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City of Chicago v. Powell

June 30, 2000


Appeal from the Circuit Court of Cook County Nos. 98 MCI 390302, 99 MCI 225349, 98 MCI 431220, 99 MCI 203024, 98 MCI 405451, 98 MCI 390458, 98 MCI 390667, 98 MCI 361614, 98 MCI 390378, 98 MCI 380717, 98 MCI 404937, 98 MCI 402195, 99 MCI 226806, 98 MCI 360893, 98 MCI 390459, 98 MCI 410268, 98 MCI 380714, 98 MCI 380258, 99 MCI 200093, 98 MCI 403674, 98 MCI 430753, 99 MCI 225449, 98 MCI 315003, 99 MCI 203618, 98 MCI 314662, 99 MCI 374614, 98 MCI 388212, 98 MCI 405604, 99 MCI 225254, 98 MCI 390072, 98 MCI 431245, 99 MCI 203021, 98 MCI 405451, 99 MCI 203044, 98 MCI 431028, 99 MCI 225471, 98 MCI 380029, 98 MCI 430753, 98 MCI 407623, 98 MCI 407648, 98 MCI 388442, 99 MCI 227069, 98 MCI 390894, 98 MCI 404986, 98 MCI 388682, 99 MCI 227639, 98 MCI 431077, 98 MCI 431087, 98 MCI 380718, 99 MCI 203481, 98 MCI 380309, 98 MCI 405141, 99 MCI 225116, 98 MCI 431212, 99 MCI 203623, 99 MCI 203370, The Honorable Marvin Luckman, Judge Presiding.

The opinion of the court was delivered by: Justice Greiman

William Powell stood on a Chicago street corner yelling "blows." In this case of first impression, the City of Chicago (City), in its amended complaint against Powell, alleges that he "committed the offense of soliciting unlawful business in that he was observed shouting blows, a common term for heroin, on the public way at the above address for the purpose of soliciting unlawful business." See Chicago Municipal Code §10-8-515 (added April 1, 1998). Powell filed a motion to dismiss, arguing that: (1) the complaint failed to state a cause of action; (2) the ordinance was vague; and (3) the ordinance was overbroad. Several other defendants who were also charged with violating the ordinance joined in Powell's motion. The trial court granted the motion, finding the ordinance unconstitutionally vague. The City now appeals, arguing that the ordinance (1) is not overbroad as a restriction on freedom of speech; and (2) is not unconstitutionally vague because it sufficiently defines "solicitation" and "unlawful business."

The City prosecuted Powell for violating section 10-8-515 of the Chicago Municipal Code. The ordinance provides as follows:

"Soliciting Unlawful Business.

(a) No person may: (i) stand upon, use or occupy the public way to solicit any unlawful business; or (ii) interfere with or impede any pedestrian or anyone in a vehicle on the public way, for the purpose of soliciting any unlawful business.

(b) As used in this section, 'unlawful business' means any exchange of goods or services for money or anything of value, where the nature of the goods or services, or the exchange thereof, is unlawful. Unlawful business includes, but is not limited to, prostitution or the illegal sale of narcotics. For the purposes of this section, 'soliciting' may be by words, gestures, symbols or any similar means.

(c) A person who violates this section shall be subject to a fine of not less than $500.00 and/or imprisonment for: (i) not less than 10 days and not more than six months for a first offense; (ii) not less than 20 days and not more than six months for a second offense; and (iii) not less than 30 days and not more than six months for a third or subsequent offense. In addition to the penalties specified above, a person who violates this section shall be ordered to perform up to 200 hours of community service." Chicago Municipal Code §10-8-515 (added April 1, 1998).

On May 10, 1999, the trial court held a hearing on the motion to dismiss. In striking down the ordinance as unconstitutionally vague, the court did not indicate which term rendered the ordinance vague and found the ordinance unnecessary because individuals charged with violating the ordinance could be charged with other offenses under Illinois law. *fn1

The City filed a timely notice of appeal, which contains a list of 52 defendants and 56 case numbers. The City subsequently filed a motion to dismiss certain defendants, which we consider along with this appeal.

Although defendants agree with the result reached by the trial court, they ask us to affirm by employing a different analysis. Defendants assert that the trial court's dismissal of the charges should be affirmed because the charging documents are fatally defective under Illinois law. A reviewing court should not reach constitutional issues if the case can be determined on other grounds. People v. Nash, 173 Ill. 2d 423 (1996). A challenge to the sufficiency of a charging instrument is reviewed de novo. People v. Smith, 259 Ill. App. 3d 492 (1994).

