People ex rel. Tucker v. Kotsos

• Decision Date: 05 October 1977
• Docket Number: No. 49059,49059
• Citation: 368 N.E.2d 903,11 Ill.Dec. 295,68 Ill.2d 88
• Parties: , 11 Ill.Dec. 295 The PEOPLE ex rel. Grover TUCKER et al., Appellees, v. Peter A. KOTSOS, Chairman, Illinois Parole and Pardon Board, Appellant. The PEOPLE of the State of Illinois, Appellee, v. Kevin PATTERSON, Appellant.
• Court: Illinois Supreme Court

Page 903

368 N.E.2d 903

68 Ill.2d 88, 11 Ill.Dec. 295

The PEOPLE ex rel. Grover TUCKER et al., Appellees, v. Peter A. KOTSOS, Chairman, Illinois Parole and Pardon Board,

Appellant.

The PEOPLE of the State of Illinois, Appellee, v. Kevin PATTERSON, Appellant.

No. 49059.

Supreme Court of Illinois.

Oct. 5, 1977.

William J. Scott, Atty. Gen., Springfield (Donald B. Mackay, Melbourne A. Noel, Jr., and James B. Zagel, Asst. Attys. Gen., of counsel), for appellant.

Edwin R. McCullough and Thomas J. Kelly, Chicago, for appellees Grover Tucker and Ernest Denson.

CLARK, Justice:

These consolidated cases summon our reexamination of the power of the circuit courts of Illinois to grant bail to persons incarcerated pending the outcome of parole revocation proceedings. That reexamination is prompted by the availability of such bail to persons incarcerated pending the outcome of probation revocation proceedings and by two intervening decisions of the United States Supreme Court (Morrissey v. Brewer (1972), 408 U.S. 471, 92 S.Ct. 2593, 33 L.Ed.2d 484; Gagnon v. Scarpelli (1973), 411 U.S. 778, 93 S.Ct. 1756, 36 L.Ed.2d 656) during the seven years since this court last addressed this issue in People ex rel. Johnson v. Pate (1970), 47 Ill.2d 172, 265 N.E.2d 144, cert. denied (1971), 402 U.S. 976, 91 S.Ct. 1679, 29 L.Ed.2d 141. We reaffirm the earlier decision that the circuit courts may not grant bail to persons detained on parole violation warrants.

Respondents in cause No. 49059, Grover Tucker and Ernest Denson, were arrested on parole violation warrants while on bail from felony charges in the circuit court of Cook County. Tucker was arrested on August 2, 1974. At a preliminary hearing six days later (August 8, 1974), relying upon the circuit court's finding of probable cause to believe that Tucker had committed a felony, the parole board found probable cause to believe that Tucker had violated the conditions of his parole. One week later at a "second" preliminary hearing, the board found probable cause to believe that Tucker had been in possession of a firearm. One year and two months later (October 1, 1975), the parole board revoked Tucker's parole. A week later he was convicted of attempted robbery and burglary.

Denson was arrested on September 3, 1974. He requested continuances of preliminary hearings scheduled for November 27, 1974, December 27, 1974, January 10, 1975, and January 17, 1975. On the latter date he made a request for bail which was denied. On March 1, 1976, he was sentenced to incarceration for armed robbery.

Both Tucker and Denson had petitioned the circuit court of Cook County on March 27, 1975, for a writ of mandamus compelling the parole board to withdraw its parole violation warrant, or alternatively, grant bail to Tucker and Denson. The circuit court denied the petition, and on September 8, 1976, the Appellate Court, First District (Fourth Division) affirmed, but stated that the circuit court itself could grant bail (42 Ill.App.3d 812, 1 Ill.Dec. 516, 356 N.E.2d 798). We granted the State's petition for leave to appeal.

Petitioner in cause No. 49235, Kevin Patterson, was admitted to parole on June 19, 1974. On March 20, 1975, he was arrested on a charge of armed robbery. On June 15, 1975, while incarcerated at Cook County jail, he was served with a parole violation warrant. On September 17, 1976, the parole board "continued" the matter of revocation of parole pending disposition of the underlying criminal charges. On December 7, 1976, Patterson's attorney wrote a letter to the parole board demanding a hearing. On December 10, 1976, the trial court set bail on the underlying criminal charges, but found that it lacked jurisdiction to set bail on the parole violation charges and granted Patterson leave to appeal. On December 20, 1976, the Appellate Court, First District (Third Division), affirmed in an unsigned order. On January 7, 1977, Patterson's attorney reiterated his demand to the parole board for a hearing. We granted Patterson's petition for leave to appeal. On March 29, 1977, the parole board again "continued" the matter of revocation pending disposition of the underlying criminal charges.

