the first case on earth called the docket is the people versus casey him and it's agenda number one a consolidated case one one zero zero four four one one zero seven zero five this is tuesday september thirteenth two thousand and eleven before i call the first attorney i think as you've agreed you're going to split your time the twenty minutes is split in the other twenty we're going to enforce the ten minute splits and nobody uses the other ten minutes inadvertently the time keeper will warn you before the first ten minutes is up and then the red light as usual go off now to twenty minutes is normal but ten minutes you may proce contains a notice provision and that provision states that if a probation officer in the supervisor agree to enter ensure an intermediate sanctions agreement with a probation or has violated their probation then notice must be provided to the trial court and to the state's attorney the proper interpretation of that subsection is that the notice provision allowed most either the trial court or the state's attorney to object to the intermediate sanctions agreement in the case where either of those elected officials feels that the intermediate sanctions offered are inappropriate to that specific violation in the hamming case below  the state's attorney felt that it was a very serious violation because this was a defendant who had been raised in a home where drugs were a problem his older brother had died from drugs and the probation violation state's attorney wanted to object and did so within thirty days approximately thirty days of when the violation took place and we can imply we can infer from the record that the violation and agreement were entered into with him have thirty  in a situation where they object to the nature of the intermediate sanctions agreement they can file a timely petition to revoke and all that the people are asking for is that when the state's attorney has that position that the trial court all while the petition to to go to a full hearing where the state's attorney can present evidence from witnesses to the violation and the trial court can then have a full and complete picture of the nature of the violation before determining the appropriate steps to and our position is the same your honor we see that we feel that the court would look at the tally of circumstances in a case where the sanctions had been offered accepted and completed and the nature of the sa was so lenient that it was on reasonable i could forsee a circumstance that's not presented by any of the three cases before the court now but i could forsee a circumstance where the nature of the sanction was completed you know within minutes of when it was offered and it was for something as serious as say an aggravated assault which is a misdemeanor offense in illinois but it would be something that i did the trial court of state's trying to woodbury be very likely to want to pursue a petition to revoke upon in those prior to the hearing on the petition to revoke and our position is that that was inappropriate because the trial court should have stayed the performance of the intermediate sanctions agreement until full hearing could have been held it's unclear from the facts of the hamming case whether or not the agreement had actually been completed prior to the filing of the petition for a vote but that wasn't argued below so it's just the record is silent in one case but definitely in the just some tension between them and yes your honor the statute must be interpreted to allow the state's attorney and the trial court to object to an intermediate sanctions agreement and under the constitution the state's attorney as the prosecutor must be able to make arguments and present evidence in support of that petition to revoke and any statute or rule that  removes that authority from the state's attorney violates the separation of powers because the core power of the prosecutor is the opportunity to bring the people's case to represent people faithfully and zealously in a matter where the people have an interest and of course the people have a strong interest in a probation caves which is also a civil proceeding a continuation of the underlying criminal action answer further questions to ask you questions about the sta statute allows the probation time to issue this kind of notice of interim media sanctions and the notice must contain the technical violation or violations now can you give me some what does the term tactical violation statute mean it's not defined in the statute your honor and unfortunately the statute doesn't make expressly clear that it covers all non felonious conduct the probation officer and supervisor can offer intermediate sanctions for his conduct which is why i use the aggravated assault example as a case where a probation officer under the appellate court's interpretation could enter into an intermediate sanctions agreement in a case where it case before us misdemeanors or are they all the type of idea technical in the sense of family to cooperate with probation indeed they owned all the missed meters your honor in the hamming case it was drug possession  paraphernalia possession and the guy had a case it was obstruction of justice and in the donahue case it was a use of drugs as well as what might be considered technical violations for failure t that particular defendant had committed indeed multiple violations including leaving the state without permission so i don't think any of the three below were purely technical think they all involve misdemeanors where the state's  else thank you for the appellate court i think misinterpreted her argument below we're not arguing that the statute as written is unconstitutional but we're arguing is if the court doesn't respect the notice provision in the statute to mean that the state's  notice provision speaks for itself it saves states and those must be provided the chief judges of each circuit with the guidance of the administrative office of illinois courts probation department can determine what a reasonable time for notice might  be i was going to supplement the record on appeal with a document i found last week which was guidelines that were published in one thousand nine hundred five from the a oh i see two different chief judges in probation departments of the different circuit courts that's the just a five day sentencing as the state itself conceded this case is moot due to the fact that all three defendants have been discharged from probation the state has asserted that the public interest exception