In re M.W. , 232 Ill. 2d 408 ( 2009 )

Docket No. 104519.
IN THE
SUPREME COURT
OF
THE STATE OF ILLINOIS
In re M.W., a Minor (The People of the State of Illinois, Appellant,
v. M.W., Appellee).
Opinion filed January 23, 2009.
JUSTICE GARMAN delivered the judgment of the court, with
opinion.
Chief Justice Fitzgerald and Justices Kilbride, and Karmeier
concurred in the judgment and opinion.
Justice Freeman specially concurred, with opinion, joined by
Justices Thomas and Burke.
OPINION
Minor-respondent M.W. was adjudicated delinquent by the circuit
court of Cook County. The appellate court vacated the order, finding
that the circuit court lacked subject matter jurisdiction to make such
a finding because the minor’s father had not been served with a copy
of the amended delinquency petition, as required by section 5–530 of
the Juvenile Court Act of 1987 (Act) (705 ILCS 405/5–530 (West
2004)). No. 1–05–3127 (unpublished order under Supreme Court
Rule 23).
We granted the State’s petition for leave to appeal pursuant to
Supreme Court Rule 315 (210 Ill. 2d R. 315(a)) and, for the reasons
that follow, we reverse the judgment of the appellate court.
BACKGROUND
Shortly after midnight on a Saturday night in April 2003, a 14-
year-old boy was attacked by a group of young people while riding a
Chicago Transit Authority bus. His wallet and cell phone were stolen
and he was kicked, stomped, and punched by the members of the
group, several of whom fled when the bus stopped. The driver caught
the attention of a nearby police officer, who boarded the bus.
Respondent M.W. and Danielle were still on the bus. They were
identified by the victim and another passenger as participants in the
attack.
The State filed a petition for adjudication of wardship, charging
M.W. with robbery. The record shows that service on M.W.’s mother
was attempted, but was not successful. Both of her parents were
present at the detention hearing. At that hearing, each parent was
provided with a copy of the petition, pursuant to section 5–525 of the
Act (705 ILCS 405/5–525 (West 2004)). The case was then continued
to a later date. The father did not appear on the later date or at any of
the subsequent proceedings.
After several continuances, the matter was set for an adjudicatory
hearing. M.W., her mother, and her attorney were present when the
State sought and was given leave to amend the petition to add a count
of aggravated battery. A hearing on the amended petition immediately
followed. The State had not notified the minor’s father of its intent to
seek leave to amend the petition, nor did it ask for a continuance to
do so after leave was granted. M.W., however, did not object to the
lack of notice to her absent father.
At the hearing, the victim of the assault and the passenger who
witnessed it both testified. M.W. called the officer who took her into
custody and also testified on her own behalf. The circuit court found
M.W. delinquent on both of the alleged grounds and subsequently
sentenced her to five years’ probation with mandatory school
attendance and 20 hours of community service.
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On appeal, M.W. argued that the adjudication of delinquency was
void for lack of subject matter jurisdiction because her father had not
been served with written notice that the petition had been amended to
add the additional charge, in violation of section 5–530 of the Act
(705 ILCS 405/5–530 (West 2004)).
The appellate court agreed, relying on this court’s decision in In
re C.R.H., 163 Ill. 2d 263, 271 (1994) (State’s failure to give formal
written notice of delinquency proceedings to juvenile’s custodial
parent violated due process rights of both the juvenile and the parent
and rendered the circuit court’s orders void for lack of jurisdiction).
No. 1–05–3127 (unpublished order under Supreme Court Rule 23).
ANALYSIS
The issues presented in this appeal are: (1) whether the circuit
court lacked subject matter jurisdiction to adjudicate the delinquency
petition, (2) whether the circuit court lacked personal jurisdiction
over the minor’s father, and (3) whether it was error, requiring
reversal of the judgment, for the circuit court to adjudicate the matter
when the State failed to comply with the statutory requirement that
the father be given notice of the amendment to the petition.
Because the circuit court did not rule on the jurisdictional
questions and was not asked to rule on the notice issue, our review in
this matter is de novo.
In a general sense, “jurisdiction” refers to the “right or power to
interpret and apply the law,” or to a court’s “sphere of authority or
control.” Webster’s II New Collegiate Dictionary 601 (1999). In a
technical, legal sense, however, jurisdiction is composed of two
distinct elements: subject matter jurisdiction and personal
jurisdiction. If a court lacks either subject matter jurisdiction over the
matter or personal jurisdiction over the parties, any order entered in
the matter is void ab initio and, thus, may be attacked at any time.
People v. Davis, 156 Ill. 2d 149, 155 (1993). In contrast, an order
entered in error by a court having jurisdiction is merely voidable and
is, therefore, not subject to collateral attack. Davis, 156 Ill. 2d at 155-
56.
This case requires us to review the fundamental difference
between subject matter jurisdiction and personal jurisdiction. Subject
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matter jurisdiction refers to the court’s power “to hear and determine
cases of the general class to which the proceeding in question
belongs.” Belleville Toyota, Inc. v. Toyota Motor Sales U.S.A., Inc.,
199 Ill. 2d 325, 334 (2002). Personal jurisdiction is the court’s power
“to bring a person into its adjudicative process.” Black’s Law
Dictionary 870 (8th ed. 2004).
We answer these jurisdictional questions in the context of the
relevant provisions of the Act.
“§1–5. Rights of parties to proceedings.
(1) *** [T]he minor who is the subject of the proceeding
and his parents *** have the right to be present, to be heard,
to present evidence ***. ***
***
(3) Parties respondent are entitled to notice in compliance
with Sections *** 5–525 and 5–530 ***.” (Emphases added.)
705 ILCS 405/1–5(1), (3) (West 2004).
“§5–525. Service.
(1) Service by summons.
(a) Upon the commencement of a delinquency
prosecution, the clerk of the court shall issue a summons
with a copy of the petition attached. The summons shall
be directed to the minor’s parent, guardian or legal
custodian and to each person named as a respondent in the
petition, except that summons need not be directed (i) to
a minor respondent under 8 years of age for whom the
court appoints a guardian ad litem if the guardian ad litem
appears on behalf of the minor in any proceeding under
this Act, or (ii) to a parent who does not reside with the
minor, does not make regular child support payments to
the minor, to the minor’s other parent, or to the minor’s
legal guardian or custodian pursuant to a support order,
and has not communicated with the minor on a regular
basis.
***
(3) Once jurisdiction has been established over a party,
further service is not required and notice of any subsequent
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proceedings in that prosecution shall be made in accordance
with provisions of Section 5–530.
(4) The appearance of the minor’s parent, guardian or
legal custodian, or a person named as a respondent in a
petition, in any proceeding under this Act shall constitute a
waiver of service and submission to the jurisdiction of the
court. A copy of the petition shall be provided to the person
at the time of his or her appearance.” (Emphases added.) 705
ILCS 405/5–525(1), (3), (4) (West 2004).
“§5–530. Notice.
(1) A party presenting a supplemental or amended petition
or motion to the court shall provide the other parties with a
copy of any supplemental or amended petition, motion or
accompanying affidavit not yet served upon that party, and
shall file proof of that service, in accordance with subsections
(2), (3), and (4) of this Section. Written notice of the date,
time and place of the hearing, shall be provided to all parties
in accordance with local court rules.” (Emphases added.) 705
ILCS 405/5–530 (West 2004).
