specially concurring:
Today the court unanimously holds that the Juvenile Court Act does not authorize a circuit court to vacate a finding of delinquency subsequent to the juvenile’s successful completion of probation. While I agree that, under the law, this is the correct determination, I write separately to express my concern that our decision takes away a valuable and necessary tool from the juvenile court judges of this state.
As the record reflects, for more than 30 years juvenile court judges have engaged in the practice of vacating delinquency findings following a juvenile’s successful completion of probation. Juvenile court judges — like Judge Stralka, here — have utilized this practice as a means of dispensing justice and achieving fairness when, in the exercise of their discretion, the circumstances of a particular case warrant such action.
The stated purpose of the Juvenile Court Act of 1987 is “to secure for each minor subject hereto such care and guidance, preferably in his or her own home, as will serve the safety and moral, emotional, mental, and physical welfare of the minor and the best interests of the community.” 705 ILCS 405/1 — 2(1) (West 2004). I have every confidence that the judges who have vacated delinquency findings following a juvenile’s successful completion of probation were acting in good faith, believing their actions to be an appropriate extension of the authority afforded them under the Act to modify orders of the court at any time “until final closing and discharge of the proceedings,” where warranted by “the conduct of the minor and the ends of justice.” See 705 ILCS 405/5— 710(3), 5 — 715(1) (West 2004). I note, too, that, in some jurisdictions, juvenile court judges are given the authority, not only to modify, but to “set aside” or “vacate” a dispositional order. See N.Y. Fam. Ct. Act §355.1 (McKinney 1999). See also Ga. Code Ann. §15 — 11—40(b) (2005) (“An order of the court may also be changed, modified, or vacated on the ground that changed circumstances so require in the best interest of the child”); In re Leslie M., 305 Md. 477, 481-82, 505 A.2d 504, 505-08 (1986) (court may vacate a finding of delinquency pursuant to a Maryland code provision, Rule 916(a), which permits the court to modify or vacate its order “if the court finds that action to be in the best interest of the child or the public”); State v. T.M., 860 E2d 1286 (Alaska App. 1993) (section 47.10.100(a) permits a juvenile court judge to “stay execution, modify, set aside, revoke, or enlarge a judgment or order” for a period of two years after adjudication).
Our determination that the Juvenile Court Act does not afford a trial judge “discretion to vacate a finding of delinquency” is based, in part, on the fact that the practice of “[p] lacing the minor on probation and later vacating the delinquency finding *** is tantamount to granting supervision, and it essentially circumvents the State’s right to reject supervision.” 226 Ill. 2d at 454; 705 ILCS 405/5—615(1) (West 2004). Section 5—615(1) of the Act provides:
“Continuance under supervision.
(1) The court may enter an order of continuance under supervision for an offense other than first degree murder, a Class X felony or a forcible felony (a) upon an admission or stipulation by the appropriate respondent or minor respondent of the facts supporting the petition and before proceeding to adjudication, or after hearing the evidence at the trial, and (b) in the absence of objection made in open court by the minor, his or her parent, guardian, or legal custodian, the minor’s attorney or the State’s Attorney.” (Emphasis added.) 705 ILCS 405/5 — 615(1) (West 2004).
As our opinion makes clear, under section 5 — 615(1), court supervision is not an available option if the State’s Attorney objects. In such cases, the matter must proceed to the conclusion of the findings stage. See 226 Ill. 2d at 452. Consequently, although a juvenile court might have been able to achieve results similar to vacating a finding of delinquency by electing to grant a minor court supervision, the Act gives the State’s Attorney discretion to deny the court this option. This was not always the case.
Prior to 1982, the statute did not permit the State’s Attorney to object. In In re T.W., 101 Ill. 2d 438, 440-41 (1984), we noted:
“The portion of section 4 — 7(1) [now section 5 — 615(1)] requiring the State’s Attorney’s consent to a continuance under supervision was added by section 1 of Public Act 82 — 973. (111. Ann. Stat., ch. 37, par. 704 — 7, Historical Note, at 182 (Smith-Hurd Supp. 1982).) Prior to this amendment, the only parties whose consent was required were the minor or the minor’s parents, guardian, custodian or responsible relative. (111. Rev. Stat. 1981, ch. 37, par. 704 — 7 [now 705 ILCS 405/5 — 615(1) (West 2004)].) A continuance under supervision is the most lenient disposition available for delinquency petitions under the Juvenile Court Act, except for dismissal of the petition. If the parties entitled to voice objections to a continuance under supervision do not do so and the juvenile complies with the conditions imposed by the court, section 2 — ll(l)(c) of the Act (111. Rev. Stat., 1982 Supp., ch. 37, par. 702 — ll(l)(c) [now 705 ILCS 405/5 — 915(l)(c) (West 2004)]) permits the juvenile, after reaching age 17, to petition the court for expunction of all law-enforcement and juvenile records relating to incidents occurring before age 17. Thus, assuming court approval of the petition, the juvenile who successfully completes supervision may have his juvenile record expunged.”
It is unclear why the legislature amended this portion of the statute to permit the State’s Attorney to object.
I recognize that, in In re T.W., we upheld the amendment in the face of a constitutional challenge, on separation of powers grounds, holding that People v. Phillips, 66 Ill. 2d 412 (1977), was “dispositive of the issue.” See In re T.W., 101 Ill. 2d at 441. However, I question the T.W. court’s reliance on Phillips.
