In re Mathias H.

Digitally signed

by Reporter of

Decisions

Reason: I attest to

Illinois Official Reports the accuracy and

integrity of this

document

Appellate Court Date: 2020.11.19

10:49:25 -06'00'

In re Mathias H., 2019 IL App (1st) 182250

Appellate Court In re MATHIAS H., a Minor (The People of the State of Illinois,

Caption Petitioner-Appellee, v. Mathias H., Respondent-Appellant).

District & No. First District, First Division

No. 1-18-2250

Filed October 28, 2019

Decision Under Appeal from the Circuit Court of Cook County, No. 18-JD-1274; the

Review Hon. Michael P. Toomin, Judge, presiding.

Judgment Affirmed.

Counsel on Amy P. Campanelli, Public Defender, of Chicago (Greg Koster and

Appeal Armando G. Sandoval, Assistant Public Defenders, of counsel), for

appellant.

Kimberly M. Foxx, State’s Attorney, of Chicago (Alan J. Spellberg,

Annette Collins, and Veronica Calderon Malavia, Assistant State’s

Attorneys, of counsel), for the People.

Panel 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

¶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 article VII, section 6(i), of the Illinois Constitution (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.

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¶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

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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

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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 Juvenile Court 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.” 705 ILCS 405/5-501(2) (West 2018).

¶ 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 (West 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

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respondent does not object to the State’s appearance in this appeal. Nor do we. In our view,

the State’s participation in this appeal is expected and consistent with its duty to represent the

best interests of the public at large, including the protection of minors subject to the jurisdiction

of the juvenile court.

¶ 22 Respondent argues that the juvenile court erred in denying his petition for habeas corpus.

Respondent argues, and there is no dispute, that Cook County is a home rule unit of government

under the Illinois Constitution. Ill. Const. 1970, art. VII, § 6(a). As a home rule unit, subject to

certain limitations, it “may exercise any power and perform any function pertaining to its

government and affairs including, but not limited to, the power to regulate for the protection

of the public health, safety, morals and welfare; to license; to tax; and to incur debt.” Id.

Relevant to this case is the constitutional limitation contained in article VII, section 6(i), that

states: “Home rule units may exercise and perform concurrently with the State any power or

function of a home rule unit to the extent that the General Assembly by law does not

specifically limit the concurrent exercise or specifically declare the State’s exercise to be

exclusive.” Ill. Const. 1970, art. VII, § 6(i). Respondent contends that the General Assembly

did not “mention (specifically, or at all) the detention of minors” in the Detention Act and

concludes that absent an express legislative limitation on home rule authority, section 46-4 of

the Cook County Code of Ordinances is valid. The State responds that the county lacked home

rule power to enact this ordinance where the ordinance prevents a juvenile court judge from

exercising its discretionary statutory authority to place 10- to 12-year-old minors in the

detention center under limited and appropriate circumstances and that the General Assembly

has preempted the county by specifically limiting its concurrent authority to regulate and detain

minors as authorized in the Detention Act (55 ILCS 75/1 et seq. (West 2018)).

¶ 23 We review de novo the denial of a habeas corpus petition. People v. Johnson, 206 Ill. 2d

348, 359-60 (2002). We may affirm the trial court’s ruling for any reason supported by the

record regardless of the basis relied upon by the trial court. Pekin Insurance Co. v. AAA-1

Masonry & Tuckpointing, Inc., 2017 IL App (1st) 160200, ¶ 21.

¶ 24 At issue in this case is the enforceability of section 46-4. Cook County Code of Ordinances

§ 46-4 (eff. Sept. 12, 2018) states:

“(a) Placement of a minor away from his or her home must be the last resort and be

the least restrictive alternative available.

(b) An 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.”

¶ 25 We find that section 46-4 is an invalid exercise of Cook County’s home rule authority

because it conflicts with the express limitation contained in section 9.2 of the Detention Act

(55 ILCS 75/9.2 (West 2018)). The ordinance clearly conflicts with the juvenile court’s power

to detain delinquent juveniles over the age of 10 under sections 5-410 and 5-501 of the Juvenile

Court Act and the duty imposed on the personnel of the county juvenile detention facilities to

accept those juveniles under section 1.2 and section 4 of the Detention Act.

¶ 26 A home rule ordinance that conflicts with state law is not necessarily invalid because a

home rule unit “may exercise any power and perform any function pertaining to its government

and affairs including, but not limited to, the power to regulate for the protection of the public

health, safety, morals and welfare; to license; to tax; and to incur debt” (Ill. Const. 1970, art.

