People v. Brandstetter

• Decision Date: 08 January 1982
• Docket Number: No. 16801,16801
• Citation: 430 N.E.2d 731,58 Ill.Dec. 699,103 Ill.App.3d 259
• Parties: , 58 Ill.Dec. 699 The PEOPLE of the State of Illinois, Plaintiff-Appellee, v. Wanda BRANDSTETTER, Defendant-Appellant.
• Court: United States Appellate Court of Illinois

Page 731

430 N.E.2d 731

103 Ill.App.3d 259, 58 Ill.Dec. 699

The PEOPLE of the State of Illinois, Plaintiff-Appellee, v. Wanda BRANDSTETTER, Defendant-Appellant.

No. 16801.

Appellate Court of Illinois, Fourth District.

Jan. 8, 1982.

Sheila Murphy, John Patrick Michael Murphy, The Murphy Law Firm, Chicago, for defendant-appellant.

David Goldberger, Kathryn Haller, Rhonda Rivera, Columbus, Ohio, for Pro Bono Publico.

Julius Lucius Echeles, Caroline Jaffe, Chicago, for amicus.

J. William Roberts, State's Atty., Springfield, Phyllis J. Perko, Deputy Director, State's Attorneys Appellate Service Commission, Larry Wechter, Staff Atty., Elgin, for plaintiff-appellee.

GREEN, Presiding Justice:

After a trial by jury in the circuit court of Sangamon County, defendant, Wanda Brandstetter, was convicted on August 22, 1980, of the offense of bribery (Ill.Rev.Stat.1979, ch. 38, par. 33-1(a)). On November 7, 1980, she was fined $500 and placed on conditional discharge requiring her to perform 150 hours of public service work. The case arose from an occurrence on May 14, 1980, in Springfield, when, pursuant to conversations concerning the proposed Equal Rights Amendment to the Federal Constitution (ERA), defendant handed to State Representative Nord Swanstrom a note on which was handwritten: "Mr. Swanstrom the offer for help in your election & $1000 for your campaign for Pro ERA vote." She has appealed. We affirm.

Although defendant makes numerous claims of error, the major thrust of her argument is that even construing the evidence most strongly against her, she was acting pursuant to her first amendment rights of freedom of speech to petition her government for redress of grievance. She maintains she did not violate any statute but, if she did, that statute was unconstitutional, at least as applied to what she was doing. While, as we subsequently set forth, we do not agree, we recognize that her conduct differed only subtly from that which is either statutorily permitted or constitutionally protected. Much evidence was offered and argument made that defendant was a well-meaning person of high moral character. While this did not exonerate her, it was properly reflected in the very light sentence which was imposed.

Defendant's contentions on appeal are, in more detail, as follows: (1) The legislation under which she was convicted was unconstitutional because of vagueness and overbreadth and as applied to the facts of this case; (2) her guilt was not proved beyond a reasonable doubt; (3) the indictment was insufficient; (4) the trial court erred in denying her an evidentiary hearing on her claim of discriminatory prosecution; (5) the verdict finding her guilty of bribery was legally inconsistent with that acquitting her of solicitation; (6) the prosecutor's closing argument deprived her of a fair trial; and (7) the trial court erred in denying her motion to vacate her conviction on the grounds of newly discovered evidence.

Although the details of the trial evidence will be discussed in connection with the various issues, a brief reference to some of the evidence is necessary to begin that discussion. Defendant testified to having become an active volunteer for ERA in 1978 and to having traveled to Springfield on May 14, 1980. She stated that she had previously been informed that Swanstrom had been against ERA but was wavering. She testified to two encounters with Swanstrom on May 14, 1980. In the first one she told him she would spend a month in his district working for him and would raise up to $1,000 for him if he would support ERA. She said she told him he should have funds from both sides of the ERA issue so he could vote his conscience. She said she then handed him a card but he did not respond and later threw the card on the floor. Defendant further testified that she later was standing by him while he was conversing with others and she handed him the note previously described, and as he walked off with it she told him " 'whatever you do-vote your conscience.' " Defendant admitted at trial her offers were contingent upon Swanstrom's favorable vote on ERA, but stated she did not want him to vote for ERA if it was against his conscience. In his testimony, Swanstrom stated he did not remember defendant offering to work for him for a month or to raise money for him, nor did he remember her telling him to vote his conscience.

An understanding of the issues also requires an understanding of the charge upon which defendant was convicted and the statutes involved. The charge, which was by way of an information, alleged that on May 14, 1980, defendant:

"with the intent to influence the performance of an act related to the employment and function of a public officer, Nord Swanstrom, Representative in the Illinois General Assembly for the Thirty-fifth (35th) Legislative District, tendered to Nord Swanstrom personal advantage and property, to wit: $1,000 to his campaign for his vote in favor of House Joint Resolution Constitutional Amendment # 1 (The Equal Rights Amendment) which personal advantage and property Nord Swanstrom is not authorized by law to accept, in violation of the Criminal Code of 1961, as amended, Section 33-1a."

