City of Chicago v. Roman

No. 1-96-1957 September 17, 1997

THE CITY OF CHICAGO, ) APPEAL FROM
) THE CIRCUIT COURT
) COOK COUNTY.
Plaintiff-Appellant, )
)
v. ) No. 94 MC1 351250
)
EDWIN ROMAN, ) THE HONORABLE,
) WILLIAM O'MALLEY,
Defendant-Appellee. ) JUDGE PRESIDING.
)

PRESIDING JUSTICE COUSINS delivered the opinion of the court:
The City of Chicago (City) brought an action against Edwin
Roman for assaulting Anthony Pupius in violation of section 8--4--
080 of the City's municipal code (Chicago Municipal Code 8--4--
080 (1990)), which prohibits the assault of a person age 60 years
old or over. The trial court found Roman guilty and sentenced him
to 10 days of community service and one year's probation. The
City appealed the sentence, which is less than the mandatory
minimum sentence provided for in the ordinance.
BACKGROUND
On August 23, 1994, Anthony Pupius saw Edwin Roman removing
various white styrofoam cartons and boxes from a Ryder truck in an
alley near his home on 7355 South Whipple Street, Chicago. Pupius
approached Roman and told him to stop dumping garbage. Roman
swore at Pupius and told him that it was none of his business and
that he should leave. Pupius went back to his house and called
"911" and then went back outside to the alley with a camera and
took pictures of Roman. Roman saw Pupius taking the pictures.
Roman picked up a stick and tried to hit Pupius. At trial, Pupius
testified that Roman swore at him and called him vulgar names.
Roman also told Pupius that he knew where he lived and would come
back every night and "take care" of him. Violeta Valaityte, a
witness to the incident, testified that, at one point while Pupius
was in his house, Roman went up to the door of the house and
yelled at Pupius.
Roman testified that he never threatened Pupius. Ricardo
Diaz, Roman's codefendant on the dumping charge, testified that he
did not see Roman with a stick or chasing Pupius.
City police officers arrested Roman for dumping garbage in
violation of section 221b of the Criminal Jurisprudence Act
(Health and Safety Public Nuisance) (740 ILCS 55/221 (West 1992))
and for assault against an elderly person under section 8--4--080
of the Municipal Code of Chicago. Chicago Municipal Code 8--4--
080 (1990). Section 8--4--080 provides in relevant part:
"8--4--080 Definitions--Assault defined--Mandatory
sentence.
(1) Definitions. The following definitions are
applicable strictly in the context of this ordinance:
(A) 'Elderly' refers to any person 60 years of age or
older.
* * *
(2) There is hereby created the offense of assault
against the elderly, developmentally disabled, or
handicapped. A person commits assault against the elderly,
developmentally disabled, or handicapped when he engages in
conduct which places a person as defined above in reasonable
apprehension of receiving a battery. Upon conviction of this
offense, a mandatory sentence of imprisonment shall be
imposed, not to be less than 90 days nor more than 180 days."
Chicago Municipal Code 8--4--080 (1990).
Following the bench trial, Roman was found guilty of the
assault charge. Thereafter, Roman presented a motion to declare
section 8--4--080 unconstitutional. The trial court denied the
motion but questioned the City's power to set a mandatory minimum
sentence for the assault offense. The court suggested sua sponte
that Roman attack the City's ordinance on that basis. Roman then
filed a motion to declare the ordinance unconstitutional. In his
motion, Roman asserted that: (1) the mandatory minimum sentence
exceeded the City's home rule powers because state law provides
for a different penalty; (2) the ordinance usurps the trial
judge's authority to impose a proper sentence; (3) the ordinance
did not relate to a local concern; and (4) the ordinance violates
the guarantees of equal protection found in the United States and
Illinois Constitutions. The trial court denied Roman's request
to declare the ordinance unconstitutional but ruled that the
mandatory minimum sentence exceeded the City's home rule
authority. The trial court stated in pertinent part:
"[I] don't think I am bound by the mandates of the City, and
I think that they have overreached by telling -- by their
telling a legislative branch, telling the judicial branch
that I don't have discretion in the sentencing, although, I
mean, the Courts [sic] have upheld that. And certainly there
are statutes that mandate certain minimum sentences. And I
think that that is something left -- best left in the hands
of the state legislature, especially when we are talking
about depriving someone of their liberty. And I don't think
I am bound by the 90 days mandate of the City, counsel.
***
I think that the mandatory nature of the sentence which
would make Mr. Roman different because he did this in the
City of Chicago, as opposed to due process as well and within
the same crime occurring in Bridgeview. And I don't think
that the City [Council] can mandate something that the State
legislature hasn't mandated.