VII, § 6(a)), and the constitution expressly provides that the “[p]owers and functions of home

rule units shall be construed liberally” (Ill. Const. 1970, art. VII, § 6(m)). “Section 6(a) was

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written with the intention to give home rule units the broadest powers possible.” Palm v. 2800

Lake Shore Drive Condominium Ass’n, 2013 IL 110505, ¶ 30.

¶ 27 However, this broad grant of power is not unlimited. The Illinois Constitution allows the

State to retain the exclusive power to exercise any power or function of a home rule unit, other

than the power to tax, or a home rule unit may exercise or perform a home rule power

concurrently with the State unless the General Assembly specifically limits the concurrent

exercise by the home rule unit. Article VII, section 6(h), states “[t]he General Assembly may

provide specifically by law for the exclusive exercise by the State of any power or function of

a home rule unit other than a taxing power.” Ill. Const. 1970, art. VII, § 6(h). Article VII,

section 6(i), provides that “[h]ome rule units may exercise and perform concurrently with the

State any power or function of a home rule unit to the extent that the General Assembly by law

does not specifically limit the concurrent exercise or specifically declare the State’s exercise

to be exclusive.” Ill. Const. 1970, art. VII, § 6(i). Thus, the General Assembly “may ***

preempt the exercise of a municipality’s home rule powers by expressly limiting that

authority.” Palm, 2013 IL 110505, ¶ 31. “If the legislature intends to limit or deny the exercise

of home rule powers, the statute must contain an express statement to that effect.” Id. In

summary, the Illinois Constitution provides home rule units with the same powers as the

sovereign, except when those powers are expressly limited by the General Assembly. City of

Chicago v. Roman, 184 Ill. 2d 504, 513 (1998) (citing Triple A Services, Inc. v. Rice, 131 Ill.

2d 217, 230 (1989)).

¶ 28 To determine the constitutionality of the county’s home rule power in this case, we first

look at “whether the disputed exercise of local government power pertains to local government

and affairs as required under section 6(a).” Palm, 2013 IL 110505, ¶¶ 35-36. If it does, we

must determine whether the General Assembly preempted the county’s exercise of its home

rule powers in the area. Id. If it does not, we then must ascertain the “the proper relationship”

between the local legislation and the state statute. Id.

¶ 29 We conclude that the exercise of Cook County’s home rule power in section 46-4 of the

Cook County Code of Ordinances pertains to the county’s government and affairs in that the

ordinance aims to prohibit minors under the age of 13 from being admitted, kept, detained, or

committed in county juvenile detention facilities. See id. ¶¶ 35-36. The placement of a minor

into a secure detention facility is a matter of public concern for the state and county

governments. The State, as parens patriae, has a compelling interest in protecting the welfare

of the children of this state (In re Presley, 47 Ill. 2d 50, 56 (1970)), and this ordinance can

reasonably be considered an attempt by the county to concurrently exercise its police power

consistent with the State’s overall concern for the well-being of juveniles in the justice system.

“Illinois has been a national leader in the field of juvenile justice since the Illinois

legislature enacted ‘An Act to regulate the treatment and control of dependent,

neglected and delinquent children’ (1899 Ill. Laws 131)—or the Illinois Juvenile Court

Act—on July 1, 1899. The first juvenile court in the country was located in Chicago

across the street from Hull House, an effective and prominent social service agency

founded by social reformer Jane Addams. It was Addams who rallied the movement

for a separate juvenile justice system, which would remove children from being tried

and imprisoned by the adult criminal system.” In re Shermaine S., 2015 IL App (1st)

142421, ¶ 32.

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¶ 30 Despite the fact that section 46-4 pertains to county government and affairs, we find that

the General Assembly specifically limited the concurrent exercise of the county’s home rule

power to deny the admission of minors under the age of 13 to the county jail and the county

JTDC and section 46-4 is an invalid exercise of its home rule authority. See Palm, 2013 IL

110505, ¶¶ 35-36. Our determination that the General Assembly expressly limited the county’s

concurrent exercise of authority over the admission of minors under the age of 13 to the county

jail or TJDC rests on a plain reading of the Detention Act (55 ILCS 75/1 et seq. (West 2018))

and the Juvenile Court Act (705 ILCS 405/1-1 et seq. (West 2018)), which both address

detention of a minor.

