People v. Madrigal ( 2011 )

Docket No. 110194.
IN THE
SUPREME COURT
OF
THE STATE OF ILLINOIS
__________________
THE PEOPLE OF THE STATE OF ILLINOIS, Appellant, v.
CLAUDIA MADRIGAL, Appellee.
Opinion filed March 24, 2011.
JUSTICE THOMAS delivered the judgment of the court, with
opinion.
Chief Justice Kilbride and Justices Freeman, Garman, Karmeier,
Burke, and Theis concurred in the judgment and opinion.
OPINION
Defendant, Claudia Madrigal, was indicted in the circuit court of
Kane County on one count of identity theft in violation of section
16G–15(a)(7) of the Identity Theft Law (720 ILCS 5/16G–15(a)(7)
(West 2008)). Section 16G–15(a)(7) provides that “[a] person
commits the offense of identity theft when he or she knowingly ***
uses any personal identification information or personal identification
document of another for the purpose of gaining access to any record
of the actions taken, communications made or received, or other
activities or transactions of that person, without the prior express
permission of that person.” 720 ILCS 5/16G–15(a)(7) (West 2008).
The indictment alleged that defendant “knowingly used personal
identification information of Gabriela Vasquez, being Gabriela
Vazquez’s name, date of birth, and address, to gain access to a record
of actions taken, activities or transactions of Gabriela Vazquez,
without the prior express permission of Gabriela Vasquez.” A person
convicted of violating section 16G–15(a)(7) for the first time is guilty
of a Class 3 felony, punishable by up to five years in prison. 720 ILCS
5/16G–15(d)(2) (West 2008); 730 ILCS 5/5–4.5–40(a) (West 2008).
Defendant filed a motion to dismiss the indictment, seeking
dismissal on three separate due process grounds. First, defendant
maintained that section 16G–15(a)(7) is unconstitutionally vague
because its prohibitions are not sufficiently definite, when measured
by common understanding and practices, to give a person of ordinary
intelligence fair warning as to what conduct is prohibited. Second,
defendant argued that the charging instrument is impermissibly vague.
And finally, defendant argued that section 16G–15(a)(7) fails to
require a culpable mental state and therefore can be read to apply to
conduct that is wholly innocent.
After a hearing on the motion to dismiss the indictment, the circuit
court denied the first two grounds for dismissal. But it granted the
motion to dismiss on the third ground, finding that the statutory
subsection at issue lacks a culpable mental state and captures innocent
conduct, thus violating due process. The trial court later entered an
order under Illinois Supreme Court Rule 18 (Ill. S. Ct. R. 18 (eff.
Sept. 1, 2006)), indicating that section 16G–15(a)(7) is
unconstitutional on its face as violative of substantive due process
under the fourteenth amendment of the United States Constitution
(U.S. Const., amend. XIV) and article I, section 2, of the Illinois
Constitution (Ill. Const. 1970, art. I, §2). The court further found that
the statute could not be reasonably construed in a manner that
preserves its constitutionality and that the judgment of dismissal could
not rest on any alternative grounds. The State properly appealed
directly to this court as a matter of right. See Ill. S. Ct. R. 603 (eff.
Oct. 1, 2010). We now consider the constitutionality of section
16G–15(a)(7) of the identity theft statute.
ANALYSIS
We begin by noting that the question of whether a statute is
unconstitutional is a question of law, which this court reviews de
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novo. People v. Johnson, 225 Ill. 2d 573, 584 (2007). All statutes are
presumed constitutional, and the party challenging the
constitutionality of a statute has the burden of clearly establishing that
it violates the constitution. People v. Carpenter, 228 Ill. 2d 250, 267
(2008); Johnson, 225 Ill. 2d at 584. Under the banner of its police
power, the legislature has wide discretion to fashion penalties for
criminal offenses, but this discretion is limited by the constitutional
guarantee of substantive due process, which provides that a person
may not be deprived of liberty without due process of law. People v.
Wright, 194 Ill. 2d 1, 24 (2000). When the challenged statute does not
affect a fundamental constitutional right, the appropriate test for
determining its constitutionality is the highly deferential rational basis
test. Carpenter, 228 Ill. 2d at 267; Johnson, 225 Ill. 2d at 584-85.
