People v. Sanders

696 N.E.2d 1144, 182 Ill. 2d 524, 231 Ill. Dec. 573, 1998 Ill. LEXIS 911

• Court: Illinois Supreme Court
• Decided: June 18, 1998
• Docket: 82917
• Status: Published

Opinions

JUSTICE McMORROW

delivered the opinion of the

court:

The State charged defendant Robert Sanders by information with violation of section 2(c) of the Illinois Hunter Interference Prohibition Act (720 ILCS 125/2(c) (West 1996)). Pursuant to defendant’s motion to dismiss, the circuit court of Lake County entered an order on February 20, 1997, dismissing the criminal charge against defendant. The court found section 2(c) impermissibly vague and overbroad, in violation of the United States Constitution. U.S. Const., amends. I, V. Because the statute was declared unconstitutional, the State’s appeal from that ruling lies directly to this court. 134 Ill. 2d R. 603. We affirm.

BACKGROUND

Section 2 of the Illinois Hunter Interference Prohibition Act (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.

(b) Disturbs or engages in an activity that will tend to disturb wild animals, with intent to prevent their lawful taking.

(c) [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.

(d) [Elnters 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 Act defines “wild animal” as “any wild creature the taking of which is authorized by the fish and game laws of the State.” 720 ILCS 125/l(a) (West 1996). Under the Act, “taking” means “the capture or killing of a wild animal and includes travel, camping, and other acts preparatory to taking which occur on lands or waters upon which the affected person has the right or privilege to take such wild animal.” 720 ILCS 12571(b) (West 1996). No other terms are defined by the Act.

The State filed an information on November 19, 1996, charging defendant, Robert Sanders, with the offense of “Interference with lawful taking of wild animal.” 720 ILCS 125/2 (West 1996). The State alleged that on February 16, 1996, defendant “disturbed Elizabeth B. Surge” with the intent to dissuade her, by yelling at her and taking her photograph as she attempted to shoot a deer.

In documents filed with the circuit court, defendant initially contended that the confrontation with Surge occurred “on a public street in a residential neighborhood relating to the capture of deer.” The State’s response to defendant’s motion to dismiss stated that defendant approached Surge at a “deer relocation sight [sic] in Highland Park.” On appeal, defendant apparently agrees with the State’s characterization of the incident, since the defendant’s appellee’s brief concedes that “[d]efendant took a picture of, and spoke to a person working at a deer relocation center.”

Defendant moved to dismiss the information. Defendant claimed that subsection (c) of section 2 is over-broad in violation of the first amendment to the United States Constitution and unconstitutionally vague in violation of the “Due Process Clause.”

On February 20, 1997, the circuit court of Lake County entered a written finding granting defendant’s motion to dismiss. The court ruled that prosecution of subsection (c) of section 2 “require [s] allegations and proof of three elements:

1. disturbing another person ***;

2. the other person must be actively engaged or in the process of taking a wild animal; and

3. an intent to dissuade or otherwise prevent the taking.”

The circuit court examined other Illinois statutes, such as those proscribing disorderly conduct (720 ILCS 5/26 — 1 (West 1996)), mob action (720 ILCS 5/25 — 1 (West 1996)), intimidation (720 ILCS 5/12 — 6 (West 1996)), and telephone harassment (720 ILCS 135/1 — 1 (West 1996)), “from the p[er]spective of similar language, constitutional challenges, and rulings based on those challenges.” Lastly, the court found persuasive case law cited by defendant, as it pertained to “vagueness, overbrea[d]th, free speech and due process.”

Based on the foregoing analysis, the circuit court dismissed the information, and ruled that section 2 of the Act “is vague, overbroad, and violative of due process with respect to the protection of freedom of speech,” “to the extent that the term [‘]dissuades)’] is used.”

Pursuant to Illinois Supreme Court Rule 603, the State appealed the February 20, 1997, order to this court. 134 Ill. 2d R. 603.