¶ 31 Part 4 of the Juvenile Court Act “governs the ‘arrest and custody’ of minors” and “governs

what the police may do with a minor between the time of his arrest and the time he is first

brought before the court.” Randall M., 231 Ill. 2d at 129. Section 5-410(2)(a) of the Juvenile

Court Act addresses the court’s authority to place 10- to 12-year-old minors in the detention

center following their arrest and provides in relevant part:

“(2)(a) Any minor 10 years of age or older arrested pursuant to this Act where there

is probable cause to believe that the minor is a delinquent minor and that (i) secure

custody is a matter of immediate and urgent necessity for the protection of the minor

or of the person or property of another, (ii) the minor is likely to flee the jurisdiction of

the court, or (iii) the minor was taken into custody under a warrant, may be kept or

detained in an authorized detention facility. A minor under 13 years of age shall not be

admitted, kept, or detained in a detention facility unless a local youth service provider,

including a provider through the Comprehensive Community Based Youth Services

network, has been contacted and has not been able to accept the minor. No minor under

12 years of age shall be detained in a county jail or a municipal lockup for more than 6

hours.” 705 ILCS 405/5-410(2)(a) (West 2018).

¶ 32 After the minor is arrested and brought before a judge, section 5-501(2) gives the juvenile

court authority to conduct a detention or shelter care hearing and “[i]f the court finds 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 or placed in a shelter care facility or that he or

she is likely to flee the jurisdiction of the court, the court may prescribe detention or shelter

care.” 705 ILCS 405/5-501(2) (West 2018).

¶ 33 “Section 5-501 contains all of the procedural safeguards one would expect to find in a

statute governing a judicial detention hearing. Indeed, section 5-501 specifically provides for

an evidentiary hearing, the right to counsel, and a written order setting forth the factual basis

for the trial court’s detention ruling. 705 ILCS 405/5-501(1), (2) (West 2006). Moreover, like

section 5-410(d), section 5-501(4) outlines the conditions under which minors with pending

delinquency matters may be held pending adjudication. See 705 ILCS 405/5-501(4) (West

2006).” In re Randall M., 231 Ill. 2d at 132-33.

¶ 34 The Detention Act allows a county to create, fund, support, and maintain juvenile detention

facilities. 55 ILCS 75/1 et seq. (West 2018). Section 1(a) of the Detention Act specially grants

the county board authority to “locate, purchase, erect, lease, or otherwise provide and establish,

support and maintain a detention home for the care and custody of delinquent minors.” 55

ILCS 75/1(a) (West 2018).

¶ 35 The Detention Act defines “detention” as:

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“the care of a minor alleged or adjudicated as a delinquent as defined in the Juvenile

Court Act or the Juvenile Court Act of 1987, 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(b)

(West 2018).

Section 1.2 recognizes that a judge acting under the Juvenile Court Act has the authority to

order the detention of a minor. 55 ILCS 75/1.2 (West 2018) (“A court acting under the Juvenile

Court Act of 1987, may, except as otherwise provided in that Act, place any minor coming

within the terms of that Act in home detention or a shelter care or detention home established

pursuant to this Act.”). Clearly, admission of a minor into a county detention facility can only

be by order of a judge acting under the provisions of the Juvenile Court Act, unrestricted by

any home rule ordinances.

¶ 36 The General Assembly expressed its intention that the operation and administration of

juvenile detention facilities would lie with the judiciary and not the county board. The chief

judge of the circuit court appoints “[t]he administrator and all other necessary personnel” of

the detention facility and the “Chief Judge of the Cook County Circuit Court *** shall have

administrative control over the budget of the Cook County Juvenile Temporary Detention

Center and any other shelter care home or detention home in Cook County.” 55 ILCS 75/3(a),

(c) (West 2018).

¶ 37 The Detention Act also is clear that “It shall be the duty of the administrator *** and the

staff of the detention home to receive all children who are committed to the homes by the court,

until further order of the court ***.” 55 ILCS 75/4 (West 2018). The Detention Act specifically

provides that “all county shelter care homes and detention homes in Cook County, including

the Cook County [JTDC] *** must be in compliance with this Act.” 55 ILCS 75/9.1(d) (West

2018).

¶ 38 Respondent argues that the Detention Act does not “mention (specifically, or at all) the

detention of minors,” so there is no home rule preemption. This argument is totally defeated

by the express statement of the General Assembly that:

“A county, including a home rule county, may not regulate shelter care home and

detention homes in a manner that is inconsistent with this Act. This Act is a limitation

under subsection (i) of Section 6 of Article VII of the Illinois Constitution on the

concurrent exercise by home rule units of powers and functions exercised by the State.”

