Court of Appeals of Illinois, First District, First Division
Appeal
from the Circuit Court of Cook County No. 18 CR1274 Honorable
Michael P. Toomin, Judge Presiding.
JUSTICE PIERCE delivered the judgment of the court, with
opinion. Presiding Justice Griffin concurred in the judgment
and opinion. Justice Hyman dissented, with opinion.
OPINION
PIERCE, JUSTICE
¶
1 This is an appeal from the denial of minor respondent
Mathias H.'s petition for habeas corpus.
¶
2 The issue in this appeal is whether a Cook County ordinance
that prohibits the county's jail and juvenile temporary
detention facilities from accepting any minor under the age
of 13 is a valid exercise of the county's home rule power
where a judge has ordered the detention of a minor under the
age of 13 pursuant to the Juvenile Court Act of 1987
(Juvenile Court Act) (705 ILCS 405/1-1 et seq. (West
2018)), and where the detention is governed by the County
Shelter Care and Detention Home Act (Detention Act) (55 ILCS
75/1 et seq. (West 2018)). For the reasons that
follow, we find that the ordinance is unenforceable because
the General Assembly, pursuant to Ill. Const. 1970, art. VII,
§ 6(i), has specifically limited the concurrent exercise
of Cook County's home rule authority to regulate the
detention of juveniles 10 years and older who fall within
jurisdiction of the Juvenile Court Act in the county jail or
the county Juvenile Temporary Detention Center (JTDC).
¶
3 On August 4, 2018, the State filed a petition for
adjudication of wardship alleging that 12- year-old
respondent was a delinquent minor because on August 3, 2018,
he committed the offenses of armed robbery, aggravated
robbery, and robbery after respondent and his 18-year-old
brother, who was armed with a handgun, robbed an employee at
a GameStop store, stealing money, gift cards, a PlayStation
4, and an Xbox gaming system.
¶
4 At his arraignment hearing on that same day, Judge Marianne
Jackson found probable cause. The court conducted a temporary
custody hearing and heard argument on whether the secured
custody of respondent was a matter of immediate and urgent
necessity. The State requested that respondent be placed on
electronic monitoring. Defense counsel asked that respondent
be returned home to his mother given that respondent was in
seventh grade and was not armed with a weapon during the
offense. The court explained to the respondent that he was
being placed on home confinement and would be required to
wear a GPS ankle bracelet. The court also informed respondent
that he would be responsible for charging the bracelet and
that failure to charge the bracelet or tampering with it
would be considered a violation. The court also entered an
order prohibiting respondent from entering the GameStop store
or having any contact with the victim. The court released
respondent from custody at the Saura Center, a nonsecure
shelter, and placed him on home confinement with electronic
monitoring and continued the case for status on discovery.
¶
5 On September 6, 2018, the State filed a motion to revoke
electronic monitoring alleging that respondent engaged in
unauthorized movement when he was out of his home. At a
hearing on the motion, the State asserted that on September
1, 2018, a probation officer visited respondent's home
and was informed by respondent's mother that respondent
had left home the day before and had not returned. The State
also asserted that the electronic monitoring device had lost
power on September 2 through September 3 and for all of
September 5. Defense counsel explained that respondent's
failure to charge the device was because he was in school but
had no explanation for the fact that respondent was not home
on September 1, 2018, which was a Saturday. Defense counsel
further stated that respondent acknowledged the violation and
was not asking for a hearing.
¶
6 When questioned by the court, respondent indicated that he
was at his friend's house. Respondent's mother told
the court that when she returned home from work at 2:30 p.m.,
respondent was not home so she contacted his friends on
Facebook but they did not know respondent's whereabouts.
Respondent returned home the next day about 8 p.m.
Respondent's mother told the court that respondent
repeatedly failed to listen to her. After admonishing
respondent, the court continued the electronic monitoring
order and sent respondent back to the Saura Center for a few
days.
¶
7 On September 12, 2018, the Cook County Board passed
ordinance No. 18-4955, which provides in relevant part that
"[a]n individual under 13 years of age shall not be
admitted, kept, detained or committed to the Cook County Jail
or the Juvenile Temporary Detention Center." Cook County
Ordinance No. 18-4955 (approved Sept. 12, 2018) (codified at
Cook County Code of Ordinances § 46-4).
¶
8 On the next court date, September 12, 2018, the court again
reminded respondent that he was on electronic monitoring and
was not free to visit friends but could only leave home to go
to school or church. Respondent indicated that he understood,
and the court told respondent that if he failed to comply, he
would be sent to the detention center. The case was continued
for discovery.
