People v. Warren
Annotate this Case
NOTICE: Under Supreme Court Rule 367 a party has 21 days after
the filing of the opinion to request a rehearing. Also, opinions
are subject to modification, correction or withdrawal at anytime
prior to issuance of the mandate by the Clerk of the Court.
Therefore, because the following slip opinion is being made
available prior to the Court's final action in this matter, it
cannot be considered the final decision of the Court. The
official copy of the following opinion will be published by the
Supreme Court's Reporter of Decisions in the Official Reports
advance sheets following final action by the Court.
Docket No. 79680--Agenda 7--May 1996.
THE PEOPLE OF THE STATE OF ILLINOIS, Appellant, v. STEPHANIE J.
WARREN, Appellee.
Opinion filed September 26, 1996.
JUSTICE FREEMAN delivered the opinion of the court:
Defendant, Stephanie Warren, was charged by information in the
circuit court of Bureau County with "unlawful interference with
child visitation rights per court order" in violation of section
10--5.5 of the Criminal Code of 1961 (720 ILCS 5/10--5.5 (West
1994)). Defendant moved for dismissal of the information on the
grounds that the instrument was insufficient and that the statute
was unconstitutional. The circuit court, finding the statute
unconstitutional, granted defendant's motion. The State appealed
directly to this court. 134 Ill. 2d R. 603. We now reverse in part,
affirm in part and remand for further proceedings.
BACKGROUND
The facts may be briefly stated as follows. On June 28, 1995,
a complaint was filed against defendant for violating the unlawful
visitation interference statute. The complaint charged that
"defendant did unlawfully detain a child with the intent to deprive
Rick Warren with visitation rights in violation of an existing
court order." Further, the complaint ordered defendant's appearance
in court on July 7, 1995.
On July 7, defendant filed a motion to dismiss the complaint
on the basis that it failed to allege sufficient facts to inform
her of the exact nature of the alleged offense and, further, that
the statute alleged to have been violated, itself, violated the
separation of powers clause of the Illinois Constitution of 1970
(Ill. Const. 1970, art. II, 1) and the due process and equal
protection clauses of the Illinois and federal constitutions (Ill.
Const. 1970, art. I, 2; U.S. Const., amends. V, XIV).
On August 14, 1995, a criminal information was filed amending
the complaint to read that "defendant knowingly detained her
daughter with the intent to deprive Richard Warren of his
visitation rights in violation of visitation provision in Bureau
County Court Order cause number 93--D--3."
After a hearing on defendant's motion, the trial court
declared the statute unconstitutionally vague and violative of
equal protection, due process and separation of powers.
Accordingly, the court dismissed the complaint.
DISCUSSION
The singular issue presented for our review is whether the
trial court erred in finding the unlawful visitation interference
statute unconstitutional. The statute provides, in relevant part:
"(b) Every person who, in violation of the
visitation provisions of a court order relating to child
custody, detains or conceals a child with the intent to
deprive another person of his or her rights to visitation
shall be guilty of unlawful visitation interference.
***
(d) Any law enforcement officer who has probable
cause to believe that a person has committed or is
committing an act in violation of this Section shall
issue to that person a notice to appear.
* * *
(g) It is an affirmative defense that:
(1) a person or lawful custodian committed the
act to protect the child from imminent physical
harm, provided that the defendant's belief that
there was physical harm imminent was reasonable and
that the defendant's conduct in withholding
visitation rights was a reasonable response to the
harm believed imminent;
(2) the act was committed with the mutual
consent of all parties having a right to custody
and visitation of the child; or
(3) the act was otherwise authorized by law.
(h) A person convicted of unlawful visitation
interference shall not be subject to a civil contempt
citation for the same conduct for violating visitation
provisions of a court order issued under the Illinois
Marriage and Dissolution of Marriage Act." 720 ILCS 5/10-
-5.5 (West 1994).
Initially, we note that a statute enjoys a strong presumption
of constitutionality and the challenging party bears the burden of
establishing its invalidity. People v. P.H., 145 Ill. 2d 209, 233
(1991). Our duty, if it can reasonably be done, is to construe
enactments so as to sustain their constitutionality and validity.
People v. Davis, 93 Ill. 2d 155, 161 (1982). Where construction is
doubtful, such doubt will be resolved in favor of the validity of
the challenged provision. People v. Bales, 108 Ill. 2d 182, 188
(1985), quoting Continental Illinois National Bank & Trust Co. v.
Illinois State Toll Highway Comm'n, 42 Ill. 2d 385, 389 (1969).
Further, whether a statute is wise or desirable is not a concern
for the court. Rather, it is wholly for the legislature to balance
the advantages and disadvantages of legislation. Braeburn
Securities Corp. v. Smith, 15 Ill. 2d 55, 59 (1958); People ex rel.
Chicago Dental Society v. A.A.A. Dental Laboratories, Inc., 8 Ill. 2d 330, 334 (1956). That the court might regard certain provisions
as unnecessary is immaterial to the constitutionality inquiry. See
A.A.A. Dental Laboratories, Inc., 8 Ill. 2d at 334. With these
principles in mind, we consider the various challenges to the
constitutionality of section 10--5.5, the unlawful visitation
interference statute.
Vagueness
Due process demands that a statute must not be so vague that
persons of common intelligence must necessarily guess at either its
meaning or its application. People v. Hickman, 163 Ill. 2d 250, 256
(1994). That is not to suggest, however, that mathematical
certainty in language is required. People v. Fabing, 143 Ill. 2d 48, 53 (1991). Where the statute does not impinge on first
amendment rights, due process is satisfied if: (1) the statute's
prohibitions are sufficiently definite, when measured by common
understanding and practices, to give a person of ordinary
intelligence fair warning as to what conduct is prohibited, and (2)
the statute provides sufficiently definite standards for law
enforcement officers and triers of fact that its application does
not depend merely on their private conceptions. Hickman, 163 Ill. 2d at 256-57.