(Emphasis added.) 55 ILCS 75/9.2 (West 2018).

The notion that the legislature had to “mention (specifically or at all) the detention of minors”

is a non-starter. In using the term “this Act” in section 9.2, the legislature made crystal clear

that the entire Detention Act, including sections 9.2 and 4, is an express exercise of its

constitutional power to limit the county’s concurrent home rule authority to regulate the

admission and placement of minors into county juvenile detention facilities. See Palm, 2013

IL 110515, ¶¶ 35-36.

¶ 39 A plain reading of the Juvenile Court Act and the Detention Act makes clear that the

legislature has enacted a comprehensive scheme for the treatment of minors 10 years of age

and older who are under the jurisdiction of the Juvenile Court Act that require, or may require,

detention in a secure facility. In doing so, the legislature exercised its power in article VII,

section 6(i), and specifically expressed its intention to limit Cook County’s concurrent home

rule authority to regulate the placement and detention of minors under the jurisdiction of the

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Juvenile Court Act in the county juvenile detention center. Therefore, we find that Cook

County Code of Ordinances § 46-4 (eff. Sept. 12, 2018) is an invalid exercise of its home rule

authority.

¶ 40 CONCLUSION

¶ 41 For all of the reasons stated herein, we affirm the denial of respondent’s habeas corpus

petition.

¶ 42 Affirmed.

¶ 43 JUSTICE HYMAN, dissenting:

¶ 44 The majority’s decision dangerously erodes the home rule provisions of the Illinois

Constitution and the interpretation of those provisions by our supreme court. The majority

repeatedly assures us that the State’s preemption of Cook County’s authority to regulate the

population of its juvenile detention centers is “clear” (see supra ¶¶ 25, 35, 37, 38, 39); yet, the

path it took to achieve so-called clarity meanders through a host of unrelated statutory

provisions in the Detention Act and cobbles together legislative purpose unmoored from any

express statutory text.

¶ 45 By implicitly demanding a “special[ ] grant” of authority from the General Assembly to

Cook County, the majority has explicitly done the precise opposite of what our supreme court

requires for the triggering of preemption. See supra ¶ 34. The majority finds the Juvenile Court

Act to be “comprehensive” and in conflict with the Cook County ordinance (supra ¶ 39),

considerations our supreme court has repeatedly dismissed as irrelevant on the question of

finding preemption for home rule purposes. Put simply, the Juvenile Court Act contains no

specific revocation of authority from Cook County to regulate which minors it incarcerates. Ill.

Const. 1970, art. VII, § 6(i) (“Home rule units may exercise and perform concurrently with the

State any power or function of a home rule unit to the extent that the General Assembly by law

does not specifically limit the concurrent exercise or specifically declare the State’s exercise to

be exclusive.” (Emphases added.)). That should be the end of it.

¶ 46 In my view, the outcome turns on the meaning of one phrase in the Juvenile Court Act,

“authorized juvenile detention facility.” According to the Cook County Board, the JTDC does

not qualify as an “authorized juvenile detention facility” for children under 13 years of age.

See Cook County Code of Ordinances § 46-4(b) (eff. Sept. 12, 2018) (“An individual under 13

years of age shall not be admitted, kept, detained, or committed to the *** Juvenile Temporary

Detention Center.”). Mathias H. was 12 when the circuit court judge ordered him detained in

the JTDC, having found section 46-4(b) both unlawful and unwise. We are not asked to decide

the merits of incarcerating Mathias H. and children like him; we only decide who gets to make

that choice. Because the Illinois General Assembly has not ventured to define “authorized

juvenile detention facility,” the home rule powers permit the Cook County Board to decide

that definition, so I respectfully dissent.

¶ 47 Waiver

¶ 48 The majority focuses on the merits of Mathias H.’s arguments, and I will as well. But we

should not overlook the State’s argument—that the Cook County ordinance constitutes an

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unlawful exercise of authority—has been made for the first time on appeal. The majority

describes the State’s position before the circuit court as taking “no position,” but the situation

is not so innocuous—the State affirmatively took the opposite position in the trial court from

the position it takes on appeal. At Mathias H.’s detention hearing, the state’s attorney’s office

affirmatively agreed with Mathias H. that the ordinance was valid and controlling. At the

hearing on Mathias H.’s habeas petition, the assistant state’s attorney, appearing in a different

juvenile’s case raising a similar issue, took “no position” on the ordinance’s validity. Allowing

the State to take the opposite position now seems entirely unfair.

