Const. 1970, art. I, § 15) and the fifth and fourteenth amendments to the United States Constitution (U.S. Const., amends. V, XIV), but given the allegations in this case, the court concluded it is not a taking for which just compensation is due. 389 Ill. App. 3d 21. This appeal followed.
The judge entered a partial final judgment under Fed. R. Civ. P. 54(b), leading to this appeal. For the proposition that the owner receives the property’s time value only if the property was earning interest in private hands the district court relied principally on Cwik v. Topinka , 389 Ill. App. 3d 21, 328 Ill.Dec. 766, 905 N.E.2d 300 (2009), a state court’s decision that precedes both Kolton and Cerajeski and interprets a state statute rather than the Takings Clause of the Constitution. The proposition is untenable, as we have already explained:
While the State may have gained the interest income, the plaintiffs failed to plead that they were receiving interest or expected to receive interest on the funds remitted to the State under the Act[.] Simply put, the State's gain did not establish a loss on the part of the plaintiffs.Cwik v. Topinka, 389 Ill. App. 3d 21, 31-32 (1st Dist. 2009). Next, Plaintiffs note that Kolton did not consider the form of the unclaimed asset prior to deposit into the unclaimed property program.
See Fakhoury v. Pappas, 395Ill. App. 3d 302, 312 (2009); Cwik v. Topinka, 389 Ill. App. 3d 21, 32 (2009); Jensen v. Bayer AG, 371 Ill. App. 3d 682, 693 (2007).¶ 106 Jensen is analogous to the present case in that the would-be class representative lost on his individual claims.
A named representative must have a valid cause of action. Cwik v. Topinka, 389 Ill. App. 3d 21, 32 (2009). Thus, before we determine whether Piechur has established the four prerequisites necessary in order to maintain a class action, we must first consider whether she has stated an actionable claim under the Rental Agreement Act and/or the Automatic Renewal Act. ¶ 21 The Rental Agreement Act governs rental-purchase agreements, which are defined as follows: "an agreement for the use of merchandise by a consumer for personal, family or household purposes for an initial period of 4 months or less that is automatically renewable with each payment after the initial period and that permits the consumer to become the owner of the merchandise."
The cases we have found from other jurisdictions are consistent with Clark in holding that the state's retention of interest earned on presumptively abandoned property before a claim of ownership is made is not a taking. See Cwik v. Topinka, 389 Ill.App.3d 21, 328 Ill.Dec. 766, 905 N.E.2d 300, 306-08 (2009); Rowlette v. State, 188 N.C.App. 712, 656 S.E.2d 619, 621-26 (2008); Hooks v. Kennedy, 961 So.2d 425, 430-32 (La.Ct.App. 2007); Smyth v. Carter, 845 N.E.2d 219, 222-25 (Ind.Ct.App. 2006). But cf. Sogg v. Zurz, 121 Ohio St.3d 449, 905 N.E.2d 187, 190-93 (2009) (under Ohio statutory scheme, unclaimed property is not presumptively abandoned; therefore, state's retention of interest earned was unconstitutional taking); Canel v. Topinka, 212 Ill.2d 311, 288 Ill.Dec. 623, 818 N.E.2d 311, 320-25 (2004) (although state may retain interest earned on presumptively abandoned property, it may not retain dividends accruing on unclaimed shares of stock).
The cases we have found from other jurisdictions are consistent with Clark in holding that the state's retention of interest earned on presumptively abandoned property before a claim of ownership is made is not a taking. See Cwik v. Topinka, 905 N.E.2d 300, 306-08 (Ill. Ct. App. 2009); Rowlette v. State, 656 N.E.2d 619, 621-26 (N.C. Ct. App. 2008); Hooks v. Kennedy, 961 So.2d 425, 430-32 (La. Ct. App. 2007); Smyth v. Carter, 845 N.E.2d 219, 222-25 (Ind. Ct. App. 2006). But cf. Sogg v. Zurz, 905 N.E.2d 187, 190-93 (Ohio 2009) (under Ohio statutory scheme, unclaimed property is not presumptively abandoned; therefore, state's retention of interest earned was unconstitutional taking); Canel v. Topinka, 818 N.E.2d 311, 320-25 (Ill. 2004) (although state may retain interest earned on presumptively abandoned property, it may not retain dividends accruing on unclaimed shares of stock).
Since there can be no taking unless there was a right to the thing allegedly taken, we will consider first whether plaintiffs had a right to the interest. In re Marriage of Crook, 211 Ill. 2d 437, 448 (2004); Cwik v. Topinka, 389 Ill. App. 3d 21 (2009) (for a taking to occur, plaintiff must have a right to the property based on existing law). In addition, it is well established that an appellate court must first consider all nonconstitutional issues before proceeding to rule on a constitutional ground.