*1 af- reasons, the trial court are foregoing rulings For the firmed.
Affirmed. JJ.,
QUINN COLEMAN, concur. ILLINOIS, Plaintiff-Appellee, THE OF THE OF PEOPLE STATE WILLIAMS,Defendant-Appellant. CARMECITA (4th Division) 1—05—0810 First District No.
Opinion filed June 2009.
MURPHY, J., dissenting. McNeil, Appellate both
Michael J. Pelletier and Brian A. of State Office, Chicago, appellant. for Defender’s (James Devine, Chicago Fitzgerald, Attorney, of E. Richard A. State’s Cernius, Attorneys, Spellberg, J. Rimas F. Assistant State’s Alan counsel), People. for the opinion
JUSTICE NEVILLE delivered the the court: Stroud, September 30, Carmecita Gregory On codefendants Stroud1, Williams, charged Chandler2 with Dwight Sean were violating drug conspiracy statute. 720 ILCS criminal 570/405.1 (West 1998). addition, charged was also with official In Williams 3(b) (West At the conclusion misconduct. 720 ILCS 5/33— case, granted a trial court Williams’ motion for directed State’s drug conspiracy joint count. After a bench verdict on the criminal trial, guilty the trial found Williams of official misconduct. court probation 24 months’ hours trial sentenced Williams to community service. (1) presents issues our review: appeal, On four for Williams guilty in of official person must violate a law order whether (720 (West (2) 3(b) 1998)); the State ILCS whether misconduct 5/33— (3) doubt; beyond her reasonable proved guilty of official misconduct because it misconduct is unconstitutional whether official statute trial vague; and counsel was ineffective is overbroad and whether fatally indictment. failing to defective for file a motion dismiss law; therefore, reverse Wil- did not we We find that Williams violate her liams’ conviction and vacate sentence. against Highlands, and the plaintiffs injunctive filed for relief
1 The had were for review. cases consolidated granted at the 2 Dwight motion for a directed verdict was also Chandler’s of the State’s case. conclusion
I. BACKGROUND suspect Williams was a investigation an undercover of an al- leged drug ring. Williams charged drug conspiracy was with criminal and official misconduct. The official alleged indictment that Williams: public
“A employee, namely employee village of Glen- wood, Illinois, in her capacity official dispatcher know- ingly performed an act which she knew is forbidden law to perform, to wit: Greg she notified Stroud police activity about near Holland, Illinois, his residence in South illegal order to facilitate drug-dealing by Greg Stroud, in violation of Chapter Section 3(b) of the Compiled Illinois Statutes 1997 as amended ***.” 5/33—
A. The State’s Case DiMare, Alex a retired deputy chief of the Glenwood depart- ment, testified that Williams was hired in October 1997 as a radio dispatcher in the communications police department. room of the As a dispatcher, Williams disseminated gathered information from the public or she disseminated internal information from the to the officers. hired, When Williams told, she was both orally and in writing, of the depart- given ment and instructions about confidential information. DiMare *3 identified exhibit 30 as pages from the police department’s rules and regulations providing instructions for the dissemination of confidential information.
DiMare testified that during Williams’ tenure depart- with the ment, he spoke with Williams on telephone several times and was familiar with her voice. After the State played the tapes from the intercepted telephone conversations, DiMare testified that he recognized Williams’ voice. DiMare identified a time card for Williams that indicated she was at work on July 1998. DiMare also verified July 12, 1998, on the South Suburban Emergency Response Team (SERT) was assisting police department with a subject barricaded and that it was the dispatcher’s responsibility notify members of the SERT team and the agencies. local DiMare further testified that the information gave Williams Stroud was confidential and that she violated police regarding the dissemination of confidential opined information. Dimare that Wil- liams jeopardized investigation safety. the officers’
B. Williams’ Case Williams testified that Stroud is the father of her 14-year-old son. Williams also testified full July that on she working was time as a dispatcher for the police department and made from her home. from work and one call telephone calls to Stroud
two told her the calls because her son explained that she made Williams scanner, which Williams listening to a that Stroud’s son was she made the calls and testified that suspicious. found to be Williams going on something suspicious her if was that Stroud would tell hoped any dispatch that she did not receive Williams testified at his house. conducting college surveil- were at or disclosure She further testified telephone made the calls. day lance on the she and she did not dealing narcotics that she did not know Stroud dealing. On any facilitate narcotics calls in order to phone make the cross-examination, up that she made the statement testified Williams college,” that she obtained “eyes staged at the but that there were She team while she was work. regarding the SERT information the rules and she was told about acknowledged that that she did not information, she claimed but discussing confidential confidential information. give any out of official misconduct guilty found
The trial court Williams community 250 hours of probation 24 months’ her to sentenced argued that the State motion and posttrial filed a service. Williams The trial court a reasonable doubt. guilty beyond her prove failed to denied the motion.