to the moon is structure and applies in this case but that assertion incorrect the public interest exception allows a court to consider an otherwise moot case when the question presented is of a public nature which it is in this case there is a need for an author or to have determination for the future guidance of public officers and there is a likelihood of future recurrence of the question the public interest exception is nearly construed and requires a clear showing of each criteria while the interpretation of section i have seven thirty i l c s five five six four does present a public a question of a public nature there is no need for an authoritative determination for the future guidance of public officers there is no conflict enough already about the interpretation of section i that the opinion could be of value to future litigants the factor would be so broad as to virtually eliminate the notion of defense attorney filed a motion to dismiss and at that time they allege that sanctions had been offered accepted and completed and the state never disputed that so in fact as far as we know the statute was filed absolutely correctly in case hammond in the him in case there was a criminal offense that underlined the violation and as the court said to the state's attorney in that case the state was was free to file a criminal charge and chose not to do so in part the court the state chose not to do so because they wanted this issue to come to the supreme court in its opinion the appellate court summarized the state's problem with section i as follows essentially the state's objection is not that the judicial branch has exerted a substantial power belonging to the state's attorney but that the judicial branch in exercising its own power has just recorded the state's attorney granting denying continuing modifying or discount to probation is an essential the statute specifically delegates authority to the court and to probation officers to add additional sanctions for violations of probation this is a function of the judiciary if the state feels that the violation is criminal and needs to be punished further than they are free to file a criminal charge then the legislature created five six five five six four i and then it references a let the eleventh judicial circuits rule to ten which then further mandates that the probation department or the court services department create a ministry of sanctions guidelines which are appended to my brief and it's everything is very clearly set out the court has determined what it feels should be an administrative sanction and even in christopher gave her which over twenty one and the court didn't want to have a petition revoked probation the court wanted ministry of sanctions imposed and the appellate court talks about that in its decision which is ultimately this is the court's power to affect sentencing this interpretation the state's argument is further demonstrated by the state's assertion in its reply brief that this issue is likely to reoccur in winston county and the state says its report reply brief it to the livingston county state's attorney has a strong desire to protect the public f ultimately the court decides the conditions of the defendant sentence as i said the state is not left without a ram right a remedy under the appellate court's interpretation of section i of five five six four but the state does not want their own power to prosecute the state would like to unfriend on the power of the to sherry section i of five five six four was created by the legislature to allow the judiciary to manage probation and probation infractions in an efficient manner hence the directive  five five six one at the chief judge of each circuit adopt a system of structured intermediate sanctions the chief judge of eleventh circuit which includes livingston county created rule two ten which requires that each probation department create guidelines for  sanctions program the court services department alone use and county has just such a program with detailed guidelines of how the administrative sanctions program should be implemented the circuit court has shown through its own eleventh circuit rules which were mandated by section five five six one and the resulting administrative sanctions program what it considers appropriate responses to certain specific violations of probation the judiciary's power is consistent with the expressed interest of the legislature and that power determines whether probation gets modified or sanctions are imposed under certain specific conditions to allow the state to direct how probation beast should be supervised and implemented a power of the judiciary would violate the separation of powers cla issue in this case is whether the probation officer had the legal authority to file a petition seeking to revoke mr albert probation and the clear answer to this question is no under proper principles proper application of principles  statutory construction probation officers do not have the legal authority to file a petition seeking revocation the plain and ordinary meaning of the pluggable statutes section five dash six dash four and section one hundred ten slash twelve do not give probation officers use already to file petitions even in section one one ten slash twelve which gives an enumerated list of all of a probation officer stuti is nowhere does it state that appeal has the authority to file a petition seeking revocation nor should this court properly applying principles of statutory construction read into the statutes an authority that simply does not exist contrary to both the state and the appellate court in this case neither sub additionally section afters not allow for the probation officer to move to modify probation but rather allows a supervising agency to do so like every other agency under illinois law it must appear through counsel or risk committing the on authorized practice of law similarly subsection i does not provide the authority to file a petition seeking revocation either section i allows a probation officer to offer probation or intermediate stations for technical violations of his or her probation it does not however give the broader grant of authority to a probation officer to file a petition seeking to revoke with the court the state argues that the language at the beginning of section i which s instead of filing a violation of probation an agent or an employee with the super right of the supervising agency with the consent of his or her supervisor may serve a notice of intermediate sanctions