*1 (No. 55050.
(No. 55365. al., et rel. THE PEOPLE ex MICHAEL Petition DAVIS al., Respond et ers, VAZQUEZ, v. JOSE R. Judge, ex rel. RICHARD M. DALEY, ents.-THE PEOPLE R. Petitioner, VAZQUEZ, v. State’s JOSE Attorney, al., Judge, et Respondents. April 16, Rehearing
Opinion filed 1982. 27,May denied *4 SIMON, J., dissenting. General, of Fahner, Springfield, C.
Tyrone Attorney (Mi of Chicago M. State’s Daley, Attorney, and Richard General, of Chi Weinstein, B. Assistant Attorney chael Adrienne Shabat, Kevin Sweeney, and Michael E. cago, Joan Burke, M. Nacev, Ryan, Richard F. Catherine Noble Attor Karlos, State’s and Dean P. Assistant S. Cherry, for the counsel), People. of neys, Thomas Defender, and John Public James J. Doherty, P. Defender, Chicago (Timothy Moran, Assistant Public Chambers, Aaron L. O’Neill, Timothy Meyers, for Michael Lambert, student), law counsel, and A. Mary Davis. Chicago P. Murphy, Eckert and William
Annette A. Gladding, Greanias, counsel, Kimberly E. (Diane law for Lorna Ortiz. student), Rothschild, of Chi- M. Dore and Edward
Maurice M. Vazquez. Jose R. respondent cago, the court: the opinion CLARK delivered JUSTICE the issue of cases present These consolidated with de- charged minors from to release right *5 the State’s of an order of the linquency, pending appeal State’s motion to allow denying prose- cution as an adult.
In cause 55050, No. petition adjudication was filed in the interest of wardship Michael Davis in juvenile division the circuit court of Cook County on 28, 1981. The January Michael, then petition charged old, 15V2years with two counts of murder in the shoot- ing deaths of Vincent and Jackson on Gregory January 26,1981.
At a 28, on hearing 1981, the January juvenile court determined that there was cause to probable believe that Michael was a minor. It further delinquent found that immediate and urgent existed necessity for Michael to be detained pending further proceedings, and ordered that he be held in the of the Cook custody Juvenile County Detention Center (Audy Home). (Section 3—5 of the Ju venile Court Act provides that a detention must hearing be held within 36 hours for minor taken any into custody for alleged acts. delinquent (Ill. 1979, Rev. Stat. 37, ch. par. 5.) If, at the detention hearing, court de 703 — termines that probable cause exists to believe the minor then delinquent, the court must make a further deter mination whether “it is a matter of immediate and ur *** gent for the necessity protection of the minor or another” (Ill. Rev. Stat. 1979, 37, ch. par. 6(2)) 703 — 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 it necessity, order detention (secure physically restricting facilities (I Rev. Stat. 1979, 37, ch. par. 9)) or shelter ll. 701 — care (care in physically facilities unrestricting (Ill. Rev. 1979, Stat. ch. If par. 17)). cause ex probable 701 — ists but there is no finding immediate and ne urgent cessity detention, the minor must be released. Rev. Stat. 1979, ch. 37, par. 703-6(2).)
Also at the the State’s hearing, Attorney January of the Juvenile 7(3) filed a motion pursuant 2— Act (Ill. 7(3)) Court Rev. Stat. Michael as an adult. court continued prosecute ordered a this motion until and February social investigation psychological psychiatric it in evaluations of Michael to be conducted assist de These termining whether to allow the motion transfer. 28, 1981. were not February until reports completed 14-15, court again On March 3 and April *6 held at which additional evidence was hearings presented as in At the con- 7(3)(a). to the factors listed section 2— of 14-15 the court denied the April hearing, clusion the adult, an set motion to Michael as and prosecute State’s 29, on hearing the case for adjudicatory April to 29, ready proceed Michael answered to April On of However, the filed a notice appeal State adjudication. motion to from the the juvenile denying court’s order to his mother’s for release transfer. Michael then moved the The juvenile decision of custody pending appeal. set motion, this on its own motion bail court denied but $100,000. at Michael to bail. post was unable juvenile moved the court May 13,
On 4 and Michael release, that asserting its reconsider order denying under the Ju- bail was not in contemplated proceedings 4—2 the Act Act, that of venile Court and under Section released without bail. Michael was entitled be in part: 4—2 provides, pertinent has hearing. petition aWhen adjudicatory “Date for in person minor is a described that the alleging been filed in or minor need minor [delinquent 2—2 or 2—3 Section hearing adjudicatory for an supervision], it shall be set ordered held in de- a minor In the case of days. within 30 however, must be set care, petition tention or shelter date of the days from the judicial within 10 hearing for care or or shelter directing court detention order of the with Sections 4— compliance date in possible the earliest Whenever summons and [concerning 4—4 notice]. petition and the or shelter care in minor is held detention violence, a crime she committed alleges that he or the date set for motion before may by State’s Attorney adjudicatory hearing, request the adjudicatory *** cause in support good For postponed. to, include, is not limited motion, such a but which evidentiary other scientific delay obtaining medical or unavailability of wit evidence or the reports or similar adjudicatory hearing nesses, may postpone the court the order of up judicial days to 20 from the date ***” care. Ill. Rev. directing or shelter detention 704 — 2. Stat. $50,000 bail 22, the court reduced
On May bail order court vacated its previous and on June to the released without and ordered Michael bond his mother.