¶ 49 In response, the State deems its capacity as the appellee to permit defending the trial court’s

judgment on any basis appearing in the record, which sets out the general rule. People v.

Denson, 2014 IL 116231, ¶ 17. But, an equally well-settled rule, the principle of waiver,

“applies to the State as well as the defendant in a criminal case.” People v. Exson, 384 Ill. App.

3d 794, 803 (2008) (citing People v. Holloway, 86 Ill. 2d 78, 91 (1981)). This principle holds

particularly true where the waiver “is not simply a matter of failure to object” but is instead

the affirmative representation of a contrary position earlier in the proceeding. See id.; see also

Denson, 2014 IL 116231, ¶ 17 (appellee cannot attempt to “advance a theory or argument on

appeal that is inconsistent with the position taken below”).

¶ 50 The record conclusively establishes the State’s change of position. At the hearing on the

State’s petition to revoke electronic monitoring, during a discussion of the possibility of

Mathias H.’s custody, the State said:

“With respect to the minor’s custodial status, Judge, it is the position of the State’s

Attorney’s Office that, as I mentioned on the previous court date, the Cook County

Board did pass an ordinance changing the law for custodial status of a minor of

[Mathias H.]’s age. It is the position of the State’s Attorney’s Office that that law

controls this case.” (Emphasis added.)

At the hearing on Mathias H.’s habeas petition the assistant state’s attorney assigned to

Mathias H.’s case did not appear, and an assistant state’s attorney from a different courtroom

indicated that “the State is not taking a position with regard to the habeas petitions.” In other

words, the only position taken by the State declares that the ordinance controls.

¶ 51 This sudden about-face raises serious fairness concerns. I would hope the State will not

repeat what I consider a maneuver that undermines the adversarial process. By initially

embracing the ordinance and then taking no position, the State made a commitment, a knowing

choice, and should not on appeal raise an argument waived before the trial court, especially

because the State has proffered no reason for its fickleness.

¶ 52 But, the majority has considered the issue despite its mootness as a matter of public concern

warranting an “authoritative determination.” Supra ¶ 19. For similar reasons, I acquiesce in the

majority’s decision to consider the merits despite the State’s waiver. See People v. Farmer,

165 Ill. 2d 194, 200 (1995) (“the goals of obtaining a just result and maintaining a sound body

of precedent may sometimes override considerations of waiver”). That said, I disagree with the

majority on the merits.

¶ 53 Validity of the Ordinance

¶ 54 The majority correctly acknowledges the broad scope of the Cook County Board’s

legislative power, but it bears repeating. Under the Illinois Constitution, “[h]ome rule units

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may exercise and perform concurrently with the State any power or function of a home rule

unit to the extent that the General Assembly by law does not specifically limit the concurrent

exercise or specifically declare the State’s exercise to be exclusive.” (Emphases added.) Ill.

Const. 1970, art. VII, § 6(i). Our duty to interpret the law to give home rule units the broadest

authority possible comes directly from the constitutional text: “Powers and functions of home

rule units shall be construed liberally.” Id. § 6(m).

¶ 55 The Illinois Supreme Court has been emphatic that only in the rarest of circumstances

should we read state statutes to preempt home rule jurisdictions from adopting their own

legislation. Palm v. 2800 Lake Shore Drive Condominium Ass’n, 2013 IL 110505, ¶ 34 (“ ‘[I]f

the constitutional design is to be respected, the courts should step in to compensate for

legislative inaction or oversight only by the clearest cases of oppression, injustice, or

interference by local ordinances with vital state policies.’ ” (Emphasis in original and internal

quotation marks omitted.) (quoting Scadron v. City of Des Plaines, 153 Ill. 2d 164, 190

(1992))). Accordingly, we are forbidden by the Illinois Constitution from reading state

preemption of home rule authority into a statutory scheme absent “an express statement to that

effect.” Id. ¶ 31.

¶ 56 The Detention Act Is Inapplicable

¶ 57 The majority finds this “express statement” not in the Juvenile Court Act but in the

Detention Act (55 ILCS 75/9.2 (West 2018)). Supra ¶ 38. I cannot agree with the majority’s

reliance on the Detention Act for two reasons. First, by its plain terms the Detention Act

governs only the internal administration of detention facilities, not the broader determination

about which minors should be detained. Second, to the extent that the Detention Act limits the

County’s discretion to determine the admissibility of minors to its detention facilities, it does

so only by referring back to the Juvenile Court Act, which is ambiguous.

