People v. Selby

698 N.E.2d 1102, 298 Ill. App. 3d 605, 232 Ill. Dec. 672
CourtAppellate Court of Illinois
DecidedAugust 11, 1998
Docket4-97-0960
StatusPublished
Cited by19 cases

This text of 698 N.E.2d 1102 (People v. Selby) is published on Counsel Stack Legal Research, covering Appellate Court of Illinois primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
People v. Selby, 698 N.E.2d 1102, 298 Ill. App. 3d 605, 232 Ill. Dec. 672 (Ill. Ct. App. 1998).

Opinion

PRESIDING JUSTICE GARMAN

delivered the opinion of the court:

In March 1997, a Livingston County grand jury returned indictments against defendants, Dwight Selby and James Hand, each on four counts of official misconduct (720 ILCS 5/33 — 3 (West 1994)) and one count of conspiracy (720 ILCS 5/8 — 2(a) (West 1994)). The grand jury also indicted defendant, Adrian Glenn, on two counts of official misconduct. In October 1997, the trial court dismissed the indictments, and the State appeals. For the following reasons, we reverse and remand for further proceedings.

I. BACKGROUND

The indictments, which contain substantially the same allegations, charge defendants with the criminal offense of official misconduct in violation of sections 33 — 3(b) and (c) of the Criminal Code of 1961 (Code) (720 ILCS 5/33 — 3(b), (c) (West 1994)), based upon their violation of section 120 of title 20 of the Illinois Administrative Code (Administrative Code) (20 111. Adm. Code § 120 et seq. (1997)). Section 33 — 3 of the Code provides, in relevant part:

“Official Misconduct. A public officer or employee commits misconduct when, in his official capacity, he commits any of the following acts:
(b) Knowingly performs an act which he knows he is forbidden by law to perform; or
(c) With intent to obtain a personal advantage for himself or another, he performs an act in excess of his lawful authority.” 720 ILCS 5/33 — 3(b), (c) (West 1994).

Title 20 of the Administrative Code prescribes rules of conduct for employees of the Illinois Department of Corrections (Department). 20 Ill. Adm. Code § 120.10 (1997). Section 120.50 of title 20 of the Administrative Code, entitled “Socializing with Committed Persons,” provides, in relevant part, that Department employees “shall not knowingly socialize with *** any committed person ***, except in the performance of an assignment or as approved in writing by the Director.” 20 Ill. Adm. Code § 120.50 (1997). The phrase “committed person” is defined as “any person committed to the custody of the Department [of Corrections], including those persons released on parole or mandatory supervised release.” 20 Ill. Adm. Code § 120.20 (1997). The terms “socializing” and “socialize” are not defined by the regulation.

The indictments concerning section 33 — 3(b) charge defendants:

“[P]ublic employee[s], to wit: *** Correctional Officer[s], Illinois Department of Corrections, while acting in [their] official capacity, knowingly performed an act which [they] know[ ] is forbidden by law to perform, that law being Illinois Administrative Rules, Title 20, Corrections, Criminal Justice, and Law Enforcement, Department of Corrections, Part 120, Rules of Conduct, Section 120.50, Socializing with Committed Persons, to wit: in that *** defendant[s] socialized with *** committed person[s] *** by engaging in sexual intercourse with [them], in violation of Illinois Compiled Statutes, Chapter 720, Section 5/33 — 3(b) ***.”

With respect to section 33 — 3(c), the indictments charge defendants:

“[P]ublic employee[s], to wit: *** Correctional Officer[s], Illinois Department of Corrections, while acting in [their] official capacity, with intent to obtain a personal advantage for [themselves], [they] performed an act in excess of [their] lawful authority, in that while on duty [they] performed an act that [they] know[ ] is forbidden by law to perform [sic], that law being Illinois Administrative Rules, Title 20, Corrections, Criminal Justice, and Law Enforcement, Department of Corrections, Part 120, Rules of Conduct, Section 120.50, Socializing with Committed Persons, to wit: in that *** defendant[s] engaged in sexual intercourse with [committed persons], in violation of Illinois Compiled Statutes, Chapter 720, Section 5/33 — 3(c) ***.”

Defendants Selby and Hand were further charged with conspiring to commit the offense of official misconduct in violation of section 8 — 2(a) of the Code (720 ILCS 5/8 — 2(a) (West 1996)).

On May 5, 1997, defendants Hand and Glenn filed motions to dismiss the indictments, arguing, inter alia, section 120.50 of title 20 of the Administrative Code was too vague to form the basis of the State’s charges of official misconduct. Following arguments by the parties, the trial court granted the motion and dismissed the indictments against defendants Hand and Glenn and, sue sponte, the indictments against defendant Selby. The trial court dismissed the charges on the grounds that the term “socializing” as used in section 120.50 was unconstitutionally vague as applied to defendants’ conduct and that the regulation failed to identify a violation as a criminal offense or to specify criminal penalties therefor. The State now appeals.

II. ANALYSIS

A. Jurisdiction

Defendant Selby initially challenges this court’s jurisdiction to hear the matter. According to Selby, the State was required to appeal the trial court’s ruling directly to the Supreme Court of Illinois. Under the Illinois Constitution, a direct appeal to the supreme court from a trial court ruling is proper whenever provided for by supreme court rule. Ill. Const. 1970, art. VI, § 4(b). Supreme Court Rule 603 directs all appeals from criminal cases “in which a statute of the United States or of this State has been held invalid” to be filed directly with the supreme court. 134 Ill. 2d R. 603. Citing In re Marriage of Lappe, 176 Ill. 2d 414, 680 N.E.2d 380 (1997), Selby argues the trial court’s ruling effectively renders section 33 — 3 of the Code unconstitutional and, therefore, urges this court to transfer the State’s appeal of his case to the supreme court pursuant to Supreme Court Rule 365 (155 Ill. 2d R. 365).

In Lappe, the supreme court discussed its jurisdiction under Supreme Court Rule 302(a)(1) (134 Ill. 2d R. 302(a)(1)), the civil counterpart to Rule 603. Rule 302(a)(1) provides for appeals to be taken directly to the supreme court from final judgments of circuit courts “in [civil] cases in which a statute of the United States or of this State has been held invalid.” 134 Ill. 2d R. 302(a)(1). In Lappe, sections 10 — 1 and 10 — 10 of the Illinois Public Aid Code (305 ILCS 5/10 — 1, 10 — 10 (West 1994)), which allowed the Illinois Department of Public Aid the discretion to intervene on behalf of any parent seeking the collection of child support and to provide enforcement services, were challenged as void on the ground they violated the constitutional mandate that public funds be used exclusively for public purposes.

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Cite This Page — Counsel Stack

Bluebook (online)
698 N.E.2d 1102, 298 Ill. App. 3d 605, 232 Ill. Dec. 672, Counsel Stack Legal Research, https://law.counselstack.com/opinion/people-v-selby-illappct-1998.