*1 conclude reme- therefore that Slavin’s conduct was We diable, and that erred in him. We plaintiff dismissing affirm the decision of the court order Slavin appellate reinstated with pay. back
Judgment affirmed, as modified. (No. 59032. al.,
JAMES SAYLES et JAMES THOMP v. Appellees, al., SON, Governor, et Appellants. 1, 1983.
Opinion December filed *2 SIMON, JJ., dissenting. CLARK and General,
Neil F. Hartigan, Attorney Springfield General, Rosen, (Patricia Attorney Chicago, Assistant for counsel), appellants. Hoffman, Susler, Bannister, Jan A. Shelley Charles Chicago, all of Margaret Byrne, appellees. opinion JUSTICE UNDERWOOD delivered court: action are this class representative plaintiffs committed to the
three heretofore custody con presently the Illinois of Corrections Department in the fined in this action brought Illinois prisons. They all Illinois circuit court of Cook on behalf of County pris Compact oners Interstate Corrections subject ch. a decla 4—4) seeking Rev. par. Stat. 1003 — *3 to out-of-State prisons ration that of inmates transfers the transporta violate to that would pursuant compact 1970, of our tion clause constitution of the Depart and Director The Governor the 11). defendants, as and of Corrections were named ment of the statute be en that enforcement plaintiffs prayed joined. motion defendants
The court denied a circuit summary motion for judg dismiss and granted plaintiffs’ and statute was unconstitutional ment, ruling the appealed directly its enforcement. Defendants enjoining Ill. (87 2d R. 302(a) to our Rule to this court pursuant 302(a)). in- transfers of on is whether appeal
The sole issue Corrections Compact to the Interstate mates pursuant This of constitution. clause our violate the . meaning, the pur- of necessitates a determination inquiry the clause. of scope and pose is, frequently emphasized, this court There 125 are constitutional strong enactments presumption legislative (Peo 334, 338; v. Greene 96 Ill. 2d ple (1983), 47, Cronin v. Ill. and Lindberg 58), 2d one (1976), who asserts has the burden of estab clearly otherwise lishing the constitutional violation Inc. v. (Polyvend, 287, 303; 77 Ill. v. Puckorius 2d Dale (1979), People 238, “A statute inter (1950), 244). 406 Ill. should be to avoid which preted so as a construction raise would its (Morton doubts as to Grove Park District v. validity. American Trust Co. 78 Ill. (1980), National Bank & 2d 353, It is our 363.) to construe acts duty legisla ture so as to affirm their if constitutionality validity, it done, can further if reasonably be their construc doubtful, tion is doubt will decided in favor of the law validity Continental Illinois Na challenged. tional Bank & Trust Co. v. Illinois State Highway Toll 385, 389; Com. 42 Ill. 2d (1969), Illinois Crime Investi Com. v. Buccieri 36 Ill. 2d gating (1967), 561.” Peo 155, 161-62. v. ple Davis 93 Ill. 2d (1982), meaning The of a statute or constitutional provision the intent depends of the drafters at the upon time of its it is a adoption, long-standing principle statutory it construction that is the court’s to ascertain and duty effectuate that intent. 92 Ill. 2d (In (1982), re Griffin 52; ex rel. v. White 52 Ill. People (1972), Hanrahan 2d 70, 73; ex rel. v. 41 Ill. People Ring (1968), Cason 2d The em 310.) meaning ordinary drafters in constitutional or ployed by questioned evidence of draft statutory provides best ers’ 248, 255; intent. v. Brown 92 Ill. 2d (People (1982), People 475-76; v. Ill. 2d (1982), Robinson People v. 261, 266.) Haron 85 Ill. 2d *4 clause provides: shall out person transported “No of the State an for added.) committed within the State.” (Emphasis offense 11.) Const. art. sec.
