In re Mathias H.

          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 ...