II. ANALYSIS guilty beyond a prove failed to her contends the State Williams that, Specifically,she contends misconduct. doubt of official reasonable information, the State failed confidential assuming she disseminated required by the official a “law” as that her acts violated prove guilty proved that it Williams The State maintains misconduct statute. regula- the rules and violated misconduct because Williams of official disseminating confidential department by tions of the Glenwood to Stroud. information of Review
A. The Standard to sustain sufficient the evidence was assessing “In whether ‘ “whether, viewing the after inquiry is verdict, reviewing court’s any rational prosecution, most favorable to light in the evidence the crime elements of the essential could have found trier of fact ” original.)’ (Emphasis doubt.” beyond a reasonable *4 Bush, 214 (2009), v. 504, quoting People Cardamone, 2d 511 232 Ill. 307, 319, 443 U.S. (2005), Virginia, v. quoting Jackson 2d 326 Ill. Collins, (1979); People v. 560, 573, Ct. 2789 2d 99 S. 61 L. Ed. (1985). the evidence was decide whether Before we Ill. 2d 261 106 misconduct, we must guilt of official Williams’ to establish sufficient a “law.” acts violated her requests, whether determine, Williams as “law,” In if acts violated a this court order to determine Williams’ word in the official misconduct statute. must construe the Therefore, “law” construing presents word “law” this court because the legal question regarding the question with not a factual suf- evidence, ficiency Grever, People of the our is also de novo. v. review (2006), citing Collins, 222 Ill. 2d 214 Ill. 2d B. The Requires Official Misconduct Statute Public Officials to Violate
Commit Acts That
Laws
3(b)
provides
Section
the Criminal Code of 1961
33—
public
when,
commits
employee
“[a]
officer or
misconduct
his of
***
capacity,
[kjnowingly
ficial
he
an act
he knows he
performs
which
3(b) (West 1998).
by
perform.”
is forbidden
to
law
720 ILCS 5/33—
clearly requires
The official
statute
knowing perfor
the
3(b) (West 1998).
by
mance of an act
forbidden
“law.”
ILCS 5/33—
Grever,
In
Supreme
the Illinois
held
Court
that the official misconduct
requires
statute
charging
the
instrument
to
the
specify
alleg
“law”
edly
committing
Grever,
violated in the course of
the offense.
222 Ill.
335. If
requires
public
at
the official misconduct statute
the
official
and,
perform
to
an act forbidden
if
reqúires
“law”
the
Grever
the indictment
specify
public
the
the
“law”
official has violated in
offense,
the course
committing
then a “law” other than the of
ficial misconduct
must be
law
violated to commit the offense of official
3(b) (West
Grever,
335;
misconduct.