Prior release, to his Michael court, had filed this June 1981, a motion leave to file petition writs of mandamus and habeas corpus. petition challenged authority court to hold Michael to bail pending the State’s pre-adjudication appeal, asked for his immediate release. The State, on June filed its an- swer to Michael’s June 5 petition and also cross-petitioned for leave to file for a writ of mandamus compel ju- *7 venile court to vacate its order of June 12 Mi- releasing chael. The State also moved to the stay June 12 order. Leave to file the answer, petition, and cross-petition was granted this by 2,1981. court in an order of July
On 20, July this court denied the State’s motion to stay the juvenile court’s June 12 order releasing Michael with- bond, out and also denied the State’s alternative motion to set bail in the of $100,000. amount However, court, this on its own motion, vacated the juvenile court’s June 12 order and reinstated the order of 29 that set April $100,000 bail, the pending the mandamus proceedings. disposition Pursuant to this order, court’s July 20 Michael was re- turned to the of the custody Juvenile Detention Center on 21,1981. He has there since
July remained that time. 21, 1981, On the July pursuant State moved to Su Court R. preme 302(b) (73 Rule Ill. 2d to transfer 302(b)) to this court the the court’s denial of the appeal juvenile State’s to as an The Rule prosecute motion Michael adult. 24, on 302(b) motion was denied July In 55365, cause was the charged No. Loma Ortiz with 13, 1980, armed and murder of An- on December robbery in a the thony Hopfner juve- filed in delinquency petition nile division the circuit Decem- court of Cook County 16, date, ber 1980. At a on the same the hearing juvenile court found cause probable to believe Loma was a de- her was minor and also found that detention linquent or- was necessity. matter of immediate and Loma urgent Detention dered detained in the Cook Juvenile County Center. to 7(3) prose-
The State filed a motion under section 2— held on Loma, 15, hearing as an After cute then adult. 1981, 29, court denied January juvenile the State filed a notice January 30, State’s motion. On Loma remained ruling. from the court’s appeal juvenile Juvenile Detention Center. of the court, on its 29, 1981, the April juvenile apparently On Af- motion, $100,000. an order bail at setting own entered for her from ter a motion Loma release subsequent re- Center, court on May Juvenile Detention juvenile Loma to $50,000. post duced bail unable bail. was moved the again On June Lorna or for Detention Center release from Juvenile in a residential treatment facility, pursuant placement (Ill. the Act. Rev. Stat. 3(3) 7 — asserted motion was the 3(3).) ground right subject minors statutory and Federal constitutional care Act to receive necessary Juvenile Court date, same treatment. After a on the file a neglect petition court ordered the State’s Attorney *8 interest, in Lorna’s and also ordered the Department Services to find an Family appropriate place- Children and her, ment within one week. both in this court for a 25, the State filed a motion On June court, in the the dis- pending stay proceedings file for a writ of of the State’s motion to a petition position exercise of filed authority, mandamus and supervisory motion to further stay same This court granted day. 14, 1981, court, in the and on proceedings August to file for a writ of the State’s motion for leave granted order authority. By mandamus and exercise of supervisory 18, 1981, Loma’s case with that we consolidated August of Michael Davis for argument. in Michael Davis’ case
The State’s interlocutory appeal In is in the in the court. briefing stage appellate currently af- case, in Loma Ortiz’ appeal appellate in a Rule 23 order dated No- firmed denial transfer 24, 1981 Dist. No. The State filed a (1st 256). vember 81— petition rehearing on December no either for Juvenile Court Act makes provision The issue or for bail. interlocutory appeals presented these in Peo holding, cases of this court’s consequence v. 67 Ill. that the State ple (1977), Martin 2d take an from interlocutory, pre-adjudication appeal juve minor as nile court’s order a motion to denying prosecute it an adult. Prior to v. Martin had been held People motions, orders, transfer final were being not rulings 145; not v. 43 Ill. 2d Peo appealable. (People Jiles 534.) v. Boclaire 33 Ill. 3d In v. ple App. People 76 Ill. 2d this court reaffirmed hold Taylor (1979), no to an immediate ing right Jiles that minor has (76 of an transfer to adult court. order appeal permitting that the court’s 289, 308.) 