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People v. Tosch

OPINION FILED DECEMBER 3, 1986.

THE PEOPLE OF THE STATE OF ILLINOIS, APPELLANT,

v.

SUSAN TOSCH, APPELLEE.



Appeal from the Circuit Court of Cook County, the Hon. John E. Bowe, Judge, presiding.

JUSTICE GOLDENHERSH DELIVERED THE OPINION OF THE COURT:

Defendant, Susan Tosch, was charged by complaint with standing in the roadway and stopping automobiles for the purpose of soliciting a ride or business in violation of section 11-1006 of the Illinois Vehicle Code (Ill. Rev. Stat. 1985, ch. 95 1/2, par. 11-1006). The circuit court of Cook County, upon allowance of defendant's oral motion to dismiss the charge, held sections 11-1006(a) and (b) of the Illinois Vehicle Code (Ill. Rev. Stat. 1985, ch. 95 1/2, par. 1-100 et seq.) unconstitutional, and the People appealed (87 Ill.2d R. 603).

The complaint charged that defendant "committed the offense of PEDESTRIAN SOLICITING RIDES OR BUSINESS in that SHE DID STAND IN THE ROADWAY AND STOP AUTOS FOR THE PURPOSE OF SOLICITING A RIDE OR BUSINESS ***." The police arrest report indicates that defendant was taken into custody when the arresting officer "observed her standing in the roadway stopping vehicles containing males [sic] subjects and engaging them in conversation. After arrestee observed arresting officers she moved a block further down the street," continuing to solicit rides on the public way.

Section 11-1006 provides, in pertinent part:

"(a) No person shall stand in a roadway for the purpose of soliciting a ride from the driver of any vehicle.

(b) No person shall stand on a highway for the purpose of soliciting employment or business from the occupant of any vehicle.

(c) No person shall stand on a highway for the purpose of soliciting contributions from the occupant of any vehicle except within a municipality when expressly permitted by municipal ordinance. Solicitation on highways within this State shall be allowed only at intersections where all traffic is required to come to a full stop. The soliciting agency shall be:

1. registered with the Attorney General as a charitable organization as provided by `An Act to regulate solicitation and collection of funds for charitable purposes, providing for violations thereof, and making an appropriation therefor', approved July 26, 1963, as amended;

2. engaged in a Statewide fund raising activity; and

3. liable for any injuries to any person or property during the solicitation which is causally related to an act of ordinary negligence of the soliciting agent." Ill. Rev. Stat. 1985, ch. 95 1/2, pars. 11-1006(a), (b), (c)(1), (c)(2), (c)(3).

In holding the statute unconstitutional, the circuit court found that the exemption of charitable groups from the statute's prohibition against soliciting rides and business on public ways resulted in an arbitrary and unreasonable classification. The order did not state whether the court found the statute invalid as violative of equal protection guarantees or because it was special legislation, but in either event, the standards for determining its validity are the same. (Jenkins v. Wu (1984), 102 Ill.2d 468, 477-78; People v. Gurell (1983), 98 Ill.2d 194, 206.) The complaint did not state whether defendant was charged under subsection (a) or (b) of the statute, and the circuit court declared both subsections (a) and (b) unconstitutional.

Citing People ex rel. Carey v. Chrastka (1980), 83 Ill.2d 67, and People ex rel. Tucker v. Kotsos (1977), 68 Ill.2d 88, the People argue that because there were no fundamental rights implicated in the instant case, the test to be applied in determining the validity of the statute was whether the scheme was rationally designed to further a legitimate State purpose. They assert that neither the right to stand in the roadway and solicit rides, business or employment nor the right to solicit for charitable contributions is a fundamental right. They submit that there was a reasonable basis for distinguishing the class to which the law was applicable from the class to which it was not: the General Assembly has determined that soliciting for charitable purposes was an important means of providing for the health, safety and welfare of the citizens of Illinois, whereas soliciting for rides and business only created health, safety and welfare problems.

Defendant concedes that keeping the roadways safe for travel was a legitimate purpose of section 11-1006 and that prior to 1980, when it proscribed solicitation of "employment, business or contributions," section 11-1006 had been held constitutional. (See United States Labor Party v. Oremus (7th Cir. 1980), 619 F.2d 683.) She argues, however, that the amendment of subsections (a) and (b) and the addition of subsection (c), creating an exception for solicitation for charitable purposes, were in no way related to this legitimate purpose. Citing the House and Senate bills and the debates in the General Assembly (81st Ill. Gen. Assem., Senate Proceedings, March 15, 1979, at 12, 100-11; March 20, 1979, at 5-6; June 10, 1979, at 1-2; 81st Ill. Gen. Assem., House Proceedings, April 26, 1979, at 89, 91-92) leading to the enactment of section 11-1006, defendant also argues that the statute "creates an inherently suspect classification which was intended to exclude religious organizations referred to as `cults' such as the Moonies and Hare Krishnas." She asserts the transcripts show that the requirement of statewide fundraising activity was considered an "important protection" against fundraising by cults. She argues that subsection (c) does not act uniformly as to all those persons soliciting rides, business or charitable contributions on the streets, and results in discrimination as to many of them because certain groups may solicit charitable contributions, whereas others may not. Finally, defendant admits that there may be questions concerning her standing to challenge the statute's validity because her conduct does not fall within the class of conduct which is regulated by subsection (c). She argues, however, that she has standing to contest the constitutionality of the entire section because subsections (a), (b) and (c) are so interrelated that the invalidity of subsection (c) renders the entire statute invalid (People v. Mayberry (1976), 63 Ill.2d 1); and that her conduct constitutes an exercise of her first amendment rights (County Court v. Allen (1979), 442 U.S. 140, 60 L.Ed.2d 777, 99 S.Ct. 2213; Gooding v. Wilson (1972), 405 U.S. 518, 31 L.Ed.2d 408, 92 S.Ct. 1103).

Before addressing the issues, we note certain concessions made during oral argument by defendant's counsel. When questioned whether the statute, absent subsection (c), was constitutional, counsel responded in the affirmative. He agreed with the People that subsections (a) and (b) were a valid means of providing for the health, safety and welfare of those persons traveling on the highways, and that keeping the highways safe is a legitimate State interest to which subsections (a) and (b) are clearly related.

Although in our opinion there is a basis for doubt whether defendant has standing to challenge the validity of the statute, the People have not raised the issue. Under the circumstances, we will not discuss the question of ...


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