“Section one of the regulations provides shall members treat as confidential the officialbusiness police department and shall not reveal information outside the department except provided as elsewhere the rules and required by competent authority. law or Information contained in other reports, ordinarily information acces- *5 82 only department, of
sible to members shall be confidential. informants, witnesses, complainants, persons Names other known to the are to considered confidential. Silence shall by safeguard unless be maintained to such information authorized commanding officer. department regulations provides three of the Section impart that members shall not discuss or confidential information by anyone except to those whom it was intended or as directed to commanding process their officers or under the due of law. regulations provides Section four of the rules and that members delay aid may shall not communicate information which arrest or evidence, person escape, destroy property. to or remove stolen or a They regarding shall not communicate information an arrest they assigned except to which are of their case with consent commanding not information officers. Members shall communicate investigated or to be relating proposed or actual arrests cases or assigned investigated arresting or the officers except officers They or not informa- commanding give to that case officer. shall except any agency refer case or tion or outside through official channels. members regulations provides five that
Section of the directive any person any not known to the contents shall make required by the of the they may which receive unless nature order order.” Regulations Laws Department’s
1. The Police Rules Are Not regula- First, department’s rules and because the Glenwood evidence, must the rules tions introduced into we decide whether were official purview are “laws” within provides, previ- statute misconduct statute. The official misconduct out, pointed public employee “[a] officer or commits ously *** when, [kjnowingly performs he capacity, in his official misconduct ILCS perform.” 720 act he he is forbidden law to which knows 3(b) (West 1998). challenge the does not We note that Williams 5/33 — official public employee to violate the fact that she has to be note, however, is no violation statute. there We public is a official statute unless the defendant official misconduct 3(b) (West 1998). Therefore, after ILCS public employee. 5/33 — public employee facts, find Williams was a reviewing we (1) (dispatched official functions perform she was authorized because department), she for the information ILCS Glenwood, the State. See 720 municipality paid 5/2—17 (West (720
While the official misconduct statute uses the word “law”
(West
3(b)
1998)),
ILCS
the Criminal Code does not define the
5/33—
(West 1998).
word “law.” See 720 ILCS
et seq.
note, however,
We
5/1—1
Supreme
Illinois
Court
held that
has
the term “law” includes
statute,
rule,
a civil or penal
supreme court
administrative rule or
regulation,
professional
or tenent of
responsibility. See Fellhauer v.
City Geneva,
(1991),
142 Ill.
citing
Bassett,
2d
People v.
Ill. App.
(1988);
3d
Weber,
App.
133 Ill.
(1985) (“law”
690-91
statute,
penal
includes civil or
supreme court
rule,
code).
administrative
regulation,
rule or
professional
or tenet of
Finding no definition for the
Code,
word “law” in the Criminal
we
will use the Fellhauer
court’s definition of the word “law” to
*6
determine whether
police
the Glenwood
department’s
rules and
regulations are “laws.” We find that the
police department’s
Glenwood
(735
regulations
rules and
are not civil statutes
ILCS
seq.
et
5/1—101
(West
(720
1998)); they
penal
are not
statutes
ILCS
seq.
et
5/1—1
(West
(see
1998)); they are
supreme
not
1);
court rules
134 Ill. 2d R
(5
they are not administrative
regulations
rules or
ILCS
et
100/1—1
(West
seq.
1998)); and they are not
professional
tenents of
responsibil-
ity. 134 Ill. 2d R. 1.1. Accordingly, we hold that the Glenwood police
department’s
regulations
rules and
are not
by
“laws” as defined
supreme court in
Fellhauer,
Fellhauer.
Nevertheless, the State insists that the Glenwood police depart- ment’s rules regulations and were administrative rules and regula- tions. We note that an agency administrative proper exercise of its rulemaking power promulgates regulations, which are an expression legislative of policy. Becker, 315 Ill. App. 3d (2000). We also note that “[a]dministrative rules and regulations have the force and and, effect of statute, law like a enjoy presump- a Becker, tion of validity.” App. 315 Ill. 3d at 1000. The Criminal Code does (West not define the term “agency.” 720 ILCS seq. et 5/1—1 1998). However, the Illinois Administrative Procedure Act an defines “agency” as “each administrative unit corporate outgrowth or government State by statute, is created or pursuant to other than units local government officers, and districts, their school and boards of added.) (West election commissioners.” (Emphasis 5 ILCS 100/1—20 1998). “[ujnits The Illinois Constitution defines government” of local “counties, as municipalities, townships, special districts, units, and designated as government law, units of local by which exercise limited governmental powers powers or in respect governmental to limited subjects, but does not include school districts.” Ill. Const. art. VII, §1. The Illinois Constitution “[m]unicipalities” also defines “cities, villages incorporated and VII, towns.” Ill. §1. Const. art. (65
Therefore, we find that is a ILCS municipality Glenwood 5/2— (West 1998) a (incorporation village 3—1 of town as occurs after the electors)), of question submission a and it is an not administra- agency created by pursuant tive that was a statute with the (West power promulgate regulations. rules or 5 ILCS 100/1—20 1998); VII, §1. Ill. Const. art.
