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09/26/96 PEOPLE STATE ILLINOIS v. STEPHANIE J.

September 26, 1996

THE PEOPLE OF THE STATE OF ILLINOIS, APPELLANT,
v.
STEPHANIE J. WARREN, APPELLEE.



The Honorable Justice Freeman delivered the opinion of the court.

The opinion of the court was delivered by: Freeman

The Honorable Justice FREEMAN delivered the opinion of the court:

Defendant, Stephanie Warren, was charged by information in the circuit court of Bureau County with "unlawful interference with child visitation rights per court order" in violation of section 10-5.5 of the Criminal Code of 1961 (720 ILCS 5/10-5.5 (West 1994)). Defendant moved for dismissal of the information on the grounds that the instrument was insufficient and that the statute was unconstitutional. The circuit court, finding the statute unconstitutional, granted defendant's motion. The State appealed directly to this court. 134 Ill. 2d R. 603. We now reverse in part, affirm in part and remand for further proceedings.

BACKGROUND

The facts may be briefly stated as follows. On June 28, 1995, a complaint was filed against defendant for violating the unlawful visitation interference statute. The complaint charged that "defendant did unlawfully detain a child with the intent to deprive Rick Warren with visitation rights in violation of an existing court order." Further, the complaint ordered defendant's appearance in court on July 7, 1995.

On July 7, defendant filed a motion to dismiss the complaint on the basis that it failed to allege sufficient facts to inform her of the exact nature of the alleged offense and, further, that the statute alleged to have been violated, itself, violated the separation of powers clause of the Illinois Constitution of 1970 (Ill. Const. 1970, art. II, § 1) and the due process and equal protection clauses of the Illinois and federal constitutions (Ill. Const. 1970, art. I, § 2; U.S. Const., amends. V, XIV).

On August 14, 1995, a criminal information was filed amending the complaint to read that "defendant knowingly detained her daughter with the intent to deprive Richard Warren of his visitation rights in violation of visitation provision in Bureau County Court Order cause number 93-D-3."

After a hearing on defendant's motion, the trial court declared the statute unconstitutionally vague and violative of equal protection, due process and separation of powers. Accordingly, the court dismissed the complaint.

ARGUMENT(S)

The singular issue presented for our review is whether the trial court erred in finding the unlawful visitation interference statute unconstitutional. The statute provides, in relevant part:

"(b) Every person who, in violation of the visitation provisions of a court order relating to child custody, detains or conceals a child with the intent to deprive another person of his or her rights to visitation shall be guilty of unlawful visitation interference.

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(d) Any law enforcement officer who has probable cause to believe that a person has committed or is committing an act in violation of this Section shall issue to that person a notice to appear.

(g) It is an affirmative defense that:

(1) a person or lawful custodian committed the act to protect the child from imminent physical harm, provided that the defendant's belief that there was physical harm imminent was reasonable and that the defendant's conduct in withholding visitation rights was a reasonable response to the harm believed imminent;

(2) the act was committed with the mutual consent of all parties having a right to custody and visitation of the child; or

(3) the act was otherwise authorized by law.

(h) A person convicted of unlawful visitation interference shall not be subject to a civil contempt citation for the same conduct for violating visitation provisions of a court order issued under the Illinois Marriage and Dissolution of Marriage Act." 720 ILCS 5/10-5.5 (West 1994).

Initially, we note that a statute enjoys a strong presumption of constitutionality and the challenging party bears the burden of establishing its invalidity. People v. P.H., 145 Ill. 2d 209, 233, 164 Ill. Dec. 137, 582 N.E.2d 700 (1991). Our duty, if it can reasonably be done, is to construe enactments so as to sustain their constitutionality and validity. People v. Davis, 93 Ill. 2d 155, 161, 66 Ill. Dec. 294, 442 N.E.2d 855 (1982). Where construction is doubtful, such doubt will be resolved in favor of the validity of the challenged provision. People v. Bales, 108 Ill. 2d 182, 188, 91 Ill. Dec. 171, 483 N.E.2d 517 (1985), quoting Continental Illinois National Bank & Trust Co. v. Illinois State Toll Highway Comm'n, 42 Ill. 2d 385, 389, 251 N.E.2d 253 (1969). Further, whether a statute is wise or desirable is not a concern for the court. Rather, it is wholly for the legislature to balance the advantages and disadvantages of legislation. Braeburn Securities Corp. v. Smith, 15 Ill. 2d 55, 59, 153 N.E.2d 806 (1958); People ex rel. Chicago Dental Society v. A.A.A. Dental Laboratories, Inc., 8 Ill. 2d 330, 334, 134 N.E.2d 285 (1956). That the court might regard certain provisions as unnecessary is immaterial to the constitutionality inquiry. See A.A.A. Dental Laboratories, Inc., 8 Ill. 2d at 334. With these principles in mind, we consider the various challenges to the constitutionality of section 10-5.5, the unlawful visitation interference statute.

Vagueness

Due process demands that a statute must not be so vague that persons of common intelligence must necessarily guess at either its meaning or its application. People v. Hickman, 163 Ill. 2d 250, 256, 206 Ill. Dec. 94, 644 N.E.2d 1147 (1994). That is not to suggest, however, that mathematical certainty in language is required. People v. Fabing, 143 Ill. 2d 48, 53, 155 Ill. Dec. 816, 570 N.E.2d 329 (1991). Where the statute does not impinge on first amendment rights, due process is satisfied if: (1) the statute's prohibitions are sufficiently definite, when measured by common understanding and practices, to give a person of ordinary intelligence fair warning as to what conduct is prohibited, and (2) the statute provides sufficiently definite standards for law enforcement officers and triers of fact that its application does not depend merely on their private conceptions. Hickman, 163 Ill. 2d at 256-57.

The trial court held that the statute was vague and uncertain in two regards. The court first noted that the confusion begins with the words "unlawful visitation." The court observed that very few crimes have a "redundant unlawful" in front of the title. "We do not have unlawful murder or unlawful battery." The term "visitation interference" alone, the court noted, connotes visitation misconduct.

Defendant asserted no vagueness challenge below. In her responsive brief here, however, she contends that the statute lacks definite standards and is susceptible to multiple interpretations with multiple possible results.

We disagree with both the trial court's and defendant's assessment of the statute. The term "unlawful visitation" appears as part of the title as well as in the text of the provision. In construing a statute, every part, including its title, must be considered together. People v. Hetzel, 243 Ill. App. 3d 83, 85, 183 Ill. Dec. 804, 612 N.E.2d 61 (1993), citing Wilcoxen v. Paige, 174 Ill. App. 3d 541, 124 Ill. Dec. 213, 528 N.E.2d 1104 (1988).

Viewing the language of the unlawful visitation interference statute as a whole, we believe that a person of fair intelligence is given fair warning as to what conduct is proscribed. The allegations in the information charging the defendant indicate that defendant committed the offense of unlawful visitation interference in that she knowingly detained her daughter with the intent to deprive Richard Warren of his visitation rights, in violation of visitation set forth in the Bureau ...


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