can be broadly read to give the probation officer the authority to file revocation petitions the state argues that because the statute states and agent or employee may seek intermediate sanctions the terms agent or employer must also modify the phrase instead of filing a violation but the flaw in the state's argument is that nowhere in the statute are probation officers granted the authority to file a petition seeking to revoke probation even in the provision of the statute which deals expressly with the procedures governing revoke ation hearings even the probation officers authority to offer intermediate same chansons limited he or she must get the consent of his super of his or her supervisor in light of this limitation section i cannot be fairly interpreted to give the probation acknowledged by the state in this case when they say it's concurrent it's so apparent from from all of our experience working with the state's attorney and is consistent with the county's code which gives the state's attorney the express authority to and prosecute all civil and criminal actions that they don't even need to put it in there because there are forty is implied as a member of the executive branch i don't think it's a fair interpretation to say well because action i however poorly worded imedi drafted said is instead of filing a violation of probation that that somehow can be read to give the probation officers the authority i think the state's attorneys to soroti is is implied in the  scold but i mean i think the purpose of such an eye is really you know and probably should have been utilized in this case is to deal with these technical violations i don't think it's speaks to the authority of the state's attorney or the probation officer really either way and i think again i would point out that even in the statute there's a there's a safeguard in there and that's borne out by the legislative history which is the probation officer can only give intermediate sanctions with the consent of his or her supervisor i don't see how you can read that to give them some sort of broader authority to seek revocation particularly when the the likely consequence of a revocation proceeding is imprisonment unlike the case with intermediate stations i mean it's just two totally different proceedings and i don't think you can read that phrase in the way advocated by the staters interpreted by alternately she did but she didn't file the petition of the supplemental petition i mean it's clear on the face of the petitions both of which are in the common law record in this case that what they were signed by the probation officer and then also point out as i highlighted in brief that in the middle of the hearing the probation officer had to withdraw or one of the allegations but it's not just the act of filing i think the larger point here is that you know there was no exercise of prosecut discretion which is inherent in commencing a civil or criminal action and i think had somebody review would you sell a geisha is that he failed to report on the day after president's day and the day after casmir and marched off perhaps somebody wouldn't have concluded that it wasn't worth the state's limited resources and time to send somebody back to prison for these purely technical violations  talking about violations that didn't change from the time your original petition was filed to the time the supplemental petition was filed in november if this trial bertie had been committing another crime or it can then you know whatever the probation officer put in that petition i don't think there's any authority for the position advocated by the state that they can adopt or ratify the petition i mean i practice a lot and again i would just point out that it's not it's not simply the filing the commencing or the initiation includes reviewing the allegations before you file a pleading in court seeking relief in this case they sought revocation and i don't i don't think there's any authority for that i've been ratification argument that the states set forth and raise and none of those cases support that the state's attorney can just go in and adopt a petition i can get it i think it should have been under like every other criminal proceeding under illinois law it should been considered by the prosecutor that allegation should have been vetted reviewed and then they did then they determine whether or not to go forward on the revocation not after the fact and i think you know the circumstances of this case where the prosecutor had to withdraw one of the allegations in the middle of his revocation hearing supports that that's exactly what morning your honors me please the court my name is mary not singular i present the people of the state of illinois and albert case briefly the facts of this case first follow the defendant was placed on eighteen months probation three months after being placed on probation her follow the terms of his probation this is what the probation officer does he watches over he monitors defendants placed on probation approximately six months later the probation officer signed another petition for violation of present in court appeared in the state the court specifically said to the state's attorney are you filing the supplemental petition for violation of a particular patient and she responded yes in that petition it referred to the initial violation of probation the state's attorney in her discretion decided which of the violation allegations she was going to proceed on and then she took the case to a hearing at that point after using her discretion to determine how she was going to proceed she ratified the initial petitions that had just been signed by the probation officer she was not initiating or commence an action it was merely notification to the parties this is a fine it was not following his probation defining content the instead of filing a violation of probation a probation officer may serve the defendant a notice of sanctions this presupposes the probation officers authority to file the petition for violation of probation gives a probation officer  choices either you can serve on the defendant the notice in an intermediate sanctions for technical violations or you can file a violation of probation two to two upper options for the probation officer in this case  on it the fact that my posting counsel said during the hearing the state's attorney realize said you know i cannot prove that violation so this is this is evidence that the state's attorney is prosecuting the case is the person who's in