As a threshold matter, we decline the State’s invitation to engage
in a discussion of the status of M.W.’s parents–whether her father
was or was not a “custodial parent,” or whether her parents shared
some sort of unofficial “joint custody.” Section 5–525(1)(a)
unequivocally requires that a summons be directed to the minor’s
parents with only one exception. Summons need not be directed to “a
parent who does not reside with the minor, does not make regular
child support payments to the minor, to the minor’s other parent, or
to the minor’s legal guardian or custodian pursuant to a support order,
and has not communicated with the minor on a regular basis.”
(Emphasis added.) 705 ILCS 405/5–525(1)(a) (West 2004).
M.W.’s parents were never married and the question of her legal
custody has not been adjudicated. She lives with her mother. The
record does not reveal whether her father contributes to her support
or whether there is a support order in place. The testimony at the
dispositional hearing, however, reveals that M.W. has a close
relationship, including frequent visitation, with her father. The
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exception in section 5–525(1)(a), therefore, does not apply to her
father.
Subject Matter Jurisdiction
At oral argument, counsel for the minor conceded that the circuit
court had subject matter jurisdiction to adjudicate the matter before
it. We must, however, address the appellate court’s judgment on the
merits because lack of subject matter jurisdiction is not subject to
waiver and cannot be cured through the consent of the parties. People
v. Flowers, 208 Ill. 2d 291, 303 (2003). In addition, “this court has an
obligation to take notice of matters which go to the jurisdiction of the
circuit court” in each case before us. Belleville Toyota, 199 Ill. 2d at
334.
In reaching its decision, the appellate court relied on this court’s
decision in In re C.R.H., 163 Ill. 2d 263 (1994), which relied, in turn,
on People v. R.S., 104 Ill. 2d 1 (1984), and People v. R.D.S., 94 Ill. 2d
77 (1983). A review of the history of these cases is in order.
In R.D.S., the Department of Children and Family Services
(DCFS) had been named guardian of the minor-respondent in a
previous proceeding. The agency placed the minor in the temporary
custody of his mother while it sought an alternate placement. When
the State filed a petition charging the minor with theft, and then filed
subsequent petitions charging him with additional thefts, it named the
minor and his parents as respondents, but did not name the guardian,
DCFS. The minor and his mother were served with summons. Neither
the father, whose address was not listed on the petitions, nor the
guardian were served. R.D.S., 94 Ill. 2d at 79. This court framed the
issue as whether “the jurisdiction of the circuit court [is] properly
invoked when the State fails to name or notify a court-appointed
guardian of a minor in a proceeding brought against the guardian’s
charge.” R.D.S., 94 Ill. 2d at 78-79.
Relying on the “due process requirements of juvenile proceedings
as set out by the Supreme Court in In re Gault, [387 U.S. 1, 18 L. Ed.
2d 527, 87 S. Ct. 1428 (1967)],” and the applicable provisions of the
Act (Ill. Rev. Stat. 1979, ch. 37, pars. 704–1 through 704–4), this
court concluded that the minor’s presence in his mother’s home and
service upon the mother did not divest the guardian of legal custody
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and the resulting right to notice of the proceedings. R.D.S., 94 Ill. 2d
at 81-82. Because the State failed to name and notify the guardian,
this court held “the trial court’s jurisdiction was not properly
invoked” and its “subsequent orders were void.” R.D.S., 94 Ill. 2d at
83.
In reaching this conclusion, this court did not distinguish between
subject matter jurisdiction and personal jurisdiction. The statement
that “the trial court’s jurisdiction was not properly invoked” suggests
that this court was referring to subject matter jurisdiction. Yet the
error in R.D.S. was the failure to give notice to the guardian of the
child whose alleged delinquency was at issue. This could be read as
a reference to the circuit court’s lack of personal jurisdiction over a
necessary party.
Foreshadowing the issue in the present case, Justice Goldenhersh
specially concurred, agreeing with the majority that failure to serve
the guardian was reversible error, but rejecting the conclusion that the
trial court’s orders were void for lack of jurisdiction. R.D.S., 94 Ill. 2d
at 83 (Goldenhersh, J., specially concurring, joined by Underwood,
J.). Justice Goldenhersh clearly understood the majority to be
referring to subject matter jurisdiction. He pointed out that the cases
relied on for this conclusion predated the adoption of the Illinois
Constitution of 1970, which significantly broadened the grant of
jurisdiction to the circuit court. R.D.S., 94 Ill. 2d at 85 (Goldenhersh,
J., specially concurring, joined by Underwood, J.). Where previously
“special statutory jurisdiction” required “strict conformity with the
statute” that created the cause of action (R.D.S., 94 Ill. 2d at 84(Goldenhersh, J., specially concurring, joined by Underwood, J.),
citing Brown v. VanKeuren, 340 Ill. 118 (1930)), the new constitution
expanded the circuit court’s jurisdiction to all justiciable matters,
making no distinction between statutory and common law causes of
action (R.D.S., 94 Ill. 2d at 85 (Goldenhersh, J., specially concurring,
joined by Underwood, J.)).
This same difference of opinion was present in R.S., where the
State properly named the minor-respondent’s mother in the petition
and listed her address but did not serve her with notice. R.S., 104 Ill.
2d at 3. The parents were divorced. The minor had lived with his
mother for a time but was living with his father when the proceedings
commenced. The record did not reveal which parent had “legal
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custody” of the minor. He appeared in court with his father, his
attorney, and his probation officer. R.S., 104 Ill. 2d at 3-4. Again
citing Gault, this court concluded:
“[T]he legislature, through the notice provisions of the
Juvenile Court Act, has already determined that the mother
must be named and served with notice in order for the trial
court to conduct an adjudicatory proceeding. Noncompliance
with the notice provisions of the Act here allowed an
adjudication of wardship without notice to a named parent,
whose address was contained in the petition, and thus violated
the right of parent and child to due process.” R.S., 104 Ill. 2d
at 6.
Again, this court did not use the term “subject matter jurisdiction”
when it concluded that the State “did not properly invoke the trial
court’s jurisdiction,” thus rendering the order of adjudication and all
subsequent orders “void.” R.S., 104 Ill. 2d at 6.
And, again, Justice Goldenhersh specially concurred,
distinguishing between the error of failing to give statutorily required
notice and the lack of subject matter jurisdiction to enter an order of
adjudication. R.S., 104 Ill. 2d at 7 (Goldenhersh, J., specially
concurring, joined by Underwood and Simon, JJ.). In light of the
adoption of the Constitution of 1970, he described the concept that
the due process violation of lack of notice divests the circuit court of
subject matter jurisdiction as “an archaic vestige of an earlier body of
law” and suggested that it was “time that it be laid to rest.” R.S., 104
Ill. 2d at 7 (Goldenhersh, J., specially concurring, joined by
Underwood and Simon, JJ.).
This court’s decision in C.R.H. followed the precedent established
in R.D.S. and R.S. The State’s supplemental petition listed the names
of both of the minor’s parents and his mother’s address. His father’s
whereabouts were unknown. The mother was not served and no effort
was made to give notice to the father by publication. C.R.H., 163 Ill.
