Edwards v. Atterberry , 2019 IL 123370 ( 2019 )

2019 IL 123370
IN THE
SUPREME COURT
OF
THE STATE OF ILLINOIS
(Docket No. 123370)
KENIN L. EDWARDS, Petitioner, v. HONORABLE MICHAEL L. ATTERBERRY et al.,
Respondents.
Opinion filed February 22, 2019.
JUSTICE GARMAN delivered the judgment of the court, with opinion.
Chief Justice Karmeier and Justices Thomas and Theis concurred in the
judgment and opinion.
Justice Kilbride dissented, with opinion, joined by Justices Burke and Neville.
OPINION
¶1 This is an original action for a writ of prohibition. Petitioner Kenin L. Edwards
asks this court to issue an order to prohibit respondent Judge Michael L. Atterberry
from conducting a sentencing hearing or any other action in the underlying criminal
case.
¶2 BACKGROUND
¶3 Edwards was charged by information with two violations of the Timber Buyers
Licensing Act (225 ILCS 735/1 et seq. (West 2016)). The information referred to
each of these violations as constituting a Class A misdemeanor, which Edwards
disputes. Edwards filed several pretrial motions, including motions to dismiss that,
relevant here, contested the circuit court’s subject-matter jurisdiction. The State
was twice allowed to amend the information. The pertinent version of the
information set forth the following counts. Count I charged Edwards with
“the offense of UNLAWFULLY ACTING AS A TIMBER BUYING AGENT
FOR MULTIPLE LICENSED TIMBER BUYERS, in violation of SECTION
10 of ACT 735 of CHAPTER 225 of the Illinois Compiled Statutes of said State
and Administrative Rule SECTION 1535.1(b) of PART 1535 of
SUB-CHAPTER d of CHPATER [sic] I of TITLE 17, pursuant to SECTION
1535.60(a) of PART 1535 of SUB-CHAPTER d of CHAPTER I of TITLE 17,
in that the said defendant knowingly[1] acted as an authorized agent for multiple
licensed timber buyers, being listed as an agent for timber buyer Trent Copelen
and acted as agent for timber buyer Jonathan Luckett and represented himself
as a timber buyer when attempting to enter into an agreement with Donald
Cook.
Class A Misdemeanor”
Count II charged Edwards with:
“the offense of UNLAWFULLY ACTING AS A TIMBER BUYING AGENT
FOR MULTIPLE LICENSED TIMBER BUYERS, in violation of SECTION
10 of ACT 735 of CHAPTER 225 of the Illinois Compiled Statutes of said State
and Administrative Rule SECTION 1535.1(b) of PART 1535 of
SUB-CHAPTER d of CHPATER[sic] I of TITLE 17, pursuant to SECTION
1535.60(a) of PART 1535 of SUB-CHAPTER d of CHAPTER I of TITLE 17,
1
The word “knowingly” was added by a handwritten addition in the right margin, dated
“7-31-17” and initialed by State’s Attorney Ramon M. Escapa.
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in that the said defendant knowingly[2] acted as an authorized agent for multiple
licensed timber buyers, being listed as an agent for timber buyer Trent Copelen
and acted as an agent for timber buyer Jonathan Luckett in selling timber to
Leroy Yoder of Plainview Pallet, Tom Farris of Farris Forest Products, John
Peters of River City Hardwood, Inc., Norman Hochstetler of Oak Ridge
Lumber, LLC, and Michael Eichen of Eichen Lumber Company, Inc.
Class A Misdemeanor”
A jury found Edwards guilty of both counts.
¶4 Thereafter, Edwards filed a motion for a supervisory order and for leave to file a
complaint for a writ of prohibition. See Ill. S. Ct. Rs. 383, 381 (eff. July 1, 2017).
This court denied the motion for a supervisory order but allowed Edwards leave to
file a complaint for a writ of prohibition. Pending disposition of the complaint, this
court stayed the circuit court case.
