{ "id": 3228871, "name": "MARY S. MADLENER, Appellee, v. MORGAN M. FINLEY, Clerk of the Circuit Court, Appellant", "name_abbreviation": "Madlener v. Finley", "decision_date": "1989-03-29", "docket_number": "No. 66105", "first_page": "147", "last_page": "155", "citations": [ { "type": "official", "cite": "128 Ill. 2d 147" } ], "court": { "name_abbreviation": "Ill.", "id": 8772, "name": "Illinois Supreme Court" }, "jurisdiction": { "id": 29, "name_long": "Illinois", "name": "Ill." }, "cites_to": [ { "cite": "191 Ill. 391", "category": "reporters:state", "reporter": "Ill.", "case_ids": [ 3245039 ], "year": 1979, "pin_cites": [ { "page": "398" } ], "opinion_index": 0, "case_paths": [ "/ill/191/0391-01" ] }, { "cite": "391 Ill. 29", "category": "reporters:state", "reporter": "Ill.", "case_ids": [ 2511750 ], "pin_cites": [ { "page": "35-36" } ], "opinion_index": 0, "case_paths": [ "/ill/391/0029-01" ] }, { "cite": "30 Ill. App. 3d 992", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 2620916 ], "pin_cites": [ { "page": "994" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/30/0992-01" ] }, { "cite": "77 Ill. App. 3d 192", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3288539 ], "weight": 2, "pin_cites": [ { "page": "197" }, { "page": "197" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/77/0192-01" ] }, { "cite": "19 Ill. 2d 415", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 2744690 ], "weight": 4, "pin_cites": [ { "page": "423" }, { "page": "422-23" }, { "page": "423" }, { "page": "423" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/19/0415-01" ] }, { "cite": "165 Ill. 233", "category": "reporters:state", "reporter": "Ill.", "case_ids": [ 3103397 ], "weight": 2, "pin_cites": [ { "page": "241" } ], "opinion_index": 0, "case_paths": [ "/ill/165/0233-01" ] }, { "cite": "279 Ill. 550", "category": "reporters:state", "reporter": "Ill.", "case_ids": [ 4881447 ], "weight": 2, "pin_cites": [ { "page": "556" }, { "page": "555" } ], "opinion_index": 0, "case_paths": [ "/ill/279/0550-01" ] }, { "cite": "64 Ill. 2d 559", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 5428669 ], "weight": 4, "pin_cites": [ { "page": "565" }, { "page": "561-62" }, { "page": "565" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/64/0559-01" ] }, { "cite": "66 Ill. 2d 7", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 5463901 ], "weight": 4, "year": 1976, "pin_cites": [ { "page": "15" }, { "page": "14" }, { "page": "15" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/66/0007-01" ] } ], "analysis": { "cardinality": 635, "char_count": 13761, "ocr_confidence": 0.781, "pagerank": { "raw": 6.75916056985111e-08, "percentile": 0.40915165324310415 }, "sha256": "893b2499c1da94c357184e0c20ff4d4188209067f32bf7d8b0df39c630453f20", "simhash": "1:9fdaff826f9c4447", "word_count": 2283 }, "last_updated": "2023-07-14T19:54:46.843720+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "WARD and CALVO, JJ., took no part in the consideration or decision of this case." ], "parties": [ "MARY S. MADLENER, Appellee, v. MORGAN M. FINLEY, Clerk of the Circuit Court, Appellant." ], "opinions": [ { "text": "JUSTICE CLARK\ndelivered the opinion of the court:\nThis case raises the issue of whether a clerk of court who holds a litigant\u2019s funds pursuant to a court order pending resolution of the litigation has a duty to deposit those funds in an interest-bearing account.\nThe facts in this case are not in dispute. In 1981, appellee, Mary S. Madlener, was named a defendant in an interpleader action filed by an insurance company. The court in the case ordered the insurance company to deposit the amount of its admitted liability with appellant, Morgan M. Finley, the clerk of the circuit court of Cook County (the Clerk). Because the court did not specify that the funds should be deposited into an interest-bearing account, the Clerk placed them into a non-interest-bearing demand checking account.\nThereafter, a settlement agreement was reached whereby appellee was to receive a certain share of the insurance proceeds deposited with the Clerk and the interpleader action was to be dismissed. The court, in its order dismissing the case on June 10, 1982, instructed the Clerk to pay appellee her share of the proceeds. The order had originally stated that appellee was entitled to the proceeds \u201cplus any interest accrued thereon,\u201d but the interest provision was stricken by the court. The Clerk then distributed to appellee her share of the proceeds, without interest. No appeal was taken from the court\u2019s order dismissing the action.