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Shelton challenges retention of 10 % all bonds by clerk as unconstitutional

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This motion to challenge the bond statute was filed in case 12 CR 22504 where the next hearing is on Aug 11 2015 at 10 AM in courtroom 506 at 2600 S California Ave, in IL. For more information about the case read here, here, and here.

In  Illinois state statutes allow those charged with crimes to pay 10% of their bail to be released from jail pre-trial. Note that this is an incentive for the judges to set hugely excessive bails in Illinois.

This means that the bond processing and holding fee, which is a fixed service whether the bond check is for $100 on a $1000 bail or $10,000 on a $100,000 bail is obviously unfair, as the court clerk would retain $10 and $1,000 respectively for the exact same service of processing the bond check. The $1,000 should be considered a $995 overcharge and that hurts especially if you are poor and innocent.

This ties the type of charge and the whim of the judge in setting bail to a fixed service, which can be considered institutionalized fraud by the State of Illinois and the court clerks, as well as considered exploitation of defendants.

This is a scheme by Cook County to take the profits (from loaning you the money) from bail bondsmen who are banned in IL and give the profits (not a loan but a fixed service) from bail to the courts. If the amount the clerk receives for a fixed service of processing the bond is variable (set by statute at 10 % of the bond or 1% of the bail amount if it is a D-Bond; C-Bond requires you pay 100% of bail and is rarely set; personal recognizance bond allows you to pay no bond for release) and tied to the amount of bail, then the judges are encouraged (actually instructed) to set bails in IL 5-10 times higher than in other states so as to maximize the profits for the clerk/courts/county.  This is discriminatory and violates the constitutional right to be free of excessive bail amounts.

Remember, it doesn’t matter if you are innocent or guilty as all pay this fee IF they can pay their bond, do not choose to pay the entire bail – which means there is no fee for them – and IF they choose to pay the bond instead of sit in jail for the usually year or years it takes to go to trial.

In other areas of law, tying the fee for a fixed service to an unrelated service is considered fraud. For example: When doctors’ billing agents charge by percentage of doctor’s income to process billing instead of charging a flat fee for each bill processed, the U.S. Attorney files charges against the billing agent of Medicaid and Medicare fraud, as the

federal government when paying a surgeon for a $50,000 operation does considers it fraud to pay the billing agent $2500 for processing one surgeon’s bill (if the biller’s fee is 5% of doctor’s income) when they may only charge $5 on a $100 bill (5% to biller) from a doctor to  process one family doctor’s bill. They believe this amounts to a $2,495 overcharge on the biller’s bill processing service for the surgeon (paid for by the government).

I am filing this motion this week in my case. If there is any attorney who wants to consider representing me in this case, please email me at