A defendant has the fundamental right under the United States and Illinois Constitutions to be informed of the nature and cause of criminal accusations made against him. The "nature and cause" of a criminal accusation refers to the crime committed rather than the manner in which it was committed. People v. DiLorenzo, 169 Ill. 2d 318 (1996). If an information or indictment is attacked before trial, it must strictly comply with the pleading requirements of the Code of Criminal Procedure of 1963 (Code) (725 ILCS 5/100-1 et seq. (West 1998)). DiLorenzo, 169 Ill. 2d at 321-22. Section 111-3(a) of the Code provides, inter alia, that a charge must set forth the nature and elements of the offense charged. 725 ILCS 5/111-3(a)(3) (West 1998). Technical objections are to be disregarded, and the charging instrument need only state the essential elements of the offense. See People v. Devine, 295 Ill. App. 3d 537 (1998) (rejecting defendant's argument that information was defective because it was not signed by the State's Attorney or supported by affidavit).

If an information or indictment is challenged for the first time on appeal, however, the standard is more liberal. In this instance, a charging instrument is sufficient if it apprised the accused of the precise offense charged with sufficient specificity to (1) prepare his defense; and (2) allow pleading a resulting conviction as a bar to future prosecution arising out of the same conduct. DiLorenzo, 169 Ill. 2d at 322; People v. Pujoue, 61 Ill. 2d 335 (1975). "In other words, the appellate court should consider whether the defect *** prejudiced the defendant in preparing his defense." People v. Thingvold, 145 Ill. 2d 441, 448 (1991).

The parties disagree over which standard applies. Defendants essentially argue that we should use the standard applied in People v. Nash, 173 Ill. 2d 423 (1996). The defendants in Nash, 173 Ill. 2d at 425, were charged with violating the provision of the mob action statute prohibiting the "assembly of 2 or more persons to do an unlawful act." See 720 ILCS 5/25-1(a)(2) (West 1998). At a pretrial hearing, the State indicated that it considered the charges viable and that it would not amend the complaints. The trial court granted defendants' motion to dismiss, finding the statute unconstitutional. The Illinois Supreme Court did not reach the issue of whether the statute was constitutional. *fn2 Noting that the defendants had attacked the sufficiency of the charging instruments before trial, the court applied section 111-3(a)(3) and affirmed on the basis that the complaints failed to properly charge a crime. Nash, 173 Ill. 2d at 429.

We agree with defendants that the more stringent standard applies here. The record establishes that Powell challenged the sufficiency of his complaint below. Section 114-1 of the Code provides that a defendant can move to dismiss a charge prior to trial on the ground that it does not state an offense. 725 ILCS 5/114-1(8) (West 1998). Powell's motion to dismiss does not indicate the statutory basis under which it was filed. However, it alleges that the complaint "fails to state any cause for which Mr. Powell could be arrested." At the hearing on the motion, defense counsel argued that Powell's complaint failed to state a cause of action because "[o]ther than standing on a public way and speaking and uttering that word blows, there is no act alleged." The court declined to rule on this issue. Notably, the City concedes that defense counsel generally attacked the sufficiency of Powell's complaint at the hearing. Although defense counsel did not attack the sufficiency of the other complaints, it can be assumed that the other defendants moved to adopt Powell's argument as their own in the motion to join.

However, we reject defendants' argument that the complaints are defective because they allege an apparent attempt to engage in unlawful business. Nash held that apparent attempts cannot be the basis for criminal liability. Nash, 173 Ill. 2d at 431. The complaints in Nash alleged that the defendants "knowingly by the use of intimidation, disturbed the public peace." 173 Ill. 2d at 430. The basis for the accusation was that "while acting with others and without the authority of law, [defendants] blocked the sidewalk in an apparent [sic] attempt to sell drugs and promote gang activity." 173 Ill. 2d at 431. The court found the complaints defective in part because the factual basis of the accusations did not allege that the defendants violated any section of the Code or even attempted to engage in criminal conduct. The complaints merely mentioned "an apparent [sic] attempt to sell drugs and promote gang activity." 173 Ill. 2d at 431. In contrast, the complaints in the instant case do not contain the words "apparent attempt."

