The opinion
Docket No. 108297.
IN THE
SUPREME COURT
OF
THE STATE OF ILLINOIS
THE PEOPLE OF THE STATE OF ILLINOIS, Appellee, v. MILES
SMITH, Appellant.
Opinion filed January 22, 2010.
JUSTICE THOMAS delivered the judgment of the court, with
opinion.
Chief Justice Fitzgerald and Justices Freeman, Kilbride, Garman,
Karmeier, and Burke concurred in the judgment and opinion.
OPINION
At issue is whether a State’s Attorney may recover a statutory
preliminary examination fee (55 ILCS 5/4–2002.1(a) (West 2008))
when a defendant receives a bail hearing but not a hearing to
determine probable cause. We hold that the preliminary examination
fee is available only when there has been a probable cause hearing.
BACKGROUND
The State charged defendant, Miles Smith, with possession of a
controlled substance (cocaine) with the intent to deliver (720 ILCS
570/401(c)(2) (West 2006)). Following a bench trial, the circuit court
of Cook County convicted defendant and sentenced him to four years’
imprisonment. The court also assessed various fines and fees against
defendant, including a $20 “preliminary hearing” State’s Attorney fee
pursuant to section 4–2002.1(a) of the Counties Code (55 ILCS
5/4–2002.1(a) (West 2006)).
Defendant appealed, arguing, inter alia, that he could not be
assessed the $20 fee because no preliminary examination was held.
According to defendant, it is well settled that a “preliminary
examination” is a probable cause hearing, and no such hearing was
held in this case because he was indicted by a grand jury.
The Appellate Court, First District, Fifth Division, held that the fee
was properly assessed because there had been a bail hearing. No.
1–07–0282 (unpublished order under Supreme Court Rule 23). The
court noted a split of authority on this issue in the First District. In
People v. Ellison, 383 Ill. App. 3d 146 (2008), the Fourth Division
held that the preliminary examination fee is properly assessed for bail
hearings rather than for probable cause hearings. The relevant statute
provides that the fee is assessed for “preliminary examinations for
each defendant held to bail or recognizance.” 55 ILCS 5/4–2002.1(a)
(West 2006). The Ellison court determined that, if the statute were
read as applying to probable cause hearings, that would render the
language “ bail or recognizance” superfluous. Thus, Ellison concluded
that “as used in section 4–2002.1(a), a ‘preliminary examination’
means the proceedings at which a trial court examines relevant factors
for the purpose of determining whether or not to hold defendant on
bail or recognizance.” Ellison, 383 Ill. App. 3d at 147. The Ellison
court found irrelevant the definition of “preliminary examination” in
the Code of Criminal Procedure of 1963 (725 ILCS 5/100–1 et seq.
(West 2006)), because section 4–2002.1(a) of the Counties Code did
not refer to that definition. Ellison, 383 Ill. App. 3d at 147-48.
In People v. Brown, 388 Ill. App. 3d 104, 112-14 (2009), the
Third Division rejected Ellison’s holding. The Brown court held that
the plain meaning of “preliminary examination” is a hearing to
determine whether there is sufficient evidence to prosecute the
accused. The court noted that the term is defined that way both in
Black’s Law Dictionary (Black’s Law Dictionary 1199 (7th ed. 1999))
and in the Code of Criminal Procedure of 1963 (725 ILCS 5/109–3
(West 2006)). Brown, 388 Ill. App. 3d at 113. The court further
rejected Ellison’s conclusion that it is improper to look to the Code
of Criminal Procedure to define the term because the relevant section
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of the Counties Code provides a schedule of fees for State’s Attorneys
for various criminal procedures. The court thus found that “any
explanation of the fees due for ‘preliminary examinations’ necessarily
requires us to examine the Code of Criminal Procedure of 1963,
which is the relevant statute from which those proceedings are
specifically derived.” Brown, 388 Ill. App. 3d at 113. Because the
defendant in Brown was indicted by a grand jury, no preliminary
examination within the meaning of the Code of Criminal Procedure
was held. Accordingly, the court vacated the preliminary examination
fee. Brown, 388 Ill. App. 3d at 114.
Here, the Fifth Division considered the reasoning of both Ellison
and Brown and found Ellison more persuasive. The court believed
that Brown was improperly ignoring the language referring to “bail or
recognizance.” Accordingly, the court held that defendant was
properly assessed the fee, as it was undisputed that he had received a
bail hearing. The court also addressed other issues not presented here.