***
I think that that [sic] making it a mandatory minimum
goes beyond the Home Rule, and I don't think that -- I think
that it's well covered in the state statutes and doesn't have
to be covered again by the ordinance."
The City filed a motion to reconsider the sentencing decision
and asked the trial court to apply the City's mandatory minimum
sentence provision. The trial court denied the City's motion and
stated further:
"I think that there is, although the Public Defender's office
may not specifically have raised it, but the State refers to
it as an 8th Amendment cruel and unusual punishment. It may
be that, but it may be a due process problem, and I think
that the difference here is that the municipality is not
talking about raising fines. They are talking about taking
away a man's liberty, and I don't think that that was the
intent of the home rule, and I find it very disproportionate
that had he actually struck the man I could give him
supervision, but the fact that he merely threatened to do it
in the City of Chicago, I don't have the right to give him
supervision, and as a matter of fact, I didn't give him
supervision, but I don't think that home rule was intended to
do that, so my ruling will stand.
The City appealed.
We reverse and remand with directions.
ANALYSIS
The issues presented in this case are whether the City, as a
home rule unit, had authority to set a mandatory minimum penalty
of imprisonment for violation of a municipal ordinance and whether
that ordinance is preempted by state law. We hold that the
ordinance at issue is properly within the City s home rule
authority and that state law does not preempt the authority of the
City to set a mandatory minimum penalty of imprisonment for
violation of its ordinance.
Before addressing the merits of this appeal, we must first
determine whether the City may appeal the trial court's sentence.
Citing Town of Normal v. Bowsky, 142 Ill. App. 3d 760, 492 N.E.2d 204 (1986), defendant argues that the City has no jurisdictional
basis to appeal and that appeal by the City violates the double
jeopardy clause of the fifth and fourteenth amendments to the
United States Constitution (U.S. Const. amends. V, XIV) and
article I, section 10 of the Illinois Constitution (Ill. Const.
1970, art. I, 10), because the municipal ordinance is criminal in
nature.
In our view, Normal v. Bowsky, 142 Ill. App. 3d 760, 492 N.E.2d 204, is distinguishable from the instant case. In Normal,
the defendant was acquitted of violating a town ordinance which
prohibited possession of alcoholic beverages by a person under age
21. The Town of Normal appealed. The appellate court noted the
United States Supreme Court s ruling in Waller v. Florida, 397 U.S. 387, 90 S. Ct. 1184, 25 L. Ed. 2d 435 (1970), that a
defendant could not be tried in State court after having been
tried in municipal court for the same offense. Normal, 142 Ill.
App. 3d at 761. However, the appellate court held that the Town
of Normal could properly appeal the acquittal of a municipal
ordinance violation without violating proscriptions against double
jeopardy because of the Illinois Supreme Court's characterization
of municipal ordinance prosecutions as quasi-criminal proceedings
that share the characteristics of both a civil action and a
criminal prosecution. Normal, 142 Ill. App. 3d at 762.
Here, the defendant was not acquitted but was found guilty of
violating the municipal ordinance. The City appeals only the
sentence imposed for violation of the ordinance. Reversal of the
trial court's sentence would not subject defendant to another
trial or to additional punishment. See City of Springfield v.
Ushman, 71 Ill. App. 3d 112, 388 N.E.2d 1357 (1979)(appellate
court had jurisdiction to entertain city s appeal of trial court s
judgment imposing fines for violation of a municipal ordinance
which were less than the minimum amount provided for in the
ordinance and reversal and remand with directions to trial court
to impose a proper fine would not place defendant in double
jeopardy). Accordingly, we have jurisdiction to review the
instant appeal.
Relative to the merits of this appeal, it is our view that
the trial court erred in failing to follow the penalty provision
of the City's ordinance. The City of Chicago is a home rule
municipality.
The powers of home rule municipalities, those municipalities
with a population greater than 25,000, are derived from article
VII, section 6(a), of the Illinois Constitution of 1970 (Ill.
Const. 1970, art. VII, 6(a)). Section 6(a) provides in relevant
part:
[A] home rule unit may exercise any power and perform any
function pertaining to its government and affairs including,
but not limited to, the power to regulate for the protection
of the public health, safety, morals and welfare; to license;
to tax; and to incur debt." Ill. Const. 1970, art. VII,
6(a).
Section 6(a) gives home rule units the broadest powers possible.
