The opinion of the court was delivered by: Justice Fitzgerald
Docket Nos 95408, 95803 cons.-Agenda 7-November 2003.
In separate proceedings, Andrew N.B and Montrell D.H., both minors, entered uncounseled guilty pleas to violating municipal ordinances in the Cities of Urbana and Champaign and received dispositions of court supervision. When they violated the terms of their supervision, the Cities filed contempt petitions. The trial court found the minors in contempt and sentenced them to detention; the appellate court affirmed. The minors appealed, and we consolidated their cases. For the reasons that follow, we reverse and remand.
Though the facts in each case are similar, we review them separately to set the stage for our analysis.
On April 20, 2001, the City of Urbana filed a complaint in the Champaign County circuit court against 12-year-old Andrew N.B., alleging that he had committed theft in violation of the municipal code. See City of Urbana Code of Ordinances §15-32(a)(1) (1980). Specifically, Andrew stole a hundred dollar bill from his grandmother. A violation of this ordinance is punishable by a fine not exceeding $500, by restitution, or by court supervision "as defined in the Uniform Code of Corrections." See City of Urbana Code of Ordinances §§1-10(b), (f), (g) (1980).
Andrew, accompanied by his father, appeared with an unspecified number of others, both minors and adults, charged with ordinance violations at a Champaign County circuit court call referred to as "city court." The trial court told the assembled defendants, "I'm going to advise you as to what the charges are, what the possible penalties are, and then I'm going to need to know what you wish to do"-plead guilty or not guilty. The court directed those who wanted to plead guilty to read a document detailing their rights. When the court called Andrew's case, it described the charge against him and the range of punishments: a fine of up to $500, community service, and other conditions, such as attending school, as ordered by the court. Andrew pleaded guilty. After admonishing him about the consequences of his plea, the trial court accepted it. The City recommended a "sentence" of one year of court supervision under "standard conditions of minding the household rules, attending school without unexcused absences and without any disciplinary problems." The City acknowledged that Andrew had returned $90 to his grandmother, but asked for restitution of the remaining $10, as well as an apology letter. The court followed the City's recommendation and added:
"What you need to understand is that if you don't do these
things and come back here, the City can ask that you be held in
contempt. And that's different than what you're here for. You
can't be locked up right now. But if you're found to be in
contempt of court, I can put you in the Detention Center for six
months. *** And you have to go to school there, and you won't be
late to school there.
So you have a choice to make. You're either going to do it the
way you should do it or you're going to do it anyway except you're
going to be locked up."
Andrew chose the latter option within a week. He skipped school on May 4, 7, and 8 and visited Springfield on May 8 without his mother's permission. The City filed an indirect criminal contempt petition and waived any detention greater than six months or any fine greater than $500, and the trial court appointed counsel for Andrew.
Andrew filed a motion to dismiss the City's petition for lack of subject matter jurisdiction. Andrew asserted that the Juvenile Court Act of 1987 is implicated once a minor faces incarceration. Under the Act, the court must conduct an adjudicatory hearing to determine whether the minor should be made a ward of the court before sentencing the minor to detention. Here, according to Andrew, the court lacked subject matter jurisdiction because it lacked "the power to determine whether the minor should be adjudged a ward of the court. *** The contempt power may not be used to enforce supervisory orders on a minor until the minor has been adjudicated a ward of the court."
The trial court denied Andrew's motion, stating,
"We are not proceeding under the Juvenile Court Act. We are
proceeding in a violation of an appropriate order which the court
can enforce. That is the contempt power. It is the inherent power
of the court. It is not a criminal law violation. It is not
categorized as a felony or misdemeanor or anything else. ***
Because the defendant violates an otherwise valid court order,
does that now mean-I think what the defendant is arguing is you
have to drop back and file a juvenile petition in this matter for
contempt and I don't believe that that's what the Juvenile Court
Act says to be able to have somebody incarcerated. And I think the
court inherently can enforce its orders without having a juvenile
The court then found Andrew in contempt for violating the terms of his court supervision and sentenced him to 12 months' probation and 180 days' detention-eight days to be served immediately, and the remainder subject to remission. For subsequent violations of the court's order, Andrew served an additional 47 of the 180 days.