¶ 58 The majority focuses on the Detention Act’s preemption provision: “A county, including a

home rule county, may not regulate shelter care homes and detention homes in a manner that

is inconsistent with this Act.” 55 ILCS 75/9.2 (West 2018). The majority finds this a “crystal

clear” statement that a home rule county has no authority to make any decisions regarding the

“admission and placement” of juveniles in detention facilities. Supra ¶ 38. But by reading

section 9.2 in this way, the majority disregards the rest of the Detention Act. Doing so also

contradicts the well-established maxim of statutory construction that we are to construe related

statutory provisions together to properly understand legislative intent. E.g., People v.

Maggette, 195 Ill. 2d 336, 348 (2001) (“A court must consider the entire statute and interpret

each of its relevant parts together.”). As a result, what does “regulate” mean in section 9.2?

The other provisions of the Detention Act provide the answer.

¶ 59 The Detention Act concerns the creation, operation, and maintenance of detention

facilities. The Detention Act permits a county board to “locate, purchase, erect, lease, or

otherwise provide and establish, support and maintain a detention home” for minors. 55 ILCS

75/1(a) (West 2018). The Detention Act also allows counties to levy taxes to pay for detention

facilities. Id. It requires counties to maintain detention facilities in compliance with minimum

standards set out by the Illinois Department of Juvenile Justice (DJJ). Id. § 2. It arranges for

the appointment of an administrator and “all other necessary personnel” for the administration

of the JTDC. Id. § 3. Finally, the Detention Act includes additional administrative matters like

education of minors in JTDC custody (id. § 2.1), the administrator’s record keeping

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responsibilities (id. § 4), and the mechanism by which the administrator makes purchases under

the Detention Act (id. § 3.1).

¶ 60 The text of the Detention Act shows that it only preempts a county’s internal administration

of detention facilities, but if there were any doubt as to the limits of the Detention Act’s

preemption language, the legislative history resolves it. Speaking about the bill that amended

the Detention Act to affix preemption language, Representative Cross explained that “all this

Bill would do” is “transfer control of the Cook County Juvenile Detention Facility to the chief

judge’s office.” 95th Ill. Gen. Assem., House Proceedings, Mar. 28, 2007, at 47 (statements of

Representative Cross). According to Representative Cross, sponsors of the bill thought “the

county board president’s office wasn’t necessarily handling the juvenile detention center in the

proper way that some suggested, maybe there was patronage going on.” Id. at 48. The General

Assembly worried about mismanagement of the JTDC, not the policy behind who ends up

there.

¶ 61 The majority interprets the Detention Act in a manner that turns home rule doctrine on its

head, looking at section 1(a) of the Detention Act and focusing on what authority the Act

“specially grants” to the county board. Supra ¶ 34. The majority appears to find the lack of a

special grant of authority to determine the age of admissible minors to the JTDC to be “an

express exercise” of the General Assembly’s power to limit home rule authority. Supra ¶ 38.

But, it cannot be true, as the trial court found, that “the failure to delegate to county boards

authority over admission or detention or placement of minors into detention homes” proves

these decisions should be kept beyond the purview of the Cook County Board. This analysis

gets the concept of home rule backwards. Home rule jurisdictions do not depend on the State

for a grant of authority. Rather, as long as the General Assembly has not specifically removed

a home rule unit’s authority to legislate in a particular area, that unit can create its own laws as

it sees fit. Palm, 2013 IL 110505, ¶ 32.

¶ 62 And this leads me to the final piece of statutory evidence that the Detention Act was not

meant to preempt Cook County from determining which children to incarcerate. The majority

says that “[t]he notion that the legislature had to ‘mention (specifically or at all) the detention

of minors’ is a non-starter.” Supra ¶ 38. A non-starter? On the notion that the legislature had

to specifically mention the detention of minors rests the entire foundation of the home rule

doctrine. Palm, 2013 IL 110505, ¶ 34. And there is just one specific mention of the admission

of minors to the JTDC anywhere in the Detention Act. In one sentence, the Detention Act says:

“A court acting under the Juvenile Court Act of 1987, may, except as otherwise provided in

that Act, place any minor coming within the terms of that Act in home detention or a shelter

care or detention home established pursuant to this Act.” (Emphasis added.) 55 ILCS 75/1.2

(West 2018). The language can only mean that we must determine whether the “ ‘terms of that

[Juvenile Detention] Act’ ” (supra ¶ 35), not the Detention Act, preempt Cook County from

making its own judgment about which minors to incarcerate.