The trial court held that the statute was vague and uncertain
in two regards. The court first noted that the confusion begins
with the words "unlawful visitation." The court observed that very
few crimes have a "redundant unlawful" in front of the title. "We
do not have unlawful murder or unlawful battery." The term
"visitation interference" alone, the court noted, connotes
visitation misconduct.
Defendant asserted no vagueness challenge below. In her
responsive brief here, however, she contends that the statute lacks
definite standards and is susceptible to multiple interpretations
with multiple possible results.
We disagree with both the trial court's and defendant's
assessment of the statute. The term "unlawful visitation" appears
as part of the title as well as in the text of the provision. In
construing a statute, every part, including its title, must be
considered together. People v. Hetzel, 243 Ill. App. 3d 83, 85
(1993), citing Wilcoxen v. Paige, 174 Ill. App. 3d 541 (1988).
Viewing the language of the unlawful visitation interference
statute as a whole, we believe that a person of fair intelligence
is given fair warning as to what conduct is proscribed. The
allegations in the information charging the defendant indicate that
defendant committed the offense of unlawful visitation interference
in that she knowingly detained her daughter with the intent to
deprive Richard Warren of his visitation rights, in violation of
visitation set forth in the Bureau County court order in cause
number 93--D--3. The nature of the offense is clearly stated in
terms commonly used and understood.
Secondly, the statute provides sufficient guidelines for its
proper application. In that regard, we note that the statute
requires for the issuance of a notice to appear that a police
officer have probable cause to believe that a person has violated
the terms of a visitation order. 720 ILCS 5/10--5.5(d) (West 1994).
A notice to appear, as was used in this case, is a means by which
a person may be brought before the court without the inconvenience
of immediate arrest. 1 Ill. Jur. Criminal Law & Procedure 5:07, at
418 (1992). Such a notice may be issued whenever a peace officer
has probable cause to make a warrantless arrest. See 725 ILCS
5/107--12 (West 1994).
In the context of a warrantless arrest, probable cause exists
when the officer has reasonable grounds to believe that the person
is committing or has committed an offense. People v. Tisler, 103 Ill. 2d 226, 236-37 (1984), citing People v. Wright, 56 Ill. 2d 523, 528-29 (1974), quoting Brinegar v. United States, 338 U.S. 160, 175-76, 93 L. Ed. 1879, 1890, 69 S. Ct. 1302, 1310-11 (1949).
To determine whether a warrantless arrest meets the "reasonable-
grounds/probable-cause requirement, the trial court must decide
whether `a reasonable and prudent man, having the knowledge
possessed by the officer at the time of the arrest, would believe
the defendant committed the offense.' " Tisler, 103 Ill. 2d at 237,
quoting People v. Wright, 41 Ill. 2d 170, 174 (1968). The statute's
probable cause requirement, then, comports with fourth amendment
safeguards. Clearly, mere unsupported allegations by a complainant
are insufficient to support even the issuance of a notice to
appear.
Given the requirements under the statute, it is clear that
law enforcement officials are not dependent, for application of the
statute, on their private conceptions. Whether probable cause for
notice to appear in fact exists, a concern expressed by defense
counsel at oral argument, is not relevant to the vagueness inquiry.
It is sufficient for due process that the statute provides adequate
guidelines to eliminate arbitrary or discriminatory application.
Defendant, in her brief, offers a series of questions, the
answers to which she suggests are necessary to the vagueness
determination. She posits, for example: Is visitation interference
measured in minutes, hours or days from the time visitation is to
commence? Is detention measured in hours, minutes, or days? Could
a baby-sitter, acting at the behest of the custodial parent, be
subject to a charge for a violation of the statute?
We would remind defendant that the vagueness determination is
made in the factual context of each case in light of the particular
facts at hand. People v. Garrison, 82 Ill. 2d 444, 454 (1980).
Nothing in the record suggests that the scenarios proposed by
defendant are present in the case now before us. Moreover, "[t]hat
there may be marginal cases in which it is difficult to determine,
under a particular fact situation, whether conduct is within an
enactment is not reason to hold that the language of the law is too
ambiguous to define the duties and conditions involved.
[Citations]." City of Decatur v. Kushmer, 43 Ill. 2d 334, 336
(1969). Further, defendant may not simply conjure up hypothetical
situations in which the statutory standards might conceivably be
unconstitutionally vague. Garrison, 82 Ill. 2d at 456.
As its second vagueness challenge, the trial court found the
affirmative defenses provided in the statute confusing. Concerning
section 10--5.5(g)(2) (720 ILCS 5/10--5.5(g)(2) (West 1994)), the
mutual agreement defense, the court stated that the language
suggests that certain parties might agree to commit an offense and
that their agreement be a defense. The court also questioned the
meaning of section 10--5.5(g)(3), the "otherwise authorized by law"
defense (720 ILCS 5/10--5.5(g)(3) (West 1994)). Incidentally,
defendant did not assert an affirmative defense, nor is there any
suggestion that such a defense would have been available. On
appeal, defendant, nonetheless, echoes the trial court's concerns.
We perceive the trial court's concern to rest more with the
operation and effect of the mutual consent provision than with the
provision's clarity. Again, we disagree with both the trial court's
and defendant's assessment of the provision. Section 10--5.5(g)(2)
essentially provides that mutual consent of the parties will excuse
an interference with a visitation order. The criminal conduct
proscribed under this statute is detention or concealment with the
intent to deprive another of his or her visitation rights. Section
10--5.5(g)(2) merely gives recognition to the fact that fixed terms
for visitation must sometimes yield to scheduling conflicts and
other intervening factors. As a practical matter, where the
necessary parties mutually agree, the requisite intent to deprive
is negated, noncompliance with the court order is excused, and no
offense has been committed. Thus, by their mutual assent, the
parties have avoided, not agreed to, the commission of a criminal
offense.