Andrew appealed, arguing, inter alia, that section 5-125 of the Juvenile Court Act (705 ILCS 405/5-125 (West 2002)), which allowed the City to file its own ordinance violation complaint rather than ask the State to file a delinquency petition, violates equal protection and due process. The appellate court affirmed. 335 Ill. App. 3d 180. The court held that section 5-125 does not violate equal protection. 335 Ill. App. 3d at 187. The court posited two minors-one subject to a delinquency petition and one subject to a municipal ordinance violation complaint-and stated:
"The two minors are [not] in the same situation. Unlike the minor
in the city's case, the minor in the juvenile case faces a
possibility of detention for up to 30 days [citation], removal
from the custody of his or her parents or guardians [citation],
and placement into the custody of some other person or agency
[citation]. *** The legislature could have reasonably concluded
that the minor in juvenile court should have the right to
appointed counsel and the other minor should not, because the
minor in juvenile court faces weightier potential consequences."
335 Ill. App. 3d at 186-87.
The appellate court further held that section 5-125 does not violate due process. 335 Ill. App. 3d at 188. The court noted that, although the City prosecuted Andrew for theft, "the trial court did not sentence him to incarceration for that offense, and incarceration was not even a possibility under the ordinance." 335 Ill. App. 3d at 188. "Supervision was not imprisonment," and because the sixth amendment bestows a right to counsel only when the defendant receives a sentence of actual imprisonment, due process did not require appointed counsel when Andrew entered his guilty plea. 335 Ill. App. 3d at 188.
We granted Andrew's petition for leave to appeal. 177 Ill. 2d R. 315.
On June 28, 2001, the City of Champaign filed a complaint against 15-year-old Montrell D.H., alleging that he had violated curfew. See Champaign Municipal Code §23-211(b) (1985). A violation of this ordinance is punishable by a fine not exceeding $750, by 20 to 100 hours of public service work, by restitution, or by court supervision "as defined in the Uniform Code of Corrections." See Champaign Municipal Code §§1-21(b), (e), (f) (1985). The Code itself does not provide for incarceration, but it does note that a person who fails to pay a fine may be "subsequently incarcerated for contempt of court." Champaign Municipal Code §1-21(g) (1985).
Like Andrew, Montrell appeared in city court with his mother and an unspecified number of others charged with ordinance violations. The trial court advised the assembled defendants of their right to present evidence, confront witnesses, and testify on their own behalf, as well as their right to retained counsel, noting, "This is not a case where I can appoint a Public Defender to represent you." The trial court called Montrell's case and described the charges against him. Montrell pleaded guilty; the court admonished him about the consequences of his plea and accepted it. The City recommended a sentence of six months of court supervision and 20 hours of public service. The City also asked the court to order Montrell not to violate any criminal statutes or municipal ordinances, to attend school, and to follow household rules, including the curfew imposed by his mother. The court followed the City's recommendation.
Just more than a month later, Montrell left home without permission for 11 days between August 3 and August 14, 2001. On August 14, he stole two compact discs, a T-shirt, and a pair of shorts from a discount store. He again left home without permission for five days between August 17 and August 22, 2001. The City filed an indirect criminal contempt petition, and the trial court appointed counsel for Montrell.
Montrell filed a motion to dismiss the City's petition, echoing the subject matter jurisdiction arguments made by Andrew: "The Juvenile Court Act specifically precludes minors from being jailed unless they are delinquents or a ward of the court. The Municipal Court lacks jurisdiction to place a minor in the Juvenile Detention Center because only minors who are delinquents or wards of the court can be placed there." The court denied Montrell's motion to dismiss, found him in contempt for violating the terms of his court supervision, and sentenced him to 12 months' conditional discharge and 60 days' detention-three days to be served immediately, and the remainder subject to remission.
Montrell appealed, arguing that section 5-125 of the Juvenile Court Act violates equal protection and due process. The appellate court followed its earlier decision in Andrew's case and affirmed. In dissent, Justice Cook argued that section 5-125 mandates any detention of a juvenile for a municipal ordinance violation must comply with the protections offered by article V of the Act:
"It makes sense that a minor can be prosecuted for a minor
municipal ordinance violation just like anyone else, without the
necessity of commencing a Juvenile Court Act proceeding. The
juvenile defendants in these cases [Andrew and Montrell], however,
were not prosecuted just like anyone else. The court did not
employ indirect criminal contempt as a method to collect the fine,
but as a substitute juvenile court, as a means of guiding the
actions of the juvenile defendants. The court's actions seem
well-intentioned but the court should not have evaded the provisions of
the Act. An indirect criminal contempt proceeding is essentially a
misdemeanor criminal proceeding. [Citation.] The Act must be
followed if a juvenile is prosecuted for a criminal misdemeanor.