In Phillips, the issue was the constitutionality of sections 120.8 and 120.9 of the Dangerous Drug Abuse Act (Ill. Rev. Stat. 1981, ch. 91V2, par. 120.1 et seq.). See Phillips, 66 Ill. 2d at 414; In re T.W., 101 Ill. 2d at 441. Pursuant to these sections, a defendant who was found by the court to be a drug addict, could elect to receive care in a licensed drug-treatment program as an alternative to being prosecuted on charges pending against him. Upon successful completion of the treatment program, the charges pending against the defendant would then be dismissed. However, if the defendant-addict was on probation or parole when the offense(s) was committed, the court would be unable to permit the defendant to elect the treatment alternative unless the probation or parole authority consented.
In my view, Phillips does not provide solid underpinning for the decision in In re TM. First, Phillips did not involve a minor, nor did it interpret a statute within the Juvenile Court Act, an act which affords minors special protections and safeguards and directs judges to consider the best interests of the minors appearing before them. Moreover, in Phillips, the court distinguished the provisions of the Dangerous Drug Abuse Act from a California drug addict diversion statute found to be unconstitutional in People v. Superior Court, 11 Cal. 3d 59, 520 P.2d 405, 113 Cal. Rptr. 21 (1974), holding:
“Our statute is readily distinguishable from the California statute. The required consent of the appropriate probation or parole authority in our act does not constitute a veto of the exercise of judicial authority. The participation of these officers is involved only in the determination of whether a defendant is eligible for consideration. If a defendant is not on probation or parole, naturally these officers are not involved, but if a defendant is on probation or parole and elects to take treatment under the plan it is necessary to have the cooperation of the probation or parole officer whose duty and responsibility it is to supervise the defendant. (See Ill. Rev. Stat. 1975, ch. 38, par. 204 — 4 (probation officer), and ch. 38, par. 1003— 14 — 2 (supervising parole officer).) Without the assured cooperation of these officers the success of any treatment program would be seriously jeopardized. It is only after the eligibility requirements are satisfied that the court determines whether or not the defendant should be admitted to treatment under the Act.” Phillips, 66 Ill. 2d at 417-18.
In my view, section 5 — 615(1) of the Juvenile Court Act is more akin to the California statute because it permits the State’s Attorney to exercise veto power over the court’s exercise of its judicial authority to grant court supervision to a minor. Our decision in In re T.W. bears revisiting.
However, even if section 5 — 615(1) is not unconstitutional on separation of powers grounds, the statute raises, in my mind, equal protection concerns. I note that a similarly situated adult may be placed on supervision without the State’s Attorney’s approval. Section 5 — 6—1 of the Unified Code of Corrections (730 ILCS 5/5 — 6—1 (West 2004)) provides that, if a person is charged with committing certain offenses, including the Class A misdemeanor of “unauthorized possession or storage of a weapon,” which is the basis for the finding of delinquency in the case at bar,
“The court may, upon a plea of guilty or a stipulation by the defendant of the facts supporting the charge or a finding of guilt, defer further proceedings and the imposition of a sentence, and enter an order for supervision of the defendant, *** after considering the circumstances of the offense, and the history, character and condition of the offender, if the court is of the opinion that:
(1) the offender is not likely to commit further crimes;
(2) the defendant and the public would be best served if the defendant were not to receive a criminal record; and
(3) in the best interests of justice an order of supervision is more appropriate than a sentence otherwise permitted under this Code.”
Thus, had the minor, D.D., been prosecuted as an adult, he could have received supervision whether or not the State’s Attorney objected. A rational justification for this disparity in treatment is not apparent from the face of the statutes.
I observe, as well, that other jurisdictions permit juvenile court judges to grant orders of supervision or “consent decrees” without restriction. See, e.g., In re Rousselow, 341 N.W.2d 760 (Iowa 1983) (interpreting Iowa Code §232.46); Fla. Stat. §985.35 (2007); Mass. Gen. Laws ch. 119, §58 (2006); N.J. Stat. Ann. §2A:4A — 43 (2006).
It is not my intent to cast aspersions on the State’s Attorneys because they choose to prosecute juveniles in these cases. When a juvenile commits an act which constitutes a crime, it is the State’s Attorney’s role to prosecute and to seek adjudication so as to protect the public. However, giving the State’s Attorney the authority to deny the grant of supervision to juveniles runs counter to the State’s Attorney’s prosecutorial role. As a practical matter, it is not reasonable to expect that the State’s Attorney, while zealously and vigorously prosecuting his or her case in an effort to secure an adjudication, can then step back and make an objective determination regarding the minor’s suitability to receive court supervision. See, e.g., In re M.R.H., 326 Ill. App. 3d 565 (2001) (State insisted on prosecution of a minor for retail theft after he stole $0.59 worth of merchandise).
Whether leniency in the form of court supervision should be granted to a minor is a decision best left to an impartial and neutral party — the judge, who is mandated to ensure that the Act is “administered in a spirit of humane concern, not only for the rights of the parties, but also for the fears and the limits of understanding of all who appear before the court.” 705 ILCS 405/1 — 2(2) (West 2004). The current statutory scheme takes this away.
In sum, after our decision today, juvenile court judges will no longer be able to vacate findings of delinquency based on the minor’s subsequent good conduct. While juvenile court judges might have been able to achieve the same result by entering an order that the minor be placed on court supervision, that avenue, too, is foreclosed to them if the State’s Attorney objects.
In light of the above, I urge the legislature to reexamine the Juvenile Court Act. In my view, our statutory scheme, which denies a juvenile court judge the discretion to vacate findings of delinquency based on subsequent good behavior, and also permits the State’s Attorney to object to court supervision and, thereby, preclude the court from electing supervision as a disposition, unduly ties the hands of the judge who is commissioned with the task of acting in the best interests of the minor and raises constitutional concerns.
JUSTICES FREEMAN and FITZGERALD join in this special concurrence.