STANDARD OF REVIEW

We presume all statutes are constitutionally valid. People v. Warren, 173 Ill. 2d 348, 355 (1996); People v. Jeffries, 164 Ill. 2d 104, 111 (1995). In construing a statute, this court must affirm the enactment’s validity and constitutionality if reasonably possible. People v. Kimbrough, 163 Ill. 2d 231, 237 (1994). The party challenging a statute’s constitutionality bears the burden of clearly establishing its constitutional infirmity. Fink v. Ryan, 174 Ill. 2d 302, 308 (1996).

ANALYSIS

Before this court, the State contends the circuit court erroneously found section 2(c) of the Act unconstitutional. The State argues the statute is neither overbroad nor vague.

While defendant agrees with the result reached by the lower court, he suggests on appeal that we affirm by following a different analysis than that chosen by the circuit court. Defendant accurately argues that the term “intent to dissuade” in section 2(c) must be subjected to a separate, “content-neutrality” inquiry before this court confronts the basis employed by the circuit court for its ruling, i.e., whether the statute is unconstitutionally overbroad or vague. This is so because, logically, if section 2(c) is impermissibly content-based, then we need not reach the defendant’s overbreadth or vagueness challenge with respect to that section. See, e.g., Consolidated Edison Co. of New York, Inc. v. Public Service Comm’n, 447 U.S. 530, 536, 65 L. Ed. 2d 319, 327, 100 S. Ct. 2326, 2332-33 (1980) (a valid time, place and manner restriction may not be grounded on the content or subject matter of speech).

A. Content-Neutrality

The government may not prohibit the expression of thoughts simply because society finds the expressed idea offensive or disagreeable. Texas v. Johnson, 491 U.S. 397, 414, 105 L. Ed. 2d 342, 360, 109 S. Ct. 2533, 2545 (1989). Under the content-neutrality principle, “the government may not proscribe any expression because of its content, and an otherwise valid regulation violates the first amendment if it differentiates between types of expression based on content.” (Emphasis omitted.) R. Sedler, The First Amendment in Litigation: The “Law of the First Amendment,” 48 Wash. & Lee L. Rev. 457, 466 (1991). Thus, any enactment intended to silence an opinion is presumptively invalid (R.A.V. v. City of St. Paul, 505 U.S. 377, 382, 120 L. Ed. 2d 305, 317, 112 S. Ct. 2538, 2542 (1992); City of Renton v. Playtime Theatres, Inc., 475 U.S. 41, 46-47, 89 L. Ed. 2d 29, 37, 106 S. Ct. 925, 928 (1985)) and may only survive if justified by a compelling state interest and if narrowly tailored to achieve that interest {City of Renton, 475 U.S. at 47, 89 L. Ed. 2d at 37, 106 S. Ct. at 928).

The government’s purpose in enacting a prohibition on expression controls a “content-neutrality” inquiry. Ward v. Rock Against Racism, 491 U.S. 781, 791, 105 L. Ed. 2d 661, 675, 109 S. Ct. 2746, 2754 (1989). “Government regulation of expressive activity is content neutral so long as it is justified without reference to the content of the regulated speech.’ ” (Emphasis in original.) Ward v. Rock Against Racism, 491 U.S. at 791, 105 L. Ed. 2d at 675, 109 S. Ct. at 2754, quoting Clark v. Community for Creative Non-Violence, 468 U.S. 288, 293, 82 L. Ed. 2d 221, 227, 104 S. Ct. 3065, 3069 (1984). A restriction that applies impartially to all viewpoints is deemed content-neutral. Comment, The Right to Arm Bears: Activists’ Protests Against Hunting, 45 U. Miami L. Rev. 1109, 1126 (1991).

Defendant maintains that inclusion of the phrase “intent to dissuade” in section 2(c) renders the statute content-based, because the word “dissuade” means “advise” or “exhort.” Defendant reasons further that, if the state proscribes conduct performed with an intent to dissuade, then the state commits the constitutionally impermissible act of penalizing a citizen for the content of his expression. By outlawing a viewpoint which is expressed with an intent to dissuade, defendant continues, the state implicitly “shut [s]-off one half of the debate” about hunting, and allows those who disturb a hunter without an intent to dissuade to avoid criminal liability.

