People v. Sanders, 82917

• Decision Date: 18 June 1998
• Docket Number: No. 82917,82917
• Citation: 696 N.E.2d 1144,231 Ill.Dec. 573,182 Ill.2d 524
• Parties: , 231 Ill.Dec. 573 The PEOPLE of the State of Illinois, Appellant, v. Robert SANDERS, Appellee.
• Court: Illinois Supreme Court

Page 1144

696 N.E.2d 1144

182 Ill.2d 524, 231 Ill.Dec. 573

The PEOPLE of the State of Illinois, Appellant, v. Robert SANDERS, Appellee.

No. 82917.

Supreme Court of Illinois.

June 18, 1998.

[182 Ill.2d 525] [231 Ill.Dec. 574] Jim Ryan, Attorney General, Criminal Appeals Div., Chicago, State's Attorney Lake County, Lauren Kalcheim, Asst. State's Attorney, Waukegan, for the People.

[182 Ill.2d 526] Richard D. Grossman, Chicago, for Robert Sanders.

Justice McMORROW delivered the opinion of the court:

The State charged defendant Robert Sanders by information with violation of section 2(c) of the Illinois Hunter Interference Prohibition Act (720 ILCS 125/2(c) (West 1996)). Pursuant to defendant's motion to dismiss, the circuit court of Lake County entered an order on February 20, 1997, dismissing the criminal charge against defendant. The court found section 2(c) impermissibly vague and overbroad, in violation of the United States Constitution. U.S. Const., amends. I, V. Because the statute was declared unconstitutional, the State's appeal from that ruling lies directly to this court. 134 Ill.2d R. 603. We affirm.

BACKGROUND

Section 2 of the Illinois Hunter Interference Prohibition Act (Act) states:

"Any person who performs any of the following is guilty of a Class B misdemeanor:

(a) Interferes with the lawful taking of a wild animal by another with intent to prevent the taking.

(b) Disturbs or engages in an activity that will tend to disturb wild animals, with intent to prevent their lawful taking.

(c) [D]isturbs another person who is engaged in the lawful taking of a wild animal or who is engaged in the process of taking, with intent to dissuade or otherwise prevent the taking.

(d) [E]nters or remains upon public lands, or upon private lands without permission of the owner or his agent or a lessee, with intent to violate this Section." 720 ILCS 125/2 (West 1996).

The Act defines "wild animal" as "any wild creature the taking of which is authorized by the fish and game laws of the State." 720 ILCS 125/1(a) (West 1996). Under the Act, "taking" means "the capture or killing of a The State filed an information on November 19, 1996, charging defendant, Robert Sanders, with the offense of "Interference with lawful taking of wild animal." 720 ILCS 125/2 (West 1996). The State alleged that on February 16, 1996, defendant "disturbed Elizabeth B. Surge" with the intent to dissuade her, by yelling at her and taking her photograph as she attempted to shoot a deer.

[231 Ill.Dec. 575] wild animal and includes travel, camping, and other acts preparatory to taking which occur on lands or waters upon which the affected person has the right or privilege to take such wild animal." 720 ILCS 125/1(b) (West 1996). No other terms are defined by the Act.

In documents filed with the circuit court, defendant initially contended that the confrontation with Surge occurred "on a public street in a residential neighborhood relating to the capture of deer." The State's response to defendant's motion to dismiss stated that defendant approached Surge at a "deer relocation sight [sic ] in Highland Park." On appeal, defendant apparently agrees with the State's characterization of the incident, since the defendant's appellee's brief concedes that "[d]efendant took a picture of, and spoke to a person working at a deer relocation center."

Defendant moved to dismiss the information. Defendant claimed that subsection (c) of section 2 is overbroad in violation of the first amendment to the United States Constitution and unconstitutionally vague in violation of the "Due Process Clause."

On February 20, 1997, the circuit court of Lake County entered a written finding granting defendant's motion to dismiss. The court ruled that prosecution of subsection (c) of section 2 "require[s] allegations and proof of three elements:

1. disturbing another person * * *;

2. the other person must be actively engaged or in the process of taking a wild animal; and

3. an intent to dissuade or otherwise prevent the taking."

The circuit court examined other Illinois statutes, such as those proscribing disorderly conduct (720 ILCS 5/26-1 (West 1996)), mob action (720 ILCS 5/25-1 (West 1996)), intimidation (720 ILCS 5/12-6 (West 1996)), and telephone harassment (720 ILCS 135/1-1 (West 1996)), "from the p[er]spective of similar language, constitutional challenges, and rulings based on those challenges." Lastly, the court found persuasive case law cited by defendant, as it pertained to "vagueness, overbrea[d]th, free speech and due process."

Based on the foregoing analysis, the circuit court dismissed the information, and ruled that section 2 of the Act "is vague, overbroad, and violative of due process with respect to the protection of freedom of speech," "to the extent that the term [']dissuades['] is used."

Pursuant to Illinois Supreme Court Rule 603, the State appealed the February 20, 1997, order to this court. 134 Ill.2d R. 603.