\nOn July 8, 1982, appellee sent a letter to the Clerk demanding payment of the interest due on the funds which had been deposited by the insurance company. When the Clerk did not respond to the letter, appellee instituted a class action lawsuit against the Clerk in the circuit court of Cook County, contending that the Clerk\u2019s failure to place funds in interest-bearing accounts constituted a breach of a fiduciary duty owed by the Clerk as a public official. On April 18, 1986, the circuit court dismissed the complaint with prejudice for failure to state a cause of action and denied appellee\u2019s motions for summary judgment and class certification.\nThe appellate court reversed the dismissal of appellee\u2019s complaint, finding that as a public official, the Clerk owes a fiduciary duty to the people he represents. (161 111. App. 3d 796, 798.) The court stated that, as a fiduciary, the Clerk has a duty to place litigants\u2019 funds in interest-bearing accounts. (161 111. App. 3d at 800.) However, the court also recognized that the Clerk frequently needs to withdraw deposited funds on short notice and that interest-bearing accounts may not exist that would allow such withdrawals upon demand. As a result, the court remanded the case to the circuit court to determine \u201cwhether there are financial institutions which will accommodate the [C]lerk\u2019s needs with a demand account that also pays interest.\u201d (161 111. App. 3d at 800.) The court also held, however, that even if the circuit court were to find that such institutions exist, appellee would not be entitled to retrospective relief. (161 111. App. 3d at 803.) Finally, the court concluded that it could not, at that stage in the proceedings, address the question of class certification. 161 111. App. 3d at 804.\nOne justice dissented from the court\u2019s opinion for three reasons. First, the dissent thought that appellee\u2019s action constituted an impermissible collateral attack upon the judge\u2019s order in the interpleader action because appellee could have requested in the original action that the court order the Clerk to place the funds in an interest-bearing account. (161 111. App. 3d at 804-05 (McMorrow, J., dissenting).) Second, the dissent could find no legal basis to support the majority\u2019s conclusion that the Clerk has a fiduciary duty to deposit litigants\u2019 funds in interest-bearing accounts. (161 111. App. 3d at 806 (McMorrow, J., dissenting).) Finally, the dissent argued that the \u201cdetermination of comprehensive supervision over the [C]lerk\u2019s placement of all custodial funds in general\u201d should be made by legislative enactment or supreme court rule rather than by an individual trial court judge. 161 111. App. 3d at 807 (McMorrow, J., dissenting)-\nWe granted the Clerk\u2019s petition for leave to appeal (107 111. 2d R. 315). The Clerk seeks reversal of the appellate court\u2019s finding that the Clerk has a legal duty to place litigants\u2019 funds in interest-bearing accounts without court orders to that effect. The Clerk also argues that appellee\u2019s lawsuit constitutes an improper collateral attack upon the order of the judge in the interpleader action, and that the question of how litigants\u2019 funds should be deposited should be determined by legislation or judicial rulemaking rather than by the circuit court judge on remand. Appellee, on the other hand, urges us to affirm the appellate court\u2019s finding with respect to the Clerk\u2019s fiduciary duty, but to reverse the court\u2019s determination that appellee is not entitled to retrospective relief. Appellee also claims that we should certify this case as a class action and hold that appellee is entitled to summary judgment.