City of Chicago v. Burgard

                                             First Division
                                             November 25, 1996









No. 1-96-0064

CITY OF CHICAGO,                        )    APPEAL FROM THE
                                        )    CIRCUIT COURT OF
          Plaintiff-Appellee,           )    COOK COUNTY.
                                        )
     v.                                 )    
                                        )
PETER BURGARD,                          )    HONORABLE
                                        )    PAUL M. SHERIDAN,
          Defendant-Appellant.          )    JUDGE PRESIDING.
                                                       

     JUSTICE WOLFSON delivered the opinion of the court:     

     An ordinance of the City of Chicago provides:
          "It shall be unlawful for any person to sell,
     offer or expose for sale, or solicit any other person
     to purchase tickets for any***place of amusement, upon
     any public way or other public place within the district
     bounded on the north by the Chicago River, on the south
     by the southline of Roosevelt Road, on the east by Lake
     Michigan, and on the west by the Chicago River."
     Ch. 10, sec. 8-490, Chicago Municipal Code.
     The charge against Peter Burgard was:
          "On or about 9 July 1995 at 1102 S. Columbus Drive,
     Chicago, Cook County, Illinois, committed the offense
     of selling tickets in Loop in that he offered or exposed
     for sale tickets for a place of amusement, to-wit the
     Grateful Dead Concert at Soldier Field in a public place
     at the above location which is north of Roosevelt Road,
     south and east of the Chicago River, and west of Lake
     Michigan."
     At trial, a Chicago police officer testified that she saw
the defendant speaking to people and showing them tickets.  She
overheard the defendant speak to one person:
          "Q. Could you tell us what if anything the
     defendant said to this person?
          A. Not ver batim, but he said they were good
     seats, and I would give you a good price."
     After the City rested its case, defense counsel moved for a
"directed finding."  For the first time in the proceeding, as a
virtual afterthought, the defense referred to the first amendment
to the United States Constitution:
          "My point is, your Honor, that offers to commit
     otherwise legal acts are protected by the first
     amendment***  You cannot criminalize offers to commit
     legal acts.  I would respectfully submit the ordinance
     applied is overbroad.  Second, that it's unconstitutional
     as applied under the first amendment****"
     The City, although obviously taken by surprise ("Again since
this is raised at this point, I really don't have any Illinois
case law based on that"), did not object to the first amendment
argument being made.  The trial judge ruled on the first
amendment issue:
          "You raise a constitutional argument.  I am not
     going to declare this ordinance unconstitutional, vague
     or overly broad making criminal something that is not
     criminal."
     That was the extent of the discussion about the first
amendment.  Despite the defendant's denial of facts testified
to by the police officer, the trial judge entered a finding of
guilty.  The defendant was fined $50 and placed on supervision.
     On appeal, the defendant relies only on a first amendment
argument.  He expands on the casual remarks made in the trial
court.  Here, he contends that commercial speech that is lawful
and not misleading is protected unless the prosecution proves
regulation advances an asserted governmental interest and the
regulation is not more extensive than necessary to serve that
interest.  He cites Central Hudson Gas & Electric Corporation v.
Public Service Comm'n, 477 U.S. 557, 65 L. Ed. 2d 341, 100 S. Ct. 2343 (1980).
     The City contends the defendant has waived his right to
claim the first amendment was violated in this case.  Since the
case is civil in form, contends the City, the civil rules of
procedure apply at trial and on review.  See City of Crystal Lake
v. Sak, 52 Ill. App. 3d 684, 687, 367 N.E.2d 989(1977). 
According to the City, the mandatory disclosure requirements of
section 2-613(d) were violated when the defendant waited until
after the City closed its case before asserting the first
amendment defense.
     The purpose of section 2-613(d) is to avoid unfair surprise
to an opposite party.  The defendant contends it was the City's
burden to justify application of the ordinance, citing City of
Chicago v. Prus, 117 Ill. App. 3d 455, 453 N.E.2d 776 1983).
     Ordinarily, matters of constitutional magnitude should be
raised before the trial begins.  The trial judge should be given
an opportunity to carefully consider legitimate constitutional
issues.  If a constitutional issue is not timely raised, it is
held to have been waived.  In re Liquidations of Reserve
Insurance Co., 122 Ill. 2d 555, 568, 524 N.E.2d 538 (1988). 
     But in this case the City did not object to the timeliness
of the first amendment contention.  It was raised at trial,
before verdict.  And the trial judge ruled on it.  Under these
circumstances, we do not see how section 2-613(d) constructs a
waiver.
     Whether this ordinance is constitutional on its face and as
applied to this defendant are serious issues.  Serious issues
should be dealt with seriously. In this case, they were not.  Not
by anybody.  As in Calloway v. Kinkelaar, 168 Ill. 2d 312,
329, 659 N.E.2d 1322 (1995), "***we lack the benefit of a
thoroughly researched and analyzed presentation of both sides of
the issue."
     We believe the interests of justice would best be served by
vacating the defendant's conviction and remanding this case for a
full evidentiary hearing on whether the first amendment was
offended in this case.  See City of Chicago v. Prus, 99 Ill. App.
3d 473, 476, 425 N.E.2d 426 (1981).  If, after a hearing, the
trial judge finds there was no constitutional violation, the
conviction should be reinstated.  We would then, presumably, have
a record that would help us reach a considered judgment.
     We therefore vacate the defendant's conviction and sentence
and remand this cause to the trial court for proceedings
consistent with this opinion.
     VACATED AND REMANDED.
     CAMPBELL, P.J. and BUCKLEY, J., concur.