Appeal from the Circuit Court of Cook County; the Hon. Marvin
E. Gavin, Judge, presiding.
JUSTICE JOHNSON DELIVERED THE OPINION OF THE COURT:
Defendant, Alan Thomason, was charged with driving under the influence of liquor on October 31, 1983, in violation of a village of Park Forest (hereafter the plaintiff) ordinance that was enacted in 1982. The ordinance provided for a fine of not less than $150 nor more than $500, but it did not provide for or authorize a jail sentence.
On May 1, 1984, defendant pleaded guilty to the charge and was sentenced to a $150 fine and a one-year term of court supervision to terminate on April 9, 1985. However, on April 1, 1985, defendant filed a motion to vacate his plea of guilty on the ground that in Village of Mundelein v. Hartnett (1983), 117 Ill. App.3d 1011, 454 N.E.2d 29, the appellate court found a similar local ordinance to be unconstitutional and that plaintiff's ordinance was also unconstitutional. The trial court subsequently granted defendant's motion, noting that the plaintiff elected to stand on the validity of its ordinance which remained in effect.
On appeal, the plaintiff contends that this is a case of first impression in Illinois to be distinguished from Village of Mundelein v. Hartnett (1983), 117 Ill. App.3d 1011, 454 N.E.2d 29, and Village of Wilmette v. Michels (1985), 137 Ill. App.3d 1001, 485 N.E.2d 426, because this case involves a home rule ordinance and a constitutional challenge to section 11-501(c) of the Illinois Vehicle Code (Ill. Rev. Stat. 1983, ch. 95 1/2, par. 11-501(c)), which provides that every person "convicted of violating this Section or a similar provision of a local ordinance shall be guilty of a Class A misdemeanor." The plaintiff further contends that an order of supervision should not be set aside, and a cause returned for trial on defendant's motion, after term, but before termination of supervision, absent any pleading alleging violation of the terms of supervision.
In Village of Mundelein v. Hartnett (1983), 117 Ill. App.3d 1011, 454 N.E.2d 29, the village of Mundelein had a DUI ordinance identical to that of the plaintiff in all respects except that Mundelein provided for a fine of not less than $200 nor more than $500. The appellate court declared the Mundelein ordinance invalid because it violated the State's public policy on drunk driving as expressed in an amendment to section 11-501 (Ill. Rev. Stat. 1983, ch. 95 1/2, par. 11-501, as amended by Pub. Act 82-311, effective January 1, 1982), for its failure to provide for a possible jail sentence of up to one year and a possible fine of up to $1,000.
Similarly, Village of Wilmette v. Michels (1985), 137 Ill. App.3d 1001, 485 N.E.2d 426, concerned a Wilmette drunk driving ordinance which was identical to that of the village of Mundelein except that the Wilmette ordinance provided for a fine of not less than $100 nor more than $500. This court, citing Village of Mundelein v. Hartnett, noted that Wilmette's ordinance was invalid and reversed the defendant's conviction thereunder because it rested upon a complaint which failed to state an offense.
• 1 The plaintiff attempts to distinguish these cases on the basis that they did not involve home rule ordinances or constitutional issues. We cannot accept plaintiff's argument that this case is distinguishable from Village of Mundelein and Village of Wilmette because it involves a home rule ordinance.
The 1970 Illinois Constitution accorded substantial authority to home rule units, subject only to the restrictions imposed or authorized in the constitution. (Leck v. Michaelson (1984), 129 Ill. App.3d 593, 472 N.E.2d 1166.) However, article VII, section 6, of our constitution provides in relevant part:
"(a) * * * Except as limited by this Section, a home rule unit may exercise any power and perform any function pertaining to its government and affairs including, but not limited to, the power to regulate for the protection of the public health, safety, morals and welfare; * * *.
(g) The General Assembly by a law * * * may deny or limit the power to tax and any other power or function of a home rule unit not exercised or performed by the State other than a power or function specified in subsection (1) of this Section.
(h) The General Assembly may provide specifically by law for the exclusive exercise by the State of any power or function of a home rule unit other than a taxing power or a power or function specified in subsection (1) of this section.
(i) Home rule units may exercise and perform concurrently with the State any power or function of a home rule unit to the extent that the General Assembly by law does not specifically limit the concurrent exercise or specifically declare the State's exercise to be exclusive." Ill. Const. 1970, art. VII, sec. 6.
The limitation "pertaining to its government and affairs" has been interpreted to limit the scope of home rule powers to those relating to their own problems, not to those of the State or the nation. (Kalodimos v. Village of Morton Grove (1984), 103 Ill.2d 483, 470 N.E.2d 266; Leck v. Michaelson (1985), 129 Ill. App.3d 593, 472 N.E.2d 1166.) The supreme court has upheld the right of local governments to enact their own solutions to various problems of local concern following a determination that the State's expression of interest in the subject as evidenced by its statutory scheme did not amount to an express attempt to declare the subject as one requiring exclusive State control. (Kalodimos v. Village of Morton Grove (1984), 103 Ill.2d 483, 470 N.E.2d 266.) These holdings follow the mandate of section 6(i) of the local government article of the Constitution that home rule units may exercise home rule powers concurrently with the State until the general assembly "specifically" limits such exercise or declares the State's exercise to be exclusive and are also consistent with sections 6(g) and 6(h) of that article which provide the methods by which the legislature may preempt a home rule power. Kalodimos v. Village of Morton Grove (1984), 103 Ill.2d 483, 470 N.E.2d 266.
Accordingly, the inquiry in this case becomes whether the State's expression of interest in the subject of drunk driving, as evidenced by its statutory scheme, amounted to an express attempt to declare the subject one requiring exclusive State control. Whether a particular power or function is one accorded to home rule units is to be determined by the courts. (Ampersand, Inc. v. Finley (1975), 61 Ill.2d 537, 338 N.E.2d 15; Leck v. Michaelson (1985), 129 Ill. App.3d 593, 472 N.E.2d 1166.) We ...