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People v. Selby

August 17, 1998

THE PEOPLE OF THE STATE OF ILLINOIS, PLAINTIFF-APPELLANT,
v.
DWIGHT SELBY, JAMES HAND, AND ADRIAN GLENN, DEFENDANTS-APPELLEES.



The opinion of the court was delivered by: Justice Garman

IN THE COURT OF APPEALS OF THE STATE OF ILLINOIS

Appeal from Circuit Court of Livingston County

Nos. 97CF31, 97CF32, 97CF33

Honorable Charles E. Glennon, Judge Presiding.

In March 1997, a Livingston County grand jury returned indictments against defendants, Dwight Selby and James Hand, each on four counts of official misconduct (720 ILCS 5/33-3 (West 1994)) and one count of conspiracy (720 ILCS 5/8-2(a) (West 1994)). The grand jury also indicted defendant, Adrian Glenn, on two counts of official misconduct. In October 1997, the trial court dismissed the indictments, and the State appeals. For the following reasons, we reverse and remand for further proceedings.

I. BACKGROUND

The indictments, which contain substantially the same allegations, charge defendants with the criminal offense of official misconduct in violation of sections 33-3(b) and (c) of the Criminal Code of 1961 (Code) (720 ILCS 5/33-3(b), (c) (West 1994)), based upon their violation of section 120 of title 20 of the Illinois Administrative Code (Administrative Code) (20 Ill. Adm. Code §120 et seq. (1997)). Section 33-3 of the Code provides, in relevant part:

"Official Misconduct. A public officer or employee commits misconduct when, in his official capacity, he commits any of the following acts: *** (b) Knowingly performs an act which he knows he is forbidden by law to perform; or (c) With intent to obtain a personal advantage for himself or another, he performs an act in excess of his lawful authority." 720 ILCS 5/33-3(b), (c) (West 1994).

Title 20 of the Administrative Code prescribes rules of conduct for employees of the Illinois Department of Corrections (Department). 20 Ill. Adm. Code §120.10 (1997). Section 120.50 of title 20 of the Administrative Code, entitled "Socializing with Committed Persons," provides, in relevant part, that Department employees "shall not knowingly socialize with *** any committed person ***, except in the performance of an assignment or as approved in writing by the Director." 20 Ill. Adm. Code §120.50 (1997). The phrase "committed person" is defined as "any person committed to the custody of the Department [of Corrections], including those persons released on parole or mandatory supervised release." 20 Ill. Adm. Code §120.20 (1997). The terms "socializing" and "socialize" are not defined by the regulation. The indictments concerning section 33-3(b) charge defendants: "[P]ublic employee[s], to wit: *** Correctional Officer[s], Illinois Department of Corrections, while acting in [their] official capacity, knowingly performed an act which [they] know[] is forbidden by law to perform, that law being Illinois Administrative Rules, Title 20, Corrections, Criminal Justice, and Law Enforcement, Department of Corrections, Part 120, Rules of Conduct, Section 120.50, Socializing with Committed Persons, to wit: in that *** defendant[s] socialized with *** committed person[s] *** by engaging in sexual intercourse with [them], in violation of Illinois Compiled Statutes, Chapter 720, Section 5/33-3(b) ***."

With respect to section 33-3(c), the indictments charge defendants: "[P]ublic employee[s], to wit: *** Correctional Officer[s], Illinois Department of Corrections, while acting in [their] official capacity, with intent to obtain a personal advantage for [themselves], [they] performed an act in excess of [their] lawful authority, in that while on duty [they] performed an act that [they] know[] is forbidden by law to perform [sic], that law being Illinois Administrative Rules, Title 20, Corrections, Criminal Justice, and Law Enforcement, Department of Corrections, Part 120, Rules of Conduct, Section 120.50, Socializing with Committed Persons, to wit: in that *** defendant[s] engaged in sexual intercourse with [committed persons], in violation of Illinois Compiled Statutes, Chapter 720, Section 5/33-3(c) ***."

Defendants Selby and Hand were further charged with conspiring to commit the offense of official misconduct in violation of section 8-2(a) of the Code (720 ILCS 5/8-2(a) (West 1996)).

On May 5, 1997, defendants Hand and Glenn filed motions to dismiss the indictments, arguing, inter alia, section 120.50 of title 20 of the Administrative Code was too vague to form the basis of the State's charges of official misconduct. Following arguments by the parties, the trial court granted the motion and dismissed the indictments against defendants Hand and Glenn and, sue sponte, the indictments against defendant Selby. The trial court dismissed the charges on the grounds that the term "socializing" as used in section 120.50 was unconstitutionally vague as applied to defendants' conduct and that the regulation failed to identify a violation as a criminal offense or to specify criminal penalties therefor. The State now appeals.

II. ...


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