\nWe first address the issue of whether a clerk of court has a fiduciary duty to deposit litigants\u2019 funds held by the clerk pursuant to court order pending resolution of the litigation into interest-bearing accounts. We note initially that no case has been called to our attention that establishes such a duty on the part of any government official, absent a statute so providing. While the appellate court below cited People v. Savaiano (1976), 66 Ill. 2d 7, and City of Chicago ex rel. Cohen v. Keane (1976), 64 Ill. 2d 559, in support of its conclusion that such a duty exists (161 Ill. App. 3d at 798), neither case stands for the proposition that government officials have a duty to invest funds in interest-bearing accounts. Rather, both cases concern a statutorily created fiduciary duty of public officials to avoid self-dealing and conflicts of interest in transactions between the government and the private sector. Savaiano, 66 Ill. 2d at 15; Keane, 64 Ill. 2d at 565; see Ill. Rev. Stat. 1987, ch. 24, par. 3\u201414\u20144; Ill. Rev. Stat. 1987, ch. 102, par. 3.\nIn Savaiano, the defendant was a county board member who participated on the county\u2019s behalf in negotiations that led to the eventual purchase of property which the defendant himself owned. (Savaiano, 66 Ill. 2d at 14.) Keane involved a city alderman who allegedly took advantage of his office to purchase at scavenger tax sales property which the city was planning to purchase and develop. The alderman then used his government position to influence the city to purchase the properties that he himself had already purchased at tax sales. (Keane, 64 Ill. 2d at 561-62.) This court concluded that the government officials\u2019 conduct in both cases was prohibited by Illinois statute. Savaiano, 66 Ill. 2d at 15; Keane, 64 Ill. 2d at 565.\nIn the present case, there clearly is no issue of conflict of interest or self-dealing raised. Instead, the alleged breach of fiduciary duty is the Clerk\u2019s failure to deposit appellee\u2019s funds in interest-bearing accounts. Unlike the conflict of interest and self-dealing situations involved in Savaiano and Keane, no constitutional or statutory provision governs a clerk of court\u2019s duty to hold litigants\u2019 funds. Rather, that duty arises solely by order of the circuit court. (People v. McGrath (1917), 279 Ill. 550, 556.) Since no statute governs a clerk of court\u2019s duty in holding litigants\u2019 funds, we must determine whether clerks of court should be bound by a previously unrecognized common law duty to deposit litigants\u2019 funds in interest-bearing accounts.\nThis court has rarely addressed the issue of the extent of a clerk of court\u2019s duty when holding funds pursuant to court order. In People v. McGrath, 279 Ill. at 555, this court stated that:\n\u201cThe clerk of the court is the keeper of its records and seal, who issues process and makes, preserves and certifies the records of its proceedings. He is not a collecting officer, and there is nothing in the nature of his office which requires him to be the receiver and custodian of money paid into court without an order of the court. So money deposited with the clerk as a tender in a pending suit, without an order of court, does not become a fund of the court, though it would have become such fund if the court had ordered the clerk to receive or hold it.\u201d (279 111. at 555.)\nThe circuit court in McGrath ordered a litigant to deposit funds with a clerk of court to hold until further order of the court. The clerk placed the funds in a savings account in a bank that subsequently went bankrupt. The issue in the case was whether the clerk was liable for the funds even though they were lost through no fault of the clerk. This court concluded that the clerk acts as an insurer, rather than a bailee, and therefore the clerk was strictly liable for the funds deposited with him. 279 111. at 557-58.\nA much earlier case, Baltimore & Ohio R.R. Co. v. Gaulter (1896), 165 Ill. 233, also dealt with a clerk of court\u2019s duty to hold funds pursuant to court order. In that case, this court held that where a judge in an inter-pleader action orders that the clerk deposit a litigant\u2019s funds in an interest-bearing account, the clerk is liable for both the amount initially deposited and the interest that should have accrued had the clerk complied with the court\u2019s order. Gaulter, 165 Ill. at 241.\nMcGrath and Gaulter illustrate the principle that a clerk of court\u2019s duty to hold litigants\u2019 funds is created and controlled by the circuit court. Neither case, though, addresses the specific question presented here: Do clerks of court have a duty to deposit litigants\u2019 funds in interest-bearing accounts where the circuit court has not so ordered? In fact, no Illinois case that we are aware of has addressed this issue. However, this court, and the Illinois appellate court, have addressed analogous issues dealing with tax refunds, tax certificate redemptions, and bail bonds.