126 clear, language explicit
Plaintiffs describe this as and maintain that a unambiguous, language imposes method, to the form or regard pur- blanket ban without characterization, Plaintiffs’ how- pose transportation. of the clause. If the ever, overstates the breadth clearly preclude transpor- drafters had intended unilaterally under all circumstances and rea- any tation of prisoners so. The language son have stated surely would they is not for it prohibits prisoner transpor- unqualified, the commission tation when such is for transportation only of an offense. clause was contend that
Defendants form of punish- as a intended prohibit since this was re- ment for the commission of offense cruel and unusual. In the drafters garded by particularly defendants on the rely primarily of their support position also ex- They records of the 1970 constitutional convention. em- generally, and exile amine the banishment history in earlier Illinois con- clauses phasizing for the specific purpose stitutions were adopted forms of punishment. these archaic against protecting from the In to this banishment century, England, prior (G. form of punishment. a common dominion was King’s Criminals, Witches, Lu Dues, A of Penal Methods: History trans frequently (1914).) English natics of inden American colonies under a contract to the ported to Leave Subjects (Crais, Compulsion tured service Once our Realm, L.Q. (1890).) indepen Rev. enacted constitutional secured, States many dence was G. Bra- (See this form of safeguards against An Annotated Cohn, & Illinois Constitution: den R. Indeed, 53 (1969).) prohibition Comparative Analysis existed every against punishment by transportation has been vir constitution, of each Illinois VIII, 17; sec. 1818, art. (See Ill. Const. identical. tually II, art. 18; Ill. Const. XIII, sec.
127 The to the clause 11.) was precursor present transportation clause, the 1870 which provided: any person transported shall out of State
“[N]or any for offense committed within the same.” II, 11.) Cohn of Braden and this lan- explain purpose guage was as a against to protect prisoner transportation cruel form of punishment:
“Historically, banishment exile from the realm was form an of accepted punishment. legislature The heeded the admonition of against imposition par- this form ticularly (G. cruel of Braden & R. punishment.” Cohn, An Compara- Illinois Constitution: Annotated and 53 Analysis (1969).) tive
In Du Bois v. Gibbons 2 Ill. 2d this court dicta, acknowledged, that the of purpose the transporta tion clause to prohibit was “banishment from the State as punishment.” Since banishment is no longer acceptable form of Braden and Cohn punishment consider trans portation clause anachronistic and recommend its abolition. Cohn, Braden & Hlinois Constitution: An Annotated and 54 Comparative Analysis (1969).
We note, too, that, us, while not the At- binding upon torney General indicated in a 1982 letter to the Di- opinion rector of Department of Corrections his belief that of transfers to Federal temporary penal Hlinois institutions outside Illinois prohibited. 1970
During the constitutional there were convention several clause abolish proposals adopt instead a clause cruel unusual prohibiting pun- ishment (7 Record Sixth Illinois Constitu- Proceedings, tional 2961-64 (Committee 275), Convention No. Proposal 3043 (Committee 433), (Committee No. 3080 Pro- Proposal It posal 526).) No. was argued
clause no had since really significance, ban- contemporary ishment was no as a form longer employed Delegate Dvorak that the explained its since section purpose
was retained out-dated despite article to a actually I was tantamount prohibition unusual punishment: cruel and against clause, any person ‘nor shall be trans- “The third within ported any the state for offense committed out of clause, same,’ being explanatory akin to the second significance. really contemporary once It has no again. in, instance, the set- basis is historical evidenced tling original English prisoners where our colonies *6 necessary to do mundane work for brought over the ancient interpreted very settlement. This has been in cases so cruel that there is no abso- being particularly lutely case law on this section alone. decisive this one-third of our states now retain
Approximately section As in our commit- rights. in their bill indicated vote, tee with a report, passed this section seven-to-five and I is not of the intent to retain think this indicative retention dissenting this The five on language. votes of some akin mat- proponents were broken down between instance, of the federal proponents ters —for of inclusion felt, I and We be- language punishment.’ of ‘cruel unusual committee, while we could either include lieve as a that language, or the we existing substitute that therefore, and, making changes would no substantive added.) to do 3 Record preferred (Emphasis we it.” Sixth Constitutional Convention Proceedings, Illinois animos- remarks, In these and Illinois’ historical view of as a cruel form of pun- towards ity prisoner is that vio- ishment, we conclude the transportation lated if and when only this prem- constitutes cruel and unusual With of whether prisoner in turn to the ise mind we question Com- to Interstate Corrections pursuant and unusual. can be characterized as cruel pact to serve compact The is objective express 38, ch. Rev. Stat. (Ill. interests inmates. best An be transferred 4—4, I.) may only art. inmate par. 1003— to provide adequate or in order when desirable “necessary care an of rehabilita quarters appropriate program and tion or ch. 1003— par. treatment.” Rev. Stat. concerns, that argue such Despite plaintiffs IV.) 4— inmate transfer to out-of-State would facility compel an extent, to to interaction with forgo, appreciable family and The transferred inmate would also be sepa friends. em rated from and the State courts. Defendants counsel Illinois phasize prisons that overcrowded dangerously at this numerous time and this situation created health within Defend security problems prisons. ants contend that care treatment for inmates adequate that the transfer of in presently impossible and submit mates to out-of-State solution facilities is workable only to these problems. the, hazards that have resulted from
Obviously, prison are most felt the inmates them overcrowding deeply selves. In we fact, note in alleged 8 of plaintiffs paragraph their intolerable in complaint development “[t]his [an crease in 10,000 from in prison population 14,000] has present overcrowding resulted massive Illinois cruel and inhumane conditions of confinement for' prisoners.” present effort transfer them would al *7 leviate of the problems on many they confront a ba daily sis. Under the a retains compact, transferred inmate all the and rights privileges possessed he while confined Illinois 1981, within the prison (Ill. Rev. Stat. ch. system. 38, 4—4, par. we that IV.) Although appreciate 1003— the transfer of inmate to an facility out-of-State would make burdensome, more visitation we cannot such regard transfers as cruel and unusual the clear when objective is to consequence their significantly improve living basic conditions. we that such do not Accordingly, hold transfers violate add, however, that transportation clause. We careful attention must be method of in given selecting mates to transferred in that be order constitutional equal protection are not offended. guarantees
130
This is Federal cases that conclusion consistent with Warden, In v. Massa- have addressed the issue. Sisbarro 1, 4, F.2d 1979), chusetts Cir. 592 Penitentiary (1st State involved acknowledged the court that out-of-State transfers to held “such trans- certain but hardships prisoner nor ‘cruel in the constitutional fers are neither unusual ” 461 (1983), Olim v. Wakinekona U.S. sense.’ See also 1741; Rodriguez-San- S. 238, 813, 75 L. Ed. 2d Ct. 409 F.2d 532. 1969), v. States Cir. (1st doval United For the reasons the circuit foregoing judgment of Cook is reversed. County court reversed.
Judgment
CLARK, dissenting:
JUSTICE
a
as the majority opinion
It is well-established principle,
of the lan
out, that
points
ordinary meaning
itself
“[t]he
in the
constitu
questioned
the drafters
guage employed
evidence of the
the best
statutory
provides
tional
Ill. 2d
(People
(1982),
drafters’ intent.
v. Brown
469, 475-76; Peo
89 Ill. 2d
255; People
(1982),
v. Robinson
“In this question principle the well established ognition must be accorded where the lan- is to construction open that a statute not unambiguous conveys is guage thereof clear and legislative If the meaning. clear and definite [Citation.] used the courts plain language intention from be meaning than any the Act other permitted give not that therein expressed. Cervenka, the rule which
In 331 Ill. Sup v. we refer is thus stated: the construction a stat elementary
‘It rule in is an primarily must legislature intention of the ute itself and of the statute language from the determined aliunde. When that conjectures from a clear and definite unambiguous conveys plain and *8 meaning authority there is neither nor for re necessity sorting to construction. If the words of a stat statutory manifest, ute plain legislative and purpose purpose legisla must The courts have no given effect. powers, tive in the construction of interpretation and determine, statutes their sole function is to within limits of the legislative power give constitutional to, effect They the intention of the cannot legislature. read into a within the mani something statute that is not fest gathered intention of law-making from body depart meaning expressed statute itself. To from the by the alter legislate words is to a statute —it is to not to interpret. meaning If the obvious of a statute should be followed harsh such a consequences, result ” cannot administering influence courts in the law.’ 16 Ill. App. 2d
The clause transportation provides: person
“No transported shall be out of the State for offense committed within the State.” 11.) The clause transportation clearly state, does not as the ma jority suggests, person shall not be out transported of the State for an offense committed within the State if only it constitutes cruel and unusual punishment. The majority concludes “that clause transportation is vio lated if only and when the prisoners con stitutes cruel and unusual Ill. punishment.” 2d at (99 128.) I do agree.