In State v. Miner, 556 N.W.2d 578 (Minn. App. 1996), the Minnesota Court of Appeals construed a “hunter harassment” statute which stated in part:

“A person who has the intent to prevent, disrupt, or dissuade the taking of a wild animal or enjoyment of the out-of-doors may not disturb or interfere with another person who is lawfully taking a wild animal or preparing to take a wild animal.” Miner, 556 N.W.2d at 581, citing Minn. Stat. § 97A.037 (1994).

The Miner court held that, to the extent the statute only applied to persons whose intent was to “dissuade the taking of a wild animal or enjoyment of the out-of-doors,” the statute was impermissibly content-based. Miner, 556 N.W.2d at 583; Minn. Stat. § 97A.037 (1994). “Dissuade,” the court explained, carries a connotation of using argument, reasoning, entreaty, admonition, advice or appeal to convey a message. Miner, 556 N.W.2d at 582. The statute therefore discriminated between opposing points of view by attempting to silence persons intending to convey a particular message. Miner, 556 N.W.2d at 582-83; see also Opinión of the Justices, 128 N.H. 46, 509 A.2d 749 (1986).

Further, the Miner court ruled that the State of Minnesota could not articulate a constitutionally sound argument in favor of the content-based law. Assuming arguendo that the state possessed a compelling interest in protecting the right of individuals to lawfully take wild animals, the state failed to explain why prohibiting disturbing speech only if the speaker intends to dissuade the taking of an animal was necessary to serve and protect that interest. Miner, 556 N.W.2d at 583; Dorman v. Satti, 862 F.2d 432, 437 (2d Cir. 1988) (court stated that “[tjhere is no showing that protecting hunters from harassment constitutes a compelling state interest”).

In the case at bar, the State cites to State v. Lilburn, 265 Mont. 258, 875 P.2d 1036 (1994), and Woodstock Hunt Club v. Hindi, 291 Ill. App. 3d 1051 (1997), both of which construed the phrase “intent to dissuade” in hunter harassment statutes as content-neutral. In each case, the reviewing court read the phrase “intent to dissuade” as a nonessential element of a larger statutory scheme, designed to punish any interference with a taking, regardless of whether the offender intended to convey a particular message. Lilburn, 265 Mont. at 267, 875 P.2d at 1042; Woodstock Hunt Club, 291 Ill. App. 3d at 1054. Hence, the Montana Supreme Court and Illinois Appellate Court held that, while the statutes potentially outlawed verbal utterances by someone intending to prevent a taking of wildlife, they did not criminalize verbal utterances on the basis of content. Lilburn, 265 Mont. at 266, 875 P.2d at 1041-42; Woodstock Hunt Club, 291 Ill. App. 3d at 1054.

The Lilburn court decided that opponents of the statute placed erroneous emphasis on the word “dissuade”:

“Reading the statute as a whole, it is clear that the conduct proscribed is the ‘disturbance’ of a hunter engaged in a lawful activity, when it is done with the intent to either dissuade the hunter or to prevent the taking of an animal. The fact that the speech or actions may disturb a hunter is not dependent on the content of what is expressed, or whether it is prompted by an anti-hunting sentiment. A person could blurt out anything at the moment a hunter is trying to shoot, and this could ‘disturb’ the hunter by distracting him or her, or by scaring the animal away. The content of what was said would be irrelevant.” Lilburn, 265 Mont. at 268, 875 P.2d at 1042-43.

See also Woodstock Hunt Club, 291 Ill. App. 3d at 1054 (the Act does not single out any particular thought or opinion for prohibition, but “merely prohibits intentional interference with the lawful taking of wild animals”).

We agree that proper interpretation of the term “dissuade” demands that we place the term in its full context. Woodstock Hunt Club, 291 Ill. App. 3d at 1055; see also People v. Frieberg, 147 Ill. 2d 326, 348 (1992); Oberman v. Byrne, 112 Ill. App. 3d 155, 162 (1983). However, we cannot ignore the plain meaning of “intent to dissuade,” as employed in section 2(c). People v. Geever, 122 Ill. 2d 313, 329-30 (1988). As explained in Miner, the word “dissuade” carries a specific meaning associated with argument and with promoting a particular point of view. Miner, 556 N.W.2d at 583. Subjecting to criminal liability expression which is made with an intent to dissuade, while failing to threaten punishment for expressions intended to encourage or persuade, constitutes an illegal legislative censure of opinion.