¶ 63 For all of its discussion of the Detention Act, the majority ultimately acknowledges that

admission of minors to a county detention facility rightly belongs “under the provisions of the

Juvenile Court Act.” Supra ¶ 35. The majority then says that “[c]learly” this must mean that

Cook County judges may act “unrestricted by any home rule ordinances.” Supra ¶ 35. But,

nothing in the Juvenile Court Act specifically limits Cook County’s ability to determine who

is admitted to the JTDC, try as one might to find it.

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¶ 64 The Juvenile Court Act Is Silent

¶ 65 The trial court and the parties have framed their respective positions in terms of section 5-

410 of the Juvenile Court Act. That section provides, in relevant part: “Any minor 10 years of

age or older arrested pursuant to this Act where there is probable cause to believe that the minor

is a delinquent minor and that (i) secure custody is a matter of immediate and urgent necessity

*** may be kept or detained in an authorized juvenile detention facility.” 705 ILCS 405/5-

410(2)(a) (West 2018). According to the State, because section 5-410 permits the detention of

minors 10 years and older, any ordinance that prohibits the detention of those minors must be

invalid. This is an unconvincing conflict because section 5-410 only applies to temporary

police custody following a minor’s arrest. In re Randall M., 231 Ill. 2d 122, 129 (2008)

(“Section 5-410 appears in part 4 of the Juvenile Court Act, which governs the ‘arrest and

custody’ of minors. [Section 5-410] does not govern or even speak to the trial court at the

detention hearings. Instead, it governs what the police may do with a minor between the time

of his [or her] arrest and the time he [or she] is first brought before the court.” (Emphases

added.)). Thus, the only section of the Juvenile Court Act that gives affirmative (though

limited) discretion to anyone to incarcerate minors over 10 gives that discretion to the police,

not the court.

¶ 66 Indeed, section 5-501 of the Juvenile Court Act governs the trial court’s discretion in

detention hearings. This section allows the trial court to order the minor “kept or detained in a

facility authorized for juvenile detention” in cases of “immediate and urgent necessity,” where

reasonable cause exists to believe that a minor is a delinquent minor. 705 ILCS 405/5-501(2)-

(3) (West 2018). Section 5-501 makes no express mention of an age range for incarceration

other than to ensure that “[m]inors 12 years of age or older [are] kept separate from confined

adults.” Id. § 5-501(4)(a)-(c). So, section 5-501 contains no express authority for the

incarceration of minors between the ages of 10 and 12. That alone defeats the State’s

preemption argument. See Palm, 2013 IL 110505, ¶ 32 (“To restrict the concurrent exercise of

home rule power, the General Assembly must enact a law specifically stating home rule

authority is limited.” (Emphasis in original.)).

¶ 67 But, suppose one took the broadest possible reading of section 5-501. Under the Juvenile

Court Act, a “minor” is anyone under 21. See 705 ILCS 405/5-105(10) (West 2018). A

conscientious reader of section 5-501 could still perceive a conflict between the ordinance and

the Juvenile Court Act because the Juvenile Court Act allows for the detention of anyone under

21 and the ordinance restricts that age group to minors older than 12. Assuming this conflict is

enough to suggest the invalidity of Cook County’s home rule authority in this area (it is not

(see Palm, 2013 IL 110505, ¶ 42)), there is yet another problem with the majority’s reasoning.

Whether one looks at section 5-410 or section 5-501, the Juvenile Court Act permits holding

minors in custody in “an authorized detention facility” (emphasis added) (705 ILCS 405/5-

410(2)(a) (West 2018)) or in a “facility authorized for juvenile detention” (emphasis added)

(id. § 5-501(3)). The General Assembly has made no effort to define “authorized” for the

purposes of the Juvenile Court Act. Absent express legislative action to limit a county’s ability

to determine which detention facilities constitute “authorized” facilities and for whom they are

“authorized,” Cook County may make its own determinations.

