Taking a closer look at the Mathias H. case

I retweeted Mark Brown's October 9 Sun-Times column on Saturday.

"One of the main complaints is that Toomin wrote an opinion overturning a... county ordinance that sought to prevent children under 13 from being placed in juvenile detention.... [But the] Illinois Appellate Court upheld Toomin’s ruling." https://t.co/E8czThnkfl via @SunTimes

— Jack Leyhane (@JackLeyhane) October 10, 2020

But Brown's column did not identify the case in which Toomin "[overturned] a Preckwinkle-backed county ordinance that sought to prevent children under 13 from being placed in juvenile detention."

The case Brown refers to is In re Mathias H., 2019 IL App (1st) 182250, appeal denied, 2019 Ill. LEXIS 1243 (Dec. 31, 2019).

Twelve-year old Mathias was accused of robbing a GameStop store, "stealing money, gift cards, a PlayStation 4, and an Xbox gaming system." His alleged accomplice in this robbery was Mathias's 18-year old brother. The older brother was accused of using a handgun in the crime. (2019 IL App (1st) 182250, ¶3.) The disposition of the charges against Mathias's brother is not reported in this opinion.

What is reported is that, on August 4, 2018, when the petition for adjudication of wardship was filed, Mathias was arraigned before Judge Marianne Jackson, who determined that there was probable cause to proceed. The question then became whether the "secured custody of respondent was a matter of immediate and urgent necessity." The State suggested electronic monitoring; the defense requested that Mathias be sent home in the custody of his mother. Judge Jackson went along with these suggestions. (2019 IL App (1st) 182250, ¶4.)

The court explained to Mathias what all this meant. Among other things (2019 IL App (1st) 182250, ¶4),

[t]he 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.

A month later, the State's Attorney sought to revoke electronic monitoring (2019 IL App (1st) 182250, ¶5):

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.

Judge Jackson asked Mathias where he'd been. On September 2, he told the court, he'd been at a friend's house. Mathias's mother contradicted him. When she got back from work that day, and found Mathias missing, she "contacted his friends on Facebook," but they said they did not know where he was. Mathias showed up the next day, September 3, around 8:00 p.m. Mathias's mother told Judge Jackson that Mathias "repeatedly failed to listen to her." The court admonished Mathias, but kept the order for electronic monitoring in place. Instead of sending him home with his mother, Judge Jackson sent Mathias to the Saura Center "for a few days." The Saura Center is described in the opinion as a "nonsecure shelter." (2019 IL App (1st) 182250, ¶¶6, 4.)

The case was back before Judge Jackson within a week, on September 12, 2018, the very same day, the opinion notes, that the County Board passed Cook County Ordinance No. 18-4955 (codified at Cook County Code of Ordinances §46-4), "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'" (2019 IL App (1st) 182250, ¶7).

Judge Jackson did not send Mathias to jail on September 12. She sent him home, still on electronic monitoring. The court warned Mathias that he "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." (2019 IL App (1st) 182250, ¶8.)

But Mathias apparently did not comply. The State's Attorney was back in court on September 24 with another motion to revoke electronic monitoring, alleging that Mathias had 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." (2019 IL App (1st) 182250, ¶9). Mathias had run away.

The potential application of new §46-4 was raised at the September 24 hearing. The State's Attorney "asked for guidance" about the ordinance. Judge Jackson expressed concern that the new 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." Moreover, Judge Jackson noted, electronic monitoring clearly was not working in Mathias's case and no one present at the hearing knew where Mathias might be found. Mathias was a danger to himself. Judge Jackson therefore issued a juvenile arrest warrant. (2019 IL App (1st) 182250, ¶10.)

Mathias was arrested pursuant to the warrant and brought back before Judge Jackson. The potential applicability of §46-4 was very much on the court's mind. "If I follow this ordinance," Judge Jackson said, "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." She ordered Mathias held in custody at the Juvenile Temporary Detention Center. (2019 IL App (1st) 182250, ¶11.)