¶5 ANALYSIS
¶6 Edwards seeks to prohibit respondent, Judge Michael L. Atterberry, from
conducting a sentencing hearing or from taking any other action in the underlying
criminal case. 3 Edwards claims that, because the information charged him with
violating regulations and not a statute defining a criminal offense, the circuit court
lacked subject-matter jurisdiction. Thus, Edwards frames the issue as whether there
is subject-matter jurisdiction in a case alleging a regulatory violation as a crime.
We begin by setting forth the pertinent law and requirements relating to a writ of
prohibition.
¶7 Pursuant to article VI, section 4(a), of the Illinois Constitution of 1970, this
court may exercise original jurisdiction in cases relating to prohibition. Ill. Const.
1970, art. VI, § 4(a); People ex rel. Foreman v. Nash, 118 Ill. 2d 90, 96 (1987). A
2
As with count I, “knowingly” was added by hand, dated “7-31-17,” and initialed by State’s
Attorney Ramon M. Escapa.
3
Judge Scott J. Butler is also named as a respondent. He apparently handled pretrial motions
before the case was transferred to Judge Atterberry. Edwards does not specify what exactly he seeks
to prohibit Judge Butler from doing. Because respondents’ brief was filed in both names, we will
refer to respondents rather than respondent.
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writ of prohibition is an extraordinary remedy. Nash, 118 Ill. 2d at 96. “A writ of
prohibition lies to prevent a judge from acting where he has no jurisdiction to act or
to prevent a judicial act which is beyond the scope of a judge’s legitimate
jurisdictional authority.” Daley v. Hett, 113 Ill. 2d 75, 80 (1986).
¶8 A writ of prohibition will not issue unless four requirements are met. Zaabel v.
Konetski, 209 Ill. 2d 127, 131-32 (2004). First, the action to be prohibited must be
of a judicial or quasi-judicial nature. Id. at 132. Second, the writ must be directed
against a tribunal of inferior jurisdiction. Id. Third, “the action to be prohibited
must be outside the tribunal’s jurisdiction or, if within its jurisdiction, beyond its
legitimate authority.” Id. Fourth, there must not be any other adequate remedy
available to the petitioner. Id. But see Nash, 118 Ill. 2d at 97 (where the issue
presented is sufficiently important to the administration of justice, this court may
issue a writ of prohibition even if all of the aforementioned requirements are not
met).
¶9 The first and second requirements are not disputed. The parties do contest the
third and fourth requirements. However, we need only address the fourth
requirement, given the circumstances of this case. See Nash, 118 Ill. 2d at 95 (first
examining whether writs of mandamus or prohibition or supervisory orders would
constitute appropriate remedies in that case).
¶ 10 As noted, the fourth requirement needed for a writ of prohibition is that there
must not be any other adequate remedy available to the petitioner. Zaabel, 209 Ill.
2d at 132. Respondents point out that Edwards filed a timely posttrial motion.
Specifically, Edwards filed a combined motion for entry of a judgment
notwithstanding the verdict, a motion for a new trial, and a motion in arrest of
judgment, pursuant to sections 116-1 and 116-2 of the Code of Criminal Procedure
of 1963. 725 ILCS 5/116-1, 116-2 (West 2016). However, before the circuit court
could rule on that motion, Edwards filed a motion seeking both a supervisory order
and leave to file a complaint for prohibition in this court. We allowed the motion in
part. Specifically, this court denied Edwards’s motion for a supervisory order but
allowed him leave to file the complaint for a writ of prohibition. This court stayed
circuit court proceedings pending disposition of the prohibition action. We now
turn to the parties’ arguments relating to the fourth requirement for a writ of
prohibition.
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¶ 11 Edwards argues that no other adequate remedy exists and that the case could be
resolved simply and expeditiously on jurisdictional grounds via a writ of
prohibition. Edwards suggests that it would be futile to await the circuit court’s
disposition of his posttrial motion because respondents previously ruled that the
circuit court had jurisdiction and, over Edwards’s objection, proceeded to trial.