2d at 267. This court framed the issue as “whether a minor’s parents
have a constitutional right of due process to receive adequate notice
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of a juvenile proceeding.”1 C.R.H., 163 Ill. 2d at 268. Finding no
basis for excusing notice to the minor’s custodial parent, this court
concluded that the circuit court’s orders adjudicating C.R.H. a
delinquent and sentencing him to the Department of Corrections was
“void for lack of jurisdiction.” C.R.H., 163 Ill. 2d at 271-72.
The appellate court in the present case expressly agreed with the
minor’s assertion that the lack of compliance with the statutory notice
requirement “rendered the delinquency proceedings void for lack of
subject matter jurisdiction.” In reaching this conclusion, the appellate
court cited both C.R.H. and R.S. as authority.
However, in a more recent decision, this court signaled an
emerging recognition that the question of subject matter jurisdiction
under the Juvenile Court Act should be resolved in the manner
suggested by Justice Goldenhersh–by asking whether there was a
justiciable matter before the court.
In In re A.H., 195 Ill. 2d 408 (2001), we considered whether the
circuit court had jurisdiction to remove a minor that it had previously
determined to be abused, neglected, or dependent from the temporary
foster home. D.C.F.S., which had made the foster placement, objected
to the proceeding on the basis that the circuit court lacked jurisdiction
1
This court also considered whether section 1–15(b) of the Act (Ill. Rev.
Stat. 1991, ch. 37, par. 801–15(b), now 705 ILCS 405/1–15(b) (West
1994)) was unconstitutional. Section 1–15(b) provides that a “party
respondent” who has been properly served or who has appeared personally
“and who wishes to object to the court’s jurisdiction on the ground that
some necessary party either has not been served or has not been properly
served must raise that claim before the start of the adjudicatory hearing.”
We stated that “[i]n essence, section 1–15(b) mandates that a
constitutionally protected right, notice to parents, is automatically waived
when a minor fails to claim that notice to his or her parents was
inadequate.” C.R.H., 163 Ill. 2d at 272. We held that “section 1–15(b)
improperly infringes on a constitutional right without applying any of the
safeguards required for a valid waiver of a constitutional right.” C.R.H.,
163 Ill. 2d at 273. This provision is not at issue in the present case, but, as
is demonstrated below, a minor’s forfeiture of an objection to the adequacy
of service or lack of service on his or her parents triggers plain-error
review, which is an adequate safeguard of the due process rights of the
minor.
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to act. A.H., 195 Ill. 2d at 411-12. We first addressed “the source of
the juvenile court’s subject matter jurisdiction over children found
abused, neglected, or dependent,” which we found was conferred by
the legislature via the Juvenile Court Act. A.H., 195 Ill. 2d at 415-16.
We noted that the legislature “may create a justiciable matter by
creating rights or duties that have no counterpart in common law or
equity,” but that once such a matter is created, the circuit courts enjoy
“ ‘original jurisdiction of all justiciable matters.’ ” A.H., 195 Ill. 2d
at 415, quoting Ill. Const. 1970, art. VI, §9. We further acknowledged
that when the legislature creates a justiciable matter, the court has
only that authority conferred upon it by the statute and that the court
acts in excess of its authority by taking any action that exceeds its
statutory authority. A.H., 195 Ill. 2d at 416.
For example, in In re Jaime P., 223 Ill. 2d 526 (2006), the
juvenile court’s subject matter jurisdiction was properly invoked
when the State filed a petition to adjudicate 17-year-old Jaime P.
delinquent based on her admission of guilt to the offense of
aggravated arson. The court sentenced her to five years’ probation.
Jaime P., 223 Ill. 2d at 528. Absent a designation of the case as an
“extended jurisdiction juvenile prosecution” under section 5–810 of
the Act (705 ILCS 405/5–810 (West 1998)), and providing the
juvenile with the resulting procedural safeguards thereby guaranteed,
the juvenile court’s jurisdiction terminates upon the juvenile’s
reaching the age of 21. Jaime P., 223 Ill. 2d at 538. The court,
therefore, exceeded its statutory authority by denying Jaime P.’s
petition to terminate probation when she reached her twenty-first
birthday. In this case, the circuit court’s authority was limited by the
legislature’s definition of the justiciable matter it created and “the
juvenile court simply possessed no jurisdiction under the Act to
continue respondent’s probation beyond the end of the court’s
jurisdiction.” Jaime P., 223 Ill. 2d at 540.
However, not every error made by the trial court or every failure
to strictly comply with the provisions of the statute creating the
justiciable matter is an act in excess of statutory authority that renders
the court’s judgment void. Thus, we held in A.H. that the error of
failing to comply with the statutory requirement that the foster parent
be given notice “at all stages of any hearing or proceeding under this
Act” (705 ILCS 405/1–5(2)(a) (West 1998)) was harmless error that
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“did not rise to the level of a due process violation.” A.H., 195 Ill. 2d
at 424. The circuit court’s subject matter jurisdiction was invoked
when the State filed the petition for adjudication of wardship pursuant
to section 2–13 of the Act (705 ILCS 405/2–13 (West 1998)) and was
unaffected by the act of conducting the hearing absent statutorily
required notice to the foster parent. Once the court has subject matter
jurisdiction over such a matter, the “jurisdiction of the juvenile court
over the minor is not limited to the entry of the temporary custody
order.” Rather, “the juvenile court retains jurisdiction over the
temporary custody, both physical and legal, of the minor and that
jurisdiction extends to the minor’s temporary foster placement.” A.H.,
195 Ill. 2d at 419. See also In re Estate of Steinfeld, 158 Ill. 2d 1(1994) (where probate court had subject matter jurisdiction and
personal jurisdiction over the parties, guardianship order was not void
for failure of probate court to follow certain statutory requirements).
Our discussion in A.H. reveals our recognition that the question
of subject matter jurisdiction is a matter of the justiciability of the
class of cases to which the instant case belongs. Error or irregularity
in the proceeding, while it may require reversal of the court’s
judgment on appeal, does not oust subject matter jurisdiction once it
is acquired. See Davis, 156 Ill. 2d at 157 (a court does not lose
jurisdiction because it makes a mistake of law or fact or both).
Our subsequent decision in Belleville Toyota provides all of the
authority needed to resolve the question of subject matter jurisdiction.
In that case, the issue was whether a plaintiff bringing a claim under
the Motor Vehicle Franchise Act must, as a prerequisite to invoking
the circuit court’s subject matter jurisdiction, demonstrate that the
claim is not barred by the limitations period contained in the statute.
Belleville Toyota, 199 Ill. 2d at 333. In effect, the defendant argued
that because the plaintiff’s cause of action was purely statutory, the
court’s jurisdiction was limited by the limitations provision of the
statute and that any variance from that provision did not result in
mere error, but divested the court of jurisdiction.
Regarding subject matter jurisdiction, we stated that “[w]ith the
exception of the circuit court’s power to review administrative action,
which is conferred by statute, a circuit court’s subject matter
jurisdiction is conferred entirely by our state constitution.” Belleville
Toyota, 199 Ill. 2d at 334, citing Ill. Const. 1970, art. VI, §9 (“Circuit
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Courts shall have original jurisdiction of all justiciable matters except
when the Supreme Court has original and exclusive jurisdiction
relating to redistricting of the General Assembly and to the ability of
the Governor to serve or resume office. Circuit Courts shall have such
power to review administrative action as provided by law”). Thus,
subject matter jurisdiction exists as a matter of law if the matter
brought before the court by the plaintiff or petitioner is “justiciable.”