STANDARD OF REVIEW

We presume all statutes are constitutionally valid. People v. Warren, 173 Ill.2d 348, 355, 219 Ill.Dec. 533, 671 N.E.2d 700 (1996); People v. Jeffries, 164 Ill.2d 104, 111, 207 Ill.Dec. 21, 646 N.E.2d 587 (1995). In construing a statute, this court must affirm the enactment's validity and constitutionality if reasonably possible. People v. Kimbrough, 163 Ill.2d 231, 237, 206 Ill.Dec. 84, 644 N.E.2d 1137 (1994). The party challenging a statute's constitutionality bears the burden of clearly establishing its constitutional infirmity. Fink v. Ryan, 174 Ill.2d 302, 308, 220 Ill.Dec. 369, 673 N.E.2d 281 (1996).

ANALYSIS

Before this court, the State contends the circuit court erroneously found section 2(c) of the Act unconstitutional. The State argues the statute is neither overbroad nor vague.

While defendant agrees with the result reached by the lower court, he suggests on appeal that we affirm by following a different analysis than that chosen by the circuit court. Defendant accurately argues that the term "intent to dissuade" in section 2(c) must be subjected to a separate, "content-neutrality" inquiry before this court confronts the basis employed by the circuit court for its ruling,

[231 Ill.Dec. 576] i.e., whether the statute is unconstitutionally overbroad or vague. This is so because, logically, if section 2(c) is impermissibly content-based, then we need not reach the defendant's overbreadth or vagueness challenge with respect to that section. See, e.g., Consolidated Edison Co. of New York, Inc. v. Public Service Comm'n, 447 U.S. 530, 536, 100 S.Ct. 2326, 2332-33, 65 L.Ed.2d 319, 327 (1980) (a valid time, place and manner restriction may not be grounded on the content or subject matter of speech).

A. Content-Neutrality

The government may not prohibit the expression of thoughts simply because society finds the expressed idea offensive or disagreeable. Texas v. Johnson, 491 U.S. 397, 414, 109 S.Ct. 2533, 2545, 105 L.Ed.2d 342, 360 (1989). Under the content-neutrality principle, "the government may not proscribe any expression because of its content, and an otherwise valid regulation violates the first amendment if it differentiates between types of expression based on content." (Emphasis omitted.) R. Sedler, The First Amendment in Litigation: The "Law of the First Amendment," 48 Wash. & Lee L.Rev. 457, 466 (1991). Thus, any enactment intended to silence an opinion is presumptively invalid (R.A.V. v. City of St. Paul, 505 U.S. 377, 382, 112 S.Ct. 2538, 2542, 120 L.Ed.2d 305, 317 (1992); City of Renton v. Playtime Theatres, Inc., 475 U.S. 41, 46-47, 106 S.Ct. 925, 928, 89 L.Ed.2d 29, 37 (1986)) and may only survive if justified by a compelling state interest and if narrowly tailored to achieve that interest (City of Renton, 475 U.S. at 47, 106 S.Ct. at 928, 89 L.Ed.2d at 37).

The government's purpose in enacting a prohibition on expression controls a "content-neutrality" inquiry. Ward v. Rock Against Racism, 491 U.S. 781, 791, 109 S.Ct. 2746, 2754, 105 L.Ed.2d 661, 675 (1989). "Government regulation of expressive activity is content neutral so long as it is 'justified without reference to the content of the regulated speech.' " (Emphasis in original.) Ward v. Rock Against Racism, 491 U.S. at 791, 109 S.Ct. at 2754, 105 L.Ed.2d at 675, quoting Clark v. Community for Creative Non-Violence, 468 U.S. 288, 293, 104 S.Ct. 3065, 3069, 82 L. Ed.2d 221, 227 (1984). A restriction that applies impartially to all viewpoints is deemed content-neutral. Comment, The Right to Arm Bears: Activists' Protests Against Hunting, 45 U. Miami L.Rev. 1109, 1126 (1991).

Defendant maintains that inclusion of the phrase "intent to dissuade" in section 2(c) renders the statute content-based, because the word "dissuade" means "advise" or "exhort." Defendant reasons further that, if the state proscribes conduct performed with an intent to dissuade, then the state commits the constitutionally impermissible act of penalizing a citizen for the content of his expression. By outlawing a viewpoint which is expressed with an intent to dissuade, defendant continues, the state implicitly "shut[s]-off one half of the debate" about hunting, and allows those who disturb a hunter without an intent to dissuade to avoid criminal liability.

In State v. Miner, 556 N.W.2d 578 (Minn.App.1996), the Minnesota Court of Appeals construed a "hunter harassment" statute which stated in part:

"A person who has the intent to prevent, disrupt, or dissuade the taking of a wild animal or enjoyment of the out-of-doors may not disturb or interfere with another person who is lawfully taking a wild animal or preparing to take a wild animal." Miner, 556 N.W.2d at 581, citing Minn.Stat. § 97A.037 (1994).

The Miner court held that, to the extent the statute only applied to persons whose intent was to "dissuade the taking of a wild animal or enjoyment of the out-of-doors," the statute was impermissably content-based. Miner, 556 N.W.2d at 583; Minn.Stat. §...