2d also held Taylor appellate to determine whether role in transfer orders is reviewing in evaluating has abused his discretion juvenile judge forth in section in the’ of the criteria set light evidence standard had 289, 301-02.) previ Ill. 2d This 7(3). (76 *9 2— cases, court in several the by appellate been ously applied v. Rahn People in in of this court’s holding view transfer is a 302, judi that the ultimate decision on Ill. 2d In Burns re 67 Ill. 3d e.g., See, App. cial one. transfer). denial of (affirming the adju
In Martin this court that of recognized delay of the proceedings— dication —the fundamental purpose such allowing consequence ap would be the inevitable us, 462, In the cases before (67 466.) 2d peals. of the problems court to ameliorate one attempted bail, that the minors could obtain so delay by setting during foreseeably lengthy their release from custody for this The issue appeals, of the pendency interlocutory of the orders bail court, therefore, setting is the propriety note that questions for Michael Davis and Loma Ortiz. We are not the amount or conditions of bail before concerning court had the the issue is whether us; rather, in to bail to the minors these cases post authority require custody of their release from pending as a condition decision of the State’s appeals. Act favors of the Juvenile Court
The specific policy their the Act in the custody minors leaving subject even in a wherever setting possible, or parents family-like and 2(1) (Sections after an adjudication delinquency. 1 — 701-2(1), 705-2).) 1979, 37, ch. pars. 5-2 Rev. Stat. (Ill. 2(1) Section provides: 1 — Act is to secure for each
“(1) The of this purpose guidance, preferably minor hereto such care and subject moral, emotional, men- home, in as will his own serve tal, minor and the best inter- physical welfare of the strengthen community; preserve est of the him from removing ties family possible, minor’s whenever or only when his welfare custody parents of his cannot be ade- protection public or the safety removal; and, when the without quately safeguarded him secure for family, from his own minor is removed nearly possible equiva- as as custody, discipline care and his ***.” given by parents lent to that which should be 2(1). ch. Ill. Rev. Stat. a legislative policy
The Act as whole evidences detention of minors be limited. “Detention” specifically “the care of a minor or temporary alleged adju defined as in Section 2—2 [delinquent dicated as described person his or the who secure own requires minor] facilities community’s protection physically restricting ***.” pending disposition added.) (Emphasis (Ill. Rev. Stat. Several 9.) sections par. 701 — of the Act definite place time limits on the for which period a minor may detention, be held prior both and after an adjudication delinquency.
Section 5(4) that a provides minor taken into custody 3— for allegedly act committing be detained delinquent *10 for no more than 36 hours before before a being brought officer for a judicial detention 1979, Ill. Rev. Stat. hearing. 37, ch. 703-5(4). par.
Section 4—2 provides that when a has been petition filed a alleging minor to be or a minor in delinquent need the supervision, juvenile court shall set the petition within hearing 30 of the days date the was petition filed. If, however, the minor is held in detention or “shel being ter care” (care a such physically nonrestricting setting, as a foster home or other family facility (Ill. Rev. Stat. 1979, 37, ch. par. the 17)), petition must be set for 701 — adjudicatory hearing within 10 of the date days the minor was ordered held in detention or shelter care. The section that the provides State move for may of the postponement adjudicatory hearing, in cases where the minor is charged with a “crime of violence.” The court may grant the post ponement “for good cause shown,” principally the unavail ability evidence or witnesses, but the postponement may be for no more than 20 the days from date of the court’s order directing detention or shelter care. Ill. Stat. Rev. 1979, 37, ch. 704-2. par.