Generally, a “justiciable matter” is “a controversy appropriate for
review by the court, in that it is definite and concrete, as opposed to
hypothetical or moot, touching upon the legal relations of parties
having adverse legal interests.” Belleville Toyota, 199 Ill. 2d at 335.
A matter that would not have been justiciable at common law can
become a justiciable matter by act of the legislature. Thus, this court
concluded that the legislature’s adoption of the Motor Vehicle
Franchise Act in 1979 “created a new justiciable matter.” Belleville
Toyota, 199 Ill. 2d at 335.
Echoing Justice Goldenhersh’s special concurrences in R.D.S. and
R.S., we noted that “some case law, however, suggests that the
legislature, in creating a justiciable matter, may impose certain
unwaivable conditions precedent that must be met before the circuit
court may exercise subject matter jurisdiction.” We rejected this
premise as “contrary to article VI” of the Illinois Constitution.
Belleville Toyota, 199 Ill. 2d at 335-36. Examining the 1964
amendments to the judicial article of the 1870 constitution and the
subsequent adoption of the Constitution of 1970, we concluded that
“the legislature’s power to define the circuit court’s jurisdiction” has
been “expressly limited to the area of administrative review.”
Belleville Toyota, 199 Ill. 2d at 337. “In light of these changes, the
precedential value of case law which examines a court’s jurisdiction
under the pre-1964 judicial system is necessarily limited to the
constitutional context in which those cases arose.” Belleville Toyota,
199 Ill. 2d at 337.
“Nevertheless,” we noted, “pre-1964 rules of law continue to be
cited by Illinois courts, without qualification, creating confusion and
imprecision in the case law.” Belleville Toyota, 199 Ill. 2d at 338.
R.D.S., R.S., and C.R.H. are just such cases.
In Belleville Toyota, the four-year statute of limitations contained
in the statute that created the justiciable matter was not “more than an
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ordinary statute of limitations” that created a prerequisite to the
circuit court’s exercise of jurisdiction. Belleville Toyota, 199 Ill. 2d
at 338. It was, instead, an affirmative defense that the defendant
might plead as a bar to liability. See Belleville Toyota, 199 Ill. 2d at
344-45. See also 735 ILCS 5/2–619(a)(5) (West 2006) (allowing a
defendant to file a motion for involuntary dismissal on grounds that
“the action was not commenced within the time limited by law”). The
circuit court, therefore, had subject matter jurisdiction “to hear and
determine plaintiff’s claim because it was among the general class of
cases–those presenting a claim under the Act, a justiciable matter–to
which the court’s constitutionally granted original jurisdiction
extends.” Belleville Toyota, 199 Ill. 2d at 340.
In the present case, the appellate court incorrectly concluded that
compliance with the notice requirements of the Act was an
unwaivable condition precedent to the circuit court’s exercise of
subject matter jurisdiction over the justiciable matter before it. The
appellate court relied on C.R.H., a case that was decided seven years
prior to A.H. and eight years prior to Belleville Toyota and that was
implicitly overruled by those decisions. To the extent that C.R.H., 163
Ill. 2d 263, R.S., 104 Ill. 2d 1, and R.D.S., 94 Ill. 2d 77, conflict with
the rule enunciated in Belleville Toyota, they are hereby expressly
overruled.
Personal Jurisdiction
Unlike subject matter jurisdiction, which is invoked by the filing
of a petition or complaint alleging the existence of a justiciable
matter, personal jurisdiction is “derived from the actions of the person
sought to be bound.” Meldoc Properties v. Prezell, 158 Ill. App. 3d
212, 216 (1987).
Thus, a petitioner or plaintiff submits to the jurisdiction of the
court by filing a petition or complaint, “thereby seeking to be bound
to the court’s resolution” thereof. Owens v. Snyder, 349 Ill. App. 3d
35, 40 (2004). A respondent or defendant may consent to personal
jurisdiction by his appearance, or he may have personal jurisdiction
imposed upon him by effective service of summons. Meldoc
Properties, 158 Ill. App. 3d at 216.
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Once the circuit court acquires personal jurisdiction over a party,
it has the power to impose personal obligations on him (Meldoc
Properties, 158 Ill. App. 3d at 216) and that jurisdiction continues
until all issues of fact and law in the case are determined (Whitley v.
Lutheran Hospital, 73 Ill. App. 3d 763, 766 (1979)). Lack of personal
jurisdiction, therefore, does not deprive the court of jurisdiction over
the subject matter of the dispute; it merely deprives the court of the
ability to impose judgment on parties over whom it lacks personal
jurisdiction.
Recognizing that the circuit court did indeed have subject matter
jurisdiction over the justiciable matter brought before it by the State’s
petition, M.W. concentrates her argument to this court on the question
of the circuit court’s personal jurisdiction over her father. However,
a party may “object to personal jurisdiction or improper service of
process only on behalf of himself or herself, since the objection may
be waived.” Fanslow v. Northern Trust Co., 299 Ill. App. 3d 21, 29
(1998) (applying Pennsylvania law). Although we have found no
Illinois cases expressly stating this principle, M.W. has not cited any
authority that would support her standing to object to the circuit
court’s exercise of personal jurisdiction over her father. Her due
process arguments, discussed below, do not implicate personal
jurisdiction. We, nevertheless, address the question of personal
jurisdiction, which is a matter of statutory interpretation, the answer
to which is readily ascertained from the plain language of sections
5–525 and 5–530 of the Act.
With the sole exception mentioned above, the parent of a minor
who is the subject of a proceeding under the Act is “entitled to
notice” in compliance with sections 5–525 and 5–530 of the Act. 705
ILCS 405/1–5(3) (West 2004). The clerk of the court “shall” issue a
summons directed to the minor’s parent with a copy of the petition
attached “[u]pon the commencement of a delinquency prosecution.”
705 ILCS 405/5–525 (West 2004).
Summons may be served upon the minor’s parents personally, by
certified mail, or by publication. 705 ILCS 405/5–525(2) (West
2004). However, even absent formal service, the “appearance of the
minor’s parent *** shall constitute a waiver of service and
submission to the jurisdiction of the court.” 705 ILCS 405/5–525(4)
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(West 2004). At that time, a “copy of the petition shall be provided
to the person.” 705 ILCS 405/5–525(4) (West 2004).
Thus, when M.W.’s parents appeared at the detention hearing and
were given a copies of the petition, personal jurisdiction over them
was established.
The Act anticipates that the State may find it necessary to seek
leave to supplement or amend a petition. Section 5–530 provides that
“[a] party presenting a supplemental or amended petition *** shall
provide the other parties with a copy *** and shall file proof of that
service.” 705 ILCS 405/5–530(1) (West 2004).
Although the general rule is that personal jurisdiction, once
established, continues until all matters in the case are resolved, the
minor argues that the circuit court’s personal jurisdiction over her
father was extinguished when the State failed to comply with the
notice requirement of section 5–530 after amending the petition.