\nIn Lakefront Realty Cory. v. Lorenz (1960), 19 Ill. 2d 415, 423, this court determined that taxpayers are not entitled to interest on their Illinois tax refunds. This court cited a number of cases from other jurisdictions that had held that interest cannot be allowed on tax refunds unless a statute specifically provided for interest. (Lakefront Realty, 19 Ill. 2d at 422-23.) The reasoning of the courts in those cases, this court explained, was that:\n\u201cinterest, being a creature of statute, is recoverable only by statute or contract, and *** that a tax collector, being a mere trustee of public funds collected for specific purposes, has no money to pay interest in the absence of statutory authority to establish a fund for that purpose.\u201d (Lakefront Realty, 19 Ill. 2d at 423.)\nThis court adopted the reasoning of those courts and concluded \u201cthat the silence of our refund statute on the question of interest discloses a legislative intention to deny it.\u201d (Lakefront Realty, 19 Ill. 2d at 423.) Two Illinois appellate court decisions followed this court\u2019s decision in Lakefront Realty to hold that in the absence of statutory provisions for interest: (1) a tax certificate holder is not entitled to interest upon redemption of his certificate (Thornton, Ltd. v. Kusper (1979), 77 Ill. App. 3d 192, 197); and (2) a litigant is not entitled to interest on money he deposited toward securing a bail bond (Gonzalez v. Danaher (1975), 30 Ill. App. 3d 992, 994).\nThese cases, in holding that certain persons are not entitled to interest on funds which have been held by government officials unless a statute so provides, also stand, we find, for the correlative principle that government officials do not have a common law fiduciary duty to invest such funds in interest-bearing accounts. We see no reason why this principle should not apply to clerks of court holding litigants\u2019 funds pursuant to court order. Rather, we find that the principle is particularly applicable in this case since a clerk of court\u2019s role as depositary in interpleader actions is to hold the deposited funds until it can be resolved which parties are entitled to them. It is not until this determination is made that the clerk, pursuant to court order, disburses the funds. (See People v. Chicago Waste & Textile Co. (1945), 391 Ill. 29, 35-36.) In a situation such as this, \u201c[w]here the only duty of a person is to be always ready to pay over money whenever another is entitled to receive it, he is not ordinarily chargeable with interest.\u201d (Mathewson v. Davis (1901), 191 Ill. 391, 398; see also Thornton, Ltd. v. Kusper (1979), 77 Ill. App. 3d 192, 197.) We therefore conclude that a clerk of court does not have a fiduciary duty to deposit litigants\u2019 funds in interest-bearing accounts. Accordingly, the circuit court was correct in dismissing appellee\u2019s complaint for failure to state a cause of action. Because we conclude that appellee\u2019s complaint was properly dismissed, we need not address other issues raised in this appeal.\nThe judgment of the appellate court reversing the circuit court\u2019s dismissal of appellee\u2019s complaint is therefore reversed, and the circuit court\u2019s order dismissing appellee\u2019s complaint is affirmed.\nAppellate court reversed;\ncircuit court affirmed.\nWARD and CALVO, JJ., took no part in the consideration or decision of this case.", "type": "majority", "author": "JUSTICE CLARK" } ], "attorneys": [ "Richard M. Daley, State\u2019s Attorney, of Chicago (Joan S. Cherry, Deputy State\u2019s Attorney, and Susan Condon and Pamela L. Gray, Assistant State\u2019s Attorneys, of counsel), for appellant.", "Samuel H. Young, of Samuel H. Young Professional Corp., of Skokie, for appellee." ], "corrections": "", "head_matter": "(No. 66105.\nMARY S. MADLENER, Appellee, v. MORGAN M. FINLEY, Clerk of the Circuit Court, Appellant.\nOpinion filed March 29, 1989.\nRehearing denied May 26,1989.\nRichard M. Daley, State\u2019s Attorney, of Chicago (Joan S. Cherry, Deputy State\u2019s Attorney, and Susan Condon and Pamela L. Gray, Assistant State\u2019s Attorneys, of counsel), for appellant.\nSamuel H. Young, of Samuel H. Young Professional Corp., of Skokie, for appellee." }, "file_name": "0147-01", "first_page_order": 157, "last_page_order": 165 }