People of the State of Illinois                          ) Plaintiff                                          ) v.                                            ) No. 12 CR 22504-01 Linda Shelton                                                 ) Defendant                                     ) Judge Reddick ) presiding MOTION TO DECLARE THE ILLINOIS BAIL STATUTE BOND RETENTION CLAUSE UNCONSTITUTIONAL NOW COMES, the Defendant, Linda L. Shelton, Pro Se who respectfully moves as above and in support of states as follows: 1. The Illinois Bail Statute, 725 ILCS 5/110, was written, according to the debate in the legislature, to correct the unfairness of the previous bail bondsman system resulting in impoverishment of innocent defendants. It eliminated bail bondsmen and allows the court clerks to retain 1% of bail as a fee for “bail bond costs”, when bond is returned or before bond is used for payment of court costs, fines, or attorney fees. 2. Processing and keeping a bail bond costs the clerk the same amount of time and the county the same amount financially whether it is a $100 bond or a $1,000 bond. The county, of course, makes a much larger interest income with the larger bond. 3. Therefore, there is an incentive for judges to set excessive bonds due to this system. The judges have an appearance of using a bond chart to set bond according to the offense charged. 4. The present pertinent sections of the bond statute are contained in an endnote of this document. 5. The law requires courts to adhere to stare decisis, that is they must respect and follow the holdings of higher courts. In Illinois, decisions of an Appellate Court are binding precedent on all circuit courts of locale. Therefore, until the Supreme Court rules otherwise, an applicable Appellate Court decision must be followed by every circuit court. People v. Carpenter, Garibaldi & Montes-Medina, 228 Ill.2d 250, 888 N.E.2d 105 (2008) (Nos. 103616, 103856 & 103857, 4/17/08) [emphasis added] 6. The law permits the trial courts to consider the constitutionality of statutes pretrial. Under Illinois Supreme Court precedent, the Appellate Court is required to resolve unconstitutional issues and constitutional issues which do not involve the validity of the statute before considering whether a statute is unconstitutional. Thus, in the Carpenter appeal the Appellate Court should have considered defendant’s reasonable doubt and due process arguments before determining that the statute creating the offense was unconstitutional. However, the requirement that the Appellate Court consider unconstitutional issues first does not require that the trial court do the same, especially where the statute creating the offense has been held unconstitutional by a court of superior jurisdiction. The court rejected the State’s argument that in the hope of avoiding a ruling on the constitutionality of the statute, the trial court was required to rule on pretrial motions although the Appellate Court had invalidated the statute creating the offense with which defendant was charged: Under either of these scenarios, the circuit court could have avoided ruling upon the constitutionality of the statute, but at the expense of defendants’ constitutional rights. We cannot emphasize enough: these are individuals charged with felonies. The criminal statutes of this state are not so sacrosanct, nor are our pursuit of judicial economy so preeminent, that we will endorse the trampling of citizens’ rights in pursuit of either. A citizen should not have to endure or defend a felony prosecution premised upon an unconstitutional statute. Our precedents do not hold otherwise. People v. Carpenter, Garibaldi & Montes-Medina, 228 Ill.2d 250, 888 N.E.2d 105 (2008) (Nos. 103616, 103856 & 103857, 4/17/08) [emphasis added] 7. Issues of constitutionality of statutes have been considered by the Illinois Supreme Court, which has stated specific guidelines concerning analysis of constitutionality: Statutes enjoy a presumption of constitutionality.  [People v. Kitch, 239 Ill. 2d 452, 466 (2011);] Conlan, 189 Ill.2d at 291, 244 Ill.Dec. 350, 725 N.E.2d 1237.   The party challenging the validity of a statute bears the burden of clearly establishing the alleged constitutional violation.  People v. Williams, 143 Ill.2d 477, 481, 160 Ill.Dec. 437, 577 N.E.2d 762 (1991).   While this presumption certainly does not mean that statutes are unassailable, neither should courts lightly or cavalierly declare unconstitutional that which the representatives of the people have seen fit to enact.  Conlan, 189 Ill.2d at 291-92, 244 Ill.Dec. 350, 725 N.E.2d 1237.   It is our duty to strike down legislation that plainly violates the constitution.  Williams, 143 Ill.2d at 481, 160 Ill.Dec. 437, 577 N.E.2d 762, quoting People v. Lindner, 127 Ill.2d 174, 184, 129 Ill.Dec. 64, 535 N.E.2d 829 (1989).   This is especially true when the legislation affects an individual’s liberty or constitutional due process rights.   The due process clause provides heightened protection against government interference with certain fundamental rights and liberty interests.   