People v. DiGuida

• Decision Date: 01 October 1992
• Docket Number: No. 72272,72272
• Citation: 178 Ill.Dec. 80,604 N.E.2d 336,152 Ill.2d 104
• Parties: , 178 Ill.Dec. 80 The PEOPLE of the State of Illinois, Appellant, v. Paul DiGUIDA, Appellee.
• Court: Illinois Supreme Court

Page 336

604 N.E.2d 336

152 Ill.2d 104, 178 Ill.Dec. 80

The PEOPLE of the State of Illinois, Appellant, v. Paul DiGUIDA, Appellee.

No. 72272.

Supreme Court of Illinois.

Oct. 1, 1992.

Rehearing Denied Nov. 30, 1992.

[152 Ill.2d 106] [178 Ill.Dec. 81] Roland W. Burris, Atty. Gen., Springfield, Jack O'Malley, State's Atty., Chicago (Terence M. Madsen, Asst. Atty. Gen., Chicago, and [152 Ill.2d 107] Renee Goldfarb, Donald J. Mizerk and Kenneth L. Gillis, Asst. State's Attys., of counsel) for the People.

James A. Klenk, Alan J. Mandel and Gregory Naron, Sonnenschein Nath & Rosenthal, Joseph P. Thornton, Chicago, for amici curiae Chicago Tribune Co. et al.

Rene A. Torrado, Jr., Vedder, Price, Kaufman & Kammholz, and Laurel G. Bellows, Chicago, for amicus curiae Chicago Bar Ass'n.

Harvey Grossman, Diane Geraghty and Michael Seng, Chicago, for amicus curiae A.C.L.U. of Illinois.

Mathias W. Delort, Odelson & Sterk, Ltd., Evergreen Park, and Roslyn C. Lieb and James E. Vander Arend, Chicago, for amici curiae Independent Voters of Illinois et al.

J. Brian Heller, Washington, for amicus curiae Rutherford Institute of Illinois.

Rita A. Fry, Public Defender, Chicago (James H. Reddy, Asst. Public Defender, of counsel), and Jeffery P. Smith, Engelman & Smith, Skokie, for appellee.

Justice MORAN delivered the opinion of the court:

Defendant, Paul DiGuida, was convicted of criminal trespass to real property (Ill.Rev.Stat.1987, ch. 38, par. 21-3(a)) after refusing to leave the premises of a grocery store where he had been soliciting signatures for a political petition. Defendant appealed his conviction, and the appellate court reversed (215 Ill.App.3d 913, 159 Ill.Dec. 457, 576 N.E.2d 126). We granted the State's petition for leave to appeal (134 Ill.2d R. 317), and allowed a number of groups and organizations to submit briefs as amici curiae (134 Ill.2d R. 345).

The issue presented for review is whether a private store's invocation of the criminal trespass to land statute, in order to exclude a circulator of a political nominating petition from its premises, is violative of the free speech and free elections provisions of the Illinois Constitution of 1970 (Ill. Const. 1970, art. I, §§ 2, 4; art. III, § 3). This is a question of first impression for this court.

BACKGROUND

On December 12, 1987, defendant was standing inside the cart-control area of a Dominick's grocery store in Evanston, gathering signatures on a nominating petition for a Cook County political candidate. The cart-control area, located between the store entrance and the public sidewalk, is owned by Dominick's. It is covered by an overhang and surrounded by a railing which prevents carts from rolling into the parking lot. Defendant was standing on Dominick's property, approximately 25 feet from the entrance, when Ted Scanlon, a store manager, approached defendant and asked him to leave. Scanlon explained that Dominick's did not allow soliciting on its property. Defendant responded that he did not have to leave, as he was on public property, and could do what he wanted. Scanlon informed defendant that he would call the police if defendant did not leave. Defendant told Scanlon to go ahead, as he was doing nothing wrong. According to his own testimony, defendant then walked around the block in order to avoid the police. After the police had left, defendant returned to the cart-control area and continued to solicit signatures. The police returned, informed defendant that he was on private property, and told him that he would be arrested if he did not leave. Defendant refused to leave. He was then arrested and charged in a misdemeanor complaint with criminal trespass to land.

At a bench trial, Scanlon testified that Dominick's allowed people to solicit if they had permission. Candidates for public office were allowed to walk once through the store, but were forbidden to stand outside it afterward. In response to questioning, Scanlon further testified that outside the store there were no signs saying "No Soliciting," and that inside the store there was a bulletin board where people could post messages.