At any rate, the manner in which the affirmative defense
operates does not render the statute's language unconstitutionally
vague. It is sufficient for purposes of due process that the
parties understand that mutual consent is available as a defense to
a charge of unlawful visitation interference.
Finally, we do not find the phrase "otherwise authorized by
law" unconstitutionally vague. Without resort even to the most
common definitional source, we understand "otherwise authorized by
law" to mean simply that the conduct in detaining or concealing a
child is, for reasons not expressly provided by the act,
permissible by law. Further, we perceive no difficulty, and
defendant points to none, in the application of the defense by
judges and juries.
Defendant has failed to meet her burden of establishing the
due process violation alleged to exist in section 10--5.5. We find
that the statute does not fail for vagueness.
Due Process and Equal Protection
In her motion to dismiss, defendant asserted that the statute
deprived her of "substantive due process" in that she, as a
divorced person with minor children, is subject to treatment in a
different fashion than are people who (1) are married and have
children, (2) were never married and have children and (3) are
divorced and have joint custody of their children. In its dismissal
order, the trial court stated, without more, that defendant's equal
protection and due process arguments were well taken.
The State, in its appellate brief, initially notes that
defendant's disparate treatment claim is incorrectly characterized
as a due process claim. The State suggests that the substance of
defendant's claim concerns, instead, equal protection. We, as
apparently does defendant, agree with the State. Due process
concerns fairness between the State and the individual dealing with
the State, regardless of how other similarly situated persons may
be treated. Evitts v. Lucey, 469 U.S. 387, 405, 83 L. Ed. 2d 821,
836, 105 S. Ct. 830, 841 (1985), quoting Ross v. Moffitt, 417 U.S. 600, 609, 41 L. Ed. 2d 341, 350, 94 S. Ct. 2437, 2443 (1974). In
her responsive brief, defendant has recharacterized her disparate
treatment claim as one for equal protection. Further, defendant has
confined her argument to a comparison of treatment given a divorced
custodial parent versus that given divorced joint custodial parents
under the statute.
The constitutional right to equal protection of the law
guarantees that the State must treat similarly situated persons in
a similar manner. People v. Kimbrough, 163 Ill. 2d 231, 237 (1994).
The clause does not deny the State the power to treat different
classes of persons in different ways. People v. Shephard, 152 Ill. 2d 489, 499 (1992). Simply stated, the guarantee prohibits the
State from statutorily dividing persons into different classes and
providing for different treatment of each class for reasons wholly
unrelated to the purpose of the legislation. People v. Reed, 148 Ill. 2d 1, 7 (1992).
Defendant argues that individuals who have been granted joint
custody and are party to a joint parenting agreement pursuant to
the Illinois Marriage and Dissolution of Marriage Act (Dissolution
Act) (750 ILCS 5/602(b) (West 1994)) could never come within the
purview of the visitation interference statute. For these
individuals, disputes and alleged breaches of the agreement may be
mediated or otherwise resolved. Contrarily, a divorced custodial
parent, like defendant, is subject to the terms of a visitation
order and is subject either to indirect criminal contempt or
criminal prosecution for violation of a visitation order. Such
disparate treatment, defendant maintains, amounts to an equal
protection violation.
The crux of defendant's claim is that the statute unfairly
burdens a divorced custodial parent with a criminal penalty for
unlawful visitation interference while divorced joint custodial
parents, in the context of their parent-child relationships, are
permitted the opportunity to mediate their disputes. It is apparent
from the scope of defendant's argument that she perceives operation
of the statute to be narrowly confined to conduct only by divorced
parents within the context of their parent-child relationships. The
act, which covers "every person" who commits the offense of
visitation interference and provides an affirmative defense for "a
person or lawful custodian" is not so limited. The law is neutral
on its face, including within its coverage any individual,
including one who may be a stranger to the parent-child
relationship, i.e., grandparents, a neighbor, even a baby-sitter.
To subject a statute to any form of equal protection review,
the party challenging the law must show that it classifies persons
in some manner. People v. Wegielnik, 152 Ill. 2d 418, 428-29
(1992), citing 2 R. Rotunda, J. Nowak & J. Young, Treatise on
Constitutional Law: Substance & Procedure 18.4, at 343-44 (1986).
To show that a law, neutral on its face, violates equal protection,
the defendant must show that the statute was enacted for a
discriminatory purpose. Wegielnik, 152 Ill. 2d at 429. Defendant
has neither alleged a discriminatory purpose nor provided any
evidence which would support such a finding. We therefore reject
her equal protection claim.
Moreover, defendant, as a divorced custodial parent, is not
similarly situated to divorced joint custodial parents. At first
blush, because these individuals share some common traits, they may
appear similarly situated. However, for equal protection purposes,
a determination that individuals are similarly situated cannot be
made in the abstract. Usually, that determination can only be made
by considering the end or purpose of the particular legislation.
Once a court has identified an end of government which does not in
itself offend the Constitution, it can then analyze the manner in
which the government has classified persons in terms of that end.
3 R. Rotunda & J. Nowak, Treatise on Constitutional Law: Substance
& Procedure 18.2, at 9 (2d ed. 1992).
Visitation is a right or permission granted to a noncustodial
parent to visit with his or her child. See 750 ILCS 5/607(a) (West
1994). The welfare of a child usually requires that a parent who
does not have custody of their child be given liberal visitation
rights in order to assure that the child will not be estranged from
that parent. McManus v. McManus, 38 Ill. App. 3d 645 (1976); see
also 750 ILCS 5/607(a) (West 1994). The purpose of the unlawful
visitation interference statute is to provide a remedy for and to
deter violations of interference by any person, including the
child's custodial parent, with a noncustodial parent's right to
visitation.
Traits common to both a divorced custodial parent and divorced
joint custodial parents are marital status and parentage. Neither
of these traits, however, is relevant to the purposes of the act.
The statute operates irrespective of marital status, and because it
covers "every person," its operation on defendants is also
irrespective of parentage. The single, significant trait for
purposes of the statute is the capability to interfere with
visitation. It is this trait which renders a divorced custodial
parent, who has the capability to interfere with court ordered
visitation, dissimilar to divorced joint custodial parents.