Even more basically, how can an ordinance violation with a
maximum punishment of a $75 [sic] fine be transformed, by going
the indirect criminal contempt route, into an offense carrying at
least 8 days of jail time and perhaps 180 days of jail time? The
court is entitled to take reasonable steps for the collection of
the $75 [sic] fine but that was not its goal in these cases." 336
Ill. App. 3d 558, 560-61 (Cook, J., dissenting).
We granted Montrell's petition for leave to appeal (177 Ill. 2d R. 315) and consolidated the two cases.
Andrew and Montrell raise three issues: (1) whether section 5-25 violates equal protection, (2) whether their uncounseled guilty pleas violated due process, and (3) whether these pleas violated Supreme Court Rule 403, section 113-5 of the Code of Criminal Procedure of 1963 (725 ILCS 5/113-5 (West 2002)), and section 1-5 of the Juvenile Court Act (705 ILCS 405/1-5 (West 2002)).
As the Cities correctly note, Andrew and Montrell did not raise their third issue below; accordingly, our review of that issue is waived. See Garza v. Navistar International Transportation Corp., 172 Ill. 2d 373, 383 (1996) (" `[w]here the appellant in the appellate court fails to raise an issue in that court, this court will not address it' "), quoting Hammond v. North American Asbestos Corp., 97 Ill. 2d 195, 209 (1983). Further, juveniles subject to criminal proceedings have a right to counsel under Rule 403 (see 134 Ill. 2d R. 403 ("A person under the age of 18 years shall not, except in cases in which the penalty is by fine only, be permitted to enter a plea of guilty *** unless he is represented by counsel in open court")) and section 113-5 of the Code of Criminal Procedure (see 725 ILCS 5/113-5 (West 2002) ("No person under the age of 18 years shall be permitted to plead guilty *** except where the penalty is by fine only unless he is represented by counsel in open court")). Both the rule and the statute apply only to criminal defendants prosecuted by the State under the Criminal Code of 1961. These protections do not apply to defendants, like Andrew and Montrell, charged with municipal ordinance violations. See 725 ILCS 5/102-15 (West 2002) (defining "offense" for the Code of Criminal Procedure as "a violation of any penal statute of this State"); City of Chicago v. Wisniewski, 54 Ill. 2d 149, 153 (1973); see also Village of Midlothian v. Walling, 118 Ill. App. 2d 358, 363 (1969).
Finally, under section 1-5 of the Act, minors also have a right to counsel. See 705 ILCS 405/1-5(1) (West 2002) ("No hearing on any petition or motion filed under this Act may be commenced unless the minor who is the subject of the proceeding is represented by counsel"). Contrary to the dissent's suggestion, however, section 1-5 does not give minors "the right to counsel at all proceedings," but only proceedings under the Act. Andrew and Montrell were not prosecuted for a municipal ordinance violation by the State, the only party entitled to bring a petition under the Act, but by the Cities outside the Act. Section 1-5 provides no statutory right to counsel for these minors. We turn to the attendant constitutional issues.
Andrew and Montrell contend that section 5-125 violates equal protection because it allows municipalities to treat similarly situated minors differently. Specifically, they argue that section 5-125 allows municipalities to choose arbitrarily between referring ordinance violations involving minors to the State for prosecution under the Act, which offers procedural protections including the right to appointed counsel (see 705 ILCS 405/5-101(3) (West 2002) (in delinquency proceedings, "minors shall have all the procedural rights of adults in criminal proceedings, unless specifically precluded by laws that enhance the protection of such minors"), or filing their own ordinance violation complaints under the Municipal Code, which offers no such procedural protections.
Section 5-120 of the Act gives exclusive jurisdiction over delinquency proceedings to juvenile courts: "[N]o minor who was under 17 years of age at the time of the alleged offense may be prosecuted under the criminal laws of this State," except as provided in four related statutory sections, including section 5-125. 705 ILCS 405/5-120 (West 2002). Section 5-125, entitled "Concurrent jurisdiction," provides:
"Any minor alleged to have violated *** a municipal or county
ordinance, may be prosecuted for the violation and if found guilty
punished under any statute or ordinance relating to the violation,
without reference to the procedures set out in this Article,
except that any detention, must be in compliance with this
Article." 705 ILCS 405/5-125 (West 2002).
Thus, under section 5-125, the Cities could pursue their own cases against the minors as an alternative to requesting the State commence delinquency proceedings against them.
Equal protection guarantees that similarly situated individuals will be treated similarly, unless the government demonstrates an appropriate reason to do otherwise. See People v. Donoho, 204 Ill. 2d 159, 176-77 (2003) ("Generally, equal protection requires the government to treat similarly situated people in a similar manner"). The shorthand we have developed for the degree of deference we give in evaluating the appropriateness of such a reason is the term "scrutiny." In cases like one before us, where the statutory classification at issue does not involve fundamental rights, we employ so-called rational basis scrutiny and ask only whether the challenged classification bears a rational relation to a legitimate purpose. In re Detention of Samuelson, 189 Ill. 2d 548, 562 (2000); People v. Fuller, 187 Ill. 2d 1, 15-16 (1999).