Section 1(4) provides that if after the adjudicatory 5— 144 the continues juvenile court the hear
hearing dispositional or a minor it order either detention release of ad ing, may the decision on a suitable dis judicated delinquent, pending order position; but the event court shall detention “[i]n hereunder, not period of the continuance shall exceed At time, 15 court the end of such the court shall re days. the minor is permitted lease from detention.” State under the section to move for a further continuance detention, but and continued dispositional hearing more extension can be for no than 15 additional court at “the end of extended days, period from if a further continu shall release minor detention 1979, 37, ance is Ill. Rev. Stat. ch. 705— granted.” par. 1(4). a minor on or 3(4),
Under condi probation 5— detained on a discharge adjudication tional after release, the conditions his but deten charge violating is alleged tion violation limited pending 1979, 37, Rev. 3(4). Stat. days. that is the and release to It is detention plain exception, care, guidance, who provide appropriate custodian will Accord, the rule the Act. under discipline protection 52-53; In re M. Doe v. State (Alaska 1971), P.2d 737, 743-44, 3d 473 P.2d 89 Cal. Cal. Rptr. Fulwood v. Stone 394 F.2d 33, 39-40; (D.C. 1967), Cir. 943-44. in In 4 — 2 of section meaning
This court considered Armour re 102. In case a 17-year-old 59 Ill. 2d with charged delinquency petition attempted had been *11 the The ordered minor juvenile and murder. court robbery the adjudicatory to his and set parents’ custody released the the delinquency a date from date for 32 hearing days continuances of was filed. There were numerous petition on the court’s sides and by the motions both hearing concluded motion, and was not hearing actually own the had re- the minor been (Since until some six months later. the the issue of detention did not pending hearing, leased the arise.) The court found minor and commit- delinquent Corrections, him to Juvenile ted Divi- Department sion.
Armour on the appealed adjudication delinquency that over him court lost ground jurisdiction by its failure to set the within 30 as hearing days, petition required section and that he was therefore enti by 4— tled be court held that the discharged. appellate ju venile court’s was not affected its failure to jurisdiction by In re comply exactly 30-day with Armour requirement. 15 Ill. App. 3d affirmed, This court court agreeing appellate with that requirement that statutory set “shall” petition days within was di not rectory, jurisdictional. The court referred to the reme dial aims of the Court Juvenile Act and concluded that the legislature did not intend that a minor not an ad receiving judicatory hearing days within “should be dis precisely charged abandoned, or be as it that were, and ef society’s to correct, fort to rehabilitate and to should come to guide halt.” 102, 105. In re Armour 59 Ill. 2d We conclude that 4—2 establishes maximum of time period that a minor can detained be pending judi cial action on the merits of his case. Section 4—2 mandates not release discharge, but when the has statutory period been exceeded. This construction with the mani comports fest legislative purpose expedite proceedings which detention, minors are held and to minors from prevent held in their being from families for separated and indefinite lengthy periods, action court. pending Sections the release from deten 1(4) 3(4)require 5— tion of minors if the adjudicated who have been delinquent court has not It period. acted within brief would specified be are incongruous to hold minors who merely alleged to be delinquent indefinitely. could detained
146 has this given note that the court appellate interpre
We 4—2 to sections of the Act. parallel tation to section and Armour v. Dean (In People re 529; Ill. 3d (1973), 15 App. In re Daniels Ill. 383; 52 Ill. 3d 37 App. (1976), is con App. 975.) 3d Our conclusion further supported by of to 4—2 the Coun commentary sideration the section cil the Evaluation of Defend Diagnosis and Criminal in the ants, which section 4—2 connection with drafted revision the Act the enactment 1973 of Juvenile Court and of It the Unified Code Corrections. states: to law unclear the minor was
“Former was whether the discharged hearing from or if custody be released This hearing was set for 10 amend days. not within [sic] only ment states that he will be released from cus clearly Stat., 37, par. Ann. tody discharged.” not Ill. (Smith-Hurd Commentary Supp. Council at 1981). 4—2 that under section Michael Davis contends minor to Act, above, Court is entitled be quoted Juvenile hear- from bail if no adjudicatory released without held that section. We ing prescribed by is within time statute is the correct that this construction believe one. charge that on a of de minors detained
Our conclusion if has be released no adjudicatory must linquency in 4—2 does section period prescribed been held within us, we not however, the cases as do not, before dispose in circum apply section 4—2 was intended believe cases. 4—2 was enacted stances these Section v. at a time People Martin 2d prior were not of transfer orders when interlocutory appeals had the Gen that, It is unreasonable permitted. suppose of such appeals, eral contemplated possibility Assembly within it completed would have required they 4—2. When period provided maximum 30-day mo of a court’s denial State appealing therefore, hold adult, we a minor as an tion to prosecute 4—2 that section does not the minor’s release with- require out bail.
