United States District Court, Northern District of Illinois, W.D
July 15, 1985
UNITED STATES OF AMERICA EX REL, CARL HOLDER, PETITIONER,
CIRCUIT COURT OF THE 17TH JUDICIAL CIRCUIT, WINNEBAGO COUNTY, ILLINOIS, RESPONDENT.
The opinion of the court was delivered by: Roszkowski, District Judge.
Before the court are the petitioner's and respondent's motions
for summary judgment. The court's subject matter jurisdiction is
predicated upon 28 U.S.C. § 2254 (1982). For the reasons set
forth herein, petitioner's motion for summary judgment is granted
and respondent's motion is denied.
Petitioner, Carl Holder, a union business representative
involved in union organizing and contract negotiating activities,
was convicted of criminal intimidation as defined in
Ill.Rev.Stat. ch. 38, ¶ 12-6(a)(3) (1983). The conviction arose
from petitioner's alleged threat to an employer during union
organizing activities. According to
the employer, the petitioner informed him that the concrete would
be allowed to harden in the employer's "ready-mix" concrete
trucks if the employer did not sign a collective bargaining
Petitioner's conviction was originally overturned by the
Illinois Appellate Court on the grounds that § 12-6(a)(3) was
overbroad and conflicted with the First Amendment. People v.
Holder, 103 Ill.App.3d 353, 59 Ill.Dec. 142, 431 N.E.2d 831
(1982). The Illinois Supreme Court, two justices dissenting,
reversed the appellate court and remanded the case for
consideration of the petitioner's remaining arguments. People v.
Holder, 96 Ill.2d 444, 71 Ill.Dec. 677, 451 N.E.2d 831 (1983). On
remand, the appellate court affirmed the petitioner's conviction.
People v. Holder, 119 Ill.App.3d 366, 74 Ill.Dec. 907,
456 N.E.2d 628 (1983). With one justice dissenting, the Illinois Supreme
Court refused to review the appellate court's second decision.
People v. Holder, 96 Ill.2d 569, 76 Ill.Dec. 505, 458 N.E.2d 1305
(1984). Subsequently, the United States Supreme Court refused to
grant a writ of certiorari. Holder v. Illinois, ___ U.S. ___, 104
S.Ct. 3511, 82 L.Ed.2d 820 (1984).
In the present action, the petitioner raises two principal
arguments. First, the petitioner contends ¶ 12-6(a)(3) is
overbroad and vague in conflict with the First Amendment. Second,
the petitioner argues his particular conviction conflicts with
national labor policy and the Supremacy Clause of the United
A. The Illinois Intimidation Statute
Subparagraph 12-6(a)(3) of the Illinois Criminal Code provides:
(a) A person commits intimidation when, with intent
to cause another to perform or to omit the
performance of any act, he communicates to another
a threat to perform without lawful authority any of
the following acts:
(3) commit any criminal offense[.] * *
Sub-paragraph 2-12 of the Illinois Criminal Code defines
"offense" as "a violation of any penal statute of this State."
Ill.Rev.Stat. ch. 38, ¶ 2-12 (1983). The Illinois Supreme Court
has construed ¶ 12-6(a)(3) as requiring a specific intent to
cause another to perform or omit the performance of certain acts.
People v. Smith, 78 Ill.2d 298, 35 Ill.Dec. 761, 766,
399 N.E.2d 1289, 1294 (1980). In addition, the Illinois Supreme Court has
judicially imposed the requirement that a statement violating ¶
12-6(a)(3) have "a reasonable tendency to coerce." People v.
Gallo, 54 Ill.2d 343, 297 N.E.2d 569, 574 (1973).