Next, police department we find that the created Glenwood, government, not municipality unit of local and (West (the 1998) corporate state statute. 65 ILCS See 5/11—1—1 municipality may pass necessary authorities each and enforce all ordinances). department police promulgated The Glenwood Therefore, department’s regulations. neither the because municipality nor an its is administra- agency, tive the Glenwood expression
are not rules or that are an administrative legislative they do the force of See Carver v. policy not have law. (1999) Nall, Ill. (quoting applying section 1—20 (5 (West 1996))), of the Administrative Procedure Act ILCS 100/1—20 District, on 207 Ill. grounds, overruled other Nudell v. Forest Preserve 2d 409
2. The Acts Performed Must Violate Laws Second, must examine Williams’ acts. In order for Williams we (1) misconduct, guilty prove be found of official the State had to “law,” performed
that Williams
an act that violated
“law,”
she was a
when Williams committed
act that violated a
3(b) (West
need
public employee. 720 ILCS
While we
not
5/33—
*7
appeal,
validity
purposes
the
of the indictment for
of this
determine
alleged
“law”
is
we examine the indictment to determine the
Williams
have
note that the indictment for
violated. We
official
allege
police
a
rule
did not
that Williams violated
Instead,
simply alleged that Williams
regulation.
the indictment
“knowingly performed
by
act
knew is
law to
an
which she
forbidden
police activity
about
near his
perform,
Greg
to wit:
notified
Stroud
she
Holland,
illegal
Illinois,
drug-
in
in order to facilitate
residence
South
Stroud,
Chapter 720,
dealing by
violation of
Section
Greg
5/33—
3(b)
previously
As
Compiled
of the
Statutes 1997
amended.”
Illinois
noted,
held
the official misconduct statute
the Grever court
that
allegedly
the law
violated
requires
charging
specify
the
instrument
Grever,
3. Laws Are Promulgated by Legislature The testimony3 dissent relies on DiMare’s position, takes the upon Constitution, based article Village VII of the Illinois that the municipality. 1970, VII, §6. Glenwood is a home rule Ill. Const. art. (1) Therefore, the dissent confidentiality reasons rules Wil liams alleged is to have violated part Village are of the of Glenwood (2) police department’s regulations 4, rules and confidentiality approved rules were and codified as an ordinance a home rule (3) municipality, and that a violation of the ordinance is a violation of meaning “law” within the of the official misconduct statute. 720 3(b) (West 1998). ILCS An examination of the Illinois Constitu 5/33— tion only legislature reveals that promulgates laws. See Ill. Const. (the (c) §§8(b), art. Assembly General shall only enact laws IV by bill and no bill shall become a law without the concurrence of a DiMare, 3 Thedissent relies on police department the former Glenwood of ficial, who testified that department’s regula Glenwood rules and applied tions rely Williams. This court will not interpretation on DiMare’s department’s regulations. Glenwood interpretation rules and a statute or rules and question raises a of law over which this review; therefore, ignore has de novo lay opinion we will DiMare’s on an ultimate issue: police department’s regula whether the Glenwood apply tions Property to Williams. Commonly Parcel Known as 1945 Street, Decatur, Illinois, North 31st County, (2005), Macon 217 Ill. 2d citing Wallach, (2002); Petersen v. 198 Ill. 2d Marriage In re (2004) (how Rogers, 213 Ill. 2d 135-36 interpreted a statute is is not a discretion). matter left to the trial court’s
4 According Code, Municipal the Glenwood regulations apply police depart to members of the (1) ment, (2) (3) which police, deputy includes: one chief of police, one chief of sergeants patrol officers, and 19 may such other members as provided village president for from time to time and board of trustees. Village (eff. Municipal II, May 1, Code art. 58—42 §§58— employees, Williams, Civilian like police depart are not members of the *8 Therefore, regulations ment. apply rules and do not to Williams.
