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Judges split over child detention rules

Thursday, September 26, 2019
Chicago Daily Law Bulletin
by Sarah Mansor

Two appellate court justices appeared divided during oral arguments on whether home-rule authority permits the Cook County Board to outlaw pretrial detention in Cook County’s juvenile center for delinquent preteens.

Justice Daniel J. Pierce’s questions for the assistant public defender, who was defending Cook County’s ordinance, revealed his skepticism that Cook County’s home-rule authority can overrule a Juvenile Court judge’s decision in cases with criminal defendants who are 12 years old or younger.

“So you’re saying the county is free to say that we don’t care when a judge finds that a 12-year-old is a danger to himself and the community and we don’t have to take him into our juvenile detention facility? … They have the right to do that?” Pierce asked Assistant Public Defender Armando G. Sandoval.

Justice Michael B. Hyman began questioning the assistant state’s attorney by noting the state has changed its position on this issue, accusing the state of “sandbagging.”

“Why should we even hear you? What right do you have to be before us?” Hyman asked Cook County Assistant State’s Attorney Veronica Calderon Malavia.

“You took no position now you’re taking a position. When I was an attorney that was called sandbagging,” Hyman said, noting the state took the opposite position at one point in its brief.

Malavia said the state is not bound by earlier positions it made in the trial court.

“Once Judge [Michael] Toomin issued his order, we reviewed the law and the facts of the law and determined he was correct,” she said.

The arguments before Pierce, Hyman and Justice John C. Griffin stem from Cook County’s ordinance from September 2018 and ruling issued about a month later by Cook County Circuit Judge Michael P. Toomin.

Toomin ruled against two 12-year-old boys whose attorneys filed emergency habeas corpus petitions to have them released from the Cook County Juvenile Temporary Detention Center.

He found the state Juvenile Court Act and the County Shelter Care and Detention Act governs juvenile detention, including the age of a minor. He ruled the language in those state statutes support that interpretation, even for home-rule counties.

For example, the County Shelter Care and Detention Act states, “A county, including a home-rule county, may not regulate shelter care homes and detention homes in a manner that is inconsistent with this [a]ct.”

Pierce pointed to this specific language during his questioning of Sandoval about Cook County’s authority to pre-empt the state statute.

“So this language of the [County Shelter Care and] Detention Act doesn’t apply?” Pierce asked. “It’s an act of pre-emption on the home-rule powers. That’s what it says.”

Toomin found the ordinance contributed to the “[l]ack of uniformity within the [s]tate” for judges who are evaluating these juvenile cases.

“Here, under the ordinance, uniformity is negated: Yet, there simply is no rational basis for the board’s determination that minors under 13 years of age should be treated differently here than in contiguous counties such as DuPage, Lake or Will where minors continue to be governed by existing state law,” Toomin wrote in his Oct. 17, 2018, order.

Pierce also noted this inconsistency in his questioning.

“If they had a qualifying juvenile detention facility on Montrose Avenue in Glenview or Deerfield, they could send them there?” Pierce asked Sandoval, who responded yes.

Malavia maintained that the authority to detain minors falls under the purview of the courts, as prescribed by state statute.

“The statute states the chief judge has administrative control over the budget,” she said. “This means the detention center and shelter homes are considered an arm of the court and it would be an absurd interpretation to conclude the Cook County Board can override the juvenile court’s statutory authority to place or commit a minor in the detention center.”

Hyman disagreed with this reading of the statute.

“I see nothing that you have stated so far that says anything about the issue before us, regarding the age of the individual who should be in the detention,” he said.

Hyman said juvenile judges should consider alternatives to confinement in Cook County’s juvenile detention center, such other types of shelter homes or electronic monitoring, for children between ages 10 and 12.

Griffin countered that some of those alternatives were used by the judge in the case before them.

“All of those are great alternatives,” Griffin said. “[Cook County Circuit Judge Marianne Jackson] tried a bunch of those and he got around them.”



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