We allowed defendant’s petition for leave to appeal to resolve this
conflict between the various divisions of the First District. 210 Ill. 2d
R. 315.
ANALYSIS
The issue is one of statutory construction. Thus, our primary goal
is to ascertain and give effect to the drafters’ intention, and the most
reliable indicator of intent is the language used, which must be given
its plain and ordinary meaning. People v. Davison, 233 Ill. 2d 30, 40
(2009). In determining the plain meaning of a statute’s terms, we
consider the statute in its entirety, keeping in mind the subject it
addresses and the apparent intent of the legislature in enacting the
statute. People v. Perry, 224 Ill. 2d 312, 323 (2007). When statutory
terms are undefined, we presume that the legislature intended the
terms to have their popularly understood meaning. People v.
Maggette, 195 Ill. 2d 336, 349 (2001). Moreover, if a term has a
settled legal meaning, the courts will normally infer that the legislature
intended to incorporate the established meaning. People v. Bailey, 232
Ill. 2d 285, 290 (2009) (holding that the term “search” has a settled
meaning in the realm of criminal procedure). Statutes such as this,
which are in derogation of the common law, must be strictly
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construed. People v. Williams, No. 107140, slip op. at 8 (November
19, 2009), citing People v. Nicholls, 71 Ill. 2d 166, 173 (1978). The
construction of a statute is a question of law that is reviewed de novo.
Davison, 233 Ill. 2d at 40.
Defendant argues that this court should follow Brown. Defendant
points out that “preliminary examination” is a legal term of art that
means a hearing to determine whether there is sufficient evidence to
prosecute an accused person. Defendant cites treatises and both
Illinois and out-of-state decisions. Defendant points out that every
state to use the term “preliminary examination” or “preliminary
hearing” uses it to describe a probable cause hearing. Ellison, by
contrast, cited no authority defining “preliminary examination” as a
bail hearing. Defendant agrees with Brown’s conclusion that, because
the fee schedule in the Counties Code relates to criminal proceedings,
a court should necessarily look to the Code of Criminal Procedure of
1963. Section 109–3 of the Code is entitled “Preliminary
Examination” and describes a probable cause hearing. See 725 ILCS
5/109–3 (West 2006).1
Although the State argues that the Ellison court’s reasoning was
correct, it does not, in fact, rely on Ellison’s reasoning. As we noted
above, Ellison held that looking to the Code of Criminal Procedure to
define “preliminary examination” was improper. Moreover, the Ellison
court determined that the $20 fee could not be awarded for a probable
cause hearing because that would render the “bail or recognizance”
language superfluous. By contrast, the State has come up with an
argument that not only requires looking at the Code of Criminal
Procedure, but also would allow the fee to be imposed for both bail
hearings and probable cause hearings. The State points out that the
Code of Criminal Procedure uses the term “preliminary examination”
twice: first, as an article header for article 109, and then again for
section 109–3, a specific section of article 109. There are five sections
under article 109. One of them, section 109–1 (725 ILCS 5/109–1
1
Although defendant does not mention this, we note that “preliminary
examination” is also defined in the general definitions section of the Code of
Criminal Procedure as “a hearing before a judge to determine if there is
probable cause to believe that the person accused has committed an offense.”
725 ILCS 5/102–17 (West 2008).
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(West 2006)), covers the first appearance when an arrested person is
taken before a judge. One of the things that happens at this initial
hearing is that the court shall “[a]dmit the defendant to bail in
accordance with the provisions of Article 110 of this Code.” 725
ILCS 5/109–1(b)(4) (West 2006). The State contends that when the
legislature used the term “preliminary examination” in the Counties
Code, it must have been referring to the article heading for article 109,
not just to section 109–3. Thus, both the hearings held pursuant to
section 109–1 and section 109–3 are covered by the reference in the
Counties Code to “preliminary examinations.” According to the State,
this reading gives effect to the language “held to bail or
recognizance.”