B. First Amendment Challenge: Overbreadth
Petitioner initially contends the Illinois intimidation statute
is unconstitutionally overbroad in violation of the First
Amendment. The "overbreadth doctrine" allows a person against
whom a statute may be applied constitutionally to challenge the
facial validity of the statute on the grounds that it may
conceivably be applied unconstitutionally to others in situations
not presently before the court. New York v. Ferber, 458 U.S. 747,
767-69, 102 S.Ct. 3348, 3359-61, 73 L.Ed.2d 1113 (1982). This
"overbreadth" exception to ordinary standing requirements is
recognized in the First Amendment area because "persons whose
expression is constitutionally protected may well refrain from
exercising their rights for fear of criminal sanctions by a
statute susceptible of application to protected expression." Id.
at 768, 102 S.Ct. at 3361 (quoting Schaumberg v. Citizens for a
Better Environment, 444 U.S. 620, 634, 100 S.Ct. 826, 834, 63
L.Ed.2d 73 (1980)
and Gooding v. Wilson, 405 U.S. 518, 521, 92 S.Ct. 1103, 1105, 31
L.Ed.2d 408 (1972)). Nonetheless, recent Supreme Court decisions
have recognized that the overbreadth doctrine is "strong
medicine", to be employed "only as a last resort" when the
overbreadth involved is "substantial". Id. 458 U.S. at 769, 102
S.Ct. at 3361 See also Broadrick v. Oklahoma, 413 U.S. 601, 613,
93 S.Ct. 2908, 2916, 37 L.Ed.2d 830 (1973).
In the present case, the majority of the Illinois Supreme Court
recognized that ¶ 12-6(a)(3) potentially could be applied
unconstitutionally to certain speech. The majority concluded,
however, that the risk of such an application was not
substantial. People v. Holder, 96 Ill.2d 444, 71 Ill.Dec. 677,
681, 451 N.E.2d 831, 835 (1983). Specifically, the court noted:
While it is true that under section 12-6(a)(3) one
could be prosecuted for threatening to picket in
front of city hall without a permit
(Ill.Rev.Stat. 1979, ch. 38, par. 85-3), or
threatening to distribute literature that is deemed
`offensive' within the right-of-way limits of a State
toll highway (Ill.Rev.Stat. 1979, ch. 121, par 314a47
1/2), we find that any such conceivable impermissible
applications are dwarfed by the statute's legitimate
reach in prohibiting threatened criminal activity.
We feel that the flaw in section 12-6(a)(3) is not a
"substantial concern" when viewed in the context of
the legitimate sweep of an intimidation statute.
In urging that the Illinois intimidation statute is
unconstitutional, the petitioner relies principally upon Wurtz v.
Risley, 719 F.2d 1438 (9th Cir. 1983) and Landry v. Daley,
280 F. Supp. 938 (N.D.Ill. 1968) rev'd on other grounds sub. nom
401 U.S. 77, 91 S.Ct. 758, 27 L.Ed.2d 696 (1971). In Wurtz, the
petitioner challenged Montana's intimidation statute on the
grounds that it was unconstitutionally overbroad in violation of
the First Amendment. The pertinent terms of the Montana statute
were essentially identical to the terms of the Illinois act. The
court found the Montana statute was overbroad, however, noting:
[t]he statutory language applies so broadly  to
threats of minor infractions,  to threats not
reasonably likely to induce a belief that they will
be carried out, and  to threats unrelated to any
induced or threatened action, that a great deal of
protected speech is brought within the statute.
Id. at 1442. Thus, while noting that the petitioner's behavior
was an extremely serious matter that Montana had the right to
outlaw through a narrowly drawn or narrowly construed statute,
the court concluded that the existing statute fairly invited "the
application of the strong medicine of overbreath adjudication."