¶
9 On September 24, 2018, the State filed a second motion to
revoke electronic monitoring alleging that respondent allowed
his monitoring device to lose power on September 17, 2018,
from 2:45 p.m. to 3:25 p.m., and later that day from 5:25
p.m. to 12:36 a.m. the following morning. It was further
alleged that on September 23, 2018, a strap-tampering alert
was issued at 1:25 p.m. Probation officer Escalara conducted
a home visit and determined that respondent was not home and
that his whereabouts were unknown.
¶
10 The State asked the court for guidance because the
recently enacted section 46-4 of the Cook County Code of
Ordinances (Cook County Code of Ordinances § 46-4 (eff
Sept. 12, 2018)) altered the court's authority to place
12-year-old respondent in the JTDC. Judge Jackson stated that
the ordinance "might be unconstitutional, because it
infringes on [the] authority that this Court has been granted
by the legislature of the State of Illinois to make decisions
on detention." After discussing the basis for the
State's motion to revoke electronic monitoring, the court
stated,
"[N]obody has any ideas, other than [respondent] right
now, where he is. He is certainly at this point a danger to
himself. The fact that he has-this is the second time he has
violated electronic monitoring[, ] suggests to this Court
that electronic monitoring is not a viable alternative in
terms of knowing where this minor is at. And it certainly is
doing nothing to require him to stay in his home.
And I think that the Cook County Board's ordinance
attempts to tie my hands to deal with a situation that the
legislature of the State of Illinois has granted me. So for
all these reasons, juvenile arrest warrant to issue. Do not
release. If and when we get a hold [of] this young man,
hopefully before he is in a position to do danger to himself,
we will then more deeply delve into what's the next step
for any of us, the State, the counsel for the minor, or the
judge."
¶
11 Respondent was arrested on the warrant. At a hearing held
that same day, defense counsel asked that respondent be sent
to the Saura Center or to the JTDC. Judge Jackson reiterated
that, although Cook County had home rule powers, those powers
were not absolute and were limited to address local issues.
The court stated that it believed that Illinois state law was
controlling because criminal law and procedure are "an
area of statewide responsibility." The court expressed
its concern that "we are the only court [in the state of
Illinois] that would be required to not hold minors under the
age of 13." The court also stated that, "If I
follow this ordinance, what I would be creating is a
12-year-old who is at liberty to ignore his mother, at
liberty to ignore this Court, and put himself in extreme
danger, and that I would be powerless, essentially a paper
tiger, to do anything about it." After stressing that
Illinois law allows for a minor of 10 years of age and older
to be detained in a secure detention facility where there is
probable cause to believe that the minor is delinquent and it
is a matter of urgent and immediate necessity for the
protection of the minor, the court ordered the respondent to
be held in custody at the JTDC.
¶
12 On October 4, 2018, the respondent filed a motion to
reconsider detention. Over defense counsel's objection,
the case was continued until October 19, 2018, with the
respondent remaining in custody for his own safety.
¶
13 On October 10, 2018, respondent filed an emergency
petition for habeas corpus, seeking his immediate
release. On October 12, 2018, Judge Michael P. Toomin held a
hearing on the petition. Respondent argued that pursuant to
section 46-4, as a minor under the age of 13, he could not be
detained in the detention center and that the county, as a
home rule unit, had the authority to enact the ordinance
because the legislature did not specifically preclude the
county from doing so. Respondent also argued that the
ordinance did not conflict with state law that provides that
a court "may" place a minor in the detention
center. See 55 ILCS 75/1.2 (West 2018). The State took no
position on respondent's habeas corpus petition.
The court noted that the State had previously asserted that
the county ordinance superseded state law on the issue, and
the prosecutor responded that he was not aware of the
circumstances surrounding its earlier position but that the
State was now taking no position on the respondent's
habeas corpus petition.
¶
14 On October 17, 2018, Judge Toomin issued a written order
denying respondent's petition for habeas corpus.
Judge Toomin found that the county board did not have home
rule authority to enact section 46-4 because the General
Assembly had preempted the purported exercise of power
expressed in the ordinance. This appeal followed.
¶
15 ANALYSIS
¶
16 The issue presented for our review is whether the trial
court properly denied respondent's habeas corpus
petition on the basis that the Cook County Board lacked home
rule authority to enact section 46-4 that prohibits the
admission, detention, or commitment of a minor under the age
of 13 to the county jail or the county JTDC when detention or
commitment is pursuant to a judicial order entered under the
authority granted in the Juvenile Court Act.
