Cwik v. Topinka

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Cwik v. Topinka

State: Illinois

Court: 1st District Appellate

Docket No: 1-07-2368 & 1-07-2786 Cons. Rel

Case Date: 03/09/2009

Preview:FIRST DIVISION Date Filed: March 9, 2009 Nos. 1-07-2368 & 1-07-2786 cons. DAVID CWIK, Successor Independent Adm'r) of the Estate of Genowefa Bogdanowicz, ) and ANITA WHITE, on Behalf of ) Themselves and All Others Similarly ) Situated, ) ) Plaintiffs-Appellees, ) ) v. ) ) JUDY BARR TOPINKA, Treasurer of the ) State of Illinois, and ALISSA CAMP, ) Director, Unclaimed Property Division, ) Office of the Treasurer of the State of) Illinois, ) ) Defendants-Appellants. ) Appeal from the Circuit Court of Cook County. No. 05 CH 09872

Honorable Phillip L. Bronstein, Judge Presiding.

JUSTICE HALL delivered the opinion of the court: The plaintiffs, David Cwik, successor independent administrator of the estate of Genowefa Bodganowicz, and Anita White, filed a lawsuit against the defendants, Judy Barr Topinka,1 Treasurer of the State of Illinois, and Alissa Camp,2 Director of the Unclaimed Property Division of the office of the Illinois Treasurer, (collectively the Treasurer), on behalf of themselves and all others similarly situated, seeking payment of interest on property previously held by the State of Illinois
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Alexi Giannoulias succeeded Judy Barr Topinka as Treasurer. Joshua Joyce succeeded Alissa Camp as Director of the

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Unclaimed Property Division.

Nos. 1-07-2368 & 1-07-2786 cons. under the Uniform Disposition of Unclaimed Property Act (765 ILCS 1025 et seq. (West 2004)) (the Act). The plaintiffs also sought

certification of the suit as a class action. The circuit court denied the Treasurer's motion to dismiss the amended complaint but certified two questions to this court pursuant to Supreme Court Rule 308 (155 Ill. 2d R. 308). Pursuant to Supreme Court Rule 306(a)(8) (210 Ill. 2d R. 306(a)(8)), the Treasurer also sought review of the order certifying the class. This court granted review in both

instances and consolidated the appeals. Under the Act, private property in the possession of someone other than its owner is presumed abandoned and must be placed in the custody of the State. 765 ILCS 1025/11 (West 2004). The

state assumes custody of the property and is responsible for its safekeeping. 765 ILCS 1025/14 (West 2004). Upon submission of

the state-prescribed form, the owner may retrieve the property. 765 ILCS 1025/19 (West 2004). However, pursuant to section 15 of

the Act, the owner "is not entitled to receive income or other increments accruing thereafter, except that income accruing on unliquidated stock and mutual funds after July 1, 1993, may be paid to the owner." 765 ILCS 1025/15 (West 2004).

The provisions of the Deposit of Monies Act requires the Treasurer to deposit all money received "on account of the State"

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Nos. 1-07-2368 & 1-07-2786 cons. in "banks, savings and loan associations or credit unions" that were authorized to receive such deposits under that statute. ILCS 520/1 (West 2004). Any interest received "shall be the 15 ILCS 520/2 (West 2004). 15

property of the State of Illinois."

Proceeds received from the sale of property pursuant to the Act, are placed in one of two funds: (1) the unclaimed property fund, from which claims under the Act are paid; and (2) the pension fund. 765 ILCS 1025/18(a) (West 2004). The complaint alleged that section 15 of the Act constitutes a taking without compensation in violation of section 15 of the Illinois Constitution of 1970 (Ill. Const. 1970, art. I,

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