People v. Howard ( 2008 )

Docket No. 104553.
IN THE
SUPREME COURT
OF
THE STATE OF ILLINOIS
THE PEOPLE OF THE STATE OF ILLINOIS, Appellee, v.
LYNDELL W. HOWARD, Appellant.
Opinion filed April 17, 2008.
JUSTICE GARMAN delivered the judgment of the court, with
opinion.
Chief Justice Thomas and Justices Freeman, Fitzgerald, Kilbride,
Karmeier, and Burke concurred in the judgment and opinion.
OPINION
In 2005, defendant, Lyndell W. Howard, was indicted for nine
counts of official misconduct related to his use of a City of Pekin
credit card. Six of the counts alleged that defendant violated section
33E–16 of the Criminal Code of 1961 (720 ILCS 5/33E–16 (West
2004)), while three counts alleged that defendant acted contrary to
article VIII, section 1(a), of the Illinois Constitution of 1970 (Ill.
Const. 1970, art. VIII, §1(a)). Based upon the above, the indictment
alleged that defendant violated section 33–3(c) of the Criminal Code
(720 ILCS 5/33–3(c) (West 2004)), the official misconduct statute.
Defendant moved to dismiss all of the counts against him. The
circuit court of Tazewell County dismissed the six counts predicated
on section 33E–16 of the Criminal Code. Defendant’s motion to
dismiss was not granted, however, with regard to the three counts of
official misconduct predicated on article VIII, section 1(a), of the
Illinois Constitution, which provides that “[p]ublic funds, property or
credit shall be used only for public purposes.” A jury found defendant
guilty of all three counts. Defendant was sentenced to 30 months’
probation, required to perform community service, and ordered to pay
costs. On appeal, defendant alleged that the indictment against him
was defective and the State did not prove him guilty beyond a
reasonable doubt. The appellate court affirmed. No. 3–05–0905
(unpublished order under Supreme Court Rule 23).
Defendant filed and was granted leave to appeal to this court
pursuant to Rule 315 (210 Ill. 2d R. 315). Defendant no longer
contests the sufficiency of the evidence, choosing to rely only on his
argument that the indictment against him was defective. According to
defendant, the trial court should have dismissed all of the counts
against him, including the three at issue in this case.
Background
Defendant was elected mayor of the City of Pekin in 2003. Several
years earlier, the city council of Pekin obtained a credit card (the
City’s card) from the Herget National Bank. Pursuant to council
resolution, the heads of city departments were allowed to use the
City’s card to confirm hotel reservations, pay in advance for training
sessions, order educational materials, and pay expenses while engaged
in city business. After his election as mayor, defendant received and
completed a “Business Card Application” from Herget National Bank
and became an authorized user of the City’s card.
On three separate occasions in 2004, defendant used the City’s
card to obtain over $1,400 in cash advances to play video poker at the
Par-A-Dice Casino in Peoria, Illinois. Defendant used the City’s card
only after he exhausted the funds available to him through his personal
debit and credit cards. In its brief the State asserts, and defendant does
not dispute, that defendant obtained two benefits from this use of the
City’s card: (1) additional funds with which to continue gambling; and
(2) “player points,” which could be used either to pay for meals or to
receive cash back. At oral argument and in the trial court, the State
asserted that defendant obtained a third benefit from his use of the
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City’s card, that being what the State termed “the float.” According
to the State, “the float” was essentially an interest-free loan, whereby
defendant used the City’s credit to access money and continue
gambling without paying the expense of that gambling until the City
card’s monthly bill came due.
While the City of Pekin was the sole obligor with respect to the
City’s card, defendant would pay the bills from his own assets when
they came due. Defendant conceded, however, that at least one of his
checks for payment bounced. Defendant asserts, though, that he
quickly remedied the problem and made the payment in full. If
defendant had not paid the credit card bills, the City of Pekin would
have been liable for them.
Defendant was indicted for three counts of official misconduct
based upon the conduct discussed above, one count for each occasion
he used the City’s card to obtain a cash advance. The indictment
alleged the following:
“That the said defendant, a public official, the Mayor of the
City of Pekin, while acting in his official capacity and with the
intent to obtain a personal advantage for himself, knowingly
performed an act in excess of his lawful authority in that he
used credit of the City of Pekin to receive cash to gamble at
the Paradice Casino contrary to Article 8, Section 1 of the
Constitution of the State of Illinois which provides that public
funds, property or credit shall be used only for public
purposes.”