Under section 111-3(a)(3), when the statutory language defines or describes the specific conduct constituting the offense, there is no need for the charge to specify the exact means by which the conduct was carried out. People v. Wisslead, 108 Ill. 2d 389 (1985). The charging instrument merely needs to state the offense in the language of the statute or so plainly that the defendant is apprised of the charge. People v. Wilkenson, 262 Ill. App. 3d 869 (1994). The question is not whether the alleged offense could have been described with greater certainty, but whether there is sufficient particularity to enable the accused to prepare a proper defense. People v. Meyers, 158 Ill. 2d 46 (1994). Where a statute does not specifically define the crime, or does so only in general terms, the charge must go beyond the words of the statute; the facts that constitute the crime must be specifically set forth. People v. Grieco, 44 Ill. 2d 407 (1970).

We find that a complaint alleging solicitation of unlawful business sufficiently informs a defendant with reasonable certainty of the nature and cause of that charge if it contains information establishing the type of unlawful business that the defendant is accused of soliciting and the factual basis for such a charge. Thus, a complaint charging solicitation of "unlawful business" in the language of the ordinance is insufficient under section 111-3 because the phrase "unlawful business" does not describe specific conduct. See Nash, 173 Ill. 2d at 430 (holding that the complaints were too general in that they did not specifically set forth facts constituting mob action). It is not necessary for a complaint alleging solicitation of unlawful business to describe the method of solicitation used.

Applying these principles, it appears that the only defective complaint is the one against defendant Woods. That complaint charges that Woods "[c]ommitted the offense of soliciting unlawful business in that he knowingly and unlawfully interfered and impeded the flow of vehicular and pedestrian traffic by standing at above address and was heard yelling 'blows' to passing motorist and pedestrians." The complaint does not describe the type of unlawful business that Woods allegedly solicited. The City conceded during oral argument that such a complaint would be fatally defective. The only conduct alleged in the complaint is the yelling of the word "blows." However, the complaint does not explain the supposed meaning of that term. A reasonable person would not necessarily know that "blows" is a slang term for a controlled substance. Extrinsic evidence would be necessary in order for a defendant to determine the reason for his prosecution. Therefore, Woods was properly dismissed.

We note that a complaint that does not indicate the type of unlawful business would probably be insufficient under the more liberal pleading standard as well because it would not allow a defendant to adequately prepare a defense or prevent another prosecution for the same crime.

The remaining defendants were charged with soliciting either prostitution, the sale of controlled substances, or, in one instance, the sale of false identification cards. The plain and ordinary meaning of those complaints is sufficient to inform the defendants of the charges against them because the unlawful business is either specifically alleged or reasonably apparent. Some of the complaints contain language that indicates those defendants were arrested for soliciting the sale of narcotics. For example, the complaint against Powell alleges that he "committed the offense of soliciting unlawful business in that he was observed shouting blows, a common term for heroin, on the public way at the above address for the purpose of soliciting unlawful business." Defining the street meaning of the word "blows" informs a defendant of the type of unlawful business of which he is accused.

The City is a home rule unit of local government with the power to regulate for the protection of the public safety. Ill. Const. 1970, art. VII, §6(a). The City has the authority to enact an ordinance that addresses matters already covered by state law as long as the legislature does not limit this power. Ill. Const. 1970, art. VII, §6(i). The City maintains that it has an important and substantial interest in eliminating drugs, prostitution, and other criminal conduct that the ordinance seeks to prohibit. A home rule unit cannot create felonies or impose prison terms greater than six months. Ill. Const. 1970, art. VII, §§6(d)(2), (e). The ordinance does neither. Although the ordinance imposes mandatory minimum sentences, home rule units have the authority to establish such sentences. City of Chicago v. Roman, 184 Ill. 2d 504 (1998). Merely because a law duplicates other offenses does not make it unconstitutional. United States v. Buckalew, 859 F.2d 1052 (1st Cir. 1988) (upholding a solicitation statute prohibiting conduct also within the scope of a conspiracy statute). Therefore, we find that the trial court erred in striking down the ordinance simply because defendants could have been charged under other criminal laws.

In construing a municipal ordinance, the same rules are applied as those that govern the construction of statutes. City of Chicago v. Morales, 177 Ill. 2d 440 (1997), affirmed by 527 U.S. 41, 144 L. Ed. 2d 67, 119 S. Ct. 1849 (1999). Statutes are presumed to be constitutional. The party challenging the constitutionality of a statute bears the burden of rebutting this presumption. Russell v. Department of Natural Resources, 183 Ill. 2d 434 (1998). Courts must construe a statute so as to affirm its constitutionality if it is reasonably capable of such a construction. A trial court's ruling with respect to a statute's constitutionality is reviewed de novo. Russell, 183 Ill. 2d at 441.