Under that test, a statute will be sustained if it “ ‘bears a reasonable
relationship to a public interest to be served, and the means adopted
are a reasonable method of accomplishing the desired objective.’ ”
Wright, 194 Ill. 2d at 24 (quoting People v. Adams, 144 Ill. 2d 381,
390 (1991)).
Accordingly, we must first determine the statute’s purpose in
order to assess whether the prohibitions contained in section
16G–15(a)(7) reasonably implement that purpose. The language of the
statute itself is the best indicator of the legislative intent and statutory
purpose. Carpenter, 228 Ill. 2d at 268. We will therefore look to the
specific language of the Identity Theft Law to determine its purpose.
The legislative declaration in section 16G–5(a) of the Identity
Theft Law states that it is the “public policy of this State that the
substantial burden placed upon the economy *** as a result of the
rising incidence of identity theft and the negative effect of this crime
on the People of this State and its victims is a matter of grave concern
*** and therefore identity theft shall be identified and dealt with
swiftly and appropriately.” 720 ILCS 5/16G–5(a) (West 2008).
Section 16G–5(b) continues by declaring that the “widespread
availability and unauthorized access to personal identification
information have led and will lead to a substantial increase in identity
theft related crimes.” 720 ILCS 5/16G–5(b) (West 2008). From the
foregoing, it is clear, and both parties agree, that the purpose of the
identity theft statute is to protect the economy and people of Illinois
from the ill-effects of identity theft.
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Crucial to defendant’s argument that section 16G–15(a)(7) is
unconstitutional is the charge that it does not contain a culpable
mental state and therefore results in potentially punishing wholly
innocent conduct. This court has repeatedly held that a statute violates
the due process clauses of both the Illinois and United States
Constitutions if it potentially subjects wholly innocent conduct to
criminal penalty without requiring a culpable mental state beyond
mere knowledge. See, e.g., Carpenter, 228 Ill. 2d at 269 (struck down
a statute that “potentially criminalizes innocent conduct, as it visits the
status of a felon upon anyone who owns or operates a vehicle he or
she knows to contain a false or secret compartment, defined as one
intended and designed to conceal the compartment or its contents
from law enforcement officers”); Wright, 194 Ill. 2d at 25, 28 (struck
down record-keeping statute because it “potentially subjects ***
innocent conduct to *** a severe penalty”); In re K.C., 186 Ill. 2d
542, 549, 553 (1999) (invalidated criminal trespass to a vehicle statute
that prohibited entering a vehicle whenever it was done “knowingly
and without authority” because it “potentially punish[ed] wholly
innocent conduct without requiring proof of a culpable mental state”);
People v. Zaremba, 158 Ill. 2d 36, 42-43 (1994) (theft statute did not
bear a reasonable relationship to its purpose because “it potentially
subject[ed] wholly innocent conduct to punishment” and failed to
require a culpable mental state other than that the defendant do the
prohibited actions “knowingly”); People v. Wick, 107 Ill. 2d 62, 66
(1985) (“Because aggravated arson as defined by the statute does not
require an unlawful purpose in setting a fire, however, the statute as
presently constituted sweeps too broadly by punishing innocent as
well as culpable conduct in setting fires.”).
Simply put, this court has held that in such cases, a statute fails the
rational basis test because it does not represent a reasonable method
of preventing the targeted conduct. See Carpenter, 228 Ill. 2d at 269;
Wright, 194 Ill. 2d at 25. In Carpenter, we considered the facial
constitutionality of a statute that banned false or secret compartments
in automobiles. Because the statute in that case lacked a culpable
mental state beyond both knowledge of the compartment’s capacity
to conceal and an intent to conceal, we held that the statute “d[id] not
contain a reasonable means of preventing the targeted conduct, and it
therefore violate[d] due process.” Carpenter, 228 Ill. 2d at 269.
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In Wright, we considered the constitutionality of an automobile
record-keeping statute designed to prevent the transfer or sale of
stolen motor vehicles (see 625 ILCS 5/5–401.2(a) (West 1996)). In
declaring the statute unconstitutional on its face, we held that it could
not “withstand scrutiny under the rational basis test.” Wright, 194 Ill.
2d at 25. We found that “[i]n analogous cases, this court and courts
in other jurisdictions have held that criminal statutes that potentially
punish innocent conduct violate due process principles because they
are not reasonably designed to achieve their purposes.” Wright, 194
Ill. 2d at 25.
