SUPREME COURT OF ILLINOIS
515 N.E.2d 42, 118 Ill. 2d 298, 113 Ill. Dec. 233 1987.IL.1490
Appeal from the Circuit Court of Cook County, the Hon. Mary Jane Theis, Judge, presiding.
JUSTICE MORAN delivered the opinion of the court. JUSTICE CUNNINGHAM took no part in the consideration or decision of this case.
DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE MORAN
Defendants Louis Monroe and Ellis Levin were charged in separate actions in the circuit court of Cook County with violations of the Drug Paraphernalia Control Act (the Act) (Ill. Rev. Stat. 1985, ch. 56 1/2, pars. 2101 through 2107). Their cases were consolidated for trial, and on the defendants' motions to dismiss, the court held that the Act was impermissibly vague and therefore unconstitutional. The State appeals directly to this court. 107 Ill. 2d R. 603.
The State raises five issues on appeal. However, because of our Disposition of the case it is only necessary that we reach the following issue: whether the Act is unconstitutionally vague because it contains two contradictory mental state requirements.
Initially, we must address the State's contention that in considering the constitutionality of the Act we are confined to passing on only the precise ruling of the trial court. The State notes that the trial court only found that the Act was unconstitutionally vague because of a variance between the mental state requirements in the definition of drug paraphernalia in section 2(d) (Ill. Rev. Stat. 1985, ch. 56 1/2, par. 2102) and the statement of legislative intent in section 6 (Ill. Rev. Stat. 1985, ch. 56 1/2, par. 2106). The State then argues that we must limit our review to this basis for the trial court's ruling and ignore the defendants' other constitutional challenges since they are alleged to be outside the factual setting in the trial court.
It is well settled that an appellee may raise any arguments in support of the trial court's judgment even though they were not directly ruled upon by the trial court. (Hickey v. Illinois Central R.R. Co. (1966), 35 Ill. 2d 427, 439-40; In re Estate of Leichtenberg (1956), 7 Ill. 2d 545, 549.) But it is also necessary that any points advanced in support of the trial court's ruling have a sufficient factual basis before the trial court. (Shaw v. Lorenz (1969), 42 Ill. 2d 246, 248.) Arguments of appellees based upon hypothetical factual settings will not be considered by a reviewing court. However, in this case it is difficult to discern how the defendants' arguments are outside the factual setting in the trial court. All of the defendants' arguments were raised in the trial court and challenge the constitutionality of the Act. Arguably, the defendants' challenges to the forfeiture and nuisance provisions are speculative since the State had not moved for forfeiture or to abate a public nuisance; however, because of our Disposition of the case this need not delay us.
Defendants first contend that the Act is unconstitutionally vague because the definition of drug paraphernalia in section 2(d) (Ill. Rev. Stat. 1985, ch. 56 1/2, par. 2102) and the penalty provision in section 3(a) (Ill. Rev. Stat. 1985, ch. 56 1/2, par. 2103) contain contradictory mental state requirements.
Section 2(d) defines drug paraphernalia as follows:
"(d) 'Drug Paraphernalia' means all equipment, products and materials of any kind which are peculiar to and marketed for use in planting, propagating, cultivating, growing, harvesting, manufacturing, compounding, converting, producing, processing, preparing, testing, analyzing, packaging, repackaging, storing, containing, concealing, injecting, ingesting, inhaling or otherwise introducing into the human body cannabis or a controlled substance in violation of the 'Cannabis Control Act' or the 'Illinois Controlled Substances Act.'" (Emphasis added.) Ill. Rev. Stat. 1985, ch. 56 1/2, par. 2102 (hereinafter, definition section).
Section 3(a) provides that a violation of the Act occurs when:
"(a) Any person who keeps for sale, offers for sale, sells, or delivers for any commercial consideration any item which that person knows, or under all of the circumstances reasonably should have known, to be drug paraphernalia, commits a business offense for which a fine of $1,000.00 shall be imposed for each such item." ...