Where the State the denial of a motion appeals transfer, there arises the that the minor possibility may be subjected to the consequences prosecution convic tion as an adult offender. Had the granted *13 transfer, the motion to no one would doubt that the minors would be entitled to release of upon giving for security their at trial. We believe that under the circum appearance cases, stances of these a minor should have at least the same as an adult of crime. Ill. rights accused Rev. Stat. 1979, 37, ch. par. In re 66 2(3)(a); Beasley (1977), Ill. 701 — 385, 2d 391. I, 9,
Article
states: “All
shall
persons
be bailable
sureties,
sufficient
by
except
capital offenses where the
is
proof
evident or the presumption great.” (Emphasis
added.) (Ill.
1970,
I,
Const.
art.
sec.
9.)
Constitution
does not
draw distinction based on the
of the
age
ac
cused. (Trimble v. Stone (D.D.C. 1960),
483,
187 F. Supp.
486.) Since both
here
juveniles
were under 18
of
years
age
at the time the offenses
committed,
were
neither can be
death,
sentenced to
so the
above
exception
relating
capi
tal offenses is not
here
applicable
(Ill.
1979,
Rev. Stat.
38,
Moreover,
1(b)).
Act,
the Juvenile Court
whose
basic
is to
purpose
provide
offenders
greater pro
tection and solicitude than afforded
by
adult criminal
justice system, should not be
as
interpreted
depriving
minors of their constitutional rights. (State v. Franklin
(1943),
439, 443,
202 La.
12
211,
So. 2d
This
213.)
has held that
juveniles have
same
right
be released
on bail
an
pending
an
appeal
adjudication
delinquency
as adults have to release on
of a crimi
pending
bail
appeal
nal conviction. In re
(1978),
Pulido
The function of the trial court is to determine the amount of bail to be required and to the bond or re- accept cognizance of the person admitted to being (People bail. ex
148 623, 625-26; 34 Ill. 2d Ingram v. (1966), rel. Gendron The court 77.) Ill. App. People (1885), Lewis v. 18 bail, the charac the amount account, fixing take into as accused, as well record, if any, criminal ter and to his guilt probability of a doubt as the existence 380 Ill. (In McGarry (1942), re for trial. his appearing Ill. v. Snow ex rel. Sammons (1930), People 365; not to be But, required “excessive bail is 464, 467.) from admitted being the prisoner of preventing purpose v. Snow ex rel. Sammons (1930), (People bail.” Ill. 2d v. Elrod Hemingway ex rel. 467; People accused for of an detention 74, 81.) Although preventive not contemplated public of protecting the purpose the imposing has Constitution, approved this court “balanc[ing] a means of on release as conditions restrictive the right against free bail of an accused the right con reasonable, protective to receive public of the general rel. v. Hemingway ex People the courts.” sideration by Elrod 60 Ill. 2d in these cases were entitled to hold that the minors
We *14 bail, court therefore admitted to and that amount, in an to re had to set bail authority appropriate conditions on their lease on and/or to recognizance, impose rel. v. Elrod Hemingway ex People release, as discussed in to interloc Rule 604 is applicable 60 Ill. 2d Our (1975), transfer of of orders denying State utory appeals by v. Martin Ill. 2d (People minors to adult court. rule, (aX3) to draw attention subdivision 462.) We A Pending Appeal. “Release which provides: Defendant *** to during pendency shall not be held bail defendant *** unless there are compelling of an the State by appeal *** R. to Ill. 2d (73 for his held bail.” being reasons order, a transfer When the State 604(a)(3).) appealing to show the “com therefore, it on the State is incumbent the minor to bail holding reasons” that necessitate pelling can be required. before bail case a further In of Loma Ortiz issue. presents in when Loma had of the Ju-
May been months, venile Detention Center for iVz she approximately filed a motion in the in requesting placement a facility where she could receive educational necessary dyslexia, services. Loma has that re- learning disability, not at Juvenile quires special training available Deten- averred, tion The motion also Center. basis of the Loma, sworn who testimony psychiatrist examined that her in stay extended the Detention Center had be- her come detrimental to mental and emotional well-being, and that Loma’s best interest she should be transferred to a facility. residential treatment the motion,
