In re S.J.

July 29, 1997;
Motion to publish granted
September 4, 1997.
                              NO.  5-96-0577

                                  IN THE

                        APPELLATE COURT OF ILLINOIS

                              FIFTH DISTRICT
__________________________________________________________________

In re S.J.,                   )    Appeal from the
An Alleged Delinquent Minor   )    Circuit Court of
                              )    Williamson County.
(The People of the State of   )
Illinois,                     )
                              )
     Petitioner-Appellant,    )    No.  96-JD-5
                              )
v.                            )    
                              )
S.J.,                         )    Honorable
                              )    Robert A. Drew,
     Respondent-Appellee).    )    Judge, presiding.
___________________________________________________________________

     JUSTICE MAAG delivered the opinion of the court:

     A petition for adjudication of wardship was filed concerning
S.J., an alleged delinquent minor.  S.J. filed a motion to dismiss
alleging that the petition constituted double jeopardy in violation
of the United States Constitution and the Illinois Constitution. 
U.S. Const., amend V; Ill. Const. 1970, art. I, 10.  The trial
court agreed and the case was dismissed.  The State appeals.
     Factually, the following occurred.  The petition for
adjudication of wardship was filed on February 20, 1996, alleging
that the minor, S.J., was delinquent in that he committed the
offenses of aggravated assault and aggravated battery against the
principal of Herrin High School on December 14, 1995. 
Specifically, the minor was accused of taking a swing with his fist
at the principal and placing his hands around the principal's neck
and squeezing.  On June 24, 1996, the minor filed a motion to
dismiss the petition for wardship on double jeopardy grounds.  In
support of his motion, the minor appended a letter dated December
20, 1995, from the Herrin Community Unit School District, which
notified S.J.'s father of a hearing on January 8, 1996, and of the
administration's intention to recommend that S.J. be expelled from
school for his conduct that occurred on December 14, 1995.  Also
appended to S.J.'s motion to dismiss was the January 9, 1996,
letter notifying the minor's father of the January 8, 1996,
decision of the Board of Education to expel S.J. during the
remainder of the 1995-96 school year and until the fall semester of
1997.
     The trial court held a hearing on the minor's motion to
dismiss.  The court, following the hearing, noted that some of the
language in the letters from the school board was "suspiciously
legal", suggesting that the expulsion process was "at least a
quasi-legal proceeding."  The court found that the minor had
already been "punished" by virtue of the school board's expulsion
sanction.  The court also held that the board and the State's
Attorney's office are both governmental entities operating in the
same jurisdiction.  On these grounds, the court found that
proceeding on the delinquency petition would constitute double
jeopardy, and the court dismissed the petition.  We reverse and
remand.
     The single issue before this court is whether the trial court
erred in dismissing the State's petition for adjudication of
wardship on double jeopardy grounds.
     S.J. relies upon United States v. Halper, 490 U.S. 435, 440,
104 L. Ed. 2d 487, 496, 109 S. Ct. 1892 (1989).  He argues that
under Halper, double jeopardy includes three distinct situations: 
(1) prosecution for the same offense after acquittal; (2)
prosecution for the same offense after conviction; and (3) multiple
punishments for the same offense.  In addition, S.J. argues that
this protection includes a prohibition against both a second
punishment for the same offense and attempting a second punishment
for the same offense.  
     The thrust of S.J.'s argument is that his expulsion was
"punishment" within the meaning of the double jeopardy clause.  He
quotes in his brief the following statement from Halper:  "[A]
civil sanction that cannot fairly be said solely to serve a
remedial purpose, but rather can only be explained as also serving
either retributive or deterrent purposes, is punishment, as we have
come to understand the term."  Halper, 490 U.S.  at 448, 104 L. Ed. 2d  at 502, 109 S. Ct. 1892.  He therefore claims that the State is
attempting to "punish" him twice for the same offense.
     The State argues that school discipline and expulsion
procedures are administrative, not judicial or quasi-judicial,
proceedings, and the State cites Betts v. Board of Education of
Chicago, 466 F.2d 629, 633 (7th Cir. 1972).  Moreover, the State
argues, it is the purpose actually served by the sanction that must
be evaluated, not the underlying nature of the proceeding leading
to the sanction.  Halper, 490 U.S. 435, 104 L. Ed. 2d 487, 109 S. Ct. 1892.  Finally, the State argues that double jeopardy does not
require an inflexible test which classifies any sanction as
punishment unless its sole purpose is remedial.  If this were the
case, the State argues, every sanction would be punishment for
double jeopardy purposes, and the State cites People v. Dvorak, 276
Ill. App. 3d 544, 658 N.E.2d 869 (1996).
     After considering the facts and arguments of counsel and the
authorities cited, we conclude that the trial court erred.  Halper
holds, as quoted above, that a sanction is "punishment" for double
jeopardy purposes if the sanction can only be explained as serving
a retributive or deterrent purpose in addition to a remedial
purpose, rather than solely a remedial purpose.  We believe that
the expulsion in question can readily be explained in the context
of a purpose that is solely remedial.  If S.J. did what he is
accused of, the child is a menace.  He represents a danger to both
the school administration/staff and the student body.  No school
district should be compelled to permit dangerous, violent persons
on their premises, whether student or nonstudent.  The exclusion of
such persons is not punishment.  It is the protection of others who
have a right to work and be educated free from those who would harm
them.
     We express no view on whether S.J. did what he is accused of
doing.  We do note, however, that the school authorities found that
he committed these acts.  The mere fact that S.J. may feel he is
being punished, or that he or others may be deterred from like
conduct in the future, does not implicate constitutional double
jeopardy principles under Halper or any other case of which we are
aware.  The expulsion, in truth, is sound policy and common sense.
     For the foregoing reasons, the judgment of the circuit court
dismissing the petition for adjudication of wardship is reversed,
and the cause is remanded.

     Reversed and remanded.

     KUEHN, P.J., and WELCH, J., concur.