We first address the threshold question of whether the appellate court's decision in No. 49059 must be vacated as moot in light of Tucker's conviction and parole revocation, and Denson's conviction. We adhere to a rigid standard which requires that where no actual rights or interests of the parties remain, the Illinois courts should not address the issues raised by the litigation. (See, e. g., Wheeler v. Aetna Casualty & Surety Co. (1974), 57 Ill.2d 184, 311 N.E.2d 134; Dee-El Garage, Inc. v. Korzen (1972), 53 Ill.2d 1, 289 N.E.2d 431.) Revocation of Tucker's parole terminated any actual rights or interests he had in the availability of bail pending revocation. As to him, therefore, the appellate court's judgment in No. 49059 must be vacated as moot. The record before us does not indicate that Denson's parole has been revoked, a fact which the State surely would have brought to our attention. He presumably is otherwise eligible to be considered for bail pending appeal of his conviction. (See Ill.Rev.Stat.1975, ch. 38, par. 110-7(d); 58 Ill.2d R. 609(b).) Denson therefore continues to have an actual interest in the availability of bail on the parole violation warrants. Nevertheless, upon remand, the circuit court is instructed to dismiss the cause as moot if Denson's parole already has been revoked. In light of the foregoing holding as to Denson in cause No. 49059, upon remand of cause No. 49235, the circuit court also is instructed to dismiss the cause as moot if Patterson's parole already has been revoked.

The State also contends that the statement of the appellate court in No. 49059 regarding the circuit court's power to grant bail on parole violation warrants was an "advisory opinion." The State therefore would have us expunge that portion of the appellate court's opinion without consideration of its merits. We decline to do so. Unlike an advisory opinion, the appellate court's statement addressed the live, adverse and actual interests of parties before the court. The appellate court's statement as to the availability of a form of relief not specifically requested in the record before it (i. e., bail from the circuit court) was properly ancillary to its explanation of the unavailability of the specific form of relief which had been requested (i. e., mandamus to the parole board to grant bail or release). This court has used the same jurisprudential device. (See People ex rel. Johnson v. Pate (1970), 47 Ill.2d 172, 177, 265 N.E.2d 144.) Indeed, our constitution provides: "Every person shall find a certain remedy in the laws for all injuries and wrongs which he receives to his person, privacy, property or reputation." (Ill.Const.1970, art. I, sec. 12.) Given a plaintiff with a live interest in a remedy, it was not improper for the appellate court to seek to guide him toward what it considered to be the proper form of relief, thus upholding the "expression of a philosophy" of our constitution. (Sullivan v. Midlothian Park District (1972), 51 Ill.2d 274, 277, 281 N.E.2d 659.) Therefore, while we disagree on the merits of that part of the appellate court's opinion, we hold that it was not error for the appellate court to address this issue.

The appellate court in No. 49059 held, and the prisoners in both cases now claim, that denial of bail to accused parole violators, while permitting bail for accused probation violators (Ill.Rev.Stat.1975, ch. 38, par. 1005-6-4(b)), would deny parole violators the equal protection of the laws in violation of the fourteenth amendment to the United States Constitution and article I, section 2, of our constitution. Thus the appellate court reasoned that the parole provisions of the Unified Code of Corrections (Ill.Rev.Stat. 1975, ch. 38, par. 1003-3-1 et seq.) ought to be construed to permit such bail. (42 Ill.App.3d 812, 816, 1 Ill.Dec. 516, 356 N.E.2d 798.) A United States district court also reached that conclusion in ruling on a petition for habeas corpus. (United States ex rel. Dereczynski v. Longo (N.D.Ill.1973), 368 F.Supp. 682.) They rely in part upon a footnote from Gagnon v. Scarpelli (1973), 411 U.S. 778, 782 n.3, 93 S.Ct. 1756, 1759 n.3, 36 L.Ed.2d 656, 661-62 n.3, which noted agreement among the commentators that revocation of probation and parole are "constitutionally indistinguishable." The court used that "agreement" however, as authority for finding that similar procedural due process safeguards attach to each event. Analytically, this use of authority must be taken to mean that the court found that each class of prisoner had a functionally equivalent liberty interest in their particular form of conditional liberty, requiring equivalent procedural safeguards. Once these minimum due process procedural safeguards have been provided, however, nothing in the court's opinion even remotely suggests that granting an additional remedy, such as bail, to one group would require that it also be granted to the other group. While "the concepts of equal protection and due process * * * are not mutually exclusive," neither are the terms "always interchangeable." (Bolling v. Sharpe (1954), 347 U.S. 497, 499, 74 S.Ct. 693, 694, 98 L.Ed. 884, 886; cf. Buckley v. Valeo (1976), 424 U.S. 1, 96 S.Ct. 612, 46 L.Ed.2d 659 (due process under the fifth amendment includes "equal protection").) Thus, that individuals have the same minimum due process rights does not require that they be treated equally in every other way.

The prisoners claim that even if the Gagnon v. Scarpelli footnote does not so hold, the unavailability of bail to them (as persons incarcerated pending resolution of parole violation charges) denies them the equal protection of the laws, because persons incarcerated pending the resolution of probation violation charges may be admitted to...