As the Cites observe, the Municipal Code provides for two types of ordinance violations: those punishable by "fines or penalties as may be deemed proper" (see 65 ILCS 5/1-2-1 (West 2002)) and those punishable by incarceration (65 ILCS 5/1-2-1.1 (West 2002)). Prosecution of the latter offenses, like prosecution under the Act, involves heightened procedural protections. 65 ILCS 5/1-2-1.1 (West 2002) ("The prosecution shall be under and conform to the rules of criminal procedure"). That is, the available protections, including the right to appointed counsel, track the available punishments: where incarceration or detention is a sentencing option under either the Municipal Code or the Juvenile Court Act, the General Assembly has provided the right to counsel. The General Assembly also has decided to allow municipalities to proceed outside the Act and its concomitant protections when charging minors with ordinance violations that do not involve detention. As the appellate court in Andrew's case aptly noted, prosecution by the State under the Act for an ordinance violation has more serious potential consequences for a minor-placement in the custody or guardianship of a suitable relative, other person, or agency (see 705 ILCS 405/5-710(1)(a)(ii), 5-740 (West 2002)); substance abuse assessment and treatment (see 705 ILCS 405/5-710(1)(a)(iii) (West 2002)); placement in the guardianship of the Department of Children and Family Services (see 705 ILCS 405/5-710(1)(a)(iv) (West 2002)); detention in a "juvenile detention home" for "a period not to exceed 30 days" (see 705 ILCS 405/5-710(1)(a)(v), 5-105(7) (West 2002)); suspension of driving privileges (see 705 ILCS 405/5-710(1)(a)(vii); and medical procedures to have street gang tattoos removed (see 705 ILCS 405/5-710(1)(a)(ix) (West 2002))-than a quasi-criminal prosecution by a municipality outside the Act. See 335 Ill. App. 3d at 186-87; see also In re Jesus R., 326 Ill. App. 3d 1070, 1073 (2002) (noting that delinquency proceedings are "strikingly similar to adult criminal proceedings" (emphasis omitted)). The legislature had a reasonable basis to make this distinction.
The dissent cites sections 5-710(1)(a)(viii) and 5-710(7) (see 705 ILCS 405/5-710(1)(a)(viii), 5-710(7) (West 2002)) for the proposition that, in this case, "detention would not have been available," but those sections do not support its argument. First, section 5-710(1)(a)(viii) addresses detention under section 3-6039 of the Counties Code (see 55 ILCS 5/3-6039 (West 2002)), which the parties do not cite or discuss and, consequently, which the dissent cannot seriously contend is at issue in this case. Second, section 5-710(7), which prohibits commitment of a minor the Department of Corrections, Juvenile Division, "for a period of time in excess of that period for which an adult could be committed for the same act," does not affect the trial court's power to sentence a minor to detention in a juvenile detention home apart from the Department of Corrections. See 705 ILCS 405/5-710(1)(a)(v), 5-105(7) (West 2002).
Further, the dissent's oversimplified and nearly tautological view that "section 5-125 violates equal protection because it allows minors such as defendants, prosecuted in municipal court, to be treated differently than minors prosecuted under the Act" misses the black-letter lesson that equal protection does not prohibit differential treatment per se, but rather arbitrary differential treatment. As one hornbook states:
"The equal protection clause guarantees that similar individuals
will be dealt with in a similar manner by the government. It does
not reject the government's ability to classify persons or `draw
lines' in the creation and application of laws, but it does
guarantee that those classifications will not be based upon
impermissible criteria or arbitrarily used to burden a group of
individuals." J. Nowak, R. Rotunda & J. Young, Handbook on
Constitutional Law 519 (1978).
We simply conclude that, here, differential treatment in providing appointed counsel to minors prosecuted by the State under the Act, but not to minors prosecuted by the Cities outside the Act, was not arbitrary. Section 5-125 does not violate equal protection.
Andrew and Montrell entered uncounseled guilty pleas to violating municipal ordinances, received dispositions of court supervision, violated the terms of their supervision, and received sentences of detention for indirect criminal contempt following a hearing where they were represented by counsel. Andrew and Montrell argue that this procedure violates due process. Andrew and Montrell distill their argument: "Because the imposition of a sentence of supervision ...