also dissenting:
Sentencing a 16-year-old boy to 60 days in a detention center for contempt of court because he refused to attend school is in my judgment a circumvention of the statutory policy of this State. I also believe it is harsh to the point of being an abuse of discretion and that confinement for that length of time in a detention center is likely to do the minor as well as society more harm than good. It is for these reasons that I dissent.
The Juvenile Court Act (Ill. Rev. Stat. 1977, ch. 37, pars. 702—2, 702—3) provides for two distinct categories of errant youths: delinquent minors and minors otherwise in need of supervision. Delinquents are those who have violated some penal statute or ordinance, while those otherwise in need of supervision include incorrigibles, habitual truants and drug addicts. The latter category, with the possible exception of drug addicts, is thus made up of youths who would have committed no offense at all had they not been minors at the time.they committed the act for which they are being disciplined. Also included by statute, in the “otherwise in need of supervision” category, are minors who. have violated a court order entered under the Act. That provision, which became effective in 1974, was included to forestall the bootstrapping practice of transforming a minor otherwise in need of supervision into a delinquent minor through the use of the contempt power. This was accomplished by the court ordering the minor to attend school or stop his otherwise unacceptable behavior. Upon failure to comply with that directive, he was found in criminal contempt and adjudicated a delinquent minor on that basis, despite the fact that his underlying behavior was unchanged. The only difference was that the minor’s continued refusal placed him in the position of violating a court order rather than a State law, a difference that the legislature since 1974 has deemed insufficient to warrant a change in status from a minor otherwise in need of supervision to a delinquent minor.
The Act provides a different set of dispositional possibilities for each class of minors, and for that reason the distinction between them is significant. A minor otherwise in need of supervision may be committed to the Department of Child and Family Services for placement in a shelter home or foster family, placed with the Department of Mental Health and Developmental Disabilities for treatment, placed under court supervision and released to his parents, or emancipated; unlike a delinquent minor he may not be placed in a detention center.
In limiting the disposition that can be made of a minor otherwise in need of supervision, the legislature expressly determined that truants, even those who are ordered by the court to attend school, would not benefit from confinement, especially confinement with true juvenile delinquents. The legislature therefore wisely decided to stop short of placing such minors in detention centers. The need for punishment was not regarded as compelling enough to justify the risk of driving such youths further afield by confining them with delinquents who might be underage rapists, thieves and armed robbers.
This legislative mandate is largely in keeping with the Federal Juvenile Justice and Delinquency Prevention Act, section 223 (42 U.S.C. §5633(12) (1974)), as it existed until 1980, which provides funding to States for juvenile crime prevention. The funding is conditioned upon compliance with guidelines which included a prohibition against placing truants and incorrigibles in detention. Interestingly, if today’s decision had been filed a year ago, it might have placed this State’s funding in jeopardy. Amendments to the Federal Act in 1980 allowed the detention of juvenile contemnors. Apparently believing that the pre-1980 act prohibited the court from using its contempt power to jail truants, the amendment’s sponsor stated that his amendment was intended to restore the juvenile court’s legitimate power. (126 Cong. Rec. H10932 (1980) (remarks of Rep. Ashbrook).) But, the Illinois statute remains unaltered. It does not grant the juvenile court increased authority; on the contrary it continues to provide that minors in violation of a court order are not delinquents and are not to be treated as such.
The court today has circumvented this important State policy. Despite the clearest expression to the contrary from the legislature, the majority sanctions the detention of minors whose greatest offense against society is to refuse to go to school. Although this court clearly could not under the statute allow the State to file a delinquency petition based on G.B.’s violation of the court order, it nevertheless is allowing the offended juvenile court itself to apply its contempt sanctions. In substance, it is permitting the juvenile court to accomplish indirectly what it could not directly do, jail a truant as a juvenile delinquent. By this judicial sleight of hand, the majority has made a dead letter of the legislature’s declaration that minors who violate juvenile court orders are to be treated as minors otherwise in need of supervision. This result was clearly not intended by the legislature and should not be allowed by this court. Although the statute does not eliminate the use of a court’s contempt powers, it must be read to prohibit the use of that power to jail minors for conduct for which the legislature has said they should not be jailed. The policy advanced by the legislature is too basic a part of the Juvenile Court Act to allow its circumvention even in the interest of vindicating the court’s dignity and authority.'
Other courts have condemned similar efforts to circumvent legislative policy on juvenile treatment. In In re Ronald S. (1977), 69 Cal. App. 3d 866, 138 Cal. Rptr. 387, a California appellate court disapproved a juvenile court’s attempt to do “by indirection that which cannot be done directly.” (69 Cal. App. 3d 866, 874, 138 Cal. Rptr. 387, 392.) The juvenile court had elevated a runaway to delinquent status by allowing a petition for delinquency alleging as the cause criminal contempt of court, a statutory offense under the California Penal Code, despite an amendment by the California legislature deleting youths who had violated a court order from the definition of juvenile delinquent. This holding illustrates the proper treatment of attempts by trial courts to evade legitimate legislative policy, even though the bootstrapping technique used was not precisely identical to that used here. See In re Mary D. (1979), 95 Cal. App. 3d 34, 156 Cal. Rptr. 829; In re Bellanger (La. App. 1978), 357 So. 2d 634; In re M.S. (1977), 73 N.J. 238, 374 A.2d 445. See also State ex rel. L.E.A. v. Hammergren (Minn. 1980), 294 N.W.2d 705. But see R.M.P. v. Jones (Fla. App. 1980), 392 So. 2d 301 (the Florida statute classifies contemnors with delinquent minors).