U.S. Const., amend. XIV; Ill. Const.1970, art. I, § 2; In re M.H., 196 Ill.2d 356, 362, 256 Ill.Dec. 297, 751 N.E.2d 1134 (2001), quoting Washington v. Glucksberg, 521 U.S. 702, 719-20, 117 S.Ct. 2258, 2267, 138 L.Ed.2d 772, 787 (1997).   Although the legislature has wide discretion in prescribing penalties for defined criminal offenses, this discretion is limited by the constitutional guarantee that a person may not be deprived of liberty without due process of law.  People v. Reed, 148 Ill.2d 1, 11, 169 Ill.Dec. 282, 591 N.E.2d 455 (1992).   Although our inquiry in this case involves matters of criminal procedure rather than criminal penalties, the importance of protecting constitutional due process rights is not diminished. [emphasis added] People v. Purcell, 2002 IL 92739 8. Judicial notice is given that the constitution gives citizens certain due process rights including the liberty right to be free of arrest and prosecution unless there is probable cause and due process. Fourth Amendment Probable Clause Cause and Fifth and Fourteenth Amendment Due Process Clauses 9. Citizens also have a First Amendment right to challenge the constitutionality of statutes on the ground that it may conceivably be applied unconstitutionally to others. “Overbreadth is a judicially created doctrine which recognizes an exception to the established principle that a person to whom a statute may constitutionally be applied will not be heard to challenge that statute on the ground that it may conceivably be applied unconstitutionally to others, in other situations not before the court. Under the doctrine, a party being prosecuted for speech or expressive conduct may challenge the law on its face if it reaches protected expression, even when that person’s own activities are not protected by the first amendment. The reason for this special rule in first amendment cases is apparent: an overbroad statute might serve to chill protected speech. A person contemplating protected activity might be deterred by the fear of prosecution. The doctrine reflects the conclusion that the possible harm to society in permitting some unprotected speech to go unpunished is outweighed by the possibility that protected speech of others may be muted.” Pooh Bah, 224 Ill. 2d at 435-36. 10. Citizens also have a right to challenge a statute based on violation of the Equal Protection Clause. The Equal Protection Clause requires more of a state law than nondiscriminatory application within the class it establishes. It also imposes a requirement of some rationality in the nature of the class singled out. To be sure, the constitutional demand is not a demand that a statute necessarily apply equally to all persons. ‘The Constitution does not require things which are different in fact . . . to be treated in law as though they were the same.’ Hence, legislation may impose special burdens upon defined classes in order to achieve permissible ends. But the Equal Protection Clause does require that, in defining a class subject to legislation, the distinctions that are drawn have ‘some relevance to the purpose for which the classification is made’. Schilb v. Kuebel, 404 U.S. 357, 92 S.Ct. 479, 30 L.Ed.2d 502 (1971) quoting Rinaldi v. Yeager, 384 U.S. 305, 308-309, 86 S.Ct. 149, 16 L.Ed.2d 577 [emphasis added] 11. For example, in People v. Wick (1985), 107 Ill.2d 62, 89 Ill.Dec. 833, 481 N.E.2d 676, the Illinois Supreme Court held that the former aggravated arson statute was unconstitutional because it (Ill.Rev.Stat.1981, ch. 38, par. 20-1.1(a)(3)) violated due process because it did not bear a reasonable relationship to the public interest intended to be protected. (Wick, 107 Ill.2d at 67, 89 Ill.Dec. 833, 481 N.E.2d 676.) The Illinois Supreme Court noted that the purpose of the statute was to subject arsonists to a more severe penalty when their conduct resulted in injury to a fire fighter or police officer. The Illinois Supreme Court found, however, that the statute was not reasonably related to that objective because the statute did not require an unlawful purpose in setting the fires. The statute therefore swept too broadly by punishing innocent as well as culpable conduct in setting fires. Wick, 107 Ill.2d at 66, 89 Ill.Dec. 833, 481 N.E.2d 676. 12. A statute may also be challenged if it violates the proportionate penalties clause of our State constitution. (Ill. Const.1970, art. I, § 11.) In People v. Bailey, 167 Ill.2d 210, 657 N.E.2d 953 (1995), 212 Ill.Dec. 608 the court stated as follows: Moreover, as this court has previously stated, “the availability of different punishments for separate offenses based on the commission of the same acts does not offend the constitutional guarantees of equal protection or due process.” [citations omitted] Accordingly, the trial court erred in concluding that the stalking statute violated the proportionate penalties clause.. . . .All penalties are to be determined both according to the seriousness of the offense and with the objective of restoring the offender to useful citizenship. (Ill. Const.1970, art. I, § 11.) While this court has acknowledged that article I, section 11, places some restraint on the right of the