In Landry, prior to the Illinois Supreme or Appellate Courts
having had occasion to construe the statute, a three judge
district court held the Illinois Intimidation Statute was
unconstitutionally overbroad. First, while recognizing that
"[t]he State of Illinois unquestionably has an interest in
protecting persons from coercion by threats, even though
expression was involved," the court held "Illinois has no
legitimate interest in proscribing as intimidation statements
that have no reasonable tendency to coerce or statements which,
although alarming, are not expressions of an intent to act" Id.
at 961. Since the language of the statute was not limited to
statements having a reasonable tendency to coerce, or expressions
of an intent to act, however, the court found the statute was
Second, the Landry court held the statute improperly applied to
threats of insubstantial evil. Specifically, the court noted:
Sub-paragraph (a)(3) proscribes threats to violate
any penal statute. It therefore makes criminal
threats such as the following: (1) threats by
dissentient groups to engage in disorderly conduct,
 threats by residents of a high-crime neighborhood
to carry concealed weapons for their own protection,
and  threats by mothers to block a dangerous state
highway to demonstrate the need for increased safety
the phrase `commit any criminal offense' is so broad
as to include threats to commit misdemeanors
punishable by fine only. These interests are not so
substantial that the state's interest in prohibiting
the threats of them outweighs the public interest in
giving political discussion a wide berth.
Id. at 964 (emphasis in original and footnotes omitted).
Consequently, the court held that "making it an offense to
threaten to commit any crime, no matter how minor or
insubstantial, is an unwarranted limitation." Id.
Both Wurth and Landry are at least partially distinguishable
from the present case. As previously noted, the Illinois Supreme
Court has judicially imposed the requirement that a statement
violating ¶ 12-6(a)(3) must have a "reasonable tendency to
coerce." People v. Gallo, 54 Ill.2d 343, 297 N.E.2d 569, 574
(1973). At the time Wurth and Landry were decided, however, the
Montana Supreme Court had refused to give the Montana statute a
similar narrowing construction and the Illinois Supreme Court had
not yet had the opportunity to give the Illinois Statute its
narrowing construction. Thus, to the extent those courts'
findings of overbreadth were based upon the statutes not being
limited to threats "reasonably likely to induce a belief that
they will be carried out" (Wurth) or "having a reasonable
tendency to coerce" (Landry), the decisions are distinguishable.*fn2
In the view of this court, however, the Wurth and Landry courts
other grounds for finding the subject statutes were overbroad are
fully applicable here. The Illinois statute still suffers from
the infirmity of proscribing threats of minor infractions, still
making it an offense to threaten to commit any crime no matter
how minor or insubstantial. Respondent has not cited, and this
court has not located, any Illinois decision narrowing the
application of ¶ 12-6(a)(3) in such a fashion as to avoid the
unconstitutional applications cited in Landry and reaffirmed in
Wurth. Indeed, the Illinois Supreme Court noted several
additional potential applications which the court conceded would
be impermissible; the court did not, however, suggest any
limiting construction which would avoid such potential
applications. Instead, as noted previously, the majority of the
court merely summarily concluded the "flaw" in ¶ 12-6(a)(3) was
not a substantial concern.
This court, however, in accord with the Ninth Circuit in Wurth
and the Illinois Appellate and dissenting Supreme Court Justices
in the present state court proceedings, finds ¶ 12-6(a)(3)
remains substantially overbroad. Indeed, given the examples of
impermissible applications cited by the three judge district
court in Landry and the majority of the Illinois Supreme Court in
the state proceedings, it is difficult to imagine a more
openended, overbroad statute. While this court has no doubt the
State of Illinois could prohibit the conduct complained of
pursuant to a more narrowly drafted statute, this court finds the
instant statute was not sufficiently restricted.
If a statute is divided into wholly independent parts, it is
well recognized that only the unconstitutional portion of the
statute should be invalidated and stricken. See Brockett v.
Spokane Arcades, Inc., ___ U.S. ___, ___, 105 S.Ct. 2794, 2801,
86 L.Ed.2d 394 (1985). While the present decision has at times
referred loosely to the Illinois Intimidation Statute as a whole,
the Court's finding of overbreadth only pertains to subsection
(a)(3). Subsection (a)(3) is wholly independent from the
remaining six subsections. Thus, only that subsection need be
For the reasons set forth herein, petitioner's motion for
summary judgment and request for a writ of habeas corpus are
granted. Respondent's motion for summary judgment is denied. In
view of the resolution of the petitioner's overbreadth
objection, petitioner's void for vagueness and Supremacy Clause
arguments need not be addressed.