As the phrase "joint custodial parents" suggests, these
individuals share custody of their children. See 720 ILCS 5/10--
5(a)(3) (West 1994) (defining lawful custodian as the person or
persons granted legal custody of a child or entitled to physical
possession of the child pursuant to a court order). When the court
determines that an award of joint custody is an appropriate
arrangement, the Dissolution Act requires that the parents produce
for the court an agreement which specifies each parent's powers,
rights and responsibilities for the personal care of the child. See
750 ILCS 5/602.1 (West 1994). Unlike in the case of a divorced
custodial parent, the Dissolution Act does not mandate visitation
for joint custodial parents. See 750 ILCS 5/607 (West 1994) ("[a]
parent NOT granted custody of the child is entitled to reasonable
visitation rights" (emphasis added)); see also 750 ILCS 5/602.1
(West 1994). The concept of visitation is simply inapplicable in
the context of such an arrangement. It follows that because
visitation is not applicable within the context of the joint
custodial parent-child relationship, such individuals cannot commit
visitation interference against each other or be subject to
prescribed penalties for such conduct.
In sum, the purpose of the statute is to deter unlawful
interference with a noncustodial parent's visitation rights. In a
joint custody arrangement, each parent is a custodial parent and,
within the context of their parent-child relationship, neither has
the ability to commit unlawful visitation interference. Contrarily,
a divorced custodial parent, who does not share custody with the
noncustodial parent, is capable of committing such an offense.
Because divorced joint custodial parents have no relationship to
the purpose of the statute, they are not similarly situated to a
divorced custodial parent. Further, that the parent-child
relationship for divorced joint custodial parents is governed by a
parenting agreement is the result of those individuals'
relationship one with another, not the unlawful visitation
interference statute.
"Equal protection is the guarantee that similar people will be
dealt with in a similar manner and that people of different
circumstances will not be treated as if they were the same." 3 R.
Rotunda & J. Nowak, Treatise on Constitutional Law: Substance &
Procedure 18.2, at 8 (2d ed. 1992); see also People v. Esposito,
121 Ill. 2d 491, 500-01 (1988). The legislature is not restrained
from remedying a particular problem merely because that problem
exists for one group of individuals and not for another. Given that
a divorced custodial parent and divorced joint custodial parents
are not similarly situated for purposes of the act, equal
protection is not offended by their different treatment.
In the trial court, defendant advanced an additional equal
protection challenge. She there asserted that the unlawful
visitation interference statute was unconstitutional because the
statute gives a noncustodial parent the power to elect a civil or
criminal remedy for "visitation abuse" but a custodial parent is
limited to remedies afforded under the Dissolution Act.
Defendant's argument is flawed. Visitation abuse and unlawful
visitation interference are separate and distinct statutory
offenses. Under the unlawful visitation interference statute
noncustodial parents are given a criminal remedy for interference
with court ordered visitation. Under the Dissolution Act, both
custodial and noncustodial parents are given a civil remedy for
visitation abuse.
The Dissolution Act provides that visitation abuse occurs when
a party has: (1) denied another party visitation as provided for by
court order or (2) exercised his or her visitation rights in a
manner that is harmful to the child or the child's custodian. 750
ILCS 5/607.1(a) (West 1994). As is apparent, either a custodial or
a noncustodial parent may be aggrieved by visitation abuse.
Contrarily, only noncustodial parents can be aggrieved by
visitation interference. Simply put, defendant, unlike noncustodial
parents, is not entitled to a remedy for visitation interference
because she, unlike noncustodial parents, is not subject to be
offended by such conduct. As a custodial parent, visitation rights
are not applicable to her. See 750 ILCS 5/607(a) (West 1994).
We are aware that detention and concealment under the
interference statute may also constitute deprivation under the
abuse statute, thereby giving a noncustodial parent the option to
proceed either under the Dissolution Act or under the interference
statute. However, the fact that particular conduct by a defendant
presents a plaintiff with the opportunity to elect either a civil
or a criminal remedy does not in and of itself implicate equal
protection. As a practical matter, where visitation interference,
which might also constitute visitation abuse, is committed by a
person other than the custodial parent, the express remedies
provided under the Dissolution Act for abuse, which include, inter
alia, modification of the visitation order, would be ineffectual.
Nevertheless, equal protection is not offended by the availability
of an election.
We conclude that because the unlawful visitation interference
statute creates no classifications on its face and, further,
because defendant has failed to present any evidence to support a
finding of discriminatory purpose, she has failed to state an equal
protection claim. Further, we conclude that because a divorced
custodial parent is not similarly situated to divorced joint
custodial parents for purposes of the statute, equal protection is
not implicated. Finally, that an aggrieved party may elect either
a criminal or a civil remedy, does not, of itself, present an equal
protection concern.
Separation of Powers
Our constitution provides that the legislative, executive and
judicial branches of government are separate and that "[n]o branch
shall exercise powers properly belonging to another." Ill. Const.
1970, art. II, 1. Although judicial power is vested in the courts
(Ill. Const. 1970, art. VI, 1), the separation of powers provision
does not create rigid boundaries prohibiting every exercise of
functions by one branch of government which ordinarily are
exercised by another. People v. Walker, 119 Ill. 2d 465, 473-74
(1988). Thus, we have consistently recognized that the legislature,
which is vested with the power to enact laws, may also enact
legislation which governs judicial practices, as long as it does
not unduly infringe upon the powers of the court. People v.
Bainter, 126 Ill. 2d 292, 303 (1989).
The unlawful visitation interference statute provides that a
person shall not be subject to a civil contempt citation for the
same conduct for violating a visitation provision of a court order
issued under the Dissolution Act. 720 ILCS 5/10--5.5(h) (West
1994). Such a provision, the trial court ruled, is violative of
Illinois' separation of powers provision. We note a corresponding
provision in the Dissolution Act. See 750 ILCS 5/607.1 (West 1994).