Reading sections 5–525 and 5–530 together, however, it is clear
that this failure did not divest the circuit court of personal jurisdiction
over her father. Section 5–525(3) states that “[o]nce jurisdiction has
been established over a party, further service is not required.” Service
of summons is one means of establishing personal jurisdiction over
a party. Meldoc Properties, 158 Ill. App. 3d at 216. Once personal
jurisdiction is thus established, “further service” would be redundant.
Personal jurisdiction can also be established by the party’s appearance
“in any proceeding under this Act,” which functions as a waiver of
formal service, so long as a copy of the petition is provided to the
person in lieu of formal service. 705 ILCS 405/5–525(4) (West 2004).
Thus, in a proceeding under the Juvenile Court Act, once personal
jurisdiction over a parent is obtained, that jurisdiction continues until
the matter is resolved. Although the parent is entitled to “notice of
any subsequent proceedings” (emphasis added) and of any
supplement to or amendment of the petition in accordance with
section 5–530, further service is not required. Failure to give such
notice does not affect the personal jurisdiction already established.
Rather, that failure is an error that, if timely raised, may require a
remedy.
-15-
We conclude, therefore, that the circuit court acquired personal
jurisdiction over M.W.’s father when he appeared at the detention
hearing and was given a copy of the State’s original petition.
Failure to Give Notice to the Minor’s Father
M.W.’s final argument is that even if the circuit court had subject
matter jurisdiction over the matter and personal jurisdiction over all
parties, the State’s failure to give notice to her father of the amended
petition violated her due process rights and the due process rights of
her father. She relies on In re Gault, 387 U.S. 1, 33-34, 18 L. Ed. 2d
527, 549-50, 87 S. Ct. 1428, 1446-67 (1967) (“Due process of law
requires notice of the sort we have described–that is, notice which
would be deemed constitutionally adequate in a civil or criminal
proceeding. It does not allow a hearing to be held in which a youth’s
freedom and his parents’ right to his custody are at stake without
giving them timely notice, in advance of the hearing, of the specific
issues that they must meet”) and C.R.H., 163 Ill. 2d at 271 (due
process rights of both the minor-respondent and his mother were
violated by failure to give proper notice to the mother).
The appellate court agreed, finding that the State’s failure to
comply with the statutory notice requirements violated both the
parent’s and the child’s due process rights.
We note that the father has not claimed error. He has not argued
that lack of notice of the amended petition prejudiced his parental
rights in any way. We, therefore, reject the minor’s argument that
reversal is required because her father’s due process rights were
violated when the circuit court proceeded to hearing on the amended
petition despite lack of notice to him. His situation is the same as that
of any litigant over whom personal jurisdiction has been established
and who fails to appear thereafter.
At oral argument, M.W. elaborated upon her claim that her own
due process rights were violated by the State’s failure to give notice
to her father of the additional charge against her. She suggested that
he might have been motivated to attend the later proceedings if he had
been aware of the seriousness of the charges against her and that she
might have benefitted from his advice and counsel. She did not,
however, raise this issue before the circuit court.
-16-
In a criminal case, a defendant forfeits review of a claimed error
if she does not object at trial and does not raise the issue in a posttrial
motion. People v. Piatkowski, 225 Ill. 2d 551, 564 (2007). “This
principle encourages a defendant to raise issues before the trial court,
thereby allowing the court to correct its errors *** and consequently
precluding a defendant from obtaining a reversal through inaction.”
Piatkowski, 225 Ill. 2d at 564. This same forfeiture principle applies
in proceedings under the Juvenile Court Act (In re J.P.J., 109 Ill. 2d
129, 137 (1985)), although no postadjudication motion is required in
such cases (In re W.C., 167 Ill. 2d 307, 327 (1995)).
It should have been evident to all present when the State
presented the amended petition, the court granted leave to amend, and
the matter proceeded to hearing that notice of the amendment was not
given to M.W.’s father. By failing to object, M.W. has forfeited
consideration of this error on appeal unless she can demonstrate plain
error.
Under Supreme Court Rule 615(a), “[a]ny error, defect,
irregularity, or variance which does not affect substantial rights shall
be disregarded. Plain errors or defects affecting substantial rights may
be noticed although they were not brought to the attention of the trial
court.” 134 Ill. 2d R. 615(a). This rule also applies in proceedings
under the Juvenile Court Act. See, e.g., In re Ricardo A., 356 Ill. App.
3d 980, 994 (2005) (applying plain-error rule when minor respondent
did not raise issue of lack of notice to his noncustodial father in the
trial court).
We established in Piatkowski that the first step in plain-error
review is to determine whether an error occurred. In addition, an
unpreserved error will not be “noticed” under Rule 615(a) unless it is
“clear or obvious.” Piatkowski, 225 Ill. 2d at 565 n.2, citing United
States v. Olano, 507 U.S. 725, 734, 123 L. Ed. 2d 508, 519, 113 S.
Ct. 1770, 1777 (1993) (the term “plain” as used in the plain-error rule
is synonymous with “clear”or “obvious”; error is not plain if the law
was “unclear at the time of trial but becomes clear on appeal because
the applicable law has been clarified”).
If such an error is found, a reviewing court will grant relief in
either of two circumstances: (1) if “the evidence is so closely
balanced that the error alone threatened to tip the scales of justice
against the defendant,” or (2) if the error is “so serious that it affected
-17-
the fairness of the defendant’s trial and challenged the integrity of the
judicial process, regardless of the closeness of the evidence.”
Piatkowski, 225 Ill. 2d at 565.
The defendant has the burden of persuasion on both the threshold
question of plain error and the question whether she is entitled to
relief as a result of the unpreserved error. Piatkowski, 225 Ill. 2d at
565, quoting People v. Herron, 215 Ill. 2d 167, 186-87 (2005).
In the present case, the State’s failure to give notice of the
amendment to the father was error. A party’s appearance in a
proceeding under the Act constitutes consent to personal jurisdiction
and waiver of formal service of “the petition” that is pending at that
time. 705 ILCS 405/5–525(4) (West 2004). It does not constitute
waiver of notice of supplemental or amended petitions under section
5–530. Indeed, section 5–525(3) specifically provides for subsequent
notice under section 5–530 to parties over whom “jurisdiction has
been established.” 705 ILCS 405/5–525(3) (West 2004). Based on the
plain language of the applicable sections of the Act, we conclude that
the error was also clear and obvious. The question for this court is
what remedy, if any, is required.
Having demonstrated a clear and obvious error, M.W. is entitled
to a new hearing if the evidence against her was closely balanced.
The victim testified that on the night he was attacked, he boarded
the bus with some friends and they sat near the back. His friends later
left the bus so he was sitting alone when M.W. and “four or five”
other persons boarded. They also sat near the back of the bus. He did
not know M.W. or any of the people with her. One of the girls in the
group asked to borrow his cell phone to make a call. He gave her the
phone to use, but she did not return it. Another girl asked him for a
dollar. He stood up and took out his wallet to give it to her. One of
the boys then “jumped up” and tried to grab the wallet out of his
hands. M.W. was still seated when the two boys began struggling
over the wallet. The victim testified that the boy pushed him “on the
ground and the next thing, you know, all these kids had started
stomping me and punching me.” When asked if he saw anyone in
court that day who was involved in the punching and kicking, he
pointed to M.W.
