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People v. Schwartz





Appeal from the Circuit Court of Cook County; the Hon. George Dolezal, Judge, presiding.


Defendant, Spencer Schwartz, an attorney, was charged with requesting and partly receiving compensation for placing out a child for adoption in violation of the Adoption Act (Ill. Rev. Stat. 1973, ch. 4, par. 12-5). The circuit court of Cook County granted defendant's motion to dismiss the complaints on the ground that section 12-1 of the Adoption Act is unconstitutional. The circuit court also found that the complaints in question were "defective and, therefore, void." A direct appeal to this court was taken pursuant to our Rule 302(a). 58 Ill.2d R. 302(a).

The basis of the circuit court's finding of unconstitutionality was its determination that section 12-1 is vague, uncertain and overbroad. Section 12-1 provides:

"No person and no agency, association, corporation, institution, society, or other organization, except a child welfare agency as defined by the `Child Care Act' * * * shall request, receive or accept any compensation or thing of value, directly or indirectly, for placing out of a child."

Section 12-3 of the Act defines the term "placing out."

"As used in this Act the term `placing out' means to arrange for the free care of a child in a family other than that of the child's parent, stepparent, grandparent, brother, sister, uncle or aunt or legal guardian, for the purpose of adoption or for the purpose of providing care."

The circuit court specifically found that the phrases "placing out of a child," "arranging for the free care" and "for the purpose of providing care" were so obscure that they failed to set forth constitutionally sufficient standards of conduct. The circuit court also found the statute defective for the reason that it failed to define the word "child."

Though this is the first case to test the constitutionality of the statutes in question, the principles involved are well settled. A criminal statute violates the requirement of due process of law if it fails to adequately give notice as to what action or conduct is proscribed. (People v. Vandiver (1971), 51 Ill.2d 525.) Impossible standards of specificity, however, are not required. (Jordan v. De George (1951), 341 U.S. 223, 231, 95 L.Ed. 886, 71 S.Ct. 703; People v. Dednam (1973), 55 Ill.2d 565.) As stated by Mr. Justice Marshall, "Condemned to the use of words, we can never expect mathematical certainty from our language." (Grayned v. City of Rockford (1972), 408 U.S. 104, 110, 33 L.Ed.2d 222, 228-29, 92 S.Ct. 2294.) When called upon to decide a vagueness question, a court will assume, absent contrary legislative intent, that the words of the statute have their ordinary and popularly understood meanings. (Farrand Coal Co. v. Halpin (1957), 10 Ill.2d 507, 510.) In addition to the language used, consideration is given to the legislative objective and the evil the statute seeks to remedy. (People v. Dedham (1973), 55 Ill.2d 565.) A statute enjoys a presumption of constitutionality. Livingston v. Ogilvie (1969), 43 Ill.2d 9, 12.

With these principles in mind, we first consider the issue of vagueness. In contending that the statutes in question are vague and indefinite, defendant primarily questions the definition of "placing out" in section 12-3 and the lack of a statutory definition of the word "child." Initially, we find no merit in defendant's contention that the term "placing out" is vague as a result of the inclusion of the phrases "arrange for the free care" and "for the purpose of providing care" in the statutory definition.

Sections 12-1 and 12-3 of the Adoption Act simply provide that only a child welfare agency shall request or receive compensation for the placement of children within families other than those listed in section 12-3. All others are prohibited from acting as paid intermediaries in the adoption process. The obvious purpose of the statute is to prevent profiteering in the placement of children and to eliminate so-called "baby markets" and "baby brokers." The phrase "arrange for the free care" adequately describes the conduct the legislature intended to condemn. The final phrase of section 12-3 prevents circumvention of the legislative goal through informal placement agreements which do not contemplate formal adoption proceedings, but which have the same practical effect. Though it is likely that section 12-3 could have been more clearly drafted, we find no ambiguity which would cause men of ordinary understanding to guess as to the nature of the conduct it defines.

Nor do we consider the lack of a statutory definition of the word "child" to be a fatal defect. The trial court found, from the pleadings and arguments, that the unnamed child in question was unborn, and concluded that it could not be determined whether an unborn child falls within the ambit of section 12-1. The State contends that a popularly understood meaning of the word "child" includes an unborn offspring. For support, the State cites the dictionary definition of the word (Webster's Third New International Dictionary 388 (1971)).

We consider that the word "child," as used in sections 12-1 and 12-3 of the Adoption Act, was intended to include unborn offspring. Significantly, the Act does not simply prohibit the actual placement of children by an unlicensed person. Rather, it prohibits the request or receipt of compensation for the placing out of a child. The illegal act thus occurs when an unlicensed person offers to serve as a paid agent to either obtain or dispose of a child. The Act as written prohibits an agreement that a fee will be paid for the transfer of a yet unborn child as clearly as an arrangement for the compensated placement of a child in being. We cannot presume that the legislature intended to exempt from section 12-1 placement arrangements in which all steps, save delivery, were completed while the child was in gestation. In our view, the clear import of the statute is that the meaning of the word "child" is not restricted to children in being.

We therefore conclude that the circuit court erred in holding section 12-1 of the Adoption Act unconstitutional due to vagueness. We turn next to the lower court's determination that section ...

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