In the trial court, defendant asserted the statute's
divestiture of the domestic relations division of the circuit
court's jurisdiction as the basis for her separation of powers
challenge. The trial court, however, did not pass on the substance
of that claim, basing its ruling, instead, on the statute's civil
contempt provision. Defendant has not pressed her jurisdiction
claim in this court. Because the trial court did not rule on
defendant's jurisdiction claim and, further, because defendant does
not assert the claim here, we do not address it. Consistent with
the trial court's ruling, defendant here urges that the statute's
restriction on the court's contempt powers is an unconstitutional
infringement on the judiciary.
A court is vested with inherent power to enforce its orders
and preserve its dignity by the use of contempt proceedings. In re
Baker, 71 Ill. 2d 480, 484 (1978) (citing cases). Such proceedings,
while usually characterized as civil or criminal, are, strictly
speaking, neither. They may best be described as sui generis, and
may partake of the features of either. People ex rel. Chicago Bar
Ass'n v. Barasch, 21 Ill. 2d 407, 409 (1961). Although there has
been continuing debate over the difficulty in distinguishing
between criminal and civil contempt (see International Union,
United Mine Workers of America v. Bagwell, 512 U.S. ____, ____ n.3,
129 L. Ed. 2d 642, 651 n.3, 114 S. Ct. 2552, 2557 n.3 (1994);
Barasch, 21 Ill. 2d at 409), there are particular features which
determine the nature of each.
Generally, civil contempt is recognized as a sanction or
penalty designed to compel future compliance with a court order.
See People v. Shukovsky, 128 Ill. 2d 210, 220 (1988). As such,
civil sanctions are considered to be coercive and avoidable through
obedience. Bagwell, 512 U.S. at ____, 129 L. Ed. 2d at 651, 114 U.S. at 2557. Criminal contempt, on the other hand, is punitive in
nature and is instituted to punish, as opposed to coerce, a
contemnor for past contumacious conduct. In re Marriage of Betts,
200 Ill. App. 3d 26, 43 (1990); see also Gompers v. Bucks Stove &
Range Co., 221 U.S. 418, 441, 55 L. Ed. 797, 806, 31 S. Ct. 492,
498 (1911); Shukovsky, 128 Ill. 2d at 220. In sum, civil contempt
occurs when the contemnor fails to do that which the court has
ordered, whereas criminal contempt consists of doing that which has
been prohibited. See Betts, 200 Ill. App. 3d at 43-45; see also R.
Johnston & K. Bry, An Overview of Illinois Contempt Law: A Court's
Inherent Power and the Appropriate Procedures and Sanctions, 26 J.
Marshall L. Rev. 223 (1993).
The State urges that the legislature has not impermissibly
infringed on a judicial function. It is the State's position that
the purpose of the legislative restriction is, properly, in
consideration of double jeopardy protections.
The State concedes that civil contempt does not implicate
double jeopardy concerns. See People v. Rodriguez, 162 Ill. App. 3d
149 (1987); People v. Doherty, 165 Ill. App. 3d 630 (1988); Small
v. Commonwealth of Virginia, 12 Va. App. 314, 398 S.E.2d 98 (1990);
see also Annotation, Contempt Finding as Precluding Substantive
Criminal Charges Relating to Same Transaction, 26 A.L.R.4th 950,
956 (1983) (citing cases where defendant was held in civil contempt
could subsequently be prosecuted on substantive criminal charges
for same actions which resulted in contempt sanction). Thus, to fit
the statute within the realm of permissible legislature action, the
State argues that the legislature's characterization of contempt as
"civil" is a misnomer and that the term "has no meaning."
Specifically, the State reasons, where a court imposes a
contempt sanction to punish past misconduct, the sanction is
characterized as criminal contempt. A contempt sanction for an
unlawful visitation interference case arises when a spouse is held
in contempt by a family court for noncompliance with a visitation
order. Sanctions are only likely to be imposed after the order has
been violated. It seems unlikely, the State argues, that a court
will enter a sanction designed to "coerce" the violating spouse
into future compliance with the visitation order to benefit the
nonviolating spouse. The State believes, instead, that if a
sanction is entered, it will be designed to punish the past
violation of the order, thereby showing the violator that the
court's orders should be taken seriously.
As a preliminary matter, we disagree with the State's
assessment of the legislature's use of the term "civil contempt."
When a statute employs words, such as these, which have well-known
legal significance, absent any contrary expression, courts assume
that the legislature intended the words to have that meaning.
People ex rel. Mayfield v. City of Springfield, 16 Ill. 2d 609, 615
(1959). We therefore presume that by use of the term "civil
contempt," the legislature meant "civil contempt" in its usual and
customary meaning.
In support of its criminal sanctions for past conduct
argument, the State invites our attention to People v. Totten, 118 Ill. 2d 124 (1987). Totten teaches that the exercise of this
court's power to impose criminal contempt sanctions must
necessarily yield to double jeopardy prohibitions. Totten, however,
is inapplicable here. As we have stated above, the statute
expressly restricts the court's civil contempt power. We do not
presume that the legislature meant otherwise.
The power to punish for contempt does not depend on
constitutional or legislature grant. Because such power inheres in
the judicial branch of government, the legislature may not restrict
its use. In re G.B., 88 Ill. 2d 36, 41 (1981); Baker, 71 Ill. 2d at
484; People ex rel. Rusch v. White, 334 Ill. 465, 484 (1929). We
hold, therefore, that the provision in the unlawful visitation
interference statute which prohibits the court's imposition of
civil contempt sanctions following a conviction for unlawful
visitation interference is an undue infringement on the court's
inherent powers. Furthermore, even assuming that such a sanction
would be, as the State argues, in the nature of criminal contempt,
we are not, in this case, prepared to surrender the court's
inherent authority over to legislative decisionmaking.
