holding that, while “the United States Supreme Court has left open the issue of whether the objective test applies in a prewaiver setting,” it would nonetheless apply the “clear statement” rule of Davis to an initial waiver inquiry where “the suspect makes a reference to counsel immedi- ately after he has been advised of his Miranda rights.”
How later courts described this case
- holding that, while “the United States Supreme Court has left open the issue of whether the objective test applies in a prewaiver setting,” it would nonetheless apply the “clear statement” rule of Davis to an initial waiver inquiry where “the suspect makes a reference to counsel immedi- ately after he has been advised of his Miranda rights.”
- holding that the EJJ prosecution challenge became moot once the minor turned 21 because the court could not “grant any meaningful relief to the State or to respondent”
- acknowledging that the holding in Davis is limited to an alleged invocation of the right to counsel in the post-waiver context, but choosing to also apply it in the pre-waiver context where the Supreme Court has “left open the issue”
- the primary objective of statutory interpretation is to determine and give effect to the legislature’s intent
Written by the judges who cited it.
The opinion
JUSTICE FREEMAN, specially concurring:
I agree with the majority’s disposition of those issues it chooses to reach. There was no fifth amendment violation in allowing defendant’s confession into evidence, and defendant’s extended juvenile justice (EJJ) prosecution does not run afoul of the “law of the case” doctrine. However, unlike the majority, I believe it would be proper to address defendant’s Apprendi challenge, and I would do so. Accordingly, I write separately to explain why I do not join the majority’s mootness analysis.
Because defendant has turned 21, all issues save his fifth amendment challenge are moot. Accordingly, we normally would not consider them. 217 Ill. 2d at 358. However, we can transcend mootness considerations when we conclude that it would be in the public interest to do so. As the majority notes, there are three factors we consider when determining whether to apply the public interest exception: the issue must be public in nature, it must be likely to recur, and an authoritative determination of the issue must be desirable for the future guidance of public officers. 217 Ill. 2d at 359-60. I agree with the majority that the first two factors are satisfied with respect to both the “law of the case” issue and defendant’s Apprendi challenge. The majority chooses to reach the former, but not the latter based solely on the third factor of the public interest test: that an “authoritative determination of the issue is desirable for the future guidance of public officers.” 217 Ill. 2d at 360. The majority concludes that this factor is satisfied for the “law of the case” issue (217 Ill. 2d at 361), but not for Apprendi (217 Ill. 2d at 363).
The majority seems to intimate that this distinction is warranted because there is conflicting authority on “law of the case,” but not on Apprendi. 3 Compare 217 Ill. 2d at 360-61 with 217 Ill. 2d at 362-63. This is not accurate, however. The appellate court’s “law of the case” holding is not in conflict with any other authority. All the majority actually says on this point is that there is no prior authority applying the “law of the case” issue in this context. That means nothing more than that the appellate court’s opinion is a case of first impression. This is not “conflicting” case law. Accordingly, the “law of the case” issue and the Apprendi issue are not differentiable on this basis.
In addition, the majority’s decision to reach one issue but not the other seems to me to run counter to the spirit of the public interest exception. Other than the fifth amendment issue, none of our analysis can have any effect on the parties to this appeal. Any issue we reach and resolve other than the fifth amendment issue, we are reaching and resolving for the sole purpose of giving guidance to lower courts. As the majority notes, our decision answers the question whether the law of the case doctrine prevents the State from “ever filing an EJJ motion after the denial of a discretionary transfer motion is affirmed on appeal.” 217 Ill. 2d at 360. But what sort of “guidance” is this? By looking only at the “law of the case” issue, we leave unresolved whether the EJJ system is itself wholly unconstitutional — an issue which the majority admits to be public in nature and likely to recur, and the importance of which can hardly be denied. If we are going to decide the first issue because we desire to provide guidance to lower courts, why deny them any guidance on the arguably more important second issue?
Because the majority and I part ways on the threshold question of whether defendant’s Apprendi argument should be addressed, it would serve no purpose for me to engage in a solitary discourse on its merits. Accordingly, I express no opinion on the issue other than my belief that this court ought to address it.
It concerns me somewhat that this court seems to be drifting towards using the existence of “conflicting authority” as a surrogate for the actual third factor of the public interest exception test. See 217 Ill. 2d at 360-61 (and authority cited therein, specifically In re Marriage of Peters-Farrell, 216 Ill. 2d 287 (2005); In re J.B., 204 Ill. 2d 382 (2003)). The existence of conflicting authority is not the test. The test is whether this court’s resolution of the issue is “desirable for the future guidance of public officers.” Although I do agree that the existence of conflicting authority on a particular issue does make it more likely that it is desirable for this court to resolve that issue, conflicting authority is neither a necessary nor a sufficient condition for the third factor of the public interest test.