Edwards notes that he could be sentenced to jail. He adds that suspension or
revocation of a timber buyer’s license may occur upon a finding of guilt by a court
of law for a violation of part 1535 of Title 17, Timber Buyer Licensing and Harvest
Fees. 17 Ill. Adm. Code 1535.60 (2003). Edwards represents that the Department of
Natural Resources has already initiated proceedings against his license based upon
the jury verdict below. He argues that Zaabel demonstrates that he “would be
irremediably harmed if he were required to press his claim that the circuit court
lacks subject matter jurisdiction within the normal appellate process.” 209 Ill. 2d at
132.
¶ 12 Respondents maintain that Edwards could obtain relief on his posttrial motion
or otherwise on appeal. As to Edwards’s asserted reasons for why the normal
appellate process is inadequate, respondents note that potentially facing the
collateral consequences of a conviction pending appeal is true of every criminal
case. Additionally, respondents comment that Edwards does not explain why the
potential loss of his license recommends resolving his claims here instead of in the
appellate court. Respondents observe that Edwards might receive probation. See
730 ILCS 5/5-4.5-55(d) (West 2016) (probation may be imposed for Class A
misdemeanors). However, if Edwards is sentenced to imprisonment, respondents
note that, pursuant to Illinois Supreme Court Rule 609 (eff. Feb. 6, 2013), Edwards
may seek a stay of his sentence on appeal. With these arguments in mind, we next
briefly discuss a case that reached this court under somewhat similar
circumstances.
¶ 13 In Moore v. Strayhorn, 114 Ill. 2d 538, 540 (1986), this court granted the
petitioner, Moore, leave to file a complaint for an original writ of mandamus or
prohibition or supervisory order to direct the circuit judge to vacate the portion of
the sentence that denied him credit for time served. This court concluded that
“leave to file that petition was improvidently granted because Moore should
have been left to his alternative remedy of appealing the sentencing order to our
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appellate court. Applications to this court for original actions of mandamus and
prohibition or for supervisory orders should not be allowed as a way of
circumventing the normal appellate process.” Id.
Nonetheless, this court elected to exercise its discretionary supervisory authority to
resolve the matter in light of judicial economy and because Moore’s time to appeal
had already expired. Id.
¶ 14 As in Moore, we determine that Edwards should have been left to his
alternative remedy—the normal appellate process. We reject Edwards’s argument
that he lacks any other adequate remedy. Indeed, Edwards has a posttrial motion
pending in the circuit court. Even if that motion is unsuccessful, Edwards could
obtain relief on appeal to the appellate court. Beyond that, Edwards could petition
for leave to appeal to this court. Ill. S. Ct. R. 315 (eff. July 1, 2018). Critically, and
unlike in Moore, Edwards’s time to appeal has not expired. Quite simply, the entire
extent of the normal appellate process is yet available to Edwards should the trial
court deny his posttrial motion.
¶ 15 Edwards criticizes the nature of respondents’ “what if?” arguments. As an
example, respondents contend that Edwards may receive probation instead of being
imprisoned. However, the fact remains that these uncertainties exist because
Edwards did not await disposition of his posttrial motion or sentencing prior to his
seeking prohibition in this court. We resolutely disapprove of Edwards’s argument
that the case could be resolved simply and expeditiously on jurisdictional grounds.
Because one route may be most expeditious does not render an alternative route
inadequate, particularly in the context of an original action for a writ of prohibition.
Original actions of prohibition may not be used to circumvent the normal appellate
process. Nash, 118 Ill. 2d at 97. A writ of prohibition is “normally to be awarded
only in rare instances where none of the ordinary remedies is available or
adequate.” (Emphasis added.) Hughes v. Kiley, 67 Ill. 2d 261, 266 (1977).
¶ 16 Next, Edwards maintains that, even if he were to utilize the ordinary appellate
process and eventually prevail, he would still sustain irremediable harm because a
stay under Illinois Supreme Court Rule 609 (eff. Feb. 6, 2013) would not apply to
the license revocation proceedings. Edwards contends that his business will falter
and his livelihood will be jeopardized if he is jailed or has his license revoked.