86 house). examination majority of the members elected to each Further of govern- the Illinois Constitution reveals home rule units of ment, including municipalities, promulgate ordinances. See Ill. Const. §6(c) (article VII, 1970, art. of powers VII delineates the home rule ordinances). provides municipalities promulgate The Il- units only legislature promulgates linois Constitution makes it clear that municipality only promulgates laws and that a home rule ordinances. §§8(b), 1970, 1970, (c); VII, Ill. Compare Const. art. Ill. Const. art. IV §6(c). if, Therefore, suggests, we find that even as the dissent ordinances, police department’s regulations rules and are department’s regulations are not Ill. “laws.” §6(c). 1970, §§8(b), (c); 1970, VII, Const. art. Ill. Const. art. Accord- IV ingly, because laws, the police department’s are not if are violated, no there is violation of official misconduct statute. 1970, §§8(b), (c), 1970, Compare Ill. Const. art. Ill. Const. art. with IV 3(b) (West 1998). VII, §6(c); see also 720 ILCS 5/33— D. A Supreme Recent Court Decision Supreme recently decided Landis We note Illinois Court (2009), L.L.C., v. Ill. 2d 1 and held Realty, Marc 235 “statutory imposes penalty” Tenant Landlord Ordinance Residential meaning within the of section 13—202 the Code of Civil Procedure (735 2004)). (West Specifically, utilizing general ILCS 5/13—202 given are their principle statutory civil construction that statutes fullest, narrowest, meaning, Supreme the Illinois possible rather than municipal legislature Court found that intended ordinances “statutory” to be in the term contained in sec- state statutes included Landis, 11, citing v. tion 13—202 of the 235 Ill. 2d at Collins Code. Fund, Annuity Ill. 2d Board Trustees the Firemen’s & 155 Benefit (1993), 103, County Property Ap- 111 Board Review v. Tax Lake Board, 419, Ill. that we are peal 119 2d 423 We note constru- statute, ing the word “law” in a criminal the official misconduct 3(b) (West that in ILCS also note criminal statute. 720 We 5/33— cases, narrowly in favor of the ac- criminal statutes are construed 507, 514, Santos, 553 170 L. Ed. 2d See United States v. U.S. cused. (2008) (“The 2020, lenity 912, 920, requires Ct. 2025 rule of 128 S. interpreted in favor of the defendants ambiguous criminal to be laws Gradwell, 476, them”), 243 citing United States v. U.S. subjected to 407, (1917); 857, McBoyle United 864, L. Ed. 37 S. Ct. 410 v. 61 (1931); 25, 27, 816, 818-19, 341 States, L. Ed. 51 S. Ct. 283 U.S. 75 488, 496-98, Bass, 336, 347-49, L. Ed. 2d U.S. United States v. Grever, 222 (1971); People Ill. 522-23 see also v. 92 S. Ct. Christensen, (2006), citing 102 Ill. 2d *9 accused”). (“We in favor of the strictly construe criminal statutes Therefore, the construction of a because the instant case involves statute, criminal statute rather than a we do not believe civil given general statutory rule of construction that statutes are civil meaning Accordingly, to the instant case. possible applies their fullest inap- used in Landis statutory we find the civil construction rules plicable to the instant criminal case.
III. CONCLUSION conclusion, required In the State the official misconduct statute prove “law”; presented Williams violated State evidence that Williams violated
regulations,
“laws”; therefore,
which are not
because the Glenwood
police department’s
regulations,
“laws,”
are not
Williams
3(b)
did not violate the official misconduct statute. 720 ILCS 5/33 —
(West 1998). Because
present
the State failed to
evidence which
established that Williams
required by
violated
law as
the official
statute,
we reverse this case
evidentiary insufficiency.
for
Olivera,
164 Ill.
there is evidentiary
When
insufficiency,
only
proper remedy
judgment
is a
of acquittal.
Olivera,
Reversed.
STEELE, J., concurs. MURPHY,
JUSTICE dissenting: I respectfully dissent majority opinion. major- from the While the ity has accurately facts, stated the helpful additional facts are understand the picture my trial, whole of this At view issue. presented State support extensive evidence to its case Stroud led drug a criminal conspiracy by conducting a cocaine ring distribution out of night 12, 1998, his home and that on the July three calls were intercepted that were attributed to defendant. The first two calls telephone were made from a registered Village line of at a time working that defendant was dispatcher. as a The third call originated from personal telephone defendant’s line. The call first village from the placed p.m. at 9:48 transcript phone reads, pertinent call part: your Keep go- scan[n]er
“DEFENDANT: on there is some stuff ing your on in area[.] Say what[?]