In the present case, section 16G–15(a) of the Identity Theft Law
attempts to implement its statutory purpose of preventing identity
theft as follows:
“(a) A person commits the offense of identity theft when
he or she knowingly:
(1) uses any personal identifying information or
personal identification document of another person to
fraudulently obtain credit, money, goods, services, or
other property, or
(2) uses any personal identifying information or
personal identification document of another with intent to
commit any felony theft or other felony violation of State
law not set forth in paragraph (1) of this subsection (a), or
(3) obtains, records, possesses, sells, transfers,
purchases, or manufactures any personal identification
information or personal identification document of another
with intent to commit or to aid or abet another in
committing any felony theft or other felony violation of
State law, or
(4) uses, obtains, records, possesses, sells, transfers,
purchases, or manufactures any personal identification
information or personal identification document of another
knowing that such personal identification information or
personal information documents were stolen or produced
without lawful authority, or
(5) uses, transfers, or possesses document-making
implements to produce false identification or false
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documents with knowledge that they will be used by the
person or another to commit any felony theft or other
felony violation of State law, or
(6) uses any personal identification information or
personal identification document of another to portray
himself or herself as that person, or otherwise, for the
purpose of gaining access to any personal identification
information or personal identification document of that
person, without the prior express permission of that
person, or
(7) uses any personal identification information or
personal identification document of another for the
purpose of gaining access to any record of the actions
taken, communications made or received, or other
activities or transactions of that person, without the prior
express permission of that person.” (Emphasis added.)
720 ILCS 5/16G–15(a) (West 2008).
All seven of the subparagraphs in section 16G–15(a) require at least
a mental state of mere knowledge, as introductory paragraph (a)
makes clear: “A person commits the offense of identity theft when he
or she knowingly” does anything proscribed by the different offenses
in subparagraphs (a)(1) through (a)(7). (Emphasis added.) 720 ILCS
5/16G–15(a) (West 2008). The first five offenses listed in
subparagraphs (a)(1) through (a)(5), however, also require the
additional element of criminal intent or knowledge. In other words,
they require a criminal purpose in addition to the general knowledge
that one is committing the actions specified. Subparagraphs (a)(1)
through (a)(5) are not at issue in this case and clearly do not fall
within the parameters of the line of cases that deal with statutes that
potentially punish innocent conduct. Unlike the offenses described in
subparagraphs (a)(1) through (a)(5), however, subparagraph (a)(7)
clearly does not require criminal intent, criminal knowledge, or a
criminal purpose in order to subject one to a felony conviction and
punishment.1
1
Subparagraph (a)(6) of the statute also does not appear to require
criminal intent, criminal knowledge or a criminal purpose. See 720 ILCS
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Section 16G–15(a)(7) requires only that a person knowingly use
any “personal identification information or personal identification
document of another for the purpose of gaining access to any record
of the actions taken, communications made or received, or other
activities or transactions of that person, without the prior express
permission of that person.” (Emphasis added.) 720 ILCS
5/16G–15(a)(7) (West 2008). “Personal identifying information” is
defined for purposes of the statute so as to include everything from a
person’s name, address, date of birth, or telephone number to
obviously more confidential identifying information such as social
security numbers, bank account numbers or credit card numbers. See
720 ILCS 5/16G–10(b) (West 2008). Because any one of the pieces
of information listed qualifies as “personal identifying information” for
purposes of committing the offense listed in section 16G–15(a)(7), a
person who simply uses someone’s name for the purpose of gaining
access to any record of the actions taken, communications made or
received, or other activities or transactions of that person, without the
prior express permission of that person, is guilty of a Class 3 felony.
The net result is that section 16G–15(a)(7) would potentially
punish as a felony a wide array of wholly innocent conduct. For
example, doing a computer search through Google or some other
search engine or through a social networking site such as Facebook
or MySpace, by entering someone’s name, could uncover numerous
records of actions taken, communications made or received, or other
activities or transactions of that person. Thus, the statute as it
currently reads would criminalize such innocuous conduct as someone
using the internet to look up how their neighbor did in the Chicago
Marathon. Moreover, a husband who calls a repair shop for his wife,
without her “prior express permission,” to see if her car is ready, what
was wrong, and how much the repair bill is, would be seeking
information in violation of the statute. A person who calls an employer
of a friend to see if the friend is working or on vacation, and who
receives an answer to his inquiry would be a potential felon under the
statute. The person might be told that the friend resigned (record of
actions taken), that he called in sick (record of communications made
5/16G–15(a)(6) (West 2008). That subsection, however, is not at issue here,
and we make no ruling with respect to its constitutionality.