We note as well that, had the legislature intended to curb conduct without regard to any message conveyed by the conduct, it could have done so by limiting the criminal scienter in section 2(c) to the phrase “intent to prevent” and no more. Indeed, section 2(a) proscribes “interferences” with hunting when the interference is motivated by an intent to prevent. 720 ILCS 12572(a) (West 1996). Thus, the inclusion of a separate subsection adding the words “intent to dissuade” substantiates our judgment that the legislature intentionally injected the concept of suasion into subsection (c). Section 2(c) is not content-neutral.

The prohibitions of section 2(c) do not serve a compelling state interest. While the Act furthers reasonable and legitimate state interests by permitting hunting within its borders (see People v. Diekmann, 285 Ill. 97, 100 (1918); Parker v. People, 111 Ill. 581, 588 (1884); Magner v. People, 97 Ill. 320, 333-34 (1881)), none of these considerations are of such magnitude as to constitute a compelling interest. Further, even if we did find that the state’s concerns could be characterized as “compelling,” the General Assembly’s decision to protect that interest by targeting expression of an opinion, as opposed to intentional, disruptive behavior in general, is difficult to justify. Miner, 556 N.W.2d 583.

Nevertheless, inclusion of the term “intent to dissuade” in section 2(c) is not fatal to the validity of the entire Act. Mindful of our obligation to uphold legislative enactments whenever reasonably possible (Kimbrough, 163 Ill. 2d at 237), we may excise the offending portion from the Act and preserve the remainder (see 5 ILCS 70/1.31 (West 1996)), provided the remainder is complete in and of itself, and is capable of being executed wholly independently of the severed portion (Tully v. Edgar, 171 Ill. 2d 297, 313 (1996); People ex rel. Adamowski v. Wilson, 20 Ill. 2d 568, 582 (I960)). To sever section 2(c) without negating the viability of the remaining sections of the Act, we should also conclude that, even in the absence of the excised provision, the General Assembly would still have adopted the Act. Tully, 171 Ill. 2d at 313; Wilson, 20 Ill. 2d at 582.

Section 2 readily survives the severability test. As originally drafted, section 2 purports to prohibit four distinct means of interrupting a “taking” of wildlife. Each subsection stands independently of the others, so that the removal of one (such as subsection (c)) undermines neither the completeness nor the executability of the remaining subsections. We believe the legislature would endorse section 2 without subsection (c). The plain purpose of the statute is to outlaw any intentional hindrance of the taking of wildlife. Section 2 accomplishes that aim, with and without inclusion of “intent to dissuade.” In particular, section 2(a) proscribes “[i]nterfer[ing] with the lawful taking of a wild animal by another with intent to prevent the taking.” 720 ILCS 12572(a) (West 1996). Section 2(a) is virtually identical to section 2(c), except for the inclusion of the “dissuade” aspect in the latter. By removing subsection (c), this court can neutralize a constitutional infirmity without altering any of the remaining prohibitions in the Act. See Miner, 556 N.W.2d at 583 (court found that “intent to dissuade” is not so inseparably connected to remainder of statute that Minnesota legislature would not have passed the statute without it).

B. Vagueness and Overbreadth

Because we have excised subsection (c) from section 2, we need not determine if the trial court committed reversible error when it held that the phrase “intent to dissuade” in subsection (c) is unconstitutionally vague and overbroad. Consolidated Edison Co. of New York, Inc. v. Public Service Comm’n, 447 U.S. at 536, 65 L. Ed.2d at 327, 100 S. Ct. at 2332-33.

CONCLUSION

We find section 2(c) of the Illinois Hunter Interference Prohibition Act (720 ILCS 12572(c) (West 1996)) a content-based regulation not justified by a compelling state interest. Thus, we affirm the order of the circuit court finding section 2(c) unconstitutional. We also affirm the circuit court’s order dismissing the criminal information filed against defendant.

Affirmed.