362 N.E.2d 329 (Ill. 1977), 48332, People v. Klick

Docket Nº:48332, 48333.
Citation:362 N.E.2d 329, 66 Ill.2d 269, 5 Ill.Dec. 858
Party Name:The PEOPLE of the State of Illinois, Appellant, v. Rita KLICK et al., Appellees.
Case Date:April 05, 1977
Court:Supreme Court of Illinois

Page 329

362 N.E.2d 329 (Ill. 1977)

66 Ill.2d 269, 5 Ill.Dec. 858

The PEOPLE of the State of Illinois, Appellant,


Rita KLICK et al., Appellees.

Nos. 48332, 48333.

Supreme Court of Illinois.

April 5, 1977.

Page 330

[66 Ill.2d 271] [5 Ill.Dec. 859] William J. Scott, Atty. Gen., Springfield, and Bernard Carey, State's Atty., Chicago (James B. Zagel and Jayne A. Carr, Asst. Attys. Gen., and Laurence J. Bolon, David A. Novoselsky, and Mary Ellen Dienes, Asst. State's Attys., of counsel), for the People.

George Patrick Lynch and Robert P. Sheridan, Chicago (Michael J. Berkos, Chicago, of counsel), for appellees.


Defendants, Rita Klick and Stanley Rudzinski, were charged in separate complaints with disorderly conduct in that they knowingly made a telephone call or calls with the intent to annoy another in violation of section 26--1(a)(2) of the Criminal Code of 1961 (Ill.Rev.Stat.1973, ch. 38, par. 26--1(a)(2)). The circuit court of Cook County granted defendants' motions to dismiss on the grounds that section 26--1(a)(2) is unconstitutional. The [66 Ill.2d 272] State has appealed pursuant to Rule 302(a)(1) (Ill.Rev.Stat.1973, ch. 110A, par. 302(a)(1)), and the cases have been consolidated for the purpose of disposition.

Section 26--1(a)(2) provides:

'(a) A person commits disorderly conduct when he knowingly:

(2) With intent to annoy another, makes a telephone call, whether or not conversation thereby ensues; * * *.'

Defendant Klick initially moved to dismiss the complaint, and later amended the motion to challenge the section's constitutionality arguing that it was impermissibly vague and overly broad, depriving her of due process and infringing on conduct protected by the first amendment to the United States Constitution. Following submission of defendant's written memorandum and presentation of oral argument, the trial court found section 26--1(a)(2) to be overly broad and, therefore, violative of the first the fourteenth amendments to the United States Constitution. The court thereafter dismissed the complaint against Klick and the later complaint brought against Rudzinski.

The State contends that section 26--1(a)(2) is neither impermissibly vague nor overly broad. Because of our finding, only the latter assertion will be discussed.

The State argues that section 26--1(a)(2) is not overly broad in that it merely regulates

Page 331

[5 Ill.Dec. 860] conduct and does not deprive citizens of their first amendment freedoms, such as freedom of speech. It asserts that, to the extent this section does infringe upon first amendment freedoms, the infringement is justified, for the legislature has a legitimate interest in protecting an individual's privacy at home from unwanted telephonic intrusions.

In claiming the section to be overly broad, defendants argue that it deprives them of first amendment freedoms and makes criminal otherwise protected conduct. We agree.

[66 Ill.2d 273] A statute is overly broad if it may reasonably be interpreted to prohibit conduct which is constitutionally protected. (Grayned v. City of Rockford (1972), 408 U.S. 104, 114--15, 92 S.Ct. 2294, 33 L.Ed.2d 222, 231; People v. Schwartz (1976), 64 Ill.2d 275, 282, 356 N.E.2d 8.) In attempting to control or prevent activities which are subject to State regulation, the legislature must not use means which sweep too broadly and thereby penetrate the area of protected freedoms. (Zwickler v. Koota (1967), 389 U.S. 241, 250, 88 S.Ct. 391, 19 L.Ed.2d 444, 451; People v. Ridens (1974), 59 Ill.2d 362, 370, 1 Ill.Dec. 8, 321 N.E.2d 264.) When legislative goals can be achieved by means that avoid stifling fundamental personal liberties, then that course must be chosen. Elfbrandt v. Russell (1966), 384 U.S. 11, 18, 86 S.Ct. 1238, 16 L.Ed.2d 321, 326; People v. Ridens...

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