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Wieland v. Lawyers Trust Fund

Case Date: 09/15/2005
Court: 5th District Appellate
Docket No: 5-03-0419 Rel

                  NOTICE
Decision filed 09/15/05.  The text of
this decision may be changed or
corrected prior to the filing of a
Petition for Rehearing or the
disposition of the same.

NO. 5-03-0419

IN THE

APPELLATE COURT OF ILLINOIS

FIFTH DISTRICT

GREGORY T. WIELAND and MICHAEL
GALLAGHER, Individually and on Behalf of
a Class of All Others Similarly Situated,

     Plaintiffs-Appellants,

v.

LAWYERS TRUST FUND OF ILLINOIS, an
Illinois Corporation, HONORABLE MARY
ANN G. McMORROW, Chief Justice,
Supreme Court of Illinois, HONORABLE
CHARLES E. FREEMAN, Justice, Supreme
Court of Illinois, HONORABLE THOMAS R.
FITZGERALD, Justice, Supreme Court of
Illinois, HONORABLE ROBERT R.
THOMAS, Justice, Supreme Court of Illinois,
HONORABLE THOMAS L. KILBRIDE,
Justice, Supreme Court of Illinois,
HONORABLE RITA B. GARMAN, Justice,
Supreme Court of Illinois, and HONORABLE
PHILIP J. RARICK, Justice, Supreme Court
of Illinois,(1)

     Defendants-Appellees.

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)		 Appeal from the
Circuit Court of
St. Clair County.



No. 02-L-822















Honorable
Michael J. O'Malley,
Judge, presiding.


JUSTICE SPOMER(2) delivered the opinion of the court:

The plaintiffs, Gregory T. Wieland and Michael Gallagher, filed a class action complaint in the circuit court of St. Clair County, naming as defendants the Lawyers Trust Fund of Illinois (LTF), a not-for-profit corporation, and the Justices of the Supreme Court of Illinois (Justices), in their official capacities. The plaintiffs alleged that Rule 1.15(d) of the Rules of Professional Conduct (188 Ill. 2d R. 1.15(d)), which established a program to provide for interest on lawyers' trust accounts (IOLTA), violated the fifth amendment to the United States Constitution, as applied to the states by the fourteenth amendment, because it established a mechanism for the taking of private property for public use without just compensation. In particular, the plaintiffs claimed that the mandate of Rule 1.15(d) that a lawyer place client funds into a pooled trust account, with the LTF named as the beneficiary of any interest income, whenever the lawyer deems the possession of those funds to be "nominal or short-term" (188 Ill. 2d R. 1.15(d)), resulted in a taking of the interest on their funds without just compensation. The class action complaint prayed for a declaration of the unconstitutionality of Rule 1.15(d), equitable and injunctive relief to prevent the defendants from enforcing the challenged portion of Rule 1.15(d), and monetary damages.

The defendants filed combined motions to dismiss pursuant to sections 2-615 and 2-619 of the Code of Civil Procedure (735 ILCS 5/2-615, 2-619 (West 2002)). The motions alleged various procedural and substantive defects in the class action complaint. In particular, the defendants alleged the following defects: (1) state officials sued in their official capacities are not "persons" within the meaning of section 1983 of the Civil Rights Act of 1964 (42 U.S.C.