NO. 4-06-1000 Filed 7/6/07
IN THE APPELLATE COURT
OF ILLINOIS
FOURTH DISTRICT
In re: Marie M., a Minor; ) Appeal from
THE PEOPLE OF THE STATE OF ILLINOIS, ) Circuit Court of
Petitioner-Appellee, ) Vermilion County
v. ) No. 05JD146
JEFFERY BARGAR, as Superintendent of )
IYC-Warrenville, ) Honorable
Respondent-Appellant. ) Claudia S. Anderson,
) Judge Presiding.
_________________________________________________________________
JUSTICE KNECHT delivered the opinion of the court:
On October 3, 2006, the trial court adjudged Marie M. a
delinquent and committed her to the Department of Corrections,
Juvenile Division (DOC). On October 25, 2006, the court issued
two writs of habeas corpus ad prosequendum directing the superin-
tendent of Illinois Youth Center-Warrenville, Jeffery Bargar, to
transport Marie to testing locations on October 28 and 31, 2006,
for her to take the ACT test and the Prairie State Achievement
Examination (PSAE). On November 27, 2006, Bargar filed an
interlocutory appeal. On appeal, Bargar argues (1) the orders
are void because he was not provided notice or an opportunity to
respond and (2) the court did not have authority to enter the
orders. We reverse.
I. BACKGROUND
On October 24, 2005, the State filed an amended peti-
tion for adjudication of wardship in regard to Marie. On October
3, 2006, the court adjudged Marie a delinquent and committed her
to DOC.
On October 25, 2006, the State filed two petitions for
a writ of habeas corpus. The first petition requested the trial
court issue a writ of habeas corpus to secure the presence of
Marie for the purpose of taking the ACT test by directing Bargar
to transport Marie to the test location. The second petition
sought a writ of habeas corpus directing Bargar to transport
Marie to a second test location to secure Marie's presence for
the purpose of taking the PSAE.
Also on October 25, 2006, the trial court issued two
writs of habeas corpus ad prosequendum. The first writ ordered
Bargar to transport Marie to Danville Area Community College at
8 a.m. on October 28, 2006, for Marie to take the ACT test. The
second writ ordered Bargar to transport Marie to Georgetown Ridge
Farm High School at 8 a.m. on October 31, 2006, for Marie to take
the PSAE.
On October 27, 2006, Bargar filed a motion to quash the
writs, arguing the trial court exceeded it authority under the
habeas-corpus-to-testify statute (735 ILCS 5/10-135 (West 2004)).
The record fails to show any action the trial court took on the
motion. On October 27, 2006, Bargar also filed a motion seeking
a supervisory order with the Illinois Supreme Court. On November
7, 2006, the supreme court denied the motion. Bargar v. Ander-
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son, No. 103625. This appeal followed.
II. ANALYSIS
A. Mootness
As a threshold matter, the parties agree this appeal is
moot because Bargar complied with the October 25 orders and the
issues that were before the trial court no longer exist. See In
re J.T., 221 Ill. 2d 338, 349-50, 851 N.E.2d 1, 7-8 (2006) (an
appeal is moot where no actual controversy is presented or the
issues that were before the trial court no longer exist because
intervening events have rendered it impossible for the reviewing
court to grant effectual relief). Bargar asserts we should,
however, consider his arguments under exceptions to the mootness
doctrine because the issue is (1) capable of repetition, yet
evades review and (2) of great public interest.
An exception to the mootness doctrine exists for cases
involving an event of short duration that is "'capable of repeti-
tion, yet evading review.'" In re A Minor, 127 Ill. 2d 247, 258,
537 N.E.2d 292, 296 (1989), quoting Madison Park Bank v. Zagel,
91 Ill. 2d 231, 236, 437 N.E.2d 638, 640 (1982). For this
exception to apply, the complaining party must demonstrate (1)
the challenged action is too short in duration to be fully
litigated prior to becoming moot, and (2) a reasonable expecta-
tion exists the complaining party will be subjected to the same
action again. In re Louis S., 361 Ill. App. 3d 763, 767, 838
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N.E.2d 218, 221 (2005). Exceptions to the mootness doctrine are
to be construed narrowly, and a clear showing must be made that
each requirement is met. J.T., 221 Ill. 2d at 350, 851 N.E.2d at
8. The State concedes the challenged action is too short in
duration to be fully litigated prior to its mootness.