Mathias filed a motion to reconsider detention on October 4. Judge Jackson continued the matter to October 19, with Mathias to be held in custody in the meantime, "for his own safety." (2019 IL App (1st) 182250, ¶12.)

Now you'll notice that, to this point, there has been no mention of Judge Toomin here. That's because, to this point, Judge Toomin was not involved.

The Public Defender got Judge Toomin involved by filing an emergency petition for habeas corpus on October 10. He heard the petition on October 12. The PD argued that Mathias could not be held under §46-4; the State's attorney took "no position" on the petition. (2019 IL App (1st) 182250, ¶13.)

Here is where my lack of juvenile justice and criminal procedure experience puts me at a disadvantage.

I see this all the time in media reporting on civil cases: A reporter or columnist, unfamiliar with civil procedure, draws all sorts of sinister inferences from matters easily explained or understood by lawyers conversant in the applicable procedure. I am wary of falling into this trap myself. I have hopes that FWIW readers will be able to help me understand here.

But right now, howeer, to me, at least, this taking of "no position" on the habeas petition looks like a lay down by the State's Attorney. That is not necessarily a bad thing. The State's Attorney is the county's attorney and would have at least the initial responsibility to defend the ordinance against any challenge. That would be the case if the occupant of that office were Kim Foxx or Bernie Carey. So there may well have been an expectation, among those going before Judge Toomin, that the habeas petition would be unopposed, and granted accordingly.

Except for one thing.

However the motion was styled, the habeas petition represented a collateral attack against Judge Jackson's rulings. A motion to reconsider was actually pending before Judge Jackson when the habeas petition was presented to Judge Toomin.

Here again my unfamiliarity with juvenile and/or criminal procedure puts me a disadvantage. Perhaps a habeas petition would be the normal, customary way of attacking Judge Jackson's order. Perhaps, if she had denied the motion to reconsider on October 19, her order striking down the ordinance might not have been immediately appealable. Perhaps the habeas petition was the best vehicle to get the issue before the Appellate Court. Certianly the opinion does not question the circuitous route by which the issue arrived in the Appellate Court. Of course, if Judge Toomin had granted the habeas petition, who would have appealed?

Even without specific knowledge of the applicable procedure here, I can state with some confidence that courts do not look with favor on collateral attacks generally.

In Thomas v. Sklodowski, 303 Ill.App.3d 1028, 1035 (1st Dist. 1999), the Appellate Court stated, citing Lewis v. Blumenthal, 395 Ill. 588 (1947), "interlocutory orders in a case are as insusceptible to collateral attack as is the final judgment." In Thomas, the Appellate Court affirmed summary judgment in favor of a lawyer in a legal malpractice case, finding that the suit was an impermissible collateral attack on the Federal District Court's order allowing the attorney to withdraw in a §1983 matter. Thomas wound up on the receiving end of a million dollar default judgment in the Federal case, but the Illinois Appellate Court said his remedy had been in the 7th Circuit, not in a state court malpractice suit. See also, Tielke v. Auto Owners Ins. Co., 2019 IL App (1st) 181756 (breach of contract suit impermissible collateral attack on denial of motion to enforce alleged settlement agreement in personal injury case). Citing both Thomas and Blumenthal, the Tielke court stated (¶39):

In Blumenthal, our supreme court held that "Each and every step taken or order made in the proceeding, whether it concerns the merits or not, is just as impervious to collateral attack as the final judgment on the merits, *** [and] that an interlocutory order, no matter how erroneous, if not void, will justify or protect all persons as completely as the final judgment itself." [Internal quotation marks omitted]. Id. at 594. Pursuant to Thomas and Blumenthal, the trial judge's order in the personal injury action, denying plaintiff's motion to enforce the settlement agreement, was impervious to collateral attack.

Granted, the Mathias H. opinion does not refer to the habeas proceedings before Judge Toomin as a collateral attack on Judge Jackson's determination that she was not bound by §46-4. And, if the Appellate Court had determined that the habeas proceedings were an improper collateral attack, the affirmance of Judge Toomin's dismissal of the petition would presumably have been on those grounds, without reaching the merits of §46-4.