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¶ 17 To show that being sentenced to jail does not constitute irremediable harm,
respondents cite Hughes, arguing that prohibition was denied to criminal
defendants who were not yet convicted because they could await conviction and
appeal. 67 Ill. 2d at 267-68. Edwards asserts that Hughes is inapposite because it
concerns a petition for a writ of habeas corpus alleging a due process violation
stemming from the way that a prosecutor allegedly spoke to a grand jury. Id. at
265-66. Rather, Hughes involved three defendant-petitioners. Id. at 264-65. Two of
the defendant-petitioners petitioned this court for writs of prohibition seeking to
prevent further proceedings in their cases after the trial judge denied their motions
to quash their indictments. Id. Defendant-petitioners had argued that their due
process rights had been violated by an assistant state’s attorney’s conduct before
the grand jury. The third defendant-petitioner, who was charged in a different case,
filed a petition for writ of habeas corpus seeking his discharge and release after the
trial judge denied his motion to quash the indictment. Id. at 265. All three
defendant-petitioners argued that they were entitled to the extraordinary relief of
prohibition or habeas corpus because no other remedy existed that did not require
them to suffer extreme hardship prior to its availability. Id. at 266.
¶ 18 This court denied the petitions for a writ of prohibition and quashed the writ of
habeas corpus. Id. at 268. As to the writs of prohibition, the court noted that
prohibition was not an appropriate remedy because no question of jurisdiction was
at issue. Id. at 267-68. However, the court commented that the trial judge’s rulings
on the motions to quash the indictments were still subject to direct review upon
conviction. Id. at 268. As to the writ of habeas corpus, this court also commented
that the defendant-petitioner’s remedy was instead by means of direct review. Id.
Thus, Edwards’s attempt to distinguish Hughes fails.
¶ 19 As to Edwards’s argument that his business and livelihood will be harmed due
to the loss of his timber buyer’s license and delay occasioned by the appellate
process, this argument also falls short. Respondents rightly note that Edwards is
essentially complaining of collateral consequences that may occur pending an
appeal. See People v. Delvillar, 235 Ill. 2d 507, 520 (2009) (“[c]ollateral
consequences *** are effects upon the defendant that the circuit court has no
authority to impose” and that “result[ ] from an action that may or may not be taken
by an agency that the trial court does not control”). Were we to consider such
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consequences indicative of irremediable harm, then the normal appellate process
would nearly always prove inadequate.
¶ 20 Here, the trial court did not order that Edwards’s license be revoked. Instead,
the finding of guilt triggered the collateral consequence of the Department of
Natural Resources taking steps to revoke his license. Of note, Edwards offers only a
vague portrayal of the situation surrounding his timber buyer’s license. In
Edwards’s brief, he represents that he has a timber buyer’s license. Respondents’
brief notes that, “[t]hough not of record here, petitioner appears to have obtained a
license after the transactions below.” In reply, Edwards states that “[r]espondents
properly recognize that petitioner obtained a timber buyer’s license after the
alleged transactions at issue in the Schuyler County case.” Then, Edwards declares
that the Department of Natural Resources has already initiated and continued to
pursue proceedings against his license. Finally, at oral argument, counsel suggested
that this court take judicial notice “that the IDNR after this court stayed
proceedings in Schuyler County attempted and did for a period of 92 days suspend
Mr. Edwards’s since acquired Timber Buyer’s license.”
¶ 21 Putting aside the fact that the license revocation proceeding is an entirely
separate matter, Edwards also has not provided any documentation relating to his
licensure or the license revocation proceedings. This court is left to guess when
exactly Edwards obtained a license; if the Department of Natural Resources had
other bases for seeking suspension or revocation of his license; what effect, if any,
an award of prohibition would have upon the agency proceeding; whether
Edwards’s license is at present suspended, revoked, reinstated; and the precise
status of the suspension/revocation proceeding. In this circumstance, without more,
Edwards has not demonstrated irremediable harm so as to warrant excusal from the
normal appellate process. See Zaabel, 209 Ill. 2d at 132 (petitioner has the burden
to show that he would be irremediably harmed).