-18-
On cross-examination, counsel demonstrated that the victim was
confused about whether his friends left the bus before or after M.W.
and the others boarded. He admitted that he could not recall what the
boy who took his wallet was wearing. When asked if he covered his
head when the group “rushed at” him, he said that he had and he
demonstrated his position by putting his hands over his head, tucking
his chin to his shoulder, and pulling his head down towards his chest
and away from the direction of the blows.
The passenger witness was not one of the several young people on
the bus. She was an adult, who sat directly behind the driver. She
testified that she observed M.W. and the others board the bus as a
group and take seats near the back. She also testified that she saw
M.W. among the group that was punching and kicking the victim
after he was pushed to the floor of the bus. She saw the victim “trying
to hide his face” and holding on to a chain that the attackers were
trying to “snatch *** off his neck.”
On cross-examination, the passenger explained that she was
“always concerned for her safety” when riding the bus late at night
because there had been a “prior incident” on the bus. For this reason,
she was “looking around” and paying attention to what was
happening. She notified the driver that something was going on, but
by that time the driver had already stopped the bus. Police officers
then boarded the bus and she gave a statement.
M.W. called the arresting officer as a witness in her defense. He
testified that he was driving his squad car when he saw “a boy and a
couple of girls” run off a bus. The driver of the bus got his attention
and signaled to him to board. He and his partner boarded the bus.
They spoke to the driver, the adult passenger, the victim, M.W., and
the other young people still on the bus. The victim did not initially
identify his attackers, except to say that there were “several” of them.
On cross-examination, the officer acknowledged that his written
report states that the victim said he was attacked by five persons who
struck him in the face and body with their hands and feet. The report
identified the attackers as offenders one through five, with M.W.
listed as “offender number three.”
On redirect, he stated that when he placed M.W. under arrest, she
did not have any of the victim’s property in her possession.
-19-
M.W. testified on her own behalf that she got on the bus at the
same time as Danielle, whom she knew, but who was not a friend,
and four other persons whom she did not know. She sat near the back
of the bus. Danielle approached the victim and complimented him on
his chain. One of the boys asked the victim his name. Danielle then
picked up the chain that was around the victim’s neck and asked him
if he had any money. M.W. said that she saw the victim pull a dollar
out of his wallet and give it to Danielle. Another girl approached him
and asked to use his cell phone. She did not know this girl but had
seen her at the skating rink. The boy then hit the victim and “it started
a big incident.” The boy took the victim’s wallet and cell phone and,
while they were fighting, Danielle tried to take his chain. She saw
three persons fighting with the victim–the boy, Danielle, and the girl
who had asked to use the cell phone. Then “they pulled the red bar
and got off the bus.” She saw three dollar bills on the floor of the bus,
picked them up, and attempted to return them to the victim. He threw
it back on the floor. At that point the police boarded the bus. She
denied ever hitting or kicking the victim, encouraging anyone to hit
him, or taking anything from him.
On cross-examination, M.W. again stated that she was riding the
bus by herself, that she had merely boarded at the same time as the
other youths. She acknowledged that when the police boarded, she
and Danielle were still on the bus.
In Piatkowski, as in the present case, the “only evidence linking
defendant to the crime was the testimony of the two eyewitnesses.”
Piatkowski, 225 Ill. 2d at 567. We concluded that the defendant in
that case was entitled to a new trial based on our application of the
factors identified by the United States Supreme Court in Neil v.
Biggers, 409 U.S. 188, 199-200, 34 L. Ed. 2d 401, 411, 93 S. Ct. 375,
382 (1972), for assessing the reliability of identification testimony.
These factors include: (1) the opportunity of the witness to view the
criminal at the time of the crime, (2) the witness’s degree of attention,
(3) the accuracy of the witness’s prior description of the criminal, (4)
the level of certainty demonstrated by the witness at the
confrontation, and (5) the length of time between the crime and the
confrontation. Although the issue arises in a different context in the
present case, these factors provide a useful framework for assessing
whether the evidence was closely balanced.
-20-
The passenger witness viewed the crime in its entirety and
testified that she was paying close attention because she was
concerned for her own safety. M.W. was on the bus when the officer
boarded and the witness identified her as one of the attackers while
all were still present at the crime scene. Thus, there was no
measurable delay between the witness’s observing the crime being
committed and her pointing out M.W. to the officer. Even if we were
to conclude that the victim, due to fear or the stress of the situation,
may not have been able to identify each of his assailants with absolute
certainty, the testimony of the passenger alone is sufficient to weigh
the Neil factors in favor of the State. As we have noted in the past, a
“positive identification by a single eyewitness who had ample
opportunity to observe is sufficient to support a conviction.”
Piatkowski, 225 Ill. 2d at 566, citing People v. Vriner, 74 Ill. 2d 329,
343 (1978).
We conclude that the evidence that M.W. participated in the
aggravated battery of the victim was not so closely balanced that she
is entitled to a new hearing on that charge on the basis of plain error.
We must also determine whether the evidence of M.W.’s
accountability for the robberies committed by the other youths is
closely balanced. She argues that the State’s evidence demonstrates
that the victim voluntarily gave his cell phone to one of the girls and
that an “unknown boy” forcibly took the victim’s wallet. She denies
taking part in the battery and argues that, at worst, she aided the
escape of an unknown assailant after he robbed the victim. Therefore,
she argues, she cannot be held accountable for the actions of the
others because she did nothing to aid or abet those who committed
the robbery either “before or during” the crime.
“A person is legally accountable for the conduct of
another when:
***
(c) Either before or during the commission of an offense,
and with the intent to promote or facilitate such commission,
he solicits, aids, abets, agrees or attempts to aid, such other
person in the planning or commission of the offense.” 720
ILCS 5/5–2 (West 2004).
-21-
The State responds that the intent to promote or facilitate the
commission of a crime may be shown by evidence that the defendant
either shared the criminal intent of the principal or that they shared a
common criminal design. People v. Williams, 193 Ill. 2d 306, 338
(2000). The State further notes that such intent may be inferred from
the circumstances of the crime, citing In re W.C., where this court
said:
“To prove that the defendant possessed the intent to
promote or facilitate the crime, the State may present
evidence which establishes beyond a reasonable doubt that the
defendant either shared the criminal intent of the principal or
that there was a common criminal design. [Citation.] The
common-design rule provides that where two or more persons
engage in a common criminal design or agreement, any acts
in the furtherance of that common design committed by one
party are considered to be the acts of all parties to the design
or agreement and all are equally responsible for the
consequences of the further acts. [Citation.]
Proof of the common purpose or design need not be
supported by words of agreement, but may be drawn from the
circumstances surrounding the commission of an act by a
group. Furthermore, the fact that the criminal acts were not
committed pursuant to a preconceived plan is not a defense if
the evidence indicates involvement on the part of the accused
in the spontaneous acts of the group. [Citation.] Evidence that
a defendant voluntarily attached himself to a group bent on
illegal acts with knowledge of its design supports an inference
that he shared the common purpose and will sustain his
conviction for an offense committed by another. ***
However, mere presence at the scene, even with knowledge
that the crime is being committed, is insufficient to establish
accountability for the actions of another.” In re W.C., 167 Ill.