We are left then to consider the effect of the statute's
unconstitutional contempt provision on the balance of the act. In
so doing, we presume that the legislature intended to enact a
statute that was consistent with our constitution. Therefore, we
must give effect to as much of this statute as is possible,
consistent with our constitution. See Dornfeld v. Julian, 104 Ill. 2d 261, 266 (1984).
In appropriate cases, an invalid portion of a statute may be
severed from those portions which remain valid. Authority for
severability may be found either in a specific severability
provision of the particular statute or pursuant to a general
severability statute. See 5 ILCS 70/1.31 (West 1994). In either
case, the question of severability is essentially a question of
legislative intent. Russell Stewart Oil Co. v. State of Illinois,
124 Ill. 2d 116, 128 (1988); Springfield Rare Coin Galleries, Inc.
v. Johnson, 115 Ill. 2d 221, 237 (1986). In ascertaining
legislative intent, we recognize that general severability statutes
carry less weight than do even specific severability provisions.
People ex rel. Chicago Bar Ass'n v. State Board of Elections, 136 Ill. 2d 513, 532 (1990).
The unlawful visitation interference statute does not contain
a specific severability provision. Prior to simply applying our
general severability statute, we must determine whether severance
is possible. The governing test, as articulated in Fiorito v.
Jones, 39 Ill. 2d 531, 540-41 (1968) is:
"whether the valid and invalid provisions of the Act are
`so mutually "connected with and dependent on each other,
as conditions, considerations or compensations for each
other, as to warrant the belief that the legislature
intended them as a whole ***." ' [Citation.] The
provisions are not severable if `they are essentially and
inseparably connected in substance.' [Citation.]"
In addition to application of the Fiorito test, before a
severance provision can be given effect, the court must determine
whether the legislature would have passed the valid portions of the
statute absent the invalid portions. See State Board of Elections,
136 Ill. 2d at 534. If the legislature would not have passed the
statute with the invalid portion eliminated, the entire statute
must be held unconstitutional. People ex rel. Adamowski v. Wilson,
20 Ill. 2d 568, 582 (1960).
The primary purpose of the unlawful visitation interference
statute is to deter interference by any person with a noncustodial
parent's court ordered visitation. To that end, the statute (1)
defines the nature of the offense, (2) provides the procedures by
which a charge may be brought, (3) sets out the applicable
penalties, and (4) recites the available affirmative defenses.
Clearly, deterrence of visitation interference may be obtained by
operation of these separate provisions. The civil contempt
provision is not necessary to the achievement of that end. We
therefore find that the statute is complete and capable of being
executed wholly independently of the civil contempt provision.
The possibility of severance having been settled, we must next
determine whether the legislature would have enacted the statute
absent the contempt provision. For that purpose, we have considered
the legislative debates on the unlawful visitation interference
statute, previously known as House Bill 2139. There is no
indication from the debates that, but for the inclusion of the
contempt restriction, House Bill 2139 would have failed.
During the course of the senate debate on the bill, Senator
Cullerton pointed out that one of the bar association's concerns
about the bill was that, currently if a person interfered with the
visitation rights of another, he or she could either be held in
contempt of court or the aggrieved party could seek other nonpenal
remedies. Many people, Senator Cullerton stated, felt it
unnecessary to "go to a criminal route," as opposed to leaving such
matters within the judges' contempt powers. According to Senator
Cullerton, "[t]hat's why the Bar Association [was] opposed to the
bill." 88th Ill. Gen. Assem., Senate Proceedings, May 17, 1993, at
59-60 (statements of Senator Cullerton).
In further debate, Senator Berman questioned whether the
legislature could even interfere with the court's contempt power.
In response, Senator Woodyard, who characterized the provision in
terms of an amendment to the bill, stated that the amendment was
requested by the Illinois Bar Association. 88th Ill. Gen. Assem.,
Senate Proceedings, May 17, 1993, at 62, 63 (statements of Senators
Berman and Woodyard).
As is apparent from the debates, the legislature had no vested
interest in the inclusion of the civil contempt provision in the
statute. In point of fact, the legislature deemed such a
restriction to be problematic and, indeed, questioned its authority
to so restrict. Based upon our reading of the debates, we conclude
that the legislature would have passed the unlawful visitation
interference statute without the invalid contempt restriction
portion.
In sum, the intent of the legislature may be given effect
without the invalid civil contempt provision. Further, we perceive
from the legislative debates that the legislature would have passed
this bill without the invalid portion. Therefore, pursuant to the
general severability statute (5 ILCS 70/1.31 (West 1994)), we sever
that portion of the unlawful visitation interference statute which
restricts the court's contempt power (720 ILCS 5/10--5.5(h) (West
1994)) and leave intact the balance of the statute.
Other Claims
As a final challenge, the trial court noted that the statute,
by making the first two offenses for unlawful visitation
interference petty offenses, may allow the custodial parent to buy
out the other parents's visitation for the petty offense bond of
$75. The court did not indicate in what manner the constitutional
guarantees are offended by this supposed conduct and defendant does
not advance the argument here on appeal. At any rate, that
individuals find a way to manipulate the statute or to defeat its
intended purpose does not implicate a constitutional infirmity.
CONCLUSION
We find that the unlawful visitation interference statute is
not unconstitutionally vague or violative of equal protection. That
portion of the statute which restricts the court's inherent
contempt powers is an undue infringement and, therefore, violative
of separation of powers. Therefore, the civil contempt provision of
the statute, section 10--5.5(h), is severed, and the balance of the
statute is left intact.
Accordingly, we affirm in part and reverse in part the
judgment of the circuit court and remand this cause to the circuit
court for further proceedings.
Circuit court affirmed in part and
reversed in part;
cause remanded.
the filing of the opinion to request a rehearing. Also, opinions
are subject to modification, correction or withdrawal at anytime
prior to issuance of the mandate by the Clerk of the Court.