MR. STROUD: your on[.] Keep DEFENDANT: scanner up? MR. STROUD: What work[.] I’m
DEFENDANT: OK at you heart?] MR. STROUD: What do I’m work[.] DEFENDANT: OK[J
MR. STROUD: OK[.]”
DEFENDANT: later, placed call was 20 minutes at 10:08 The second recorded transcript pertinent reads p.m., from the same number and part: eyes staged college[.] at the You have some
“DEFENDANT: Say again!.] MR. STROUD: college!.]
DEFENDANT: At the college!.] MR. STROUD: At the Yeah[.] DEFENDANT: [b]urglary something?
MR. STROUD: What!—A I’m eyes[.] You know what Huh! —No—Some DEFENDANT: Maying? Yeah[.]
MR. STROUD: co—co—co— DEFENDANT: At the you’re sayingt.] I MR. STROUD: know what OK[.] DEFENDANT: ThanksL]
MR. STROUD: you’re hearing worry that other stuff Don’t about DEFENDANT: talking about!.] I’m subject that’s not what about the barricaded you get me[.] off call MR. STROUD: Yeah—Yeah when will!.]” I sure DEFENDANT: telephone home number
The final call came from defendant’s 12, 1998, transcript and the intercepted p.m. July 11:30 on reads, part: in pertinent the call Yeahf.]
“MR. STROUD: me[.] it’s
DEFENDANT: Yeah up?
MR. STROUD: What exactly going don’t know what —what’s DEFENDANT: Uh—I guy over nothing!.] It’s like OK this really like I heard on—It ain’t his he done barricade something and South Park there on 160 we had to send a SERT in the house and house—Barricade his self team over there so we— go that far?
MR. You all district STROUD: DEFENDANT: Huh? go that far?
MR. STROUD: You all district Holland!.] 3—Even South Yeah we all District DEFENDANT: OK[.] MR. STROUD: And team in the area we
DEFENDANT: uh—We send a SERT any agents coming through have to that we’re let know the area they change either can there’ll be lot radio traffic so frequencies computer!.] or whatever and I I had to it via know send Alright!.]
MR. STROUD: they posts post DEFENDANT: I had to send it over to use like post two for locations!.] one— Alright!.] MR. STROUD: just I happen post
DEFENDANT: so to know where 20 is and College!.] that’s South Suburban huh[.]
MR. STROUD: Uh you I’m agency DEFENDANT: So not sure what know if there’s just FBI—DEA—orATF or agents whatever but we know there’s you in the they area —Eh know and at South Suburban cause that’s I message where had to send the to[.]
íj; MR. STROUD: have to one Huh?—Would of them ATF or FBI?
DEFENDANT: ATF[,] Yeah—It’s one of them it’s it’s either FBI or DEA only cause those are the they ones that let us know where at!.]
MR. OK[.] STROUD: agents you
DEFENDANT: Those three depart- know those three they ments will let us exactly know that in the area they not where they at but in the area so I they give like said us posts different they’ll— (stut- MR. STROUD: Now frequency frequency what—What —X3
tering) is the one[?] ^ ^ ^ you pick Hazelcrest!,] DEFENDANT: OK up Homewood!,] Glen- wood—Thornton and there!.] Glenwood is in MR. STROUD: (Unintelligible) See what that’s about let OK— *11 know!.] me
DEFENDANT: Yeah basically they probably probably won’t I nothing won’t hear you but if I do I’ll know!.] let MR. bet[.] STROUD: OK Alright!.]
DEFENDANT: Everybody
MR. STROUD: alright? they OK!.]
DEFENDANT: Yeah
MR. STROUD: Doke[.] Oke Alright!.]