Scadron v. City of Des Plaines, 153 Ill. 2d 164, 174-75, 606 N.E.2d 1154 (1992), citing Ill. Ann. Stat., 1970 Const., art. VII,
6, Constitutional Commentary, at 24 (Smith-Hurd 1971); Town of
Cicero v. LaFrancis, 282 Ill. App. 3d 556, 557, 668 N.E.2d 164
(1996).
Under section 6(i) of the Illinois Constitution, a
municipality's home rule powers are preempted by the state under
very narrow circumstances:
"Home rule units may exercise and perform concurrently
with the State any power or function of a home rule unit to
the extent that the General Assembly by law does not
specifically limit the concurrent exercise or specifically
declare the State's exercise to be exclusive." Ill. Const.
1970, art. VII, 6(i).
The purpose of section 6(i) is to eliminate, or at least reduce to
a bare minimum, the circumstances under which local home rule
powers are preempted by judicial interpretation of unexpressed
legislative intention. Scadron, 153 Ill. 2d at 185; see also
Congress Care Center Associates v. Chicago Department of Health,
260 Ill. App. 3d 586, 588, 632 N.E.2d 266 (1994). Under section
6(i), the General Assembly can restrict the concurrent exercise of
a home rule unit's power by enacting a law that specifically
limits such power; but, unless a state law specifically states
that a home rule unit's power is limited, the authority of a home
rule unit to act concurrently with the state cannot be considered
restricted. Scadron, 153 Ill. 2d at 188; see also Village of
Bolingbrook v. citizens Utilities Co., 158 Ill. 2d 133, 138, 632 N.E.2d 1000 (1994). Where the legislature has not been specific,
courts will not find preemption of home rule authority. Town of
Cicero v. LaFrancis, 282 Ill. App. 3d at 558. The City argues
that the trial court erred in its finding that the City could not
mandate imprisonment for a violation of its assault ordinance when
the comparable state law did not provide for such a penalty.
Defendant argues that the City cannot enact an ordinance that
imposes a mandatory term of imprisonment where the identical
offense under state law allows a discretionary sentence of
imprisonment, probation or conditional discharge. However,
defendant fails to show where the state statute specifically
limits the power of home rule municipalities to legislate assault
against the elderly and provide mandatory imprisonment as a
penalty. Without such specificity, defendant essentially asks
this court to hold that state law, by enacting legislation
relative to the crime of assault, preempts the City s ordinance by
implication. However, the Illinois Supreme Court has upheld the
right of local governments to enact their own solutions to various
problems of local concern in the face of less stringent or
conflicting state regulations and has followed a determination
that the state s expression of interest in a subject, as evidenced
by its statutory scheme, does not amount to an express attempt to
declare the subject as one requiring exclusive state control.
Kalodimos v. Village of Morton Grove, 103 Ill. 2d 483, 503, 470 N.E.2d 266 (1984). In our view, traditional rules have been
established in the area of state preemption of municipal
ordinances and the issues relative to the powers of home rule
units are generally well settled. See, e.g., Scadron v. City of
Des Plaines, 153 Ill. 2d 164, 606 N.E.2d 1154; Kalodimos 103 Ill. 2d 483, 470 N.E.2d 266.
The precise issue of whether a home rule unit can impose
mandatory imprisonment as a penalty for violation of an ordinance
is an issue of first impression. We do not believe the nature of
the ordinance here requires a deviation from the traditional rule.
See Thomas v. State, 583 So. 2d 336 (Fla. App. 1991)(there is no
constitutional or statutory limitation on the city's power to
prescribe incarceration as a penalty for violation of city
ordinance requiring that bicycles be equipped with bell or gong as
warning device and ordinance was not preempted by state
legislation that required some specified equipment on bicycles and
did not specifically prohibit bells, gongs, or other audible
warning devices). In order to meet the requirements of section 6
of the Illinois Constitution (Ill. Const. 1970, art. VII, 6),
legislation must contain express language that the area covered by
the legislation is to be exclusively controlled by the state; it
is not enough that the state comprehensively regulates an area
that otherwise would fall into home rule power. See Village of
Bolingbrook, 158 Ill. 2d at 138.
Having failed to identify specific language to show that the
state wishes to limit the power of home rule units to legislate
assault against the elderly, we conclude that state law does not
restrict the City from providing mandatory imprisonment as a
penalty in its ordinance. Therefore, we believe the City s choice
to have a sentencing scheme that is different from the state s is
well within the City s constitutional powers as a home rule unit.
Accordingly we reverse the judgment of the trial court and remand
for sentencing only.
Reversed and remanded with directions.