The clear language clause should not be ignored. Since language is clear and unambigu- ous, it is not necessary to go outside the clause to determine the intention the con- stitutional convention. discusses the majority fact that several proposals made the 1970 constitutional during convention to the transportation
abolish clause and instead a adopt cruel and unusual It prohibiting further notes the remarks of one the delegates to the convention re- *9 of the alleged the obsolescence
garding the reasons that these proposals clause. The majority the constitutional indicative of remarks of the are delegate the remains that However, the fact convention’s intent. it altered. nor was not abolished clause was Therefore, it is reason- It still remains in our constitution. the constitu- intention of that it the to conclude was able in effect as written. that it remain tional convention our interpreta not affect Prison should overcrowding The transportation tion of the Blinois Constitution. since 1818 changed significantly has not our constitution 1848, art. VII, 17; sec. Ill. Const. Ill. art. (cf. 11; Ill. Const. II, art. sec. 18; Ill. Const. XIII, sec. be with the disagree majority’s and I 11), crisis should be temporary of a exigencies lief that of a clear constitu a strained interpretation used to justify was this rejected by The same argument tional mandate. 311, 318, Ill. 2d court in v. Sklodowski Lane where we noted: Association, curiae, argues in Howard John
“Amicus Director holds that that, this court its unless brief to early pris- release grant to authority has unlimited incarceration, danger- days per a total of 90 beyond oners prisons Illinois overcrowding of ous and unconstitutional in a mo- arguments made similar will occur: The Director stated in our as we July tion our order of but stay to above, are princi- these 15, 1983, July quoted order of Assembly.” for the General pally concerns could be- overcrowding indicate that prison Lane does if Illinois become prisons come a for the judiciary matter the eighth there was violation so overcrowded un- of cruel and infliction prohibition against amendment’s I do Const., VIII), amend but (U.S. usual punishment that such a has established the majority opinion think that only support Illinois. The exists in currently situation from brief. plaintiff’s this is a quotation proposition dis- have been to Nevada have sent been larger as the Illinois became patched prison population If the 14,000. than situation Illinois before Lane prison constituted cruel unusual already punishment, it been prison program, implemented transfer date, this will not improve living conditions 14,000 incarcerated in Illinois. It prisoners already merely when the postpones day legislature will have effec- tively deal with in this problem prison overcrowding State.
As our court has appellate noted: “ ‘Such cannot be considerations utilized to sustain a at plain meaning construction variance with statutory language. They arguments appropriately *10 addressed to the legislature. The function of this court is to the statute in construe accordance with the im normal used, port of the words whatever its re opinion may be garding desirability produced results by opera ” tion Cutkomp of the statute.’ v. Mason 15 Ill. 2d App.
I am also troubled by majority’s endorsement of the statute’s authorization to transfer when prisoners “neces or sary (Emphasis added.) desirable.” Rev. Stat. 4—4,
ch. par. Such a IV.) range wide of dis 1003— cretion could have serious extremely consequences. If this opinion adopted, we could abolish the in prison system Illinois and all send of our prisoners other States with lower wages construction costs. Although such a dra conian development is I can unlikely, foresee other abuses that such discretion If we encourages. endorse the statute in question, future it may administrators find or necessary desirable to prisoners banish to distant if States show they a talent for assisting other in prisoners about the learning laws that them, or imprisoned assisting others in the prep aration of habeas Prison corpus petitions. administrators could effectively punish prisoners without troublesome judi cial supervision.
I do not understand the reliance on the com- majority’s
mon Exile to law banishment. development prisoner Australia or new colonies was conceived as particu- from rela- odious form distance larly strain on the tives and loved ones a tremendous produced colonies, al- convicts banished to Australia the new early conditions, climate, and food were though the living space, than in Nevada is not as England. certainly often better in- Australia, far as but relatives of Blinois impoverished too mates the financial burden of find may off from effectively Blinois’ will be cut to bear. exiles great In friends, addi- attorneys. contact with their relatives and provide I whether our State will tion, am concerned over in to monitor conditions out-of-State facilities adequate fair treatment of Blinois to insure humane and prisons in the of authorities once they custody other States. the judicial philosophy I would like to recall
Finally, Court. Black of the United States Supreme the late Justice of the United States Constitution His strict interpretation of the first amendment his construction epitomized was “Con- Const., amend. He I). interpreted phrase (U.S. *** the freedom of make no law abridging shall gress law. He would not tolerate that —no just mean speech” as laws, long they indorsed some interpretations Black, The Man Frank, Mr. Justice (See reasonable. bar, In the case at we (1949).) 253-309 and His Opinions *11 Constitution: of the Illinois have the clear the State for transported out of shall be person “No Ill. Const. the State.” within offense committed the movement does not forbid The Illinois Constitution reasonable, unless it outside of the State of It it. unusual, or simply else. forbids anything cruel I dissent. respectfully in this dissent. joins SIMON
JUSTICE