While the three counts of the indictment were predicated on the
Illinois Constitution, each count alleged violation of section 33–3(c)
(720 ILCS 5/33–3(c) (West 2004)), and defendant was ultimately
convicted of violating that statute.
Defendant asserts that the above-described indictment was
insufficient because the law it identified–article VIII, section 1(a), of
the Illinois Constitution–cannot serve as a predicate unlawful act for
the offense of official misconduct. As noted, this is the only issue
defendant argues before this court. The appellate court, in considering
this issue, found that the indictment against defendant properly
charged the offense of official misconduct and a violation of the
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Illinois Constitution can serve as a predicate unlawful act for that
offense. We affirm.
Analysis
Section 33–3(c) of the Criminal Code provides that a public
officer commits misconduct when that public officer, acting in his
official capacity and with the intent to obtain a personal advantage,
performs an act in excess of his lawful authority. 720 ILCS 5/33–3(c)
(West 2004). Defendant’s argument that the Illinois Constitution
cannot serve as a predicate unlawful act for the offense of official
misconduct addresses the lawful-authority portion of the above
statute. In other words, defendant asserts that the Illinois Constitution
is not a law for the purposes of official misconduct and thus his act
contrary to article VIII, section 1(a), of the Illinois Constitution does
not constitute “an act in excess of his lawful authority” under section
33–3(c). This argument presents an issue of statutory construction,
which is a question of law, and thus the standard of review is de novo.
People v. Grever, 222 Ill. 2d 321, 335 (2006); People v. Roberson,
212 Ill. 2d 430, 437 (2004).
Defendant relies heavily on this court’s recent opinion in People
v. Grever. As in this case, Grever concerned whether particular counts
of an indictment sufficiently stated a charge of official misconduct.
While the counts at issue in this case were predicated on violations of
the Illinois Constitution, the counts at issue in Grever alleged that the
defendant “acted outside his lawful authority by breaching an
‘uncodified’ fiduciary duty to the public, ‘predicated on basic moral
principles.’ ” Grever, 222 Ill. 2d at 337.
Considering the indictment in Grever, we noted “that the official
misconduct statute requires that the charging instrument ‘specify the
“law” allegedly violated by the officer or employer in the course of
committing the offense.’ ” Grever, 222 Ill. 2d at 335, quoting
Fellhauer v. City of Geneva, 142 Ill. 2d 495, 506 (1991). Further, we
held that an “indictment must, at a minimum, allege facts that would
show defendant violated an identifiable statute, rule, regulation, or
tenet of a professional code and demonstrate how defendant exceeded
his lawful authority.” Grever, 222 Ill. 2d at 337. Considering the
above, we declined to impose criminal liability based upon the
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“amorphous concept of a ‘breach of a fiduciary duty’ ” and found that
the State failed to adequately charge the “exceeding lawful authority”
element of official misconduct under section 33–3(c). Grever, 222 Ill.
2d at 338-39.
In relying upon Grever, defendant focuses directly on the portion
of the opinion where we stated that an indictment must, “at a
minimum, allege facts that would show defendant violated an
identifiable statute, rule, regulation, or tenet of a professional code
and demonstrate how defendant exceeded his lawful authority.”
Grever, 222 Ill. 2d at 337. Defendant notes that when Grever was
before the appellate court, the above principle was stated in a slightly
different manner, and the appellate court noted that none of the
evidence in the case “prove[d] that defendant acted in contravention
of an identifiable law, that is, a rule of action or conduct prescribed by
a controlling authority, having binding legal force in the form of a
constitution, statute, ordinance, supreme court rule, administrative
rule or regulation, or tenet of professional responsibility, when he did
the acts that were allegedly in excess of his lawful authority.” People
v. Grever, 353 Ill. App. 3d 736, 766-67 (2004).
Both this court and the appellate court considered and discussed
the “law” that a defendant could violate to run afoul of the official
misconduct statute, then, but while the appellate court mentioned the
constitution, this court did not. According to defendant, this signals
this court’s disapproval of the appellate court’s reference to the
constitution in Grever and supports defendant’s position that a person
cannot be held criminally liable for violating a provision of the Illinois
Constitution.