charge because probation officers are arms of the judiciary during each of the court but they don't make traditional decisions similarly they act in a closet executive role on pretty probation officers act they are permitted to arrest probationers when they are observed are committ crime of violating probation but they also are given the authority to file notifications to the court when the defendant has violated probation the filing of this violation of probation did not divest the state's attorney of its  authority to prosecute cases similarly we're not arguing that the state's attorney doesn't have the concurrent authority to file the petition for violation of probation our position is that the probation officer also has the authority  music's exactly what the defendant is doing and puts the state's attorney and the defendant and the court on notice that the defendant has not followed the requirements of probation as  officer did not appear in court it was the state's attorney who prosecuted it went to a hearing conducted everything and in our fact this all occurred during the probationary period so the defendant did not object during the hearing to not object with the filing until were we got to this appeal there is no issue whether a probation officer can file the violation for petition for ration the violation of probation even if this court were to determine that the probation officer does not have the authority to file fence it would not be subject to attack because to find his forfeited never raise this claim and if you look at the record this was a full fledged process procedurally sound hearing where the defendant had noticed the defendant was represented by private coun holding that patient officers have the authority to file a violation of probation thank you thank you honor the three cases below in hammond are all technically moves however the public interest exception does apply it is a public issue this court's guidance will inform to elected officials public officials on how to interpret the intermediate sanction statute states attorney of livingston county and the circuit court in livingston county where this is again likely to recur as seen by are arising in three different cases that occurred over a year apart so this court should review it under the public interest exception summary it's also we're not asking that the state's attorney be able to direct the trial court or probation officers in how violations should be handled to use counsel's language all that we're asking for is that the state's attorney has the right the constitutional  revoke probation where they exercise their discretion and choose to do so this gives the state's attorney the opportunity to represent the people by presenting evidence calling witnesses and giving the trial court the full picture of what happened as to the nature of the violation that the probationer committed and so the state's attorney can demonstrate this the seriousness of the violation and argue that intermediate sanctions may not be appropriate in those circumstances of course the ultimate authority of what to do after that hearing rests in the sound discretion of the trial court it's of course an unfettered discretion but it is very broad discretion to decide what to do given the nature of the finally one of the major points that human made in oral argument today was that the state does not have a role in setting the terms and conditions of probation the ultimate decision on what those terms and conditions will be of course lies with the trial court but the general assembly's made clear that the state has a role and indeed it's codified in five dash six that's four see where it says the state has the burden of exercise discretion to decide what charges to proceed forward with in that probation revocation proceeding that is the core constitutional role of the state's attorney and it's one that the trial court an appellate court failed to respect in the three cases below therefore we would ask this or reverse the appellate court's judgment and trial court's judgment in this case despite the fact they are moot in order to provide guidance to a public officials in the future who faced similar circumstances continuation of the underlying criminal case it's a proceeding that should be handled from from the start by the prosecutor it would be income grew in to hold that the prosecutor must bear the burden of proof at a vial at a hearing to revoke probation yet grant somebody other than the prosecutor the authority to file the initiating document it would be in can grew and unlike any other analogous proceeding under illinois law under this scenario advocated by the state the prosecutor would act at the behest of the probation officers determination that role the haitian was necessary and based on what the officer alleged violation to be there would be no review of the alleged violations to see if they were supported by the to get a judgment against something else the appropriate remedy is to void the judgment and i would point out from a practical standpoint that this basically would we were we would be asking the court to probation in most circumstances we're not dealing with violent offenders and so this doesn't have sort of the same more problematic issue that would have if you were dealing with somebody that was on probation and just finally the point the practical ramifications of this issue in the illinois and elsewhere probation is used as a way of restoring a defendant to useful citizenship in the probation or is supposed to be the counsellor they're not supposed to be the adversary to the petition for revocation is what sets the ball in motion for the probation or to be sent back to prison and again i would point out that the violation at issue in this case illustrates from a practical standpoint why the process your should be a little only enti allowed to file a petition seeking revocation had the prosecutor reviewed the alleged violations in this case she may have chosen not to go forward for the failure to report on two days after state holidays she may have used her discretion and determined that the time and expense of holding a revocation hearing and sending the sale body to prison was not worth the state's limited resources and for these reasons appellant already urges the court to hold that probation officers do not have the legal authority to file a petition seeking revocation and reverse the order of the lower court revoking his probation thank you thank you check with professor berlin on the way out