But even if the habeas proceedings were not, under the applicable custom, practice, or procedure, a collateral attack on Judge Jackson's order, or even if the proceedings were a permissible form of collateral attack, there was reason for Judge Toomin to be wary of effectively reversing Judge Jackson's decision.

Balciunas v. Duff, 94 Ill.2d 176 (1983), was a mandamus action, filed in the Illinois Supreme Court, seeking to compel Judge Brian B. Duff to reverse some interlocutory discovery orders he made on reconsideration of discovery orders made by his predecessor on the Law Division motion calendar, Judge Walter B. Bieschke.

In Balciunas the plaintiff contended (94 Ill.2d at 183) "that Judge Duff reviewed and reversed orders entered by another judge of coordinate authority, and that such action is neither consistent with the orderly administration of justice nor with our judicial system." The Supreme Court did not agree with this contention, but did caution against the evils of judge-shopping, stating (pp. 187-188), "we think it is particularly appropriate for a judge before whom a motion for reconsideration is pending to exercise considerable restraint in reversing or modifying previous rulings." If a successor judge, appointed in the ordinary course of rotating assignments, is expected to exercise "considerable restraint" before reversing a fellow judge's order, how much more cautious should a judge be in Judge Toomin's position, where he was being asked to effectively reverse his colleague's order while a motion to reconsider was still pending before her?

And, on top of it all, Judge Toomin, as the Presiding Judge of Juvenile Justice Division, had an administrative consideration as well: He was being asked to undermine the ruling of a judge in his 'chain of command' without giving her the chance to decide the reconsideration motion pending before her. What I really don't understand is why, under the circumstances, Judge Toomin did not simply 'kick' the habeas petition over to Judge Jackson. But this is not a criticism on my part -- I don't know the procedure and therefore can not venture a competent opinion as to whether such a transfer was possible.

What I do know was that, on October 17, 2018, two days before the next scheduled date in Judge Jackson's courtroom, Judge Toomin issued a written opinion denying the habeas petition on the grounds "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." (2019 IL App (1st) 182250, ¶14.)

I also know that, to reach the merits, the Appellate Court -- not Judge Toomin -- had to get past the fact that the parties agreed that the case was now moot inasmuch as Mathias had already served his time and had been released. Basically, the Appellate Court determined that the "public interest" exception to the mootness doctrine applied and the court should provide guidance on the enforceability of §46-4 because the question will arise again (2019 IL App (1st) 182250, ¶¶17-20).

The third thing I know is that the State's Attorney's Office took a number of inconsistent positions during the course of this matter.

The panel deciding the Mathias H. case split 2-1 on the enforceability of §46-4. The justices deciding the case did, however, all agree that, on appeal, for the first time, the State took the position that the County Board lacked the home rule authority to enact the ordinance. In his dissenting opinion, Justice Michael B. Hyman stated, 2019 IL App (1st) 182250, ¶48,

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.

Justice Hyman continued, 2019 IL App (1st) 182250, ¶51, "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." I am not certain how the SAO's agreeing with the PD on the enforceability of §46-4 advances the adversarial process, particularly where Judge Jackson disagreed, and where Judge Toomin disagreed. But I understand the concern about a party taking different positions in different courts in the same case.

I will leave it to the reader to sift through the competing positions on the merits staked out by the majority and the dissent in this case. The practical bottom line here is that the majority opinion, invalidating §46-4, has prevailed because the Supreme Court decided not to grant leave to appeal in this case.

Which leads me to the final thing I think it may be safe to say about the Mathias H. case: None of the persons involved think that jailing a 12-year old is a good idea. But what was the alternative in this case? Judge Jackson explained to Mathias what he needed to do. And then he defied her. His mother said she had no control. Mathias defied her, too. He circumvented his ankle bracelet and took off for parts unknown despite the good intentions and actual efforts of those charged with his welfare to help him. So, again, what was the alternative to incarceration here?