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Russell v. Department Ofnatural Resources

October 01, 1998

JACK E. RUSSELL, APPELLEE,
v.
THE DEPARTMENT OFNATURAL RESOURCES ET AL., APPELLANTS.



The opinion of the court was delivered by: Justice Bilandic delivered the opinion of the court

Agenda 33-May 1998.

Section 3.36(a) of the Wildlife Code (Code) provides that a license or permit issued under the Code may be revoked for up to five years if the person holding it is found guilty of any Code violation. 520 ILCS 5/3.36(a) (West 1994). We hold that this provision is not unconstitutionally vague.

BACKGROUND

In 1992, Jack E. Russell pleaded guilty to four violations of the Code. These violations included hunting turkeys by the use of bait, hunting turkeys without a permit, hunting turkeys out of season, and hunting turkeys before hunting hours. Later, in October of 1994, Russell pleaded guilty to another Code violation, hunting deer by the use of bait, which is a Class B misdemeanor. 520 ILCS 5/2.26 (West 1994).

On March 29, 1995, the Department of Conservation (Department) filed an administrative complaint seeking the revocation and suspension of Russell's hunting licenses and permits for a period not to exceed five years. The complaint was based on Russell's violation of hunting deer with bait. The complaint notified Russell that his privilege to hunt in Illinois had been suspended pending a final administrative order pursuant to Department rule (17 Ill. Adm. Code §2530.320(c) (1996)). Russell requested an administrative hearing on the complaint. (As of July 1, 1995, the Department of Conservation was merged into the Department of Natural Resources.)

A hearing officer for the Department conducted the administrative hearing on August 23, 1995. The attorney for the Department presented evidence of Russell's guilty plea to the offense on which the Department's claim was based. She then presented evidence of Russell's four previous conservation offenses. She requested that Russell's hunting privileges be revoked and suspended for five years.

Russell called as his first witness Thomas Wakolbinger, deputy chief of the Department's law enforcement division. Wakolbinger testified in general terms about the procedures for revoking and suspending hunting licenses. Typically, a conservation police officer in the field initiates the request for license revocation and suspension. Three layers of supervisors then review the officer's request before the filing of an administrative complaint. Wakolbinger estimated that out of the 20,000 conservation citations issued each year, 300 to 500 result in the filing of an administrative complaint for license revocation and suspension. The Department uses license revocation and suspension for serious violations and for repeat violators.

Russell testified on his own behalf that he would not have pleaded guilty to hunting deer with bait in October 1994 had he known that his hunting license could be revoked and suspended as a result. Although Russell was in an area baited with corn and a salt block, he did not know that corn was illegal bait or that the salt block was there.

Russell had permits to kill five deer, but had harvested only one. Russell claimed that the officer who had issued his citation for hunting deer with bait was angry with him. The same officer had issued Russell a citation in April 1994, for which Russell was found not guilty after a trial. Directly after that trial, the officer threatened to hang Russell and had to be physically restrained by other individuals. Later, the same officer threatened to kill Russell's dog. Russell also described at length the various forms of assistance that he had provided to the Department in the past. Russell's wife testified, and she corroborated Russell's testimony in certain respects.

Following the hearing, the hearing officer entered a written order in which he refused to dismiss the Department's complaint based on Russell's assertions that section 3.36(a) of the Code is unconstitutional. The hearing officer also issued a written report and recommended that any hunting licenses, stamps or permits issued to Russell be revoked and that his hunting privileges be suspended for a period of three years effective March 30, 1995. On September 22, 1995, Brent Manning, Director of Natural Resources, issued a final administrative order in which he adopted the hearing officer's recommendations in their entirety.

Russell sought judicial review of the Department's decision by filing a complaint for administrative review in the circuit court of Mason County on October 13, 1995. The Department moved to dismiss the complaint, arguing that administrative review was not available. Russell then filed a motion seeking leave to file a petition for a common law writ of certiorari. Russell attached to the motion his petition for writ of certiorari, which contained allegations similar to those in his complaint for administrative review. The circuit court granted both the Department's motion to dismiss the complaint for administrative review and Russell's motion for leave to file the petition for writ of certiorari. The circuit court also granted the Department's oral motion for a change of venue and transferred the cause to the circuit court of Sangamon County.

Russell, in support of his petition for writ of certiorari, filed a memorandum of law in which he challenged the constitutionality of section 3.36(a) of the Code on several grounds. Russell asserted that section 3.36(a) is unconstitutionally vague in violation of his right to due process of law. Russell also asserted, inter alia, that section 3.36(a) violated his rights to substantive due process and equal protection.

After hearing oral argument, the circuit court entered an order declaring section 3.36(a) unconstitutional. The court concluded that section 3.36(a) violated Russell's constitutional right to due process of law because it is impermissibly vague. According to the court, section 3.36(a) resulted in arbitrary and discriminatory enforcement of Russell because it does not contain any standards as to who may face revocation and suspension and for what length of time. The circuit court ordered that Russell be issued his permit or license. The Department filed a motion to reconsider, which the ...


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