People v. Ellis

• Decision Date: 20 March 1974
• Docket Number: No. 45745,45745
• Citation: 311 N.E.2d 98,57 Ill.2d 127
• Parties: The PEOPLE of the State of Illinois, Appellant, v. Delbert ELLIS, Appellee.
• Court: Illinois Supreme Court

Page 98

311 N.E.2d 98

57 Ill.2d 127

The PEOPLE of the State of Illinois, Appellant, v. Delbert ELLIS, Appellee.

No. 45745.

Supreme Court of Illinois.

March 20, 1974.

Rehearing Denied May 31, 1974.

William J. Scott, Atty. Gen., Springfield, and Basil Greanias, State's Atty., Decatur (James B. Zagel and Charles H. Levad, Asst. Attys. Gen., and Harry Bulkeley, Senior Law Student, of counsel), for the People.

John F. McNichols, Deputy Defender, Springfield (J. Daniel Stewart, Asst. Appellate Defender, of counsel), for appellee.

GOLDENHERSH, Justice:

Defendant, Delbert Ellis, was indicted in the circuit court of Macon County on one count of forgery and two counts of burglary. He entered a plea of guilty to each count, his petition for probation was denied and he was sentenced to three concurrent terms of 2 to 6 years in the penitentiary. The appellate court, holding that section 2--7(1) of the Juvenile Court Act (Ill.Rev.Stat.1971, ch. 37, par. 702--7(1)) was unconstitutional, reversed the convictions (10 Ill.App.3d 216, 293 N.E.2d 189) and we granted the People's petition for leave to appeal as a matter of right under Rule 317. 50 Ill.2d R. 317.

At the time the offenses were committed, and when sentenced, defendant was 17 years of age. Section 2--7(1) of the Juvenile Court Act then provided:

'Except as provided in this Section, no boy who was under 17 years of age or girl who was under 18 years of age at the time of the alleged offense may be prosecuted under the criminal laws of this State or for violation of an ordinance of any political subdivision thereof.'

In concluding that the section was unconstitutional the appellate court reasoned that the failure to provided the procedural protection of the Juvenile Court Act, before prosecution as an adult, to a 17-year-old male defendant, and the granting of such protection at a similarly situated female defendant, resulted in a denial of equal protection of the laws under section 18 of the Bill of Rights of the Constitution of 1970 (Ill.Const. (1970), art. I, sec. 18), which provides:

'The equal protection of the laws shall not be denied or abridged on account of sex by the State or its units of local government and school districts.'

The People, citing People v. McCalvin, 55 Ill.2d 161, 302 N.E.2d 342 and People v. Pardo, 47 Ill.2d 420, 265 N.E.2d 656 (appeal dismissed for want of a substantial Federal question, Pardo v. Illinois, 402 U.S. 992, 91 S.Ct. 2179, 29 L.Ed.2d 158), contend that the classification created in section 2--7(1) did not constitute a denial of equal protection under the Federal or Illinois constitutions. They argue, too, that section 18 of the Bill of Rights does not affect the power of the General Assembly to create reasonable classifications.

Defendant argues that Pardo and McCalvin are readily distinguishable and do not control the decision here for the reason that the crimes in those cases were committed and the sentences imposed prior to the effective date of the Constitution of 1970.

Section 18 or article I was proposed on the floor of the convention as an amendment to the report of the Bill of Rights Committee. (5 Record of Proceedings, Sixth Illinois Constitutional Convention 3669 (hereinafter cited as Proceedings).) It is apparent from the debates that the purpose of the amendment was to guarantee rights for females equal to those of males. (5 Proceedings 3669--3677.) The opponents of the amendment argued that women's rights were adequately protected under section 2 of article I, which provides:

'No person shall be deprived of life, liberty or property without due process of law nor be denied the equal protection of the laws.'

The proponents of the amendment argued that the courts had interpreted the equal protection clause in such a manner that classifications based on sex were common and proper. (5 Proceedings 3675--3676.) The proponents' argument finds support in Pardo, in which we stated:

'* * * 'it requires neither extended discussion nor citation of authority for the proposition that age and the differences existing between the sexes are proper bases for legislative classification.' (Citation.) Illinois has not been unique in distinguishing between males and females on the basis of age for the purpose of determining their juvenile status. (See, e.g., Vernon's Ann.Tex.Civ.Stat., art. 2338--1, sec. 3; 10 Okla. Stat. (1969 supp.) sec. 1101.) This distinction seems to be neither invidious nor arbitrary and is well within the legislative discretion.' 47 Ill.2d 420, 424, 265 N.E.2d 656, 658.

A member of the convention stated the proponents' position in this manner:

'But I might point out then that this equal protection clause in section 2 has never been held to apply to women in the same way, say, that it has been held to apply to blacks; and until that time comes--and that may be another long case-by-case development--I think the need for this amendment to make explicit that we do mean that women cannot be denied this type of equality is necessary.' 5 Proceedings 3676.

The section was adopted by a vote of 94 'for,' 7 'against,' and 5 'pass.'

As the proponents of section 18 recognized, there are two standards of review employed to determine the validity of statutory classifications under the equal protection clause. (See generally Developments in the Law--Equal Protection, 82 Harv.L.Rev. 1065 (1969); Sex Discrimination and Equal Protection: Do We Need a Constitutional Amendment?, 84 Harv.L.Rev. 1499 (1971); Comment, Are Sex-Based Classifications Constitutionally Suspect?, 66 Nw.U.L.Rev. 481 (1971).) The basic standard, permissive review, permits classifications which are rationally related to the legitimate governmental objective (People ex rel. City of Salem v. McMackin, 53 Ill.2d 347, 363, 291 N.E.2d 807), and the burden is on the party challenging the validity of the classification to prove that it is arbitrary. (Jacobs v. City of Chicago, 53 Ill.2d 421, 292 N.E.2d 401.) When, however, a statute used 'suspect classifications,' such as race (McLaughlin v. Florida, 379 U.S. 184, 85 S.Ct. 283, 13 L.Ed.2d 222), or national ancestry (Korematsu v. United States, 323 U.S. 214, 65 S.Ct. 193, 89 L.Ed. 194), to distinguish between individuals, the Supreme Court applied the active review standard which placed the burden on the State to show that the distinction was related to some compelling State purpose. See Developments in the Law--Equal Protection, 82 Harv.L.Rev. 1065, 1087--1131.

Although neither the Supreme Court nor this court has found a statutory classification by sex to be a suspect classification, in Frontiero v. Richardson (1973), 411 U.S. 677, 93 S.Ct. 1764, 36 L.Ed.2d 583, four Justices concluded that '* * * classifications based upon sex, like classifications based upon race, alienage, or national origin, are inherently suspect, and must therefore be subjected to strict judicial scrutiny.' (411 U.S. at 688, 93 S.Ct. at 1771, 36 L.Ed.2d at 589.) Three Justices, concurring, felt that in deciding the case it was unnecessary for the court to characterize sex as a suspect classification, and that a 'general categorizing of sex classifications as invoking the strictest test of judicial scrutiny' should be deferred until action is conpleted on the 'Equal Rights Amendment, which if adopted will resolve the substance of this precise question.' (411 U.S. at 692, 93 S.Ct. at 1773, 36 L.Ed.2d at 595.) Section 1 of the Equal Rights Amendment, passed by Congress on March 22, 1972, and submitted to the legislatures of the States for ratification, declares that 'equality of rights under the law shall not be denied or abridged by the...