¶ 22 Still, even if no irremediable harm is apparent, Edwards urges this court to
exercise its discretion and consider this action. See id. (although petitioner did not
demonstrate that the normal appellate process would not provide an adequate
remedy, court chose to address the merits of petitioner’s complaint for prohibition
because issue was important to the administration of justice); Orenic v. Illinois
State Labor Relations Board, 127 Ill. 2d 453, 468 (1989) (“Though mandamus is
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extraordinary, we may consider a petition for the writ when it presents an issue that
is novel and of crucial importance to the administration of justice, even if all the
normal requirements for the writ’s award are not met initially.”); Moore, 114 Ill. 2d
at 540 (despite finding the normal appellate process to be adequate, court exercised
its discretion and addressed the merits of Moore’s arguments).
¶ 23 In People ex rel. Foreman v. Nash, this court began its analysis by considering
whether writs of mandamus or prohibition or supervisory orders would be proper
remedies in that case. 118 Ill. 2d at 95. The court concluded that Moore was
controlling and noted that the State had already presented arguments on direct
appeal to the appellate court, on petition for rehearing, and to this court via a
petition for leave to appeal. Id. at 98. This court explained that “[a]n extraordinary
remedy such as a writ of mandamus or a writ of prohibition should not be used as a
substitute for another appeal.” Id. The court did not consider the questions
presented therein to be of such importance to the administration of justice to require
this court’s exercise of its supervisory authority. Id. Thus, the court concluded that
the State’s motion was improvidently granted and did not reach the merits of the
parties’ arguments. Id.
¶ 24 Similarly, we see no reason to look past Edwards’s failure to show that he lacks
any other adequate remedy and nevertheless address the merits of Edwards’s
complaint. Unlike in Moore, Edwards’s time to appeal has not expired. See Moore,
114 Ill. 2d at 540 (“Our failure to dispose of this action *** would waste judicial
resources as well as be unjust to Moore, because his time to appeal has now
expired.”). We likewise do not consider the issue presented to be important to the
administration of justice. See Foreman, 118 Ill. 2d at 98 (“[W]e do not consider that
the questions as presented here are of such importance to the administration of
justice that they necessitate this court’s exercise of its supervisory authority.”).
Accordingly, we refuse to address the merits of the parties’ remaining arguments.
¶ 25 CONCLUSION
¶ 26 For a writ of prohibition to issue, a petitioner must demonstrate that all four of
its requirements have been met. Zaabel, 209 Ill. 2d at 131-32. Edwards fails to
establish that the normal appellate process would not afford an adequate remedy or
will cause him irremediable harm. We decline to nonetheless address the merits of
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Edwards’s complaint because it does not present an issue that is important to the
administration of justice.
¶ 27 Writ denied.
¶ 28 JUSTICE KILBRIDE, dissenting:
¶ 29 Petitioner, Kenin L. Edwards, was convicted by a jury of two counts of the
purported crime of “unlawfully acting as a timber buying agent for multiple
licensed timber buyers.” Before the trial court could sentence Edwards, however,
this court allowed his petition seeking prohibition relief and stayed sentencing. The
crux of Edwards’s petition was that he had been charged, and convicted, of an
insufficiently defined regulatory offense. Indeed, a review of the applicable
administrative rule demonstrates that Edwards has been convicted of an alleged
regulatory offense that does not exist. In addition, his convictions are based on
alleged conduct that does not violate the regulation relied on in the State’s
information.
¶ 30 The majority fails to acknowledge this injustice. Instead, the majority agrees
with the State that Edwards should relitigate this matter in the ordinary appellate
process because he does not meet the formal requirements for prohibition relief.
Supra ¶¶ 24-26. Even if I agreed with the majority that Edwards is not entitled to
prohibition relief, I cannot agree with the majority’s decision to ignore the critical
error underlying Edwards’s convictions. For the reasons explained below, I believe
that this court should exercise its supervisory authority to direct the circuit court to
vacate Edwards’s convictions. Thus, I respectfully dissent.
