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, dismissed 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 counties have followed a practice of charging a “bail fee” to

detainees who are released on bail or on their own recognizance. 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, provides that “[t]he fees of sheriffs in counties of the first

and second class, except where increased by county ordinance 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 custody. 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 Circuit. 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 county 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 follow 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 ‘injury 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 problem 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 permitting 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 Counties 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 plaintiffs 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 judgment on the federal claims on October 11, 2001. We express 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 certification 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 proceedings. 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 counties, 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 concludes 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 insufficient 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. Communication 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 problem of standing: to bring a valid case, a plaintiff must allege 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 omitted). 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 members 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 defendants. In this respect, they invoke the so-called “juridical

link” doctrine, which would entitle them to sue all similarly 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 parties related by way of a conspiracy or concerted scheme,

or otherwise “juridically related in a manner that suggests a single resolution of the dispute would be expeditious,” the claim could go forward. Id.

This court has never addressed the juridical link doctrine squarely, even though several district courts within this circuit have accepted it. See, e.g., Weiss v. Winner’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 defendants, 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 uniform 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 instrumentalities of a single state, such as various law enforcement 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 certification 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 permissive 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 doctrine in the context of the rules on joinder and class actions).

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 pursuant 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 certification, mindful of the Supreme Court’s directive to consider issues of class certification prior to issues of standing. 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 statutory standing, which may properly be treated before

Article III standing. Thus the issue about Rule 23 certification 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 adequacy 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 certification 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 mootness 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 substantive 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 district 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 reasoning of LaMar and its progeny, they fulfill all the requirements 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 citizenship 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, assuming 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 challenging 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 performed in this case, may suggest that there is little trouble with the named plaintiffs representing this class under a standard “commonality” or “adequacy of representation” inquiry—considerations we leave to the district

court. Most importantly, there are cases where appropriate 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 “juridically 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 members. 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. Patterson, 369 U.S. 31, 32-33 (1962). These putative representatives 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 proceedings 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