None of the possible constructions of section 4–2002.1(a) are
entirely satisfactory. We begin, however, with the presumption that,
when the legislature uses a term that has a settled legal meaning, the
legislature intended it to have that settled meaning. Bailey, 232 Ill. 2d
at 290. As we explained in Bailey, “ ‘The law uses familiar legal
expressions in their familiar legal sense.’ ” Bailey, 232 Ill. 2d at 290,
quoting Henry v. United States, 251 U.S. 393, 395, 64 L. Ed. 322,
323, 40 S. Ct. 185, 186 (1920). The term “preliminary examination”
is a familiar legal expression that has a settled meaning. See, e.g.,
Rothgery v. Gillespie County, 554 U.S. ___, ___ n.12, 171 L. Ed. 2d
366, 376 n.12, 128 S. Ct. 2578, 2585 n.12 (2008) (“The preliminary
examination is a preindictment stage at which the defendant is allowed
to test the prosecution’s evidence against him, and to try to dissuade
the prosecutor from seeking an indictment”); Black’s Law Dictionary
1299 (9th ed. 2009) (referring to a “preliminary examination” as
synonymous with “preliminary hearing,” and defining “preliminary
hearing” as “[a] criminal hearing *** to determine whether there is
sufficient evidence to prosecute an accused person”); Black’s Law
Dictionary 1062 (5th ed. 1979) (referring to a “preliminary
examination” as a “preliminary hearing” and defining “preliminary
hearing” as “[t]he hearing by a judge to determine whether a person
charged with a crime should be held for trial,” and also as a hearing to
determine whether there is probable cause to believe that a crime has
been committed and that the defendant committed it); Ballentine’s
Law Dictionary 978 (3d ed. 1969) (defining “preliminary examination”
as “a judicial inquiry to determine whether there is ‘probable cause’
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for an accusation of crime”); Barron’s Law Dictionary 365 (3d ed.
1991) (defining “preliminary hearing” as a hearing to determine
whether probable cause existed); 22 C.J.S. Criminal Law §453, at
576-78 (2006) (under heading “Preliminary Hearing or Examination,”
explains that such a hearing “serves a limited purpose: to determine if
there is probable cause to believe that the defendant committed the
crime charged, so as to warrant further proceedings”); 4 W. LaFave,
J. Israel, N. King & O. Kerr, Criminal Procedure §14.1(a), at 273-74
(3d ed. 2007) (“The preliminary hearing (also referred to as the
‘preliminary examination,’ the ‘probable cause’ hearing, the
‘commitment hearing,’ the ‘examining trial,’ and the ‘bindover
hearing’) is a judicial proceeding, which commonly is conducted by
the magistrate and limited to felony prosecutions. At that proceeding,
the prosecution in an open and adversary hearing must establish that
there is sufficient evidence supporting its charge to ‘bind the case
over’ to the next stage in the process”); 5 L. Piczynski, Illinois
Practice §8:1, at 294, 293-94 (2d ed. 2005) (“A preliminary hearing
or examination is held on a felony if there has not been an indictment
against the defendant,” and the purpose of the hearing is to “determine
whether there is probable cause to believe a felony has been
committed and that the defendant committed it”).
The authorities are consistent that a “preliminary examination” is
a probable cause hearing, and this is also the way that the legislature
uses the term in the Code of Criminal Procedure of 1963. See 725
ILCS 5/102–17, 109–3 (West 2008). Thus, we presume that when the
legislature authorized State’s Attorney fees for “preliminary
examinations,” it intended the fee to be available only when there has
been a probable cause hearing. The relevant portion of section
4–2002.1(a) can therefore be read as, “For probable cause hearings
for each defendant held to bail or recognizance, $20.”
The approach taken by the appellate court below and in Ellison
improperly rewrites the statute. The Ellison court ignored the fact that
“preliminary examination” is a legal term of art in criminal procedure.
Moreover, although Ellison focused on the phrase “bail or
recognizance,” it did not give effect to that language as written. The
statute provides that the fee is available for preliminary examinations
“for each defendant held to bail or recognizance.” 55 ILCS
5/4–2002.1(a) (West 2008). The statute does not state that the fee is
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available for hearings to determine or set bail. As the defendant points
out, it is difficult to imagine why the legislature would word the
statute this way if it simply wanted the fee to apply to hearings to
determine whether the defendant should be admitted to bail.
Moreover, although Ellison was primarily concerned with ensuring
that it gave effect to the statutory language “bail or recognizance,” its
approach did not give effect to the language “For preliminary
examinations for each defendant held to.” The Ellison approach also
excludes the fee for probable cause hearings, which is counterintuitive
because, as the defendant points out, the State’s Attorney has a clearly
defined role at probable cause hearings, and this is a much more
substantial role than at bail hearings. Adopting Ellison’s
construction–which both ignores legal terms of art and rewrites the
statute–would not be faithful to the rule that statutes in derogation of
the common law must be strictly construed. See Nicholls, 71 Ill. 2d at
173.