¶
17 Initially, the parties agree that this issue is moot
because respondent has served his sentence and has been
released. An issue becomes moot when an actual controversy no
longer exists and the interests of the parties are no longer
in controversy. Novak v. Rathnam, 106 Ill.2d 478,
482 (1985). If an appeal involves the validity of a sentence,
and that sentence has been served, the appeal is rendered
moot. In re Shelby R, 2013 IL 114994. An issue can
also be moot in a juvenile detention case where the period of
detention has been completed at the time of appeal. In re
Dexter L., 334 Ill.App.3d 557, 558-59 (2002). However,
exceptions to the mootness doctrine exist. Specific to this
case is the public interest exception. Application of this
exception requires "(1) the existence of a question of a
public nature; (2) the desirability of an authoritative
determination for the purpose of guiding public officers in
the performance of their duties; and (3) the likelihood the
question will recur." People v. McCaskill, 298
Ill.App.3d 260, 264 (1998).
¶
18 In In re Dexter L., 334 Ill.App.3d at 558-59,
this court applied the public interest exception to the
mootness doctrine where a juvenile was found in violation of
his probation and was ordered to be detained for 30 days in
the county jail. The State argued that the appeal was moot
because respondent had already completed the period of
detention. We concluded that" '[t]he detention of a
juvenile is a matter of public concern, and an authoritative
determination of the issue will guide public officials and
juvenile court judges who are likely to face the problem in
the future.'" Id. at 558 (quoting
People v. Clayborn, 90 Ill.App.3d 1047, 1052
(1980)). We also reasoned that, due to the time constraints
imposed by the Act, the issue was likely to recur.
Id. at 558-59. We find the same considerations
outlined in In re Dexter L., to be relevant here.
¶
19 Similar to in In re Dexter L., the issue
presented here is a matter of public concern and an
authoritative determination of this issue will guide our
judges sitting in juvenile court who are likely to consider
this issue in the future. Although very few minors under the
age of 13 are subject to the Juvenile Court Act, it is all
but a certainty that in the future there will be minors under
the age of 13 accused of criminal activity in Cook County who
are taken into custody and brought before a juvenile court
judge to determine whether a detention or shelter care
hearing should be held. See 705 ILCS 405/5-401, 5-401.5,
5-415, 5-505 (West 2018). In re Randall M, 231
Ill.2d 122, 129 (2008). It is also all but a certainty that,
for an unknown cohort of minors under the age of 13, after a
detention or shelter care hearing a judge will find that
"it is a matter of immediate and urgent necessity for
the protection of the minor or of the person or property of
another that the minor be detained." 705 ILCS
405/5-501(2) (West 2018). Judges will make these gut
wrenching decisions after learning as much as possible about
the minor and giving consideration to available noncustodial
alternatives and will order detention only after it is
established that "it is a matter of immediate and urgent
necessity for the protection of the minor or of the person or
property of another." Id.
¶
20 Judges need guidance from this court on whether the
authority granted under the Juvenile Court Act and the
Detention Act to place a minor under the age of 13 in a
detention facility has been restricted by section 46-4 of the
Cook County Code of Ordinances. We find that resolution of
this issue bears directly on the welfare of the community and
the best interests of a minor "who requires secure
custody for his own or the community's protection in
physically restricting facilities pending hearing by the
court, execution of an order of court, placement or
commitment." 55 ILCS 75/1.1 (2018).
¶
21 We also find that, although the State took "no
position" before the juvenile court on the
enforceability of section 46-4 with respect to
respondent's habeas corpus petition, this does
not prohibit or restrict the State on appeal from urging this
court to affirm the denial of the petition. First, because
this is an important public issue that is likely to recur, it
is helpful to this court to have the State's input.
Second, we agree with the State that, as the appellee, if the
"no position" taken below is considered the
equivalent of a concession, we are not bound by a party's
concession (Beacham v. Walker,231 Ill.2d 51, 60
(2008)) and an "appellee may raise any argument or basis
supported by the record to show the correctness of the
judgment, even though he had not previously advanced such an
argument" (People v. P.H.,145 Ill.2d 209, 220
(1991)). Lastly, the State raised the issue of having taken
"no position" in the juvenile court in its
appellee's brief, and petitioner has made no reply or
comment in this regard. The respondent does not object to the
State's appearance in this ...