Defendant called Andrea Raila to testify in his defense. Raila was a campaign manager who solicited signatures for political candidates and directed others in collecting signatures. Raila testified that she had suggested that other solicitors go to Dominick's, and that she had solicited signatures there herself 20 or 25 times. She had never been asked to leave the premises. Raila further stated that Dominick's personnel "either permit people to stand within a couple of feet from the doorway or, if it is too cold, they will let them stand within the entrance."

At the conclusion of trial, the court found defendant guilty of criminal trespass to land, holding that his first amendment rights were curtailed on private property. Defendant was sentenced to supervision, and ordered to perform 20 hours of community service.

Defendant appealed his conviction. He conceded that his activities were not protected under the first amendment of the United States Constitution, and the appellate court agreed. However, the appellate court reversed defendant's conviction (215 Ill.App.3d 913, 159 Ill.Dec. 457, 576 N.E.2d 126), holding that his activities were protected by the free speech and free and equal elections provisions of the Illinois Constitution of 1970 (Ill. Const. 1970, art. I, §§ 2, 4; art. III, § 3). Because this case presents a question under the Illinois Constitution which arose for the first time as a result of the appellate court's decision, we accepted the State's petition to appeal as a matter of right (134 Ill.2d R. 317).

FIRST AMENDMENT RIGHTS

In several relevant cases, the United States Supreme Court has delineated the first amendment rights of individuals to express their views in privately owned forums. An overview of those cases will reveal the extent of first amendment guarantees in circumstances similar to those in the case under review.

In Marsh v. Alabama (1946), 326 U.S. 501, 66 S.Ct. 276, 90 L.Ed. 265, the appellant, a Jehovah's Witness, had attempted to distribute religious literature in the business district of Chickasaw, Alabama, a town wholly owned by a private corporation. The town consisted of residential buildings, streets, a system of sewers, a sewage disposal plant, and a business block which was used by residents as their shopping center. Both the town and its shopping district were accessible to and freely used by the public in general. Inside the stores, the corporation had posted notices stating that the premises were private property and that no solicitation of any kind would be permitted without written permission. When told that she could not distribute her literature and must leave the town, appellant refused to do so, and was arrested for violating Alabama's criminal trespass statute. The Supreme Court reversed appellant's conviction, holding that private ownership of the town was not a sufficient reason to justify the State's permitting a corporation to restrict fundamental liberties of its citizens. Central to the Court's reasoning was its finding that the company town functioned like any other town.

Twenty-two years later, the Court applied the rationale of Marsh to the picketing of a store in a shopping center. (Amalgamated Food Employees Union Local 590 v. Logan Valley Plaza, Inc. (1968), 391 U.S. 308, 88 S.Ct. 1601, 20 L.Ed.2d 603.) In Logan Valley, a supermarket tenant in the center employed an exclusively nonunion staff. Nonemployee members of a union began to picket the market. The picketing, which was peaceful, took place in the parcel pickup area of the store and portions of the adjoining parking lot. The market and shopping center obtained an injunction against the picketing, requiring that it be confined to areas outside the shopping center. The only nearby public area where picketing was possible was atop berms separating the shopping center from the public highway. The target of petitioners' picketing was located 350 to 500 feet away from the berms, and the picketers would have found it difficult to communicate their ideas from that distance. Further, they would have been endangered by nearby traffic. The Court found that the large shopping center, which contained roads and sidewalks, was the functional equivalent of the company town in Marsh and must be treated in the same manner for purposes of the first and fourteenth amendments.

Four years later the Court reconsidered the Logan Valley doctrine in Lloyd Corp., Ltd. v. Tanner (1972), 407 U.S. 551, 92 S.Ct. 2219, 33 L.Ed.2d 131. Lloyd involved a 50-acre shopping center containing 60 stores, parking facilities, malls, private sidewalks, gardens, an auditorium, and a skating rink. There were no public streets or sidewalks within the complex. The center employed 12 security guards, commissioned by the city, who were uniformed and licensed to carry firearms. Signs were posted indicating that permission to use the areas could be revoked at any time. Although the center allowed limited use of its malls by the American Legion, Salvation Army, and Volunteers of America, it denied similar use to other civic and charitable organizations. Political use was generally forbidden, but presidential candidates had been allowed to speak in the auditorium. The center had a strict policy against handbilling.

In 1968, five war and draft protesters entered the shopping center in order to pass out handbills protesting American military operations in Vietnam. Security guards told the protesters to leave, and they did so in order to avoid arrest. The protesters then secured an injunction against interference with their handbilling. The court of appeals subsequently affirmed the action of the court below. Upon further appeal, the Supreme Court rejected the argument that, since the center was open to the public, the private owner could not enforce restrictions against...