Likely sensing the problems with the Ellison approach, the State
argues for a different interpretation. As we explained above, the State
contends that the reference in the Counties Code to “preliminary
examinations” is actually a reference to the article heading for article
109 of the Code of Criminal Procedure of 1963. This interpretation
would cover both the bail hearing described in section 109–1 (entitled
“Person arrested”) (725 ILCS 5/109–1 (West 2006)) and the probable
cause hearing described in section 109–3 (entitled “Preliminary
examination”) (725 ILCS 5/109–3 (West 2006)). There are at least
three major problems with the State’s argument. First, section 109–1
expressly provides that one of the purposes of the hearing described
therein, in addition to admitting the defendant to bail, is to “[s]chedule
a preliminary hearing in appropriate cases.” 725 ILCS 5/109–1(b)(3)
(West 2006). Thus, the hearing described in section 109–1 cannot
itself be the preliminary hearing. Second, the State’s interpretation
would directly contradict the definition of “preliminary examination”
from the general definitions section of the Code of Criminal
Procedure. See 725 ILCS 5/102–17 (West 2008). Third, the statutory
language authorizing a fee for “preliminary examinations for each
defendant held to bail or recognizance” predates the adoption of the
article heading relied on by the State. The article heading relied upon
by the State was enacted as part of the Code of Criminal Procedure of
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1963. The relevant section of the Counties Code was enacted in 1992.
See Pub. Act 87–669, §2, eff. January 1, 1992. However, as we
explained recently in People v. Williams, No. 107140, slip op. at 5
(November 19, 2009), the predecessor statute to this section of the
Counties Code was section 8 of “AN ACT concerning fees and
salaries ***” (Ill. Rev. Stat. 1961, ch. 53, par. 8).2 If we look at the
1961 Illinois Revised Statutes, for instance, we find the following
language in section 8 of chapter 53: “For preliminary examinations for
each defendant held to bail or recognizance, $5.” Ill. Rev. Stat. 1961,
ch. 53, par. 8. Thus, even before the adoption of the Criminal Code of
1963, with the article heading the State hinges its argument on, the
legislature was allowing State’s Attorneys to collect fees “for
preliminary examinations for each defendant held to bail or
recognizance.” The legislature therefore could not have been referring
to that article heading when it first enacted the provision allowing for
preliminary examination fees.
There is an oddity with the statute that we need not resolve today,
and it is an oddity that arises under either party’s interpretation. The
language “for each defendant held to bail or recognizance” would
seem to exclude the fee for a defendant who received a probable cause
hearing but was in custody and denied bail. The same issue would
arise, however, if we construed “preliminary examination” to mean a
bail hearing. In that case, if the State successfully argued that the
defendant should be denied bail, the State would not be entitled to a
fee. If the defendant was admitted to bail or released on recognizance,
however, the State would be entitled to a fee. The problem may
simply be a legislative oversight. The defendant believes that by
2
The fee schedule for State’s Attorneys was originally found in section 8
of “AN ACT concerning fees and salaries ***” (Ill. Rev. Stat. 1961, ch. 53,
par. 8). The fee schedule was later moved to the Counties Code. See Ill. Rev.
Stat. 1989, ch. 34, par. 4–2002, now codified at 55 ILCS 5/4–2002 (West
2008). The legislature later adopted two different State’s Attorney fee
schedules–one for counties with over 3 million persons, and one for counties
with fewer than 3 million persons. See Ill. Rev. Stat. 1991, ch. 34, pars.
4–2002, 4–2002a, now codified at 55 ILCS 5/4–2002, 2–2002.1 (West
2008). The wording of these provisions was virtually identical, but the fees
for counties of more than 3 million persons were higher.
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allowing the fee for “preliminary examinations for each defendant held
to bail or recognizance,” the legislature was merely clarifying that the
fee is available only when the State is successful at the probable cause
hearing. At a preliminary examination, if probable cause is found to be
lacking, the defendant is discharged. 725 ILCS 5/109–3(b) (West
2006). If probable cause is found, the “judge shall hold the defendant
to answer to the court having jurisdiction of the offense.” 725 ILCS
5/109–3(a) (West 2006). It is possible that the legislature was merely
expressing an intent that the defendant should have to pay a
preliminary examination fee only where probable cause is found and
the defendant is held to bail or recognizance, but overlooked that
there was a third option–probable cause could be found, with the
defendant in custody and denied bail. Or, it could be that the
legislature had a reason not to allow the fee when the defendant is in
custody and denied bail.
Regardless, these are all questions for another day, when the issue
is presented by the case and fully briefed and argued. Or it is a matter
for the legislature to address. For our purposes today, it is sufficient
to say that defendant did not receive a probable cause hearing, and
thus he cannot be assessed a “preliminary examination” State’s
Attorney fee. The judgment of the appellate court is therefore
reversed to the extent it upheld the $20 preliminary examination fee,
and that portion of the trial court’s judgment that awarded the State
the preliminary examination fee is vacated. We also overrule Ellison
to the extent that it held that the “preliminary examination” fee may be
awarded when the defendant is given a bail hearing but not a probable
cause hearing.
Appellate court judgment affirmed in part
and reversed in part;
circuit court judgment vacated in part.
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