As Loma grounds asserted a statutory aas minor to right, subject Act, the Juvenile Court re to ceive care and necessary (Ill. services. Stat. Rev. She 2(3)(b).) also asserted a right treat
ment based on the eighth and fourteenth amendments the Federal Constitution. v. Heyne (7th 1974), Nelson Cir. 352; 491 F.2d Collins v. Bensinger (N.D. Ill. F. 1974), 374 Supp. F.2d 1405. affd motion, In response to Loma’s the juvenile ap- court— in the belief that it could not parently act secure neces- sary educational services for Loma until she had been ad- judicated 18, 1981, ward of court—on June ordered the State’s Attorney to file a neglect petition Loma’s behalf, ordered the Department Children and Fam- an ily Sevices locate for her. The appropriate placement statutory basis for order to the State’s Attor- directed is section ney Act, 4—1 the Juvenile Court which pro- vides:
“(1) Any person, any adult agency or association representative file, its may or the court on its own mo tion the filing through Attorney direct the State’s *15 in petition respect of a minor under this Act.” Rev. Ill. 1979, 37, par. 704-1(1). Stat. ch. mandamus,
The State’s in his Attorney, petition void, contends that court’s order was as juvenile the court to di to authorize statutory purporting section to file a is an unconstitu rect the State's Attorney petition a court with exclu belonging tional to vest attempt power in of the branch, to the executive violation sively of of Const. principle powers. constitutional separation 1970, II, art. sec. 1. The filing contention unpersuasive.
We find State’s of a minor under the Juvenile respect of a petition executive Court Act is not a matter within exclusive adult Any responsible discretion of the State’s Attorney. petition of the circumstances file a having knowledge de 4—1 a minor alleging delinquent, under In or a minor in need neglected, supervision. pendent, to investi addition, authorizes officers probation the Act an a minor is allegation delinquent, and evaluate gate this is indicated. see to the where filing petition and to The aim 1(2)(a).) Rev. (Ill. Stat. a number of avenues of access section 4—1 is to provide in need of its services. for minors court ac court the means which the by is petition simply of the minor. the situation official quires cognizance filing A v. Piccolo 455.) 275 Ill. (People (1916), person “agent bringing an merely is petition re of the court.” In to the attention of the case facts Brown 117 Ill. (1904), App. therefore, like the not to file a petition,
The decision or what prosecution a criminal initiate decision whether the exclusive are functions within which charge, offense to ef the cases to this Attorney; of the State’s discretion Ca ex rel. (People State, are inapposite. fect, cited v. Ruiz People 531; (1979), v. Cousins 77 Ill. 2d rey v. Rotramel App. 5 Ill. People 326; 78 Ill. 3d App. any not specify 4—1 need A under section 196.) 3d petition moreover, minor; specific provi disposition proposed re- filed in petitions being for two or more sion is made *16 of the same minor at the same time. Rev. Stat. spect (Ill. 1979, 37, ch. hold section pars. 704—1(3), ( 6).) We that 704 —1 the juvenile 4— 1 ’s authorization the court direct of a in of a minor filing through petition respect exer State’s does not authorize an Attorney impermissible cise by judicial branch of powers belonging exclusively executive, II, 1, to the and does not violate article section of the Illinois Constitution. remanded,
Since this case will be it is appropriate note that it is not a that be filed before necessary petition the juvenile care, court can act to secure treat necessary ment a and services for minor held in under the custody Act. Section at detention 6(2) authorizes court 3— *** “enter such orders related to the temporary as it deems fit and custody to order proper,” generally appropriate placement a minor who has been taken into on a custody charge 1979, of delinquency. (Ill. Rev. Stat. 37, ch. The par. 6(2).) placement chosen juve 703 — should, nile court of course, which, be that in the court's judgment, will moral, “serve the emotional, mental, and welfare of physical the minor” and secure the minor’s “right to services to his necessary in proper development, health, education cluding and social services.” Ill. Rev. Stat. ch. pars. 701-2(1), 701-2(3)(b).