DEFENDANT: Hey
MR. STROUD: thanks!.]” Defendant admitted that phone she made these three calls and that she knew Stroud had a scanner. Defendant testified that Defendant claimed he a narcotics dealer.
she did not know was staged near Stroud’s agents were did not know whether she him.” Defendant testi- “throwing something just but she was home up and made nearby barricade situation that she called about the fied watching impression police were give him the the other information to doing anything illegal. and see if he was started cross-examination, that when she defendant admitted On rules of informed of the department she was working for the testi- the rules. Defendant given copy a written and that it was and confidential information fied that she was told what informa- impart rules to discuss or confidential a violation of the was information was directed. those to whom the anyone except tion to safety to ensure the policy important this admitted that Defendant However, her claim defendant reiterated in their work. policemen any confidential information. that she did not disclose public employees dispatchers are civilian DiMare testified that Alex of- amongst police disseminating information responsible for who are department are employees of the testified that all ficers. DiMare regarding the materials and written given trained and verbal those train- DiMare testified that regulations. department’s rules policy specifically cover ings and materials that the rules DiMare testified information. concerning confidential in ef- in 1985 and village trustees adopted by the regulations were June 2000. through DiMare’s retirement on that time fect from parties following argument, oral As this ordered the Glenwood the issue of whether briefs on supplemental submitted purposes of were “law” for regulations police department’s the Vil- copies of provided The State misconduct statute. the official In addi- covering police department. lage of Glenwood ordinances 19, 1985, meet- the minutes of November tion, provided the State regulations the rules village approved trustees ing where and the this information DiMare. Based on testified to package, as misconduct defendant, conviction for official I believe the actions of majority I have with differences key be affirmed. should from of the codified are the exclusion opinion the rules and and the use of of “law” the definition employee. a civilian defendant as exclude Rules and Department Police of Glenwood Village 1. The Regulations of- public designed prevent statute was The official personal for of the law in violation position their abusing from ficials Geneva, 142 Ill. City Fellhauer enterprise. gain or criminal *12 91 (1991). statute, major- in the 506 While “law” is not defined ity supreme notes that our court stated that a violation of the statute statute, rule, may supreme arise from behavior forbidden court regulations, professional administrative rules and or tenets of a code. Fellhauer, 142 They affirming Ill. 2d at 506. conclude that defendant’s conviction police department based on the would be too far an already expansive reading extension from the of “law” by the Fellhauer court.
The majority through statutory runs provisions constitutional to demonstrate categories how local ordinances do not fit within the enumerated in majority distinguishes Fellhauer. The also the recent finding supreme of our legislature court that the intended include municipal ordinances and “statutory” state statutes in the term provision contained the limitations of section 13—202 of our Code of Civil Procedure because it principle giving followed the statutes their possible meaning. fullest L.L.C., Landis v. Marc Realty, 235 Ill. (2009). In proof the absence of legislature a intended narrower meaning ambiguous statutory, term the court followed interpretation broader statutory found numerous sources that hold municipal ordinances as laws of the state.
I disagree
majority’s
with the
view that
the ordinance must be
shoehorned into
language
of Fellhauer or that Landis must be
distinguished because this case
Rather,
involves
criminal statute.
I
supreme
believe that our
court’s subsequent
provided guid-
decision
ance that
approach
this
is too narrow and the
issue here
fact,
should be considered laws. In
majority
both the
dissent in
“laws,”
Landis describe ordinances as
simple require-
ment in
Landis,
this case.
9-13,
In People Howard,
v.
Ill.