¶ 31 In opposing Edwards’s petition, the State argues, in relevant part, that section
11(a) of the Timber Buyers Licensing Act (Act) criminalizes the violation of
administrative rules and regulations promulgated under the Act. 225 ILCS
735/11(a) (West 2016). Initially, as the State correctly concedes, it is important to
recognize that the information did not rely on section 11(a). Putting that
fundamental defect aside for the sake of argument, I tend to agree with the State’s
general proposition that the legislature has criminalized violations of
administrative rules under section 11(a) of the Act.
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¶ 32 It is undisputed that both counts in the information charging Edwards with a
criminal offense relied, in relevant part, on the administrative rule found in section
1535.1(b) of Title 17. 17 Ill. Adm. Code 1535.1(b) (2003). Logically, then, this
court’s analysis should focus on the administrative rule that the State alleges that
Edwards violated. The majority, however, does not even cite, let alone analyze, the
language of section 1535.1(b) of Title 17, the administrative rule at the heart of the
dispute here. In its entirety, that rule provides:
“(b) Only persons listed with the Department [of Natural Resources] as
authorized buyers may represent the licensee. Authorized buyers shall
designate in all contractual arrangements that the licensee is the timber buyer.
Failure to comply with this provision shall constitute ‘buying timber without a
timber buyer’s license.’ Authorized buyers may only be listed on one license.
To be eligible to hold a timber buyer’s license, the applicant must be at least 18
years of age.” 17 Ill. Adm. Code 1535.1(b) (2003).
For purposes of this case, section 1535.1(b) of Title 17 is a rather simple and
straightforward administrative rule. It plainly identifies and defines a single
regulatory offense—“buying timber without a timber buyer’s license.”
¶ 33 Although the State’s information cited that rule in charging Edwards, the State
did not allege that Edwards committed the actual offense defined by section
1535.1(b) of Title 17. Instead, in what has to be a truly unprecedented maneuver,
the State relied on that rule to charge Edwards with a completely different offense.
Specifically, the State alleged that Edwards committed two counts of the purported
regulatory offense of “unlawfully acting as a timber buying agent for multiple
licensed timber buyers.”
¶ 34 It is undisputed, however, that section 1535.1(b) of Title 17 does not contain
any reference to the offense Edwards was alleged to have committed, let alone
identify the elements of that charged offense. Although Edwards was convicted of
two counts of what appears to be a completely new regulatory offense, the State has
never identified the elements of this supposed regulatory offense despite the circuit
court twice allowing the State to amend its information. Likewise, the majority here
never identifies the name of the underlying offense that supports Edwards’s
convictions. Instead, the majority states that Edwards was “charged by information
with two violations of the Timber Buyers Licensing Act.” Supra ¶ 3.
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¶ 35 It is not clear from the State’s argument in this court how an administrative rule
can be used to support a criminal conviction of an alleged regulatory offense that
the rule itself never identifies or details. The State has not cited, and my research
has not revealed, any legal authority allowing the State to rely on an administrative
regulation that defines one regulatory offense to obtain a criminal conviction for a
completely different, and undefined, regulatory offense. But that is exactly what
has occurred in this case.
¶ 36 If that glaring deficiency is not sufficiently concerning to the majority, it is also
readily apparent from the rule’s plain language that the prohibitions of section
1535.1(b) of Title 17 are inapplicable to the conduct that was charged against
Edwards in the information. Count I of the information alleged that Edwards
“knowingly acted as an authorized agent for multiple licensed timber buyers, being
listed as an agent for timber buyer Trent Copelen and acted as agent for timber
buyer Jonathan Luckett and represented himself as a timber buyer when attempting
to enter into an agreement with Donald Cook.” Count II alleged, in relevant part,
that Edwards “knowingly acted as an authorized agent for multiple licensed timber
buyers, being listed as an agent for timber buyer Trent Copelen and acted as an
agent for timber buyer Jonathan Luckett in selling timber to Leroy Yoder of
Plainview Pallet, Tom Farris of Farris Forest Products, John Peters of River City
Hardwood, Inc., Norman Hochstetler of Oak Ridge Lumber, LLC, and Michael
Eichen of Eichen Lumber Company, Inc.”