Under section court can 3(3), order a 7— minor subject to the Act or placed hospital, institution for treatment agency special or care “when or the health condition of requires (Ill. it.” Rev. Stat. [the minor] ch. 37, The —(3).) section extends to minors who 70 7 are in the custody of juvenile authorities and is not limited to minors who have court, been adjudicated wards or in respect filed, to whom petition has been and 3—7 (authorizing court to consent to den medical and tal treatment of the all minor times during temporary “[a]t detention or custody, shelter care” Rev. (Ill. Stat.
37, par. 7)) indicates that it was not intended to be so care, and treatment of what services
limited. question is for the necessary appropriate are However, agree in the first instance. we determine for juve of care is higher required different and standard detainees, than for adult both by niles held Swan the Federal Constitution. Court Act and by Juvenile 1138, 1143; Nel v. Elrod sey 1975), 386 F. (N.D. Supp. v. Heyne (7th son 352, 358-60. 1974), Cir. 491 F.2d cases, these we hold
Summarizing disposition our have the charge on a of delinquency that minors detained *17 of the juve- the an order appeals to when State bail right as adults. a motion to them prosecute nile court denying to set bail authority court therefore had The juvenile request- in cases. Michael Davis’ petition the minors these of mandamus to compel ju- a the issuance of writ ing of April its bail order venile court to vacate corpus, for habeas The juvenile be denied. must therefore bail was 12 Michael without releasing order of June court’s 1981; consequently of July this court’s order vacated that mandamus issue or- to vacate that the State’s petition juvenile to the No. 55050 is remanded der is denied. Cause this opinion. consistent with court for further proceedings had authority court Since we hold juvenile a under petition to file Attorney order State’s of the State’s Ortiz, the petition 4—1 of Loma in behalf mandamus No. is denied. Cause a writ of Attorney consistent with proceedings for further 55365 is remanded this opinion. — denied; remanded. cause 55050 Writs — denied; cause remanded. Writ
55365 SIMON, dissenting: JUSTICE find in detention a minor hold authority I do not any State’s of the denial of the court’s pending appeal dissent. adult, and I therefore him as an motion try Act provides: Court 4—2 of Juvenile Section has hearing. petition When adjudicatory “Date for ***, alleging [delinquent] filed that the minor is a it been hearing set for an adjudicatory days. shall be within 30 In the case of a minor ordered held in detention shel or care, however, ter must be set for petition judicial days within 10 from the date of the order of the directing or ***. detention shelter care Whenever a in minor is held detention or shelter and the petition care alleges violence, that he or she committed crime of *** Attorney may by request State’s motion that the ad *** judicatory hearing postponed. good be For cause in *** motion, support of such court may postpone adjudicatory hearing up judicial days to 20 from the date of the order of directing the court detention or shelter care.” Ill. 37, par. Rev. Stat. 704 — 2.
The statute has been interpreted na directory ture and not a jurisdiction, statement of on the mandatory court. Thus a of his parents not entitled ato discharge from for his responsibility crimes just because his not adjudicatory hearing was held within re days. (In Armour 59 Ill. 2d To 102.) interpret it otherwise would conflict the ultimate with behind policy the Juvenile Court Act: to give care, guidance and a chance for rehabilitation to (In re Ar wayward youths. mour this, 2d 102.) however, Despite juve nile who is confined being is entitled to pending release his *18 hearing, if the is not adjudicatory held within the specified period. (People v. Dean 52 Ill. 3d App. 383; In re Daniels 37 Ill. 3d The App. 975.) major ity concedes that under normal circumstances this true, is but finds an in exception this case.