legislature to establish penalties for crimes, this court has been reluctant to invalidate penalties prescribed by the legislature, since, institutionally, the legislature is better able to gauge the evils affecting our society and more capable of measuring the seriousness of various offenses than the courts. (Accordingly, this court will only invalidate a penalty when it is “`cruel,’ `degrading’ or `so wholly disproportionate to the offense committed as to shock the moral sense of the community.'” [citations omitted]. People v. Bailey, 167 Ill.2d 210, 657 N.E.2d 953 (1995), 212 Ill.Dec. 608 [emphasis added] 13. In Bailey, the Illinois Supreme Court stated that if a statute makes the bail amount mandatory it would violate separation of powers: Coyne [the defendant] also argues that section 110-6.3 violates the separation of powers doctrine because it encroaches on the authority of the judiciary to admit persons to bail. We disagree. Section 110-6.3 requires that a court hold a hearing after the State files a petition requesting that the defendant be held without bail. According to the language of the section, following a hearing, the court “may” deny bail if several enumerated factors exist. Thus, we find section 110-6.3 is discretionary, rather than mandatory, in nature and does not curtail a court’s authority to impose bail. Consequently, we find that section 110-6.3 does not impermissibly infringe upon the powers of the court to admit persons to bail. [citations omitted] People v. Bailey, 167 Ill.2d 210, 657 N.E.2d 953 (1995), 212 Ill.Dec. 608 14. The percentage fee retention clause in the Bail Statute makes the percentage fee for bond processing disparate in that it is related to the bail set and therefore, also related to the crime charged – therefore appears to be an act of fraud and extortion against those with high bonds having no relationship, in amount, to the actual act of bond processing by the Clerk’s Office, is discriminatory against a specific class of defendants who can by some means raise the cash to pay 10 % bail charge for bond, on a higher than $500 bail (minimum bail amount), without using stocks, bonds, or real estate or paying the entire bail, and mandatory with absence of due process as there is no pretrial evidentiary hearing prior to its implementation. It violates separation of powers as, being a penalty as it is tied to the offense charged, is set by the legislature and not the court. As a penalty it violates the Bill of Rights in that property is confiscated without due process of law, especially as the amount charged is disparate regarding both different charges and the same charge with different bail amounts dependent upon the order of the judge. 15. Shelton argues that by the Bail Statute causing retainer of 1 % of her bail ($3,000) and not a flat fee for service regardless of ability to pay, regardless if bail is decreased upon motion for reconsideration (for the amount refunded – which the court clerk in Cook County refuses to refund the difference until the final disposition and then still retains the 1 %) as well as guilt or innocence, she is denied of property and liberty (until bail paid) without due process of law (there is no evidentiary due process hearing or trial that justifies the court retaining disproportionate and discriminatory different fees for different defendants). It is not a flat fee that applies equally to all persons using the clerk’s bond processing and holding service. 16. Therefore, Shelton has the right to “challenge the constitutionality of statutes on the ground that it may conceivably be applied unconstitutionally to others”. She challenges the disparate bond retention statute because it is discriminatory against a class of defendants who can by some means raise the cash to pay a higher than $500 bail, yet do not have the stocks, bonds, or real estate to put up as surety nor can they pay the entire bail amount. Those defendants that are indigent, particularly if innocent and therefore theoretically subject to no fines, fees or penalties, and have set high bails are particularly denied equal protection and due process by targeting them for lack of liberty if they do not forfeit a large sum of money without any evidentiary due process hearing as to their ability to pay or the justice involved in confiscating their funds. They are therefore coerced into giving up their right to retain property unless given a due process hearing in order to secure their pretrial release. This should shock the conscience. 