¶ 68 The majority’s last refuge proclaims that the Juvenile Court Act represents a

comprehensive scheme by which the General Assembly sought to regulate the criminal

prosecution and detention of minors. Supra ¶ 39. This is true, but as our supreme court has

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emphasized, “[c]omprehensive legislation that conflicts with an ordinance is insufficient to

limit or restrict home rule authority.” Palm, 2013 IL 110505, ¶ 43. The Juvenile Court Act is

undoubtedly comprehensive, but that the General Assembly and the Cook County Board have

attempted to regulate the same subject matter in a manner that appears inconsistent is not

enough to justify a finding of preemption. Id. ¶ 42. Absent express statutory language in the

Juvenile Court Act limiting the Cook County Board’s ability to legislate, it does not matter

whether the Juvenile Court Act is comprehensive or that the Juvenile Court Act and the

ordinance ostensibly conflict. Cook County may disagree with the General Assembly as long

as the General Assembly has not expressly prevented it from doing so.

¶ 69 The majority’s decision treats Cook County as a non-home-rule unit. Municipalities that

lack home rule authority do rely on the General Assembly or the Illinois Constitution for an

independent grant of authority. See Scadron, 153 Ill. 2d at 174; see also Tri-Power Resources,

Inc. v. City of Carlyle, 2012 IL App (5th) 110075, ¶ 10 (citing Janis v. Graham, 408 Ill. App.

3d 898, 902 (2011)). Then, even if the General Assembly grants a non-home-rule unit authority

to enact its own legislation, the municipality’s legislation cannot conflict with state law. Tri-

Power, 2012 IL App (5th) 110075, ¶ 10. The majority has imposed these requirements on Cook

County, inverting the expansive authority granted to it by the Illinois Constitution.

¶ 70 Distinction Between Pretrial and Posttrial Detention

¶ 71 Finally, the majority concedes that the administration of county detention centers “pertains

to county government and affairs” but, nevertheless, appears to imply that the State possesses

complete authority to administer juvenile detention. Supra ¶¶ 29-30. Here, it is critical to

distinguish between pretrial detention and posttrial detention. Unless and until a minor is

ordered incarcerated in the DJJ, the matter of his or her detention remains an entirely local

affair. Actually, the DJJ expressly disavows any control over county detention centers, saying

on its website: “Illinois county juvenile detention centers do NOT fall under the jurisdiction of

the State of Illinois Department of Juvenile Justice.” IDJJ Youth Centers, Illinois Department

of Juvenile Justice, http://www.illinois.gov/idjj/pages/facilities.aspx (last visited Oct. 24,

2019) [https://perma.cc/6RAC-MWZ4]. For a number of practical reasons, a county should

have more control over the scope of pretrial detention. While a statewide interest in preventing

crime and providing minors with preventative services certainly exists, each locality may

confront certain types of crimes with differing prevalence, each locality may have different

amounts of funding for local noncustodial services, and each locality may have differing

prosecutorial and incarceration priorities depending on the attitudes of the local state’s attorney

or judiciary. Local governing units, to the extent they have home rule powers, better sense the

pulse of these local concerns.

¶ 72 Only after the court formally finds that the State has proven a minor delinquent beyond a

reasonable doubt does the balance of interests shift in favor of the State. The majority cites

In re Presley, 47 Ill. 2d 50, 56 (1970), for the proposition that the State has an interest as

parens patriae to protect the lives of delinquent minors. See supra ¶ 29. That may be true but

has no bearing on the relationship between the State’s role and the county’s role before a minor

has been found delinquent. This division between preadjudication and postadjudication

responsibilities heeds the historical formulation of parens patriae as an equitable doctrine

vesting the government with the authority to act “on the behalf of those unable to care for

themselves.” In re S.G., 175 Ill. 2d 471, 488 (1997). The State’s interests as parens patriae

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sharply diminish before a formal adjudication of delinquency because, until adjudication,

minors are presumed innocent and are not wards of the court or the State. See 705 ILCS 405/5-

750(1) (West 2018) (minor cannot be committed to DJJ unless he or she is adjudged a ward of

court).

¶ 73 The question of Mathias H.’s detention arose before he was adjudicated delinquent, still

cloaked with the presumption of innocence and still not under the care of the State, either as a

formal matter or under the State’s obligations as parens patriae. Any determination about the

necessity and propriety of incarcerating Mathias H. before his trial comes well within Cook

County’s purview.

¶ 74 The Illinois Constitution leaves restrictions on home rule authority to the General

Assembly. Palm, 2013 IL 110505, ¶ 34 (“The Illinois approach places almost exclusive

reliance on the legislature rather than the courts to keep home rule units in line.” (Internal

quotation marks omitted.)). Unless and until the General Assembly limits the authority of home

rule jurisdictions to make preadjudication incarceration determinations for minors of a certain

age, Cook County possesses the authority to decide that for itself.

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