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or received), or that he is on vacation sailing in the Carribean (record
of activities of the person). A person who calls a hotel to see if her
husband has registered, checked in yet, or made a reservation, without
getting his express permission first, is subject to felony imprisonment.
The statute could also likely quell the work of biographers, journalists
or anyone attempting to do a family genealogy, which all might
require using personal identifying information to gain access to
records of communications, activities or actions of a person.
The Identity Theft Law does contain some narrow exemptions that
do not appear to affect the examples noted above. See 720 ILCS
5/16G–40 (West 2008). Among other things, section 16G–40 states
that the Identity Theft Law does not prohibit the capture or
transmission of personal identifying information in “the ordinary and
lawful course of business”; nor does it apply to peace officers who are
in lawful performance of their duties, or to “activities authorized under
any other statute.” See 720 ILCS 5/16G–40 (West 2008).
The problem with section 16G–15(a)(7), then, is that it lacks a
culpable mental state, as it does not require a criminal purpose for a
person to be convicted of a felony. Because the statute potentially
punishes a significant amount of wholly innocent conduct not related
to the statute’s purpose, we simply do not believe that this is a rational
way of addressing the problem of identity theft.
The State argued before the circuit court that identity theft itself
is less likely to occur if the sort of information banned by section
16G–15(a)(7) can be prevented from being gathered in the first place.
This may be true. But what is wrongful is not the gathering of such
information by using a person’s name or address, but rather gathering
or using such information for the purpose of committing identity theft.
We note that in addition to our established case law noted above,
“courts of other jurisdictions have similarly struck down laws” falling
under the same category as the one before us “as being violative of
substantive due process, if the prohibition is ‘too sweeping in
encompassing activity which is wholly innocent.’ ” D.P. v. State, 705
So. 2d 593, 600 (Fla. Dist. Ct. App. 1997) (Green, J., dissenting); see
also Wyche v. State, 619 So. 2d 231, 235-37 (Fla. 1993) (struck down
ordinance prohibiting a “known prostitute” from engaging in certain
routine activities); State v. Saiez, 489 So. 2d 1125, 1127-29 (Fla.
1986) (invalidated statute criminalizing mere possession of a credit
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card embossing machine without regard to the intent of the
possessor); People v. Munoz, 172 N.E.2d 535 (N.Y. 1961) (struck
down law that prohibited the possession of “a knife or sharp pointed
or edged instrument” by a person under the age of 21); People v.
Bunis, 172 N.E.2d 273 (N.Y. 1961) (held invalid a law that prohibited
the knowing sale of a magazine or other publication without a cover);
State v. Birdsell, 104 So. 2d 148 (La. 1958) (invalidated law that
prohibited possession of a hypodermic needle, regardless of the use
for which the needle was possessed); but, c.f., Village of Hoffman
Estates v. The Flipside, Hoffman Estates, Inc., 455 U.S. 489, 497 n.9
(1982) (noted ordinance banning drug paraphernalia was not irrational
means of discouraging drug use even though there might be innocent
uses for the banned items; but court did not foreclose a substantive
due process challenge to a statute that bans or punishes a significant
amount of innocent conduct in other contexts).
Bunis is particularly instructive. There, New York’s highest court
invalidated a state law that prohibited the sale of magazines and other
publications without covers, regardless of the circumstances. The
court noted that “[w]hat was wrongful [was] not the sale of coverless
magazines, but rather their sale by a vendor who takes part in a
scheme to defraud a magazine publisher.” Bunis, 172 N.E.2d at 274.
The court continued by correctly reasoning as follows:
“Admittedly, by denominating as criminal all sales, [the
statute] necessarily tends to prevent corrupt sales. But, even
were we to suppose that it had power to prohibit such corrupt
sales, it is unreasonable and beyond the legitimate exercise of
the police power for the Legislature to interdict all sales,
permissible and illicit alike, in order to prevent those which are
illicit. The Legislature may not validly make it a crime to do
something which is innocent in itself merely because it is
sometimes done improperly, sometimes attended by improper
motives or done as part of an illegal scheme.” Bunis, 172
N.E.2d at 274.