Therefore, because the following slip opinion is being made
available prior to the Court's final action in this matter, it
cannot be considered the final decision of the Court. The
official copy of the following opinion will be published by the
Supreme Court's Reporter of Decisions in the Official Reports
advance sheets following final action by the Court.
Docket No. 79680--Agenda 7--May 1996.
THE PEOPLE OF THE STATE OF ILLINOIS, Appellant, v. STEPHANIE J.
WARREN, Appellee.
Opinion filed September 26, 1996.
JUSTICE FREEMAN delivered the opinion of the court:
Defendant, Stephanie Warren, was charged by information in the
circuit court of Bureau County with "unlawful interference with
child visitation rights per court order" in violation of section
10--5.5 of the Criminal Code of 1961 (720 ILCS 5/10--5.5 (West
1994)). Defendant moved for dismissal of the information on the
grounds that the instrument was insufficient and that the statute
was unconstitutional. The circuit court, finding the statute
unconstitutional, granted defendant's motion. The State appealed
directly to this court. 134 Ill. 2d R. 603. We now reverse in part,
affirm in part and remand for further proceedings.
BACKGROUND
The facts may be briefly stated as follows. On June 28, 1995,
a complaint was filed against defendant for violating the unlawful
visitation interference statute. The complaint charged that
"defendant did unlawfully detain a child with the intent to deprive
Rick Warren with visitation rights in violation of an existing
court order." Further, the complaint ordered defendant's appearance
in court on July 7, 1995.
On July 7, defendant filed a motion to dismiss the complaint
on the basis that it failed to allege sufficient facts to inform
her of the exact nature of the alleged offense and, further, that
the statute alleged to have been violated, itself, violated the
separation of powers clause of the Illinois Constitution of 1970
(Ill. Const. 1970, art. II, 1) and the due process and equal
protection clauses of the Illinois and federal constitutions (Ill.
Const. 1970, art. I, 2; U.S. Const., amends. V, XIV).
On August 14, 1995, a criminal information was filed amending
the complaint to read that "defendant knowingly detained her
daughter with the intent to deprive Richard Warren of his
visitation rights in violation of visitation provision in Bureau
County Court Order cause number 93--D--3."
After a hearing on defendant's motion, the trial court
declared the statute unconstitutionally vague and violative of
equal protection, due process and separation of powers.
Accordingly, the court dismissed the complaint.
DISCUSSION
The singular issue presented for our review is whether the
trial court erred in finding the unlawful visitation interference
statute unconstitutional. The statute provides, in relevant part:
"(b) Every person who, in violation of the
visitation provisions of a court order relating to child
custody, detains or conceals a child with the intent to
deprive another person of his or her rights to visitation
shall be guilty of unlawful visitation interference.
***
(d) Any law enforcement officer who has probable
cause to believe that a person has committed or is
committing an act in violation of this Section shall
issue to that person a notice to appear.
* * *
(g) It is an affirmative defense that:
(1) a person or lawful custodian committed the
act to protect the child from imminent physical
harm, provided that the defendant's belief that
there was physical harm imminent was reasonable and
that the defendant's conduct in withholding
visitation rights was a reasonable response to the
harm believed imminent;
(2) the act was committed with the mutual
consent of all parties having a right to custody
and visitation of the child; or
(3) the act was otherwise authorized by law.
(h) A person convicted of unlawful visitation
interference shall not be subject to a civil contempt
citation for the same conduct for violating visitation
provisions of a court order issued under the Illinois
Marriage and Dissolution of Marriage Act." 720 ILCS 5/10-
-5.5 (West 1994).
Initially, we note that a statute enjoys a strong presumption
of constitutionality and the challenging party bears the burden of
establishing its invalidity. People v. P.H., 145 Ill. 2d 209, 233
(1991). Our duty, if it can reasonably be done, is to construe
enactments so as to sustain their constitutionality and validity.
People v. Davis, 93 Ill. 2d 155, 161 (1982). Where construction is
doubtful, such doubt will be resolved in favor of the validity of
the challenged provision. People v. Bales, 108 Ill. 2d 182, 188
(1985), quoting Continental Illinois National Bank & Trust Co. v.
Illinois State Toll Highway Comm'n, 42 Ill. 2d 385, 389 (1969).
Further, whether a statute is wise or desirable is not a concern
for the court. Rather, it is wholly for the legislature to balance
the advantages and disadvantages of legislation. Braeburn
Securities Corp. v. Smith, 15 Ill. 2d 55, 59 (1958); People ex rel.
Chicago Dental Society v. A.A.A. Dental Laboratories, Inc., 8 Ill. 2d 330, 334 (1956). That the court might regard certain provisions
as unnecessary is immaterial to the constitutionality inquiry. See
A.A.A. Dental Laboratories, Inc., 8 Ill. 2d at 334. With these
principles in mind, we consider the various challenges to the
constitutionality of section 10--5.5, the unlawful visitation
interference statute.
Vagueness
Due process demands that a statute must not be so vague that
persons of common intelligence must necessarily guess at either its
meaning or its application. People v. Hickman, 163 Ill. 2d 250, 256
(1994). That is not to suggest, however, that mathematical
certainty in language is required. People v. Fabing, 143 Ill. 2d 48, 53 (1991). Where the statute does not impinge on first
amendment rights, due process is satisfied if: (1) the statute's
prohibitions are sufficiently definite, when measured by common
understanding and practices, to give a person of ordinary
intelligence fair warning as to what conduct is prohibited, and (2)
the statute provides sufficiently definite standards for law
enforcement officers and triers of fact that its application does
not depend merely on their private conceptions. Hickman, 163 Ill. 2d at 256-57.
The trial court held that the statute was vague and uncertain
in two regards. The court first noted that the confusion begins
with the words "unlawful visitation." The court observed that very
few crimes have a "redundant unlawful" in front of the title. "We
do not have unlawful murder or unlawful battery." The term
"visitation interference" alone, the court noted, connotes
visitation misconduct.