The majority states that because the power to enforce court orders through contempt proceedings is inherent to judicial authority, the legislature may not limit its use. (See In re Baker (1978), 71 Ill. 2d 480, 484; People ex rel. Busch v. White (1929), 334 Ill. 465, 484.) This separation of powers argument is advanced to excuse the juvenile court’s contravention of legislative policy. It is, however, one thing to hold, as this court did in In re Baker, that the contempt power is not directly controlled by the Juvenile Court Act and quite another to permit its use as a tool to nullify the policies of that act. While In re Baker may allow a judge to go outside the list of dispositional alternatives permitted for minors otherwise in need of supervision when sentencing for contempt, it in no way allows him to sentence such a minor to jail. The elimination of detention for such minors is such an important feature of the statute that if it is not read to prohibit detention in such circumstances, the statute loses its power and effect. I find a lack of logical consistency between what this court did in In re Baker and what the majority approves in this case. In In re Baker, where this court’s opinion does not indicate the juvenile was sentenced to detention, the court said a finding of contempt cannot be used “as a basis for an adjudication of delinquency under the valid and unambiguous terms of the Juvenile Court Act.” (71 Ill. 2d 480, 485.) Yet, here the court says a finding of contempt can be used to justify 60 days of confinement in a detention facility, the type of disposition that is purposely reserved for delinquents. I view this as an unwarranted extension not only of what was decided but also what happened in In re Baker and a perversion, in the name of vindication of judicial authority, of the public policy adopted by the legislature.
Although it is perhaps true that the legislature may not invade a court’s ability to enforce its orders or to vindicate its authority over contemnors, this court has never held that the legislature has no authority to regulate a court’s use of its power by prohibiting particular sanctions. That is all the Act seeks to do; it provides a minor shall not be detained with delinquents merely for violating a court order when his underlying behavior is not egregious enough to qualify him as a delinquent. In Newton v. Locklin (1875), 77 Ill. 103, the court upheld a statute that set $5 as the punishment for contempt involving unruly behavior before a justice of the peace. The justice of the peace involved was held to have exceeded his powers by committing the plaintiff to prison instead. (See also State ex rel. Oregon State Bar v. Lenske (1965), 243 Ore. 477, 405 P.2d 510, cert, denied (1966), 384 U.S. 943, 16 L. Ed. 2d 541, 86 S. Ct. 1460.) The legislature here has not destroyed the juvenile court’s ability to enforce its orders. It has simply removed one possible punishment from the arsenal available to the court. This does not constitute a usurpation of power. Rather, it is a necessary part of the implementation of legitimate State juvenile policy.
Even if the court’s contempt power is wholly above the legislature’s ability to control, however, I do not understand why this court should allow a juvenile court to impose so harsh a sentence and to deliberately circumvent the legislature’s policy on juveniles. The contempt power is an extra-ordinary one that should be used sparingly and with the utmost sensitivity. (See Bloom v. Illinois (1968), 391 U.S. 194, 20 L. Ed. 2d 522, 88 S. Ct. 1477; Fox v. Fox (1978), 56 Ill. App. 3d 446; Board of Junior College District No. 508 v. Cook County College Teachers Union, Local 1600 (1970), 126 Ill. App. 2d 418, cert, denied (1971), 402 U.S. 998, 29 L. Ed. 2d 165, 91 S. Ct. 2168.) It is an abuse of discretion to use it deliberately to circumvent the policy behind statutory law, especially when alternatives are available. The trial judge did not have the benefit of any professional evaluation of G.B. except for a routine presentence report. It seems to me that in such a difficult case the trial judge would have sought additional assistance, including individualized psychological evaluation, before adopting such a drastic solution.
Beyond that, and wholly apart from the statute, I regard it as an abuse of discretion to imprison a minor for 60 days for playing hooky. While I sympathize with the juvenile court’s exasperation with this boy, this court should not tolerate the solution applied. I think this is especially the case here because the juvenile court judge had already sentenced G.B. to serve 19 days in the detention facility for contempt of court because of his truancy. Serving that sentence did not convince G.B. of the value of any further schooling, and there is nothing in this record which could lead one to believe that 60 additional days of detention would have a more persuasive influence on this minor. There are some things the law cannot realistically be relied upon to accomplish. Forcing a 16-year-old apparently incurable truant to attend school regularly and sit still long enough to learn something is one of them.