17. Shelton challenges the constitutionality of the disparate fees because this represents fraud in that it charges different fees for the same service and ties the fee not to the service, but to an unrelated criminal charge and the whim of a judge or a judicial bond chart, not unlike the Medicare Fraud federal laws that charge felony fraud when a doctor’s billing agent charges by percentage of a doctor’s income instead of a flat fee for their services thus tying their services to the charges to the federal government for the doctor’s services. Here the county is committing fraud upon the defendants by tying the amount of bail and type of charge to the clerk’s fee. 18. Shelton challenges the constitutionality of the percentage bail retention clause because in violation of proportionality there is clearly no relationship between the amount of the clerk’s fee to process and hold the bond and the purpose of the bail statute or the Illinois Criminal Code. 19. Shelton challenges the constitutionality of the percentage bail retention clause (actually a penalty as the amount is related to the offense charged and whim of the judge and not the actual service) because it violates separation of powers as it is mandatory and unrelated in amount to an actual service of bond processing and holding or the purpose of the Bail or Criminal Statutes. The court is divorced from this bond processing fee penalty upon defendants whether guilty or innocent. Disparate mandatory bail fees encroache on the authority of the judiciary to admit persons to bail as it places the decision on the defendant as to whether to give up their right to property without due process (a decision of judiciary) in order to obtain pretrial release and the legislature which sets the amount of the penalty/alleged fee. 20. The Illinois Supreme Court said it “will only invalidate a penalty when it is “`cruel,’ `degrading’ or `so wholly disproportionate to the offense committed as to shock the moral sense of the community.'”” [citations omitted] People v. Bailey, 167 Ill.2d 210, 657 N.E.2d 953 (1995), 212 Ill.Dec. 608 The Bail Statute requiring one person to pay $1,000 or even ten times more as a bond processing fee while others pay $10 for the same service does shock the moral sense of the community and is not only disproportionate to the offense, in many different situations, but particularly in this case where defendant is simply charged with “touching an officer’s ear”, especially as the act of bond processing is wholly unrelated to the purpose of the Bail Statute as well as the purpose of the Criminal Statute used to charge aggravated battery for this fraudulently alleged offense. Should a penalty without due process on Shelton be the same or even more than on another defendant who shot an officer with a gun? 21. The U.S. Supreme Court previously ruled that a fee for bail processing services applied equally to both innocent and guilty defendants alike is not a penalty. The U.S. Supreme Court held that: “No due process denial results from retention of the 1% charge, which is an administrative fee (and not a cost of prosecution), imposed on all—guilty and innocent alike—who seek its benefit” (Schilb v. Kuebel, 404 U.S. 357, 92 S.Ct. 479, 30 L.Ed.2d 502 (1971)), but nowhere in their opinion did they consider the disparate nature of the bond processing fee as applied to different cases. They held that: “There is no indication that the personal recognizance system is not used without regard to the economic status of the accused, or that the full-deposit system actually favors the affluent” (Schilb v. Kuebel, 404 U.S. 357, 92 S.Ct. 479, 30 L.Ed.2d 502 (1971)), having stated in their opinion that courts would use personal recognizance for indigent defendants frequently and would consider the financials of defendants before setting bail. However, in this case, defendant is indigent and there was no personal recognizance bond and there was no consideration of Shelton’s financials when bond was set for over 1 ½ years. There was no evidentiary due process hearing with notice to object to the bond retention amount. This is an issue of first impression ignored by the U.S. Supreme Court in the Schilb opinion. 22. As disparate service fees cannot be considered as a true service fee – or this would be an act of fraud and because they appear to be tied to the actual crime charged and bail set, they must be considered a mandatory penalty being charged on the group of defendants whether innocent or guilty who happened to be charged with a criminal offense, yet have the finances, by whatever cash means (their own or borrowed) – except stocks, bonds, or real estate, to pay the bail above and beyond the minimum for any criminal offense. As noted in Bailey and Schilb, there is a violation of both equal protection and proportionality when the penalty is mandatory or has no relationship to the crime and due process was denied. 23. Therefore, although flat fee bond processing fee on all defendants, whether innocent or guilty, who use the clerk’s bond processing service would be constitutional, it is apparent that a percentage of bail, bond service fee is not constitutional. WHEREFORE, Shelton moves for this Court to declare the portion of the bail statute allowing retention of 10 % of the bond by the Clerk (Bond Retention Clause) as unconstitutional. Under penalties as provided by law pursuant to 735 ILCS 5/109-1 I certify that the statements set forth herein are true and correct. July 29, 2014 Respectfully submitted, Linda L. Shelton Pro Se Defendant Linda Lorincz Shelton, Ph.D., M.D. Read the rest of this entry »

Written by Linda Shelton

July 31, 2014 at 3:28 am

Posted in Bail and Bond

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