¶ 37 As previously explained, the only administrative rule cited in the State’s
information that could conceivably apply to the charged conduct is the rule
contained in section 1535.1(b) of Title 17. The uncontested record, however, shows
that the alleged conduct does not violate any part of that rule’s four requirements.
¶ 38 First, an offender could violate the rule by failing to be listed with the
Department of Natural Resources as an authorized buyer to represent the timber
buyer licensee. 17 Ill. Adm. Code 1535.1(b) (2003). Neither count of the
information alleged that Edwards was not listed with the Department of Natural
Resources as an authorized buyer. Second, an offender could violate the rule by
failing to designate in all contractual arrangements that the licensee is the timber
buyer. 17 Ill. Adm. Code 1535.1(b) (2003). Neither count of the information
alleged that Edwards violated this provision in any contractual arrangements.
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Third, the rule could be violated if the offender is “listed” as an authorized buyer on
more than one timber buyer’s license. 17 Ill. Adm. Code 1535.1(b) (2003). Both
counts of the information allege that Edwards was “listed as an agent for timber
buyer Trent Copelen,” but the charges do not specify any other person for whom
Edwards was “listed” as an authorized buyer or agent. In other words, Edwards
appears to have complied with this provision. Last, an offender could violate the
rule by applying for a timber buyer’s license before reaching the age of 18 years. 17
Ill. Adm. Code 1535.1(b) (2003). Neither count of the information alleges that
Edwards applied for a timber license when he was a minor.
¶ 39 To summarize, the rule in section 1535.1(b) of Title 17 can potentially be
violated in only four ways, but neither charge in the two-count information alleged
that Edwards violated any of those four requirements or prohibitions. In other
words, it does not even appear from the face of the State’s information that
Edwards belongs to a category of offender that the administrative rule was intended
to govern. Presumably, that is why the State chose to charge Edwards with
committing a completely different and undefined regulatory offense than the one
actually identified by section 1535.1(b) of Title 17.
¶ 40 I understand my colleagues’ reluctance to apply this court’s historically narrow
jurisprudence on the extraordinary remedy of prohibition relief. Nonetheless, this
court need not turn a blind eye to a clear injustice. Nothing is to be gained from
expending more judicial resources on this case by forcing Edwards to relitigate this
matter in the lower courts. And, contrary to the State’s argument here, this case
presents an error much more serious than a simple defect in the charging
instrument.
¶ 41 While supervisory orders are generally disfavored outside of our
leave-to-appeal docket (People ex rel. Birkett v. Konetski, 233 Ill. 2d 185, 212
(2009)), this court recently reaffirmed in a unanimous decision that our supervisory
authority over Illinois’s judicial system is “unlimited in extent and hampered by no
specific rules” (Vasquez Gonzalez v. Union Health Service, Inc., 2018 IL 123025,
¶ 16). Of course, we exercise our supervisory authority with restraint and “only
under exceptional circumstances.” Vasquez Gonzalez, 2018 IL 123025, ¶ 17.
¶ 42 I believe that this case presents that kind of exceptional circumstance. In what is
hopefully an exceedingly rare occurrence, the State in this case has obtained a
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criminal conviction for a regulatory offense that does not exist based on charged
conduct that is not criminalized by the regulation cited in the information. We
should not hesitate to exercise our supervisory authority to correct this clear
injustice. See In re Estate of Funk, 221 Ill. 2d 30, 97-98 (2006) (explaining that this
court’s supervisory authority “is bounded only by the exigencies which call for its
exercise”). If a majority of this court does not believe this case qualifies for
prohibition relief, it should, in my opinion, exercise its plenary supervisory
authority to enter a supervisory order directing the circuit court to vacate Edwards’s
criminal convictions. Accordingly, I respectfully dissent.
¶ 43 JUSTICES BURKE and NEVILLE join in this dissent.
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