Further supporting his position, defendant notes that the Criminal
Code provides that “[n]o conduct constitutes an offense unless it is
described as an offense in this Code or in another statute of this
State.” 720 ILCS 5/1–3 (West 2004). Defendant contends in his brief
that “the Illinois Constitution is not a criminal code in and of itself nor
is it a part of the Illinois Criminal Code, but, rather, it represents a
framework for and a limitation on state governmental powers, and,
accordingly, the state’s reliance on it to bootstrap a criminal violation
is misplaced and the three constitutional indictments must fail.” To
find otherwise, defendant asserts, “would allow for the prosecution of
every public official who ever does something in his official capacity
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that, while not necessarily illegal, is contrary to the United States or
Illinois constitutions.”
Responding to defendant’s arguments, the State asserts that a
constitutional violation can serve as a predicate unlawful act for the
offense of official misconduct. Considering Grever, the State
considers it extremely unlikely that this court would have held that a
violation of the Illinois Constitution could not serve as a predicate
unlawful act without some discussion of the basis for such a ruling.
This is particularly so, the State contends, where appellate authority
other than that found in the appellate court’s decision in Grever held
just the opposite when considering the official misconduct statute. In
People v. Cornille, 136 Ill. App. 3d 1011, 1016 (1985), the appellate
court held that “the phrase ‘as required by law’ used in section
33–3(a) *** includes constitutional as well as statutory duties.”
Further supporting its position, the State notes that the Illinois
Constitution is the “supreme law” of this state. See Chicago Bar
Ass’n v. Illinois State Board of Elections, 161 Ill. 2d 502, 508 (1994);
Burritt v. Commissioners of State Contracts, 120 Ill. 322, 328 (1887).
Article VIII, section 1(a), provides that “[p]ublic funds, property or
credit shall be used only for public purposes.” Ill. Const. 1970, art.
VIII, §1(a). According to the State, defendant’s violation of a clearly
established provision of the Illinois Constitution is far different from
the situation presented in Grever involving an uncodified fiduciary
duty based upon moral principles.
Responding to defendant’s claim that section 1–3 of the Criminal
Code (720 ILCS 5/1–3 (West 2004)) precludes the use of a
constitutional violation as a predicate unlawful act, the State considers
it frivolous. Section 1–3 provides that “[n]o conduct constitutes an
offense unless it is described as an offense in this Code or in another
statute of this State.” Defendant was convicted of violating section
33–3(c), though, and thus the conduct that constituted the offense of
which defendant was convicted–performing an act in excess of lawful
authority for the purposes of obtaining a personal advantage–is
described as an offense in the Code.
In the State’s view, defendant is suggesting that section 1–3
should be construed to require that not only the offense, but also any
act set forth in the indictment, be prohibited by statute. The State
asserts that this does not comport with the plain language of the
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statute, however. Moreover, the State points out that in Grever this
court approvingly cited appellate opinions holding that a charge of
official misconduct could be based on the violation of a civil or
criminal statute, supreme court rule, or administrative rule. Grever,
222 Ill. 2d at 338, citing People v. Samel, 115 Ill. App. 3d 905, 912
(1983). Accordingly, the State finds defendant’s suggestion that
section 1–3 should be construed to require that even predicate
unlawful acts must violate a specific statute unsupported by the plain
language of the section itself as well as this court’s precedent.
Finally, the State argues that defendant’s assertion that this court
should preclude the use of a constitutional violation as a predicate
unlawful act to protect defendants from overzealous prosecutors
could be leveled at almost any prosecution of the types of violations
that this court has already specifically recognized as cognizable
predicate unlawful acts, including statutes, rules and regulations, and
codes of professional conduct. See Grever, 222 Ill. 2d at 337. The
State asserts that defendant is suggesting that this court should impose
a threshold requirement for the offense of official misconduct in order
to protect potential defendants from prosecution for de minimis
violations of the official misconduct statute. The State contends that
there is no statutory basis for such an exception, however, noting that
this court has held in the past that courts should not ignore a statute’s
plain meaning by reading into it exceptions, limitations, or conditions
not expressed in the statute itself. People v. Perry, 224 Ill. 2d 312,
323-24 (2007); Lulay v. Lulay, 193 Ill. 2d 455, 466 (2000).
In light of the above arguments, we agree with the State that the
constitution can serve as a predicate unlawful act for the offense of
official misconduct. While it is true that when we considered the
sufficiency of an indictment charging official misconduct in Grever
and considered the “law” that a defendant could violate to run afoul
of that statute we did not specifically reference the constitution, that
does not mean we meant to exclude the constitution. The constitution
was not at issue in Grever and thus we had no reason to decide
whether a violation of the constitution could serve as a predicate
unlawful act for the purposes of official misconduct. Squarely
considering the issue in this case, we hold that it can.