(2008),
2d 428
supreme
our
recently considered what
predicate
constitutes a
unlawful act for
3(c)
purposes of section
of the official misconduct statute. In find-
33—
ing an indictment
for the defendant’s use
a city
credit card for
personal items in violation
sufficient,
of the state constitution
Howard court
expanded
considered and
holdings
in Fellhauer and
People Grever,
222 Ill. 2d
Howard,
Criminal Howard, Code. Ill. 2d at quoting 222 Ill. 2d at 337. ruling Howard court noted its concern that such a could specter prosecution
enhance the of overzealous of official misconduct However, allegations. this the reality it softened concern with winning simple matter, conviction under statute is not a *13 if “particularly prosecutor attempt a should to utilize the statute considering Howard, reach is not Ill. without that its limitless.” 228 Furthermore, 2d pointed at 438. the court out that there is no de exception may statute this minimis within the and indicated issue by legislature. The is- only be considered the court concluded that this ripe strongly suggested sue was for such review and that this occur. Howard, Ill. 2d at 228 438-39. charge may
An official on an administra- also be based regulation, any provision that penalty tive rule or even absent for Becker, App. rule. Ill. 1000 Such a rule or 315 regulation enjoys presumption of and has the force and ef- validity Becker, Village 3d at of is App. fect of law. Ill. 1000. The thus, of community home rule and under article VII the Illinois sovereign powers except of same the Constitution has “the as powers by Assembly” the which must where such are limited General liberally. Houser, be u. Ill. 2d City construed Urbana of (m). VII, §§6(a), (i), (1977), citing According Ill. art. to Const. court, the requires “[i]t the no to see breadth strong prisms Houser Houser, 67 Ill. 2d 273. depth powers and of home rule units.” at rule, the a state While not statute administrative by a rule regulations approved are and codified as an ordinance home protecting and a of the community patently important component Howard, public in the Glenwood. As in violation of safety Village of concept and, powers the same amorphous these rules is not with and the state sovereign, village by the the is authorized statute as these at issue. pass and enforce ordinances such constitution in this manner Limiting the reach of the official misconduct statute purpose municipalities and run counter would emasculate rule, authority by legislature the also clear vested that but the to home constitution rule units. Regulations to Defendant Application
2. of Rules and that, although she majority summarily The asserts footnote police was member of the employee, defendant not a public was a did not department regulations apply therefore Code, Municipal majority of Glenwood Citing Village her. department consist of one chief of provides it “shall *14 tions, including rules, the confidentiality when she started working for police department. Defendant further admitted that these rules banned the dissemination of confidential information or any information that may delay person arrest or aid a escape. to Defendant stated that she public safety safety understood the and the officers compromised would be if these rules were violated.
Accordingly, testimony that: police department established dispatchers considered subject as members that are to the rules and regulations; imparted the rules were in training writing; defendant understood they applied rules and that to her. Furthermore, the nature of dispatcher defendant’s duties as a radio naturally requirement lead to the confidentiality apply that to position. that Strictly construing the municipal code allows for the logical dispatcher inference that a privy who is to the confidential workings of the department is considered a member of required confidentiality follow rules. fact,
As the trier of the trial obviously found defendant accept incredible and did not up her claims that she made the informa- imparted tion part up Stroud as of a scheme to find out if he something. Evidence showed that the police department and other staged College law enforcement were at South Suburban at plan time and this after the telephone was modified calls were transcripts plain language on the
intercepted. Based may and the inferences that telephone testimony, calls and trial proved each, properly the trial court found State made from defendant. This was not a against elements of official fiduciary duty simply concept such as a amorphous violation of an the ramifica- of these rules and employment. importance rule of application them is obvious as is failing tions of to follow position police dispatcher. evidence, I lengthy dissent majority opinion and this
As able are not determining this matter underlying issues agree is However, breaking an issue down to the basics sometimes simple. articulate, or, is difficult to you can determine which helpful “I it pornography, know famously said of as Justice Potter Stewart Ohio, 184, 197, 12 L. Ed. 2d 378 U.S. I see it.” Jacobellis v. when (1964) (Stewart, J., concurring). Similarly, 84 S. Ct. police activ- drug potential dealer of police dispatcher alerts when if simply, him, quite misconduct. Put it has to be official ity aimed misconduct, I not know then do example is of official this case not what is. ILLINOIS, Plaintiff-Appellant, v. RICKY OF THE STATE OF
THE PEOPLE VERA, Defendant-Appellee. Division) (4th No. 1—08—1533 First District August 2009. Rehearing denied July Opinion filed 2009.— notes officers, police, deputy police, sergeants patrol one chief of four and 19 may provided and such other members as for from time to time village president Village and board trustees.” (eff. Municipal II, majority §58 May Code art. —31 that, employee concludes because defendant was a civilian she was not a member of the did department and the rules apply not to her. I argument believe that this runs counter to common sense and testimony at trial. Having determined the rules and laws, are I apply dispute would them to defendant. There is no defendant public employee dispatcher was a as a for the Glenwood police department. employees DiMare testified that all verbally are instructed the dissemination prohibited. above, confidential information is As detailed DiMare read into the the portions regulations covering record of the rules and this issue employees given and testified that all paper copies are of these rules and that apply employees. opined the rules to these DiMare defendant disclosed confidential information to Stroud and that this jeopardized ongoing operation College, South Suburban result- ing change staging in the police department. area Defendant testified that she trained regula- on the rules and