court and REMAND this case for further proceed-
ings in accordance with this opinion.
A true Copy:
Teste:
________________________________
Clerk of the United States Court of
Appeals for the Seventh Circuit
USCA-97-C-006—9-3-02