2d at 337-38.
In the present case, the evidence shows that M.W. joined the
attack on the victim while the crime of robbery was still on-going.
The victim was struggling to hold on to or to recover his wallet while
he was being kicked and stomped by as many as five assailants. Both
the passenger witness and M.W. stated that while the battery was
-22-
taking place, Danielle was trying to “snatch” the chain from the
victim’s neck. The evidence, therefore, shows that even if the acts of
the group were spontaneous, M.W. participated in those acts and
demonstrated her intent to facilitate the robbery. The circuit court
found M.W. accountable for the robbery on the basis of a common
plan or design.
Nevertheless, M.W. argues that the circuit court “based its
credibility determinations on flawed reasoning and failed to recall
inconsistencies” in the victim’s testimony. A careful review of the
transcript reveals confusion about the sequence of events. Did the
victim’s companions leave the bus before or after M.W. and the
others boarded? Did the victim lend his cell phone before or after he
was asked for money? Such minor discrepancies in the evidence,
whether between two witnesses or within the testimony of one
witness, are not unusual. Indeed, a review of the transcript reveals
that much of the confusion about the sequence of events is a result of
the manner in which the questions were asked by the two attorneys.
M.W. objects most strenuously to the circuit court’s conclusion
that it was “inherently improbable” that she boarded the bus with
Danielle and several other young people but was not part of their
group. However, her subsequent conduct of participating in the attack
on the victim does support a finding that she was part of the group, or
at least that she chose to be a part of the group at that moment.
The circuit court’s finding that M.W. was accountable for the
robbery required an assessment of the credibility of the witnesses and
an inference of her mental state based on her actions. This may render
the balance of evidence on the robbery charge a slightly closer call
than the balance of evidence on the aggravated battery charge.
Nevertheless, the evidence of M.W.’s accountability for the robbery
was not so closely balanced as to require reversal on the basis of plain
error.
In reaching this conclusion, we note that the type of error that
occurred here–lack of notice of an amended petition to one of the
minor’s parents–did not affect the evidence presented at the hearing
or the manner in which a jury was instructed to evaluate that
evidence. In Piatkowski, in contrast, the error consisted of an
incorrect jury instruction on evaluating eyewitness testimony. The
evidence was closely balanced in that case because that particular
-23-
“ ‘error alone severely threatened to tip the scales of justice.’ ”
(Emphasis added.) Piatkowski, 225 Ill. 2d at 565, quoting Herron,
215 Ill. 2d at 187. In the present case, however, the error did not
affect the balance of the evidence.
Although M.W. cannot obtain a new hearing on the basis that the
evidence was closely balanced, she can nevertheless prevail under the
plain-error rule if the error was “so serious that it affected the fairness
of the defendant’s trial and challenged the integrity of the judicial
process, regardless of the closeness of the evidence.” Piatkowski, 225
Ill. 2d at 565. She has not framed her argument in these terms, but she
has argued that the failure to give notice to her father of the amended
petition was a serious error that may have affected the outcome of the
proceedings.
M.W. argues that if her father had known of the addition of the
aggravated battery charge, he might have attended the adjudicatory
hearing and that she might have benefitted from his advice and his
presence. At oral argument, counsel for M.W. suggested that her
father, if he had been present, might have encouraged her to take
responsibility for the lesser offense of aggravated battery while
denying responsibility for the greater offense of robbery, leading to
a lesser sentence.
However, she does not suggest how the fairness of the proceeding
was undermined by his absence. Her mother was present at the
hearing and she was represented by counsel. Either of these advisors
could have counseled her in the manner suggested by appellate
counsel. The one significant decision that she seems to have made,
presumably with the advice of these adults, is to testify to her own
version of the events on the bus. Even if her father had been present
and had persuaded her not to testify, the outcome would not have
been different, because there would have been no rebuttal whatsoever
to the testimony of the State’s witnesses.
We fail to see how the error of failing to give notice of the
amended petition to her father, when he had been given notice at the
commencement of the proceedings pursuant to section 5–525(4) of
the Act and when he had actual notice of the more serious of the two
charges, affected the fairness of M.W.’s adjudication or undermined
the integrity of the process. Indeed, if a failure of parental notice
affects the fairness of the proceeding so seriously that it
-24-
fundamentally undermines the integrity of proceedings under the Act,
this court could not have affirmed the adjudications of delinquency
in J.P.J., where we concluded that in each of the three consolidated
cases:
“[T]here was no showing of a lack of diligence by the
State in failing to locate the noncustodial parent at the
commencement of proceedings. Each minor and his mother
had notice of the proceedings, and they appeared and had the
assistance of counsel; in none of the cases was an order
entered against the minor’s father. At no time, in any of the
cases, did counsel, the minor, or his mother question the
State’s diligence in ascertaining the whereabouts of the father,
though the failure to provide notice to him was evident. Yet
counsel, the minor, and his mother are the persons most likely
to know the necessary information, and that is especially true
when the relationship between the minor and the noncustodial
parent is significant or substantial. Accordingly, the State’s
diligence in identifying or locating a parent whose identity or
address was not known to the State at the commencement of
the proceedings may not be attacked on appeal if the question
was not also raised in the circuit court, where a record on the
matter could have been made in the first instance. To hold
otherwise would permit the minor to keep the issue in reserve
and, if an appeal proves necessary, to raise it then, when the
record is barren.” J.P.J., 109 Ill. 2d at 139-40.
We conclude, therefore, that M.W. is not entitled to a new
adjudicatory hearing on the basis of plain error.
The Minor’s Alternative Argument
M.W. argued before the appellate court that the evidence was
insufficient to find her guilty of robbery. She renews this argument
before this court, noting that of the two crimes charged the robbery
carries the longer sentence and that if the adjudication on this basis
were reversed she would be entitled to a new sentencing hearing.
We concluded, above, that the evidence of M.W.’s participation
in the aggravated battery of the victim and her accountability for the
robbery was not closely balanced.
-25-
“Whether the evidence is closely balanced is, of course, a separate
question from whether the evidence is sufficient to sustain a
conviction on review against a reasonable doubt challenge. The
relevant inquiry for reasonable doubt purposes is whether, after
viewing the evidence in the light most favorable to the prosecution,
any rational trier of fact could have found the essential elements of
the crime beyond a reasonable doubt.” Piatkowski, 225 Ill. 2d at 566,
citing People v. Pollock, 202 Ill. 2d 189, 217 (2002). The “closely
balanced” standard errs on the side of fairness and grants a new trial
even if the evidence was otherwise sufficient to sustain a conviction.
Herron, 215 Ill. 2d at 193.
Therefore, because we concluded above that the evidence
supporting the robbery charge is not closely balanced, it is, by
definition, sufficient to sustain a conviction. The circuit court’s order
adjudicating M.W. delinquent on the basis that she committed the
crime of robbery must be affirmed.
CONCLUSION
The order entered by the circuit court was not void for lack of
subject matter jurisdiction or personal jurisdiction over the minor’s
father. The State’s failure to comply with the statutory requirement of
notice to the minor’s father upon amendment of the petition does not
constitute plain error. We, therefore, reverse the judgment of the
appellate court and affirm the judgment of the circuit court.
Appellate court judgment reversed;
circuit court judgment affirmed.