Defendants assert that the ordinance is overbroad because it encompasses a substantial amount of speech protected by the first amendment. The trial court did not appear to rule on this issue. However, an appellee may raise any argument in support of the trial court's judgment even if it was not directly ruled upon by the trial court. Hickey v. Illinois Central R.R. Co., 35 Ill. 2d 427 (1966).

The overbreadth doctrine is designed to protect the first amendment freedom of expression from laws written so broadly that the fear of punishment might discourage people from taking advantage of this elemental freedom guaranteed by both our federal and state constitutions. Broadrick v. Oklahoma, 413 U.S. 601, 37 L. Ed. 2d 830, 93 S. Ct. 2908 (1973). A statute will be invalidated as overbroad if it criminalizes a substantial amount of protected behavior when judged in relation to the law's "plainly legitimate sweep." Broadrick, 413 U.S. at 615, 37 L. Ed. 2d. at 842, 93 S. Ct. at 2918. The doctrine should be used sparingly. Broadrick, 413 U.S. at 615, 37 L. Ed. 2d at 842, 93 S. Ct. at 2918. Constitutionally protected speech includes not only written and spoken words, but also symbolic speech. Texas v. Johnson, 491 U.S. 397, 105 L. Ed. 2d 342, 109 S. Ct. 2533 (1989).

We reject defendants' argument that the ordinance criminalizes hand gestures and other forms of verbal and nonverbal speech unrelated to criminal conduct. Inducing another individual to break the law is not protected by the first amendment. "Where speech is an integral part of unlawful conduct, it has no constitutional protection." Chicago Real Estate Board v. City of Chicago, 36 Ill. 2d 530, 552-53 (1967), citing Giboney v. Empire Storage & Ice Co., 336 U.S. 490, 93 L. Ed 834, 69 S. Ct. 684 (1949). For example, in People v. Lewis, 84 Ill. App. 3d 556 (1980), the defendant was convicted of the offense of solicitation. The court recognized that the crime of solicitation requires specific intent, which can be inferred from surrounding circumstances and acts of the defendant, and found that the criminal intent element transformed constitutionally protected speech into the offense of solicitation. Lewis, 84 Ill. App. 3d at 561. See also People v. Bailey, 167 Ill. 2d 210 (1995) (finding that the element of a threat in the stalking statute was not constitutionally protected speech); People v. Johnson, 60 Ill. App. 3d 183 (1978) (finding that the first amendment did not give a defendant convicted of prostitution the right to use words which were an integral part of the illegal act).

Defendants rely on City of Harvard v. Gaut, 277 Ill. App. 3d 1 (1996), for the contention that the ordinance infringes on a substantial amount of constitutionally protected conduct. Specifically, defendants contend that a woman with a flat tire who flags down another car for help could be arrested under the ordinance for soliciting prostitution. However, Gaut is distinguishable. The defendant in Gaut was charged with wearing a gang symbol in violation of the city's gang activity ordinance. The ordinance prohibited gang members from communicating gang-related messages through the use of hand symbols and wearing gang symbols and colors. The court noted that "gang colors" and "gang clothing" are often worn by nongang members as a form of symbolic speech intended to convey a message unrelated to the promotion of gangs. The court found the ordinance to be unconstitutionally overbroad because it prohibited nongang members from engaging in constitutionally protected speech. Gaut, 277 Ill. App. 3d at 7. Here, the ordinance does not improperly prohibit constitutionally protected conduct or speech. Flagging down a car in order to obtain roadside assistance is not criminal behavior because it occurs in a different context than, for example, flagging down a car with a single male occupant in it and engaging in conversation for the purpose of soliciting prostitution. These are questions of intent and proof.

According to defendants, the City should "wait until an actual violation of a real criminal law occurs and then arrest the suspect." This argument is meritless. The ordinance is designed to rid our city streets of drug dealers and prostitutes. If an individual actually completed the illegal business which he solicited, there would be no need to charge him under the ordinance. Moreover, the Code contains numerous statutes designed to prosecute inchoate crimes. "[P]ublic policy mandates that the law be able to step in where danger becomes manifest that a criminal act is imminent." Lewis, 84 Ill. App. 3d at 561-62. Under ...

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