Appeal from the Circuit Court of McHenry County. No. 96-CH-375
Honorable Michael T. Caldwell, Judge, Presiding.
JUSTICE RAPP delivered the opinion of the court:
Defendants Steven Jay Gross and Carol Gross appeal the trial court's denial of their motion to dissolve a permanent injunction and to dismiss plaintiff's complaint. For the second time, they ask us to hold that the Hunter Interference Prohibition Act (Act) (720 ILCS 125/0.01 et seq. (West 1996)) is unconstitutional. Once again, we decline to do so. We therefore affirm the trial court's order.
Members of the Woodstock Hunt Club (club) pay to hunt on club property. On October 11, 1996, plaintiffs filed a petition for injunctive relief and a complaint for damages, alleging that defendants used various noise-making devices to scare geese away from the club. Plaintiffs alleged that defendants violated the Act by intentionally interfering with club members' ability to hunt. On November 7, 1996, the trial court issued a permanent injunction against Steven and Carol Gross, enjoining them from violating the Act.
Defendants appealed, arguing that the Act prohibited expression that was protected by the first amendment (U.S. Const., amend. I). We disagreed, and we declared that the Act, in its entirety, was constitutional. Woodstock Hunt Club v. Hindi (Woodstock I), 291 Ill. App. 3d 1051, 1056 (1997).
The supreme court subsequently held that section 2(c) of the Act (720 ILCS 125/2(c) (West 1996)) was unconstitutional. People v. Sanders, 182 Ill. 2d 524, 535 (1998). Because the court was not called upon to rule on the constitutionality of the other provisions of the Act, it simply severed section 2(c). Sanders, 182 Ill. 2d at 534-35. In a separate opinion, Justice Harrison wrote that the entire statute was unconstitutional and should have been invalidated. Sanders, 182 Ill. 2d at 535 (Harrison, J., Concurring in part and Dissenting in part).
Steven and Carol Gross (the Grosses) moved the trial court to dissolve the permanent injunction and to dismiss plaintiff's complaint, arguing that, in light of Sanders and Justice Harrison's opinion in particular, the entire Act was unconstitutional. The court denied the motion and found no just reason to delay the enforcement or appeal of its order. 155 Ill. 2d R. 304(a). The Grosses timely appealed to this court. None of the other defendants is a party to this appeal.
Section 2 of the Act states:
"Any person who performs any of the following is guilty of a Class B misdemeanor:
"(a)Interferes with the lawful taking of a wild animal by another with intent to prevent the taking."
"(a)Disturbs or engages in an activity that will tend to disturb wild animals, with intent to prevent their lawful taking."
"(a)[D]isturbs another person who is engaged in the lawful taking of a wild animal or who is engaged in the process of taking, with intent to dissuade or otherwise prevent the taking."
"(a)[E]nters or remains upon public lands, or upon private lands without permission of the owner or his agent or a lessee, with intent to violate this Section." 720 ILCS 125/2 (West 1996).
The Grosses contend, as they did in Woodstock I, that this entire section prohibits expression that the first amendment protects. In accordance with the supreme court's decision in Sanders and our own ...