CBA Record November-December 2022

further suggests these two constitutional provisions “should be interpreted pari passu.” Northcross v. Board of Education, 412 U.S. 427, 428 (1973). As Daley v. Joyce teaches, the legislature cannot rescind state constitutional rights. If the Illinois Constitution encompasses monetary bail, the legislature cannot eradicate it — no matter how laudable the reasons for doing so. A constitutional amendment may be the correct structural vehicle to eliminate monetary bail, akin to what New Jersey did as a precursor to its bail reform. See Holland, 895 F.3d at 279-80; cf. Illinois Supreme Court Commission on Pretrial Practices, Final Report, p. 19 (finding elimination of cash bail would be premature, and advo cating structural changes). Coexistence of Inherent Judicial Authority, the Illinois Constitution, and the PFA The PFA looms to prejudice certain defendants, that is, when a monetary release condition would reasonably miti gate threat to safety of other person[s] or prevent flight, and thereby provide an alternative to detention. Crime victims’ rights could be prejudiced as well, since they have a constitutional right to have safety considered when the court “fixes the amount of bail.” Ill. Const. art. I, § 8.1(a)(9). Further, certain serious crimes are not subject to detention or monetary surety under the PFA, for example, sec ond-degree murder, reckless homicide, aggravated battery, kidnapping, arson, robbery, burglary, and aggravated driving under the influence. Instances in which the exercise of inherent judicial authority might call for a different outcome than the PFA are foreseeable. It is theoretically possible to construe the PFA as not eliminating monetary sureties in all cases. The PFA provides the court with discretion to impose “reason able conditions.” 725 ILCS 5/110-10(b) (17). In view of Illinois’ long history of monetary bail, it is difficult to fathom how a monetary release condition becomes “unreasonable” after January 1, 2023. This “loophole” admittedly has short comings, given the legislature’s intent to

abolish monetary bail, and construction canons. See Van Dyke v. White, 2019 IL 121452, ¶ 46. That aside, the PFA’s elimination of cash bail could coexist with the Illi nois Constitution, and inherent judicial authority, through the following deci sional framework: 1. Apply the PFA.

monetary bail, the PFA’s repeal of statu tory language regarding clerical admin istration of bond deposits, 725 ILCS 5/110-7 (2018), is problematic. Authori tative direction concerning acceptance and processing of bail deposits would be necessary. Separation of Powers Separation of powers issues arise when a statute uses the term “the court shall.” The PFA repeatedly employs this term, which generally connotes legislative intent to impose a mandatory obligation. The Illi nois Supreme Court, however, has not rigidly applied this rule. See People v. Rob inson, 217 Ill.2d 43, 54 (2005). A series of cases have interpreted statutes using the word “shall” as directory. See People v. Flores, 104 Ill.2d 40, 47-48 (1984); People v. Hicks, 101 Ill.2d 366, 374 (1984); People v. Davis, 93 Ill.2d 155, 162 (1982). More specifically, without specifying direct consequences, the PFA states that the court “shall”: hold an electronic moni toring review or detention hearing within a specified period, 725 ILCS 5/110-5(i), 110-6.1(a),(c)(2); support detention or violation findings with written orders, 725 ILCS 5/110-2(d), 110-3(b), 110 6.1(h); and state reasons on the record for ordering a complaining witness to appear at a detention hearing, or when imposing electronic monitoring. 725 ILCS 5/110 6.1(f )(4), 110-5(h). The word “shall” in these sections appears directory. As such, non-com pliance with scheduling, written order

2. If requested, determine whether the decision would be different under the Illinois Constitution. 3. In all cases, determine whether the decision would be different through application of inherent judicial authority.

As noted, courts must strive to con strue, rather than invalidate, statutes. The proposed framework has the benefit of sustaining the PFA, while accommo dating the supremacy of inherent judi cial authority. The proposition that the constitution may supplement statutory bases for relief is not without precedent. By way of analogy, drivers may also move for rescission of summary license suspen sions on non-statutory, constitutional grounds. See People v. Dittmar, 2011 IL App (2d) 091112; In re Summary Suspen sion of Driver’s License of Trainor, 156 Ill. App.3d 918, 922 (4th Dist. 1987). There are drawbacks. Deviation from statutory procedures potentially contra venes People v. Gil, 2019 IL App (1st) 192419. In the event reviewing courts interpret our state constitution and/or inherent judicial authority to include

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