No is in exception made the statute for deni- of appeals als of the State’s motion to transfer a Attorney’s to adult I jurisdiction. believe that none was intended. The
fact that the legislature not have such may anticipated that orders would be appealable does not lessen the applicability of Instead, the statute. the State’s to Attorney appears a have choice when his motion is He drop denied. can issue and move to in an directly adjudicatory hearing
154 court, in he can custody, ap- the minor or keeping matter, which time the minor cannot be peal during in custody. held 4—2 is in
The to section direct exceptions absence to trial right speedy guaranteed contrast statutory Proce- in section 103—5 the Code of Criminal to adults is 4— which the adult counterpart dure That section provides: trial. “Speedy in al this State for an
(a) person custody Every having jurisdic tried the court leged by offense shall be days he taken into cus tion from the date was within defendant, tody delay unless is by by occasioned an ex amination competency pursuant for ordered to Section Act, hearing, 104—2 of an by competency by adjudi this trial, of incompetency by cation for a continuance allowed pursuant to Section 114—4 of this Act after a court’s de trial, termination of the defendant’s physical incapacity or an interlocutory appeal.” Rev. Stat.
par. 103 — 5. The statute states that interlocutory expressly appeals Thus, toll the if the had adult time wished period. legislature to make exceptions guarantee speedy its of a trial it could done so. detained knew how and have youths, no accident two statutes is difference between hold- against It is that the policy evident draftsmanship. than stronger far strong, in detention is youths very ing an incarcerated adult offenders. While suspected for adult dangerous even up juvenile, be held days, The Juvenile one, days. a maximum of can be held Act of this states, “The purpose Act expressly Court and guid- hereto such care each minor subject secure for moral, home, his as will serve ance, own preferably minor and of the mental, welfare emotional, physical to preserve community; the best interest re- whenever possible, the minor’s ties strengthen family his when only of his parents him from moving *19 155 welfare or or the of the cannot safety protection public without adequately safeguarded (Ill. removal.” Rev. Stat. Detention of 2.) kind is meant any to resort; be a last its use is intended to be limited. strictly The majority opinion recognizes, for example, adjudi cated delinquents must be if a released hear dispositional has not ing been held within 30 It is days. anomalous to hold that a minor who is to have merely alleged committed act can delinquent be held in custody indefinitely, while a minor found to have committed such an act cannot. majority overlooks more reasonable interpreta-
tion of section 4—2 that even though denial of such transfer motions bemay appealable, the State’s Attorney may be required release the order to take the It reasons appeal. that because such take appeals always more than 30 days, legislature must have intended them to the clock on stop section 4—2. I am not at all sure why these appeals have take that long; and certainly court, this rule, could establish a procedure for dispos- ing of all appeals of this type within the time frame of sec- tion 4—2. In event, in any view of the legislature’s ex- pressed policy against the detention of minors for extended time, I periods find it difficult to believe that it had any intention of allowing State’s Attorneys juveniles hold pending such appeals just because take they might a long time. The fact that such appeals have been permitted drag for a year or more is evidence that the legislature would not have allowed detention of minors the fi- pending nal outcome.
Moreover, such are all appeals hopeless. but The stand ard for review set forth in v. People Taylor (1979), 76 Ill. 2d discretion, is one of abuse and I know of no case that overturns a juvenile determination that a judge’s juvenile should be tried as a juvenile. Several cases have refused to. re (In 361; Burns 67 Ill. (1978), 3d In re App. Williams 67 Ill. 3d 23 App. (Rule order); 1109 In
re Johnson In order).) 3d 1191 (Rule App. *20 matter, appellate this on November very court’s order in re affirmed the juvenile court summarily held in detention to Loma Ortiz after she had been gard while for almost a She continues be year. that awaits decision. Given rehearing State’s petition to contemplate the statute for transfer allowing appears the exception to adult would be jurisdiction transfer rule, it is difficult to that reversals imagine rather than the Ill. Rev. (See in the any frequency. will occur future with the State’s Attor 7.) Allowing Stat. par. 702 — such appeals encourages to detain juveniles pending ney sake of holding ju him make the for the just appeal must deten spend The of time a juvenile venile. period Attorney. to the whim of the State’s subject tion would be ameliorate its own finds a need to The majority opinion Such a concession for bail. allowing harsh consequences by He make is a rarity. who can bail is illusory. cases, who, in some be must entirely parents rely time in detention and to have him his spend as just happy minor, As a no bail. provide in most cases have money contract to borrow bail binding cannot even enter into a he money. measures the time statute, this which
Interpreting in days, adjudication held in detention before youth may in deten- keep youth an that could exception to include If it is a desirable or more is incongruous. tion for a year it legislative is by proper way provide exception, creation. than by judicial amendment rather