Section 33-1 of the Criminal Code of 1961 provides:

"Bribery. A person commits bribery when:

(a) With intent to influence the performance of any act related to the employment or function of any public officer, public employee, juror or witness, he promises or tenders to that person any property or personal advantage which he is not authorized by law to accept. " (Emphasis added.) Ill.Rev.Stat.1979, ch. 38, par. 33-1(a).

Several other statutes are of significance. Section 1 of "AN ACT in relation to legislative conduct and prescribing penalties for the violation thereof. Laws 1965, p. 81, approved March 16, 1965, eff. July 1, 1965," states:

"No member of the General Assembly shall accept or receive, directly or indirectly, any money or other valuable thing, from any corporation, company or person, for any vote or influence he may give or withhold on any bill, resolution or appropriation, or for any other official act." (Ill.Rev.Stat.1979, ch. 38, par. 90-1.)

Section 3-101 of the Illinois Governmental Ethics Act provides:

"No legislator may solicit, accept, or agree to accept, gifts, loans, gratuities, discounts, favors, hospitality, or services having an aggregate value of $100 or more in any calendar year from any one person known to have legislative interests, under circumstances from which it could reasonably be inferred that a major purpose of the donor is to influence him in the performance of his official duties.

This section does not apply to (1) any political contribution, in cash or in kind, if such contribution is actually used for political purposes; (2) the purchase of tickets to, or advertisements in journals for, political or testimonial dinners; or (3) a commercially reasonable loan made in the ordinary course of business. " Ill.Rev.Stat.1979, ch. 127, par. 603-101.

Defendant maintains that section 33-1(a) is unconstitutionally vague because of the uncertain meaning of the words "property or personal advantage" and "authorized by law" as used in the statute. This court has previously stated:

" * * * A statute which either forbids or requires the doing of an act in terms so vague that men of common intelligence must necessarily guess at its meaning and differ as to its application violates due process of law. (Connally v. General Construction Co. (1926), 269 U.S. 385, 391, 46 S.Ct. 126, 127, 70 L.Ed. 322, 328; People v. Palkes (1972), 52 Ill.2d 472, 475, 288 N.E.2d 469, 471.) Moreover, a law fails to meet the requirements of due process if it is so vague and standardless that it leaves the public uncertain as to the conduct it prohibits or leaves judges and jurors free to decide, without any legally fixed standards, what is or is not prohibited in any given case." People v. McPherson (1978), 65 Ill.App.3d 772, 775, 22 Ill.Dec. 468, 470, 382 N.E.2d 858, 860.

Where a first amendment issue exists, a statute is required to possess a greater degree of specificity than in other contexts. (Smith v. Goguen (1974), 415 U.S. 566, 94 S.Ct. 1242, 39 L.Ed.2d 605.) In Buckley v. Valeo (1976), 424 U.S. 1, 96 S.Ct 612, 46 L.Ed.2d 659, the United States Supreme Court stated that the first amendment affords the broadest protection to the discussion of public issues and debate on the qualifications of candidates in order to " 'assure (the) unfettered interchange of ideas for the bringing about of political and social changes desired by the people'." (424 U.S. 1, 14, 96 S.Ct. 612, 632, 46 L.Ed.2d 659, 685). However, that court did not state directly whether lobbying involves an exercise of first amendment rights. In Eastern R.R. Presidents Conference v. Noerr Motor Freight, Inc. (1961), 365 U.S. 127, 81 S.Ct. 523, 5 L.Ed.2d 464, the United States Supreme Court held antitrust legislation not to cover lobbying activity, stating that to do so would create a confrontation with first amendment rights. Because lobbying, as that term is used in the broad sense, was involved in the conduct giving rise to defendant's conviction, we examine section 33-1(a) in the light of the specificity required in first amendment cases.

In People v. Kleffman (1980), 90 Ill.App.3d 1, 45 Ill.Dec. 475, 412 N.E.2d 1057, the court held the phrase "personal advantage" in section 33-3(c) of the Code (Ill.Rev.Stat.1979, ch. 38, par. 33-3(c)) not to be unconstitutionally vague. That legislation defined one type of official misconduct as conduct by the official committed "(w)ith intent to obtain a personal advantage for himself or another." The court described the phrase in the context of the statute to mean "an advantage to a particular person as opposed to the public the officer or employee serves." (90 Ill.App.3d 1, 4, 45 Ill.Dec. 475, 479, 412 N.E.2d 1057, 1061.) A Wisconsin bribery statute making similar...