Similarly, we find that a statute, such as section 16G–15(a)(7), which
criminalizes the use of mere names, or other commonly and publicly
available information such as addresses and phone numbers, for the
purpose of gaining access to innocent information about people
without any criminal intent, purpose or knowledge is an invalid
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exercise of the police power and is not reasonably related to the
purpose of the statute.
To avoid the constitutional problem, the State suggests that this
court read a culpable mental state into the statute so that a criminal
purpose is required for a violation. This court rejected the same
argument in Wright and Carpenter under similar circumstances, with
both courts holding that where a statute already contains a mental
state of mere knowledge, this court cannot read a criminal-purpose
requirement into the statute. Carpenter, 228 Ill. 2d at 270; Wright,
194 Ill. 2d at 29-30. Wright specifically distinguished People v.
Tolliver, 147 Ill. 2d 397 (1992), which was “able to imply the mental
state of knowledge plus criminal purpose as an element of [the statute
at issue there] because that provision contained no mental state.”
Wright, 194 Ill. 2d at 29.
Carpenter relied upon Wright to find that if a statute already
contains one or more mental states and none of them provide
culpability, a court may not add a culpable mental state. Carpenter,
228 Ill. 2d at 270. Carpenter then distinguished People v. Bailey, 167
Ill. 2d 210 (1995). In Bailey, this court interpreted the stalking statute
to require the prohibited conduct be performed “without lawful
authority,” even though those words were not in the statute. See
Carpenter, 228 Ill. 2d at 271-72; Bailey, 167 Ill. 2d at 224. The
stalking statute at issue in Bailey provided that a person committed
the offense “when he or she transmits to another person a threat with
the intent to place that person in reasonable apprehension of death,
bodily harm, sexual assault, confinement or restraint, and in
furtherance of the threat knowingly does any one or more of the
following acts on at least 2 separate occasions.” 720 ILCS
5/12–7.3(a) (West 1992). The second part of the statute then required
that the defendant follow “the person, other than within the residence
of the defendant,” or place “the person under surveillance by
remaining present outside” any one of a number of locations specified
in the statute. 720 ILCS 5/12–7.3(a)(1), (a)(2) (West 1992).
Carpenter noted that the holding in Bailey was limited to its facts.
Carpenter, 228 Ill. 2d at 272. Moreover, Carpenter observed that
interpreting the statute in Bailey to include the phrase “without lawful
authority” was probably not necessary because the statute did not
punish any innocent conduct as written, as it already contained “a
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requirement of ‘knowing’ conduct in furtherance of a clearly culpable
objective, i.e., the intent to place another person in ‘reasonable
apprehension of death, bodily harm, sexual assault, confinement or
restraint.’ ” Carpenter, 228 Ill. 2d at 272 (quoting 720 ILCS 5/12–7.3
(West 1992)). Unlike the statute in Bailey, section 16G–15(a)(7) at
issue in this case does not prohibit conduct that is malum in se.
Accordingly, we likewise find that the statute in Bailey cannot be
compared with section 16G–15(a)(7), which criminalizes the wholly
innocent conduct of using a mere name or address of a person to gain
information about the actions taken by that person.
Similarly, the State’s reliance upon People v. Williams, 235 Ill. 2d
178 (2009), is misplaced. There, we upheld the unidentified use of
sound recordings statute, contained in section 16–8 of the Criminal
Code of 1961 (720 ILCS 5/16–8 (West 2004)), against a substantive
due process challenge. In doing so, we distinguished Carpenter,
Wright, K.C., Zaremba and Wick on the basis that unlike the statutes
in those cases, the unidentified recordings statute “capture[d] the
precise activities that it was meant to punish.” Williams, 235 Ill. 2d at
209. We rejected the notion that section 16–8 potentially punished any
innocent conduct (Williams, 235 Ill. 2d at 212) and further noted that
if any additional intent elements were supplied to section 16–8, it
would defeat the legislative purpose in enacting the statute (Williams,
235 Ill. 2d at 210-11). In contrast to the statute in Williams, section
16G–15(a)(7) potentially punishes a wide array of innocent conduct
beyond what the legislature could have reasonably meant to punish.
We therefore conclude that the present case falls squarely under the
Carpenter-Wick line of cases.
