Original action for mandamus.
JUSTICE CLARK DELIVERED THE OPINION OF THE COURT:
Rehearing denied May 27, 1982.
These consolidated cases present the issue of the right to release from custody of minors charged with delinquency, pending the State's appeal of an order of the juvenile court denying the State's motion to allow prosecution as an adult.
In cause No. 55050, a petition for adjudication of wardship was filed in the interest of Michael Davis in the juvenile division of the circuit court of Cook County on January 28, 1981. The petition charged Michael, then 15 1/2 years old, with two counts of murder in the shooting deaths of Vincent and Gregory Jackson on January 26, 1981.
At a hearing on January 28, 1981, the juvenile court determined that there was probable cause to believe that Michael was a delinquent minor. It further found that immediate and urgent necessity existed for Michael to be detained pending further proceedings, and ordered that he be held in the custody of the Cook County Juvenile Detention Center (Audy Home). (Section 3-5 of the Juvenile Court Act provides that a detention hearing must be held within 36 hours for any minor taken into custody for alleged delinquent acts. (Ill. Rev. Stat. 1979, ch. 37, par. 703-5.) If, at the detention hearing, the court determines that probable cause exists to believe the minor is delinquent, then the court must make a further determination whether "it is a matter of immediate and urgent necessity for the protection of the minor or * * * of another" (Ill. Rev. Stat. 1979, ch. 37, par. 703-6(2)) that the minor be detained in a suitable place designated by the court. If the court finds the existence of probable cause and immediate and urgent necessity, it may order detention (secure custody in physically restricting facilities (Ill. Rev. Stat. 1979, ch. 37, par. 701-9)) or shelter care (care in physically unrestricting facilities (Ill. Rev. Stat. 1979, ch. 37, par. 701-17)). If probable cause exists but there is no finding of immediate and urgent necessity for detention, the minor must be released. Ill. Rev. Stat. 1979, ch. 37, par. 703-6(2).)
Also at the January 28 hearing, the State's Attorney filed a motion pursuant to section 2-7(3) of the Juvenile Court Act (Ill. Rev. Stat. 1979, ch. 37, par. 702-7(3)) to prosecute Michael as an adult. The court continued the hearing on this motion until February 18, and ordered a social investigation and psychological and psychiatric evaluations of Michael to be conducted to assist it in determining whether to allow the motion to transfer. These reports were not completed until February 28, 1981.
On March 3 and April 14-15, the juvenile court again held hearings at which additional evidence was presented as to the factors listed in section 2-7(3)(a). At the conclusion of the April 14-15 hearing, the court denied the State's motion to prosecute Michael as an adult, and set the case for adjudicatory hearing on April 29, 1981.
On April 29, Michael answered ready to proceed to adjudication. However, the State filed a notice of appeal from the juvenile court's order denying the motion to transfer. Michael then moved for release to his mother's custody pending decision of the appeal. The juvenile court denied this motion, but on its own motion set bail at $100,000. Michael was unable to post bail.
On May 4 and 13, Michael moved the juvenile court to reconsider its order denying release, asserting that bail was not contemplated in proceedings under the Juvenile Court Act, and that under section 4-2 of the Act Michael was entitled to be released without bail. Section 4-2 provides, in pertinent part:
"Date for adjudicatory hearing. When a petition has been filed alleging that the minor is a person described in Section 2-2 or 2-3 [delinquent minor or minor in need of supervision], it shall be set for an adjudicatory hearing within 30 days. In the case of a minor ordered held in detention or shelter care, however, the petition must be set for hearing within 10 judicial days from the date of the order of the court directing detention or shelter care or the earliest possible date in compliance with Sections 4-3 and 4-4 [concerning summons and notice]. Whenever a minor is held in detention or shelter care and the petition alleges that he or she committed a crime of violence, the State's Attorney may by motion before the date set for the adjudicatory hearing, request that the adjudicatory hearing be postponed. * * * For good cause in support of such a motion, which may include, but is not limited to, delay in obtaining medical or other scientific evidentiary reports or similar evidence or the unavailability of witnesses, the court may postpone the adjudicatory hearing up to 20 judicial days from the date of the order of the court directing detention or shelter care. * * *" Ill. Rev. Stat. 1979, ch. 37, par. 704-2.