JUSTICE FREEMAN, concurring in the judgment:
I agree that there was no jurisdictional impediment to the circuit
court’s entry of the delinquency order in this case. I write separately
because I reach that conclusion for reasons other than those set forth
in today’s opinion.
The issue regarding subject matter jurisdiction did not arise in this
case until M.W. argued in the appellate court that the circuit court
“did not have jurisdiction where [M.W.’s] father, was a named party
-26-
with a known address and was intimately involved in [M.W.’s] life,
was not served with the amended petition of adjudication of
wardship, rendering [M.W.’s] delinquency adjudication void.” In
support of her argument, M.W. cited In re Gault, 387 U.S. 1, 33, 18
L. Ed. 2d 527, 549, 87 S. Ct. 1428, 1446 (1967), and two of our own
cases, In re C.R.H., 163 Ill. 2d 263 (1994), and In re R.S., 104 Ill. 2d
1 (1984). The appellate court agreed with her argument, and, relying
on In re C.R.H., held that the failure of the State to provide M.W.’s
father with notice of the amended petition “deprived the circuit court
of jurisdiction.” As a result, the court vacated the trial court’s
judgment.2
Procedurally, then, this court is presented with only one question
in this appeal: Did the circuit court have subject matter jurisdiction?3
If the court did, then this court must reverse the judgment of the
appellate court and remand the case to that court for it to consider the
remainder of M.W.’s appellate contentions. However, if the circuit
court did not have jurisdiction, then the appellate court judgment
should be affirmed.
Consistent with the constitutional mandate for due process, i.e.,
notice and the opportunity to be heard, the Juvenile Court Act
requires that petitions set forth the names and addresses of the minor,
the minor’s parents, and the legal guardian or person or persons
having custody and control of the minor. 705 ILCS 405/5–520 (West
2
In light of its holding that the circuit court lacked subject matter
jurisdiction, the appellate court did not reach the remainder of M.W.’s
appellate arguments.
3
I do not understand the majority’s discussion regarding the standard of
review in this case. The majority states that the standard is de novo
“[b]ecause the circuit court did not rule on the jurisdictional questions and
was not asked to rule on the notice issue.” Slip op. at 3. This language is
somewhat confusing because it suggests that the circuit court did not
consider its own jurisdiction. Obviously, by issuing a substantive ruling in
this case, the circuit court exercised subject matter jurisdiction. On appeal,
the appellate court concluded that the circuit court lacked subject matter
jurisdiction. Whether a circuit court properly exercised subject matter
jurisdiction is a question of law, which is reviewed de novo. In re John
C.M., 382 Ill. App. 3d 553, 558 (2008).
-27-
2004). Section 5–525 provides that upon the commencement of
proceedings, the clerk of the court shall issue a summons with a copy
of the petition attached and that the summons be directed to the
minor’s parent, guardian, or legal custodian, and to each person
named as a respondent in the petition. 705 ILCS 405/5–525 (West
2004). The summons shall require each respondent to appear and
answer the petition on the date set for the adjudicatory hearing. 705
ILCS 405/5–525(1)(c) (West 2004). The Act provides that “[o]nce
jurisdiction has been established over a party, further service is not
required and notice of any subsequent proceedings in that prosecution
shall be made in accordance with *** Section 5–530.” 705 ILCS
405/5–525(3) (West 2004). Moreover, “[t]he appearance of the
minor’s parent *** in any proceeding under this Act shall constitute
a waiver of service and submission to the jurisdiction of the court.”
705 ILCS 405/5–525(4) (West 2004).
In Illinois, “[i]f there is a total want of jurisdiction either as to the
subject matter or as to the parties, the proceedings are a nullity and no
rights are created by them and they may be declared void when
collaterally attacked.” Johnston v. City of Bloomington, 77 Ill. 2d 108,
112 (1979). There is no question that our legislature has deemed
juvenile delinquency proceedings a “justiciable matter” for purposes
of section 9 of article six of our 1970 Constitution. Article V of the
Juvenile Court Act addresses delinquent minors. Section 5–120 of
article V gives the juvenile court exclusive jurisdiction of proceedings
concerning any minor who, prior to his or her seventeenth birthday,
has violated or has attempted to violate, inter alia, any state law and
provides that no minor who was under the age of 17 at the time of the
offense “may be prosecuted under the criminal laws of this State.”
See 705 ILCS 405/5–120 (West 2004).4 It is clear then from the
language of article V that the legislature has given to the juvenile
court the authority to adjudicate a minor delinquent. See In re A.H.,
195 Ill. 2d 408, 418-19 (2001) (noting authority given to the juvenile
court by the legislature). Proceedings under the Act are initiated by
4
Other sections of article V indicate where the legislature has specified
“concurrent jurisdiction” and “excluded jurisdiction.” See 705 ILCS
405/5–125, 5–130 (West 2004). Neither of these provisions are implicated
in this case.
-28-
the filing of a petition for an adjudication of wardship. See 705 ILCS
405/5–520 (West 2004). Thus, once the State filed its juvenile
petition in this case, subject matter jurisdiction was established. See
In re Thompson, 79 Ill. 2d 262, 267-68 (1980) (discussing the
continuing nature of subject matter jurisdiction in the juvenile court).
Cases such as In re C.R.H. and In re R.S. do not compel a
different conclusion with respect to subject matter jurisdiction. Unlike
the majority, I believe the appellate court mistakenly viewed these
cases as addressing subject matter jurisdiction. In neither of these
earlier decisions did this court specifically refer to “subject matter”
jurisdiction. This is not surprising because both cases addressed the
lack of jurisdiction arising from the failure to have served summons
on the minors’ mothers.5 Service of summons upon a necessary party,
of course, is essential to acquire personal jurisdiction of the court.
Janove v. Bacon, 6 Ill. 2d 245, 249 (1955). In this case, in contrast to
those cases, there is no dispute that M.W.’s father was served with
summons so that personal jurisdiction was acquired by the juvenile
court. Thus, the circuit court here obtained jurisdiction of the parties
upon service of summons and of the subject matter after the State’s
filing of the delinquency petition. I, therefore, believe that it is
unnecessary for this court to overrule In re C.R.H., In re R.S., and
People v. R.D.S. on the bases asserted in the majority opinion.
In sum, the State’s failure to comply with section 5–530 was not
an error which affected the circuit court’s jurisdiction over the subject
matter or the parties. For that reason, the judgment of the appellate
court must be reversed. Admittedly, the failure to comply with section
5–530, though not an error that divests a court of either subject matter
or personal jurisdiction, may implicate due process concerns. See In
re Gault, 387 U.S. at 33-34, 18 L. Ed. 2d at 549-50, 87 S. Ct. at 1446-
47 (holding that due process requires adequate notice to minors and
the parents in juvenile delinquency proceedings). However, whether
the State’s failure to comply constituted a due process violation is a
different question from whether the circuit court properly exercised
subject matter jurisdiction in these proceedings and one that can be
5
In People v. R.D.S., 94 Ill. 2d 77 (1983), a case noted by the majority,
the minor’s legal guardian was never served.
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addressed, along with M.W.’s remaining appellate contentions, in the
appellate court.
JUSTICES THOMAS and BURKE join in this special
concurrence.
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