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05/09/89 the People of the State of v. Brian Heim

May 9, 1989

THE PEOPLE OF THE STATE OF ILLINOIS, PLAINTIFF-APPELLANT

v.

BRIAN HEIM, DEFENDANT-APPELLEE

THE STATE SEEKS TO BRING THIS INTERLOCUTORY APPEAL FROM THE DENIAL OF ITS PETITION PURSUANT TO SECTIONS 110-2 AND 110-6(F) OF THE CODE OF CRIMINAL PROCEDURE OF 1963 (ILL. RE

v.

STAT. 1987, CH. 38, PARS. 110-2, 110-6(F)), CONTENDING THAT THE TRIAL COURT APPLIED THE WRONG STANDARD OF PROOF AT THE REVOCATION HEARING.

THE PUBLIC INTEREST EXCEPTION WAS STATED BY OUR SUPREME COURT IN THE CASE OF PEOPLE EX REL. WALLACE

v.

LABRENZ (1952), 411 ILL. 618, 104 N.E.2D 769, CERT. DENIED (1952),


APPELLATE COURT OF ILLINOIS, SECOND DISTRICT

538 N.E.2d 1259, 182 Ill. App. 3d 1075, 131 Ill. Dec. 703 1989.IL.699

Appeal from the Circuit Court of Jo Daviess County; the Hon. Eric S. DeMar, Judge, presiding.

APPELLATE Judges:

JUSTICE NASH delivered the opinion of the court. INGLIS and WOODWARD, JJ., concur.

DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE NASH

The defendant, Brian Heim, was charged with attempted burglary (Ill. Rev. Stat. 1987, ch. 38, pars. 8-4(a), 19-1(a)), by an information, and he was released on a personal recognizance bond which set bail at $5,000. The State petitioned for revocation of the recognizance bond and sought the imposition of a cash bond, pursuant to section 110-6(f) of the Code of Criminal Procedure of 1963 (Code) (Ill. Rev. Stat. 1987, ch. 38, par. 110-6(f)), following certain threatening acts allegedly committed by the defendant. At the revocation hearing, the trial court required the State to establish its case by clear and convincing evidence and denied the State's petition. The court did, however, add conditions to the defendant's personal recognizance bond.

The defendant contends, inter alia, that the State is not authorized to appeal bail determinations and argues that the legislation purporting to grant such authority to the State is unconstitutional as a violation of the separation of powers clause of the Illinois Constitution.

After the appellate briefs of the State and defendant had been filed, the State filed a notice of mootness of appeal stating: "[Since] the briefing of this cause the underlying charge against the defendant has been dismissed and . . . the defendant has instead entered a plea of guilty to a later filed different charge." The State thus advises that there no longer exists a controversy between the parties, in this case, with respect to the trial court's bond determination and, therefore, the appeal has been rendered moot. The State suggests, however, that the constitutional issue presented herein "may present a matter capable of repetition, yet evading review," thus justifying this court's consideration of the appeal.

We agree that the matter appears to be moot as the original charge against the defendant has been dismissed and the disputed bail determination is no longer applicable in this case. It is well established that when a case is rendered moot, the court's decision on the merits cannot result in relief to either party and any decision thus reached is essentially an advisory opinion. (See In re Marriage of Landfield (1987), 118 Ill. 2d 229, 232, 514 N.E.2d 1005, 1006; George W. Kennedy Construction Co. v. City of Chicago (1986), 112 Ill. 2d 70, 76, 491 N.E.2d 1160, 1162.) Illinois courts do not issue advisory opinions (Kennedy, 112 Ill. 2d at 76, 491 N.E.2d at 1162), and "'the court should not resolve the question merely for the sake of setting a precedent to govern potential future cases'" (Landfield, 118 Ill. 2d at 232, 514 N.E.2d at 1006, quoting Bluthardt v. Breslin (1979), 74 Ill. 2d 246, 251, 384 N.E.2d 1309, 1311).

Despite the strong policy against considering moot cases, a limited exception is recognized where the magnitude or immediacy of the interest implicated nevertheless warrants the court's consideration of the issues presented. (See People ex rel. Black v. Dukes (1983), 96 Ill. 2d 273, 277, 449 N.E.2d 856, 858.) Our supreme court has applied this exception when the issues of the case affect a substantial public interest. See Kennedy, 112 Ill. 2d at 76-77, 491 N.E.2d at 1162; Madison Park Bank v. Zagel (1982), 91 Ill. 2d 231, 235, 437 N.E.2d 638, 640.

"[When] the issue presented is of substantial public interest, a well-recognized exception exists to the general rule that a case which has become moot will be dismissed upon appeal. [Citation.] Among the criteria considered in determining the existence of the requisite degree of public interest are the public or private nature of the question presented, the desirability of an authoritative determination for the future guidance of public officers, and the likelihood of future recurrence of the question." 411 Ill. at 622, 104 N.E.2d at 772.

We determine that the public interest exception to the mootness doctrine is applicable to the facts presented here in that the three criteria are substantially satisfied. The issue presented is public in nature as it concerns the authority of the State to appeal circuit court bail determinations in criminal cases, and the resolution of the constitutional question will have an impact upon many persons charged with crimes and released on personal recognizance bonds or cash bonds which the State may consider inadequate. There is a need for an authoritative determination of the constitutional question in order to inform the State's Attorneys of the limits on their authority in filing appeals. Furthermore, as such appeals by the State purport to be authorized by the legislature through the provisions of sections 110 -- 2 and 110 -- 6(f) of the Code of Criminal Procedure, we think it likely that this issue will recur in the future. (See In re N.R. (1988), 172 Ill. App. 3d 14, 525 N.E.2d 1193; City of Chicago v. Gordon (1986), 146 Ill. App. 3d 898, 901-02, 497 N.E.2d 442, 445; Hernandez v. Fahner (1985), 135 Ill. App. 3d 372, 376, 481 N.E.2d 1004, 1007.) As our supreme court has recently stated:

"Considering the public interest in and the importance of the question presented, and the necessity of resolution for the sake of public officials elsewhere in the State who must decide whether [they have the right to file appeals of bail determinations from the circuit court], evading review of this question here and in later cases would be injudicious." People ex rel. Bernardi v. City of Highland Park (1988), 121 Ill. 2d 1, 8, 520 N.E.2d 316, 319, citing Labrenz, 411 Ill. at 622-23, 104 N.E.2d at 772-73.

We then consider the constitutionality of portions of sections 110 -- 2 and 110 -- 6 of the Code of Criminal Procedure ...


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