On May 22, the juvenile court reduced bail to $50,000 and on June 12 the court vacated its previous bail order and ordered Michael released without bond to the custody of his mother.
Prior to his release, Michael had filed in this court, on June 5, 1981, a motion for leave to file a petition for writs of mandamus and habeas corpus. The petition challenged the authority of the juvenile court to hold Michael to bail pending the State's pre-adjudication appeal, and asked for his immediate release. The State, on June 19, filed its answer to Michael's June 5 petition and also cross-petitioned for leave to file for a writ of mandamus to compel the juvenile court to vacate its order of June 12 releasing Michael. The State also moved to stay the June 12 order. Leave to file the petition, answer, and cross-petition was granted by this court in an order of July 2, 1981.
On July 20, this court denied the State's motion to stay the juvenile court's June 12 order releasing Michael without bond, and also denied the State's alternative motion to set bail in the amount of $100,000. However, this court, on its own motion, vacated the juvenile court's June 12 order and reinstated the order of April 29 that set $100,000 bail, pending the disposition of the mandamus proceedings.
Pursuant to this court's July 20 order, Michael was returned to the custody of the Juvenile Detention Center on July 21, 1981. He has remained there since that time.
On July 21, 1981, the State moved pursuant to Supreme Court Rule 302(b) (73 Ill.2d R. 302(b)) to transfer to this court the appeal of the juvenile court's denial of the State's motion to prosecute Michael as an adult. The Rule 302(b) motion was denied on July 24, 1981.
In cause No. 55365, Lorna Ortiz was charged with the armed robbery and murder on December 13, 1980, of Anthony Hopfner in a delinquency petition filed in the juvenile division of the circuit court of Cook County on December 16, 1980. At a hearing on the same date, the juvenile court found probable cause to believe that Lorna was a delinquent minor and also found that her detention was a matter of immediate and urgent necessity. Lorna was ordered detained in the Cook County Juvenile Detention Center.
The State filed a motion under section 2-7(3) to prosecute Lorna, then 15, as an adult. After a hearing held on January 28 and 29, 1981, the juvenile court denied the State's motion. On January 30, the State filed a notice of appeal from the juvenile court's ruling. Lorna remained in the custody of the Juvenile Detention Center.
On April 29, 1981, the juvenile court, apparently on its own motion, entered an order setting bail at $100,000. After a subsequent motion by Lorna for her release from the Juvenile Detention Center, the juvenile court on May 11 reduced bail to $50,000. Lorna was unable to post bail.
On June 18, 1981, Lorna again moved the juvenile court for release from the Juvenile Detention Center or for placement in a residential treatment facility, pursuant to section 7-3(3) of the Act. (Ill. Rev. Stat. 1979, ch. 37, par. 707-3(3).) The ground for the motion was the asserted statutory and Federal constitutional right of minors subject to the Juvenile Court Act to receive necessary care and treatment. After a hearing on the same date, the juvenile court ordered the State's Attorney to file a neglect petition in Lorna's interest, and also ordered the Department of Children and Family Services to find an appropriate placement for her, both within one week.
On June 25, the State filed a motion in this court for a stay of proceedings in the juvenile court, pending the disposition of the State's motion to file a petition for a writ of mandamus and exercise of supervisory authority, filed the same day. This court granted the motion to stay further proceedings in the juvenile court, and on August 14, 1981, granted the State's motion for leave to file for a writ of mandamus and exercise of supervisory authority. By order of August 18, 1981, we consolidated Lorna's case with that of Michael Davis for argument.
The State's interlocutory appeal in Michael Davis' case is currently in the briefing stage in the appellate court. In the appeal in Lorna Ortiz' case, the appellate court affirmed the denial of transfer in a Rule 23 order dated November 24, 1981 (1st Dist. No. ...