Finally, the State argues that we should abandon the Carpenter-
Wick line of precedent and its requirement that statutes contain a
culpable mental state to avoid punishing wholly innocent conduct. The
State claims that we should abandon our precedent because it is at
odds with the United States Supreme Court’s interpretation of
substantive due process under the federal constitution. The State’s
claim that there is a divergence in our jurisprudence from that of the
United States Supreme Court in this area is not correct.
In support of its argument, the State relies upon United States v.
Salerno, 481 U.S. 739 (1987), for the following principle:
“A facial challenge to a legislative Act is, of course, the
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most difficult challenge to mount successfully, since the
challenger must establish that no set of circumstances exists
under which the Act would be valid. The fact that the [statute]
might operate unconstitutionally under some conceivable set
of circumstances is insufficient to render it wholly invalid
***.” Salerno, 481 U.S. at 745.
The State also relies upon the proposition that a “ ‘law need not be in
every respect logically consistent with its aims to be constitutional[;]
[i]t is enough that there is an evil at hand for correction, and that it
might be thought that the particular legislative measure was a rational
way to correct it.’ ” United States v. Comstock, 560 U.S. ___, ___,
130 S. Ct. 1949, 1966 (2010) (Kennedy, J., concurring) (quoting
Williamson v. Lee Optical of Oklahoma, Inc., 348 U.S. 483, 487-88
(1955)).
The case law relied upon by the State informs our constitutional
analysis, but ultimately is not controlling of the outcome of the present
case because none of the State’s cases involved a penal statute that
lacked a culpable mental state and thereby criminalized a significant
amount of innocent conduct. Rather, the principles noted here by the
State were used as general aids to assessing the constitutionality of
statutes that were regulatory or civil in nature and that did not involve
any criminal prohibitions. The State’s argument “ignores the particular
care [the United States Supreme Court] ha[s] taken to avoid
construing a statute to dispense with mens rea where doing so would
‘criminalize a broad range of apparently innocent conduct.’ ” Staples
v. United States, 511 U.S. 600, 610 (1994) (quoting Liparota v.
United States, 471 U.S. 419, 426 (1985)); see also City of Houston,
Texas v. Hill, 482 U.S. 451, 459 (1987) (“Criminal statutes must be
scrutinized with particular care [citation]; those that make unlawful a
substantial amount of constitutionally protected conduct may be held
facially invalid even if they also have legitimate application.”). The
United States Court of Appeals, Sixth Circuit, has also observed that
“where a criminal statute prohibits and punishes seemingly innocent
or innocuous conduct that does not in itself furnish grounds to allow
the presumption that defendant knew his actions must be wrongful,
conviction without some other, extraneous proof of blameworthiness
or culpable mental state is forbidden by the Due Process Clause.”
Stanley v. Turner, 6 F.3d 399, 404 (6th Cir. 1993). Moreover, as
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previously noted, in addition to our own Carpenter-Wick line of
precedent, courts in many other jurisdictions have avoided
criminalizing innocent conduct by proceeding to strike down criminal
statutes as facially unconstitutional where those statutes had the
potential to punish innocent conduct. See, e.g., Wyche, 619 So. 2d at
235-37; Saiez, 489 So. 2d at 1127-29; Munoz, 172 N.E.2d at 539-40;
Bunis, 172 N.E.2d at 275; Birdsell, 104 So. 2d at 153-54; see also
People v. Lardie, 551 N.W.2d 656, 669 n.53 (Mich. 1996) (a criminal
statute that lacks a criminal intent element may be upheld only if it
does not punish conduct “innocent or innocuous in itself” and the law
is designed for the protection of the public health and safety and has
no common law background that included a particular criminal intent).
CONCLUSION
For the foregoing reasons, we find no solid reason to depart from
our precedent in Carpenter, Wright, K.C., Zaremba, and Wick.
Applying that precedent to this case, we conclude that defendant met
her burden of showing that section 16G–15(a)(7) is facially
unconstitutional. We emphasize that our ruling does not affect any of
the other provisions of the Identity Theft Law, including those
contained in sections 16G–15(a)(1) through (a)(6). Because section
16G–15(a)(7) aims at the laudable goal of combating identity theft, we
encourage the legislature to consider curing the constitutional defect
in the provision.
We therefore affirm the judgment of the circuit court of Kane
County, which found section 16G–15(a)(7) to be unconstitutional
under both the state and federal constitutions.
Affirmed.
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