As indicated, this court has stated that the Illinois Constitution is
the “supreme law” of this state. See Chicago Bar Ass’n v. Illinois
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State Board of Elections, 161 Ill. 2d 502, 508 (1994); Burritt v.
Commissioners of State Contracts, 120 Ill. 322, 328 (1887). In
recognizing that “[t]he constitution is the supreme law” in the past, we
have also stated that “every citizen is bound to obey it and every court
is bound to enforce its provisions.” People ex rel. Miller v. Hotz, 327
Ill. 433, 437 (1927). The appellate court has recognized this in the
context of the official misconduct statute and held the same, not only
in this case, but also in Grever and Cornille. Had this court decided
to stray from this principle in Grever, we would have done so
explicitly and confronted the above precedent directly.
Section 1–3 does not alter our analysis. Section 1–3 provides that
“[n]o conduct constitutes an offense unless it is described as an
offense in this Code or in another statute of this State.” 720 ILCS
5/1–3 (West 2004). Defendant was convicted of violating section
33–3(c) of the Criminal Code, and thus his conduct is described as an
offense in the Code. Our finding in Grever that an indictment charging
official misconduct must “allege facts that would show defendant
violated an identifiable statute, rule, regulation, or tenet of a
professional code” only supports this finding, indicating as it does that
a conviction for official misconduct can be predicated on acts not
specifically described in the Code. Grever, 222 Ill. 2d at 337.
Likewise, our ultimate finding in this case is not altered by
defendant’s suggestion that allowing a constitutional violation to
suffice as a predicate unlawful act for purposes of the official
misconduct statute will result in the overzealous prosecution of
undeserving defendants. Such a charge could be leveled against almost
any prosecution for the violations that this court recognized in Grever
as cognizable predicate unlawful acts under the official misconduct
statute. Moreover, the plain language of the official misconduct
statute provides no basis for the imposition of a de minimis exception.
Perry, 224 Ill. 2d at 323 (“[w]here the language of the statute is clear
and unambiguous, we must apply it as written, without resort to
extrinsic aids to statutory construction”); People v. Martinez, 184 Ill.
2d 547, 550 (1998) (“[a] court should not depart from the language
of the statute by reading into it exceptions, limitations or conditions
that conflict with the intent of the legislature”).
While the specter of overzealous prosecution does not alter the
outcome in this case, we are not unsympathetic to defendant’s
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argument. Moreover, we think it important to note that even the State
would acknowledge that winning a conviction under the official
misconduct statute is not a simple matter, particularly if a prosecutor
should attempt to utilize the statute without considering that its reach
is not limitless. At oral argument, the State pointed out that one of the
elements of official misconduct is that a defendant must have acted
with the intent to obtain a personal advantage. Accordingly, if a
defendant has otherwise violated the official misconduct statute, but
only unintentionally obtained a personal advantage, a conviction will
not stand.
Defendant’s overzealous-prosecutor argument essentially
constitutes an assertion that the official misconduct statute would be
improved by the addition of a de minimis exception. This is a policy
argument and it could be asserted against a great many criminal
statutes. As we have stated in the past, “ ‘few, if any, laws are ever
enacted which are not subject to some criticism or capable of some
improvement. The question as to whether or not a better law might
have been enacted is for the legislature and not for the courts, and
criticisms against the wisdom, policy or practicability of a law are
subjects for legislative consideration and not for the courts.’ ” People
ex rel. Armstrong v. Huggins, 407 Ill. 157, 174 (1950), quoting
Perkins v. Board of County Commissioners, 271 Ill. 449, 471 (1916).
As we noted above, then, it is not that we are unsympathetic to
defendant’s argument regarding overzealous prosecution; rather, we
believe that it is the legislature that must decide whether the official
misconduct statute would benefit from a de minimis exception.
Finding no support for such an exception in the plain language of the
statute, we will not carve it out on our own initiative. We do believe,
however, that the proper scope of the official misconduct statute is an
issue ripe for legislative review, and we strongly suggest that the
parameters of the statute be addressed in that forum.
Conclusion
We hold that a violation of the constitution can serve as a
predicate unlawful act for the purposes of the official misconduct
statute. Accordingly, the indictment against defendant in this case,
alleging a violation of article VIII, section 1(a), of the Illinois
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constitution, was sufficient. As such, we affirm the judgment of the
appellate court.
Affirmed.
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