Bargar argues he has a reasonable expectation of being
subjected to a similar order in the future due to the many
juveniles incarcerated at the facility and the reasonable proba-
bility some of these juveniles will be in a similar situation as
Marie and will seek a similar order. The State argues Bargar has
failed to meet his burden of demonstrating a reasonable probabil-
ity he will be subjected to the same action again because the
habeas-corpus-to-testify statute (735 ILCS 5/10-135 (West 2004))
is unambiguous and no real question exists whether the trial
court's order complied with the statute.
While the ambiguity of a statute may be a factor in
determining whether a reasonable probability exists the situation
will arise again (see People v. Bailey, 116 Ill. App. 3d 259,
262, 452 N.E.2d 28, 31 (1983)), the State cites no authority for
the proposition a lack of ambiguity requires a finding that no
reasonable probability exists the same action will arise again.
The facts of this case contradict the State's assertion that a
lack of ambiguity in a statute means no reasonable expectation
the statute will be misapplied. Here, the State specifically
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requested writs of habeas corpus and the trial court granted
writs of habeas corpus ad prosequendum.
In addition, Bargar points to People v. Freed, 328 Ill.
App. 3d 459, 766 N.E.2d 253 (2002), as support for the proposi-
tion the habeas-corpus-to-testify statute has been misapplied in
the past. In Freed, the trial court entered an order of habeas
corpus ad testificandum under section 10-135 of Habeas Corpus Act
(735 ILCS 5/10-135 (West 2004)), directing DOC to produce the
defendant at the jail for an independent psychiatric evaluation
and a future hearing. Freed, 328 Ill. App. 3d at 463, 766 N.E.2d
at 256-57. The Freed court held the trial court's order contra-
vened the plain language of the statute and did not fall within
any of the specifically enumerated statutory purposes for enter-
ing an order of habeas corpus ad testificandum. Freed, 328 Ill.
App. 3d at 466-67, 766 N.E.2d at 259-60.
Bargar need not demonstrate the statute will be applied
in "precisely the same circumstances or for precisely the same
reasons." A Minor, 127 Ill. 2d at 259, 537 N.E.2d at 297. "It
is sufficient that the same statutory provision will most likely
be applied in future cases involving the same party." A Minor,
127 Ill. 2d at 259, 537 N.E.2d at 297. Bargar has demonstrated a
reasonable expectation he will be subject to similar orders in
the future. A reasonable probability exists that other juveniles
incarcerated at the facility, presently and in the future, will
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seek a similar transportation order for educational testing.
Thus, we will not dismiss the appeal as moot. We need
not address Bargar's contention that the appeal also satisfies
the public-interest exception to the mootness doctrine.
B. Whether the Trial Court Erred by Entering the
Orders of Habeas Corpus Ad Prosequendum
Bargar argues the trial court erred by entering the
October 25, 2006, orders of habeas corpus ad prosequendum direct-
ing him to produce Marie at the testing centers on October 28 and
31, for the purpose of taking the ACT and the PSAE tests.
Specifically, Bargar contends the court did not have authority to
enter the orders under section 10-135 of the Habeas Corpus Act.
Section 10-135 provides as follows:
"The several courts having authority to
grant relief by habeas corpus, may enter
orders, when necessary, to bring before them
any prisoner to testify, or to be surrendered
in discharge of bail, or for trial upon any
criminal charge lawfully pending in the same
court or to testify in a criminal proceeding
in another state *** and the order may be
directed to any county in the State, and
there be served and returned by any officer
to whom it is directed." 735 ILCS 5/10-135
(West 2004).
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The State concedes the orders do not comport with
section 10-135 and instead argues the orders were proper under
the Juvenile Court Act of 1987 (Juvenile Court Act) (705 ILCS
405/1-1 through 7-1 (West 2004)). We agree with the parties the
trial court's orders exceeded the court's authority under section
10-135 of the Habeas Corpus Act. We decline the State's invita-
tion to issue an advisory opinion on whether the court could have
entered the transportation orders under the Juvenile Court Act.
The issue presented by the State appears to be one of first
impression, was not raised in the trial court, and contrary to
the State's assertion, the substance of the orders does not lead
to the conclusion the orders were anything other than the writs
of habeas corpus they purported to be.
Because we find the trial court did not have authority
to enter the October 25 orders under section 10-135 of the Habeas
Corpus Act, we need not address Bargar's contention the orders
are void because Bargar was not provided notice or an opportunity
to respond prior to being entered.
III. CONCLUSION
For the reasons stated, we reverse the trial court's
judgment.
Reversed.
APPLETON and TURNER, JJ., concur.
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In re Marie M.
Combined Opinion