Defendant asserted no vagueness challenge below. In her
responsive brief here, however, she contends that the statute lacks
definite standards and is susceptible to multiple interpretations
with multiple possible results.
We disagree with both the trial court's and defendant's
assessment of the statute. The term "unlawful visitation" appears
as part of the title as well as in the text of the provision. In
construing a statute, every part, including its title, must be
considered together. People v. Hetzel, 243 Ill. App. 3d 83, 85
(1993), citing Wilcoxen v. Paige, 174 Ill. App. 3d 541 (1988).
Viewing the language of the unlawful visitation interference
statute as a whole, we believe that a person of fair intelligence
is given fair warning as to what conduct is proscribed. The
allegations in the information charging the defendant indicate that
defendant committed the offense of unlawful visitation interference
in that she knowingly detained her daughter with the intent to
deprive Richard Warren of his visitation rights, in violation of
visitation set forth in the Bureau County court order in cause
number 93--D--3. The nature of the offense is clearly stated in
terms commonly used and understood.
Secondly, the statute provides sufficient guidelines for its
proper application. In that regard, we note that the statute
requires for the issuance of a notice to appear that a police
officer have probable cause to believe that a person has violated
the terms of a visitation order. 720 ILCS 5/10--5.5(d) (West 1994).
A notice to appear, as was used in this case, is a means by which
a person may be brought before the court without the inconvenience
of immediate arrest. 1 Ill. Jur. Criminal Law & Procedure 5:07, at
418 (1992). Such a notice may be issued whenever a peace officer
has probable cause to make a warrantless arrest. See 725 ILCS
5/107--12 (West 1994).
In the context of a warrantless arrest, probable cause exists
when the officer has reasonable grounds to believe that the person
is committing or has committed an offense. People v. Tisler, 103 Ill. 2d 226, 236-37 (1984), citing People v. Wright, 56 Ill. 2d 523, 528-29 (1974), quoting Brinegar v. United States, 338 U.S. 160, 175-76, 93 L. Ed. 1879, 1890, 69 S. Ct. 1302, 1310-11 (1949).
To determine whether a warrantless arrest meets the "reasonable-
grounds/probable-cause requirement, the trial court must decide
whether `a reasonable and prudent man, having the knowledge
possessed by the officer at the time of the arrest, would believe
the defendant committed the offense.' " Tisler, 103 Ill. 2d at 237,
quoting People v. Wright, 41 Ill. 2d 170, 174 (1968). The statute's
probable cause requirement, then, comports with fourth amendment
safeguards. Clearly, mere unsupported allegations by a complainant
are insufficient to support even the issuance of a notice to
appear.
Given the requirements under the statute, it is clear that
law enforcement officials are not dependent, for application of the
statute, on their private conceptions. Whether probable cause for
notice to appear in fact exists, a concern expressed by defense
counsel at oral argument, is not relevant to the vagueness inquiry.
It is sufficient for due process that the statute provides adequate
guidelines to eliminate arbitrary or discriminatory application.
Defendant, in her brief, offers a series of questions, the
answers to which she suggests are necessary to the vagueness
determination. She posits, for example: Is visitation interference
measured in minutes, hours or days from the time visitation is to
commence? Is detention measured in hours, minutes, or days? Could
a baby-sitter, acting at the behest of the custodial parent, be
subject to a charge for a violation of the statute?
We would remind defendant that the vagueness determination is
made in the factual context of each case in light of the particular
facts at hand. People v. Garrison, 82 Ill. 2d 444, 454 (1980).
Nothing in the record suggests that the scenarios proposed by
defendant are present in the case now before us. Moreover, "[t]hat
there may be marginal cases in which it is difficult to determine,
under a particular fact situation, whether conduct is within an
enactment is not reason to hold that the language of the law is too
ambiguous to define the duties and conditions involved.
[Citations]." City of Decatur v. Kushmer, 43 Ill. 2d 334, 336
(1969). Further, defendant may not simply conjure up hypothetical
situations in which the statutory standards might conceivably be
unconstitutionally vague. Garrison, 82 Ill. 2d at 456.
As its second vagueness challenge, the trial court found the
affirmative defenses provided in the statute confusing. Concerning
section 10--5.5(g)(2) (720 ILCS 5/10--5.5(g)(2) (West 1994)), the
mutual agreement defense, the court stated that the language
suggests that certain parties might agree to commit an offense and
that their agreement be a defense. The court also questioned the
meaning of section 10--5.5(g)(3), the "otherwise authorized by law"
defense (720 ILCS 5/10--5.5(g)(3) (West 1994)). Incidentally,
defendant did not assert an affirmative defense, nor is there any
suggestion that such a defense would have been available. On
appeal, defendant, nonetheless, echoes the trial court's concerns.
We perceive the trial court's concern to rest more with the
operation and effect of the mutual consent provision than with the
provision's clarity. Again, we disagree with both the trial court's
and defendant's assessment of the provision. Section 10--5.5(g)(2)
essentially provides that mutual consent of the parties will excuse
an interference with a visitation order. The criminal conduct
proscribed under this statute is detention or concealment with the
intent to deprive another of his or her visitation rights. Section
10--5.5(g)(2) merely gives recognition to the fact that fixed terms
for visitation must sometimes yield to scheduling conflicts and
other intervening factors. As a practical matter, where the
necessary parties mutually agree, the requisite intent to deprive
is negated, noncompliance with the court order is excused, and no
offense has been committed. Thus, by their mutual assent, the
parties have avoided, not agreed to, the commission of a criminal
offense.
At any rate, the manner in which the affirmative defense
operates does not render the statute's language unconstitutionally
vague. It is sufficient for purposes of due process that the
parties understand that mutual consent is available as a defense to
a charge of unlawful visitation interference.
Finally, we do not find the phrase "otherwise authorized by
law" unconstitutionally vague. Without resort even to the most
common definitional source, we understand "otherwise authorized by
law" to mean simply that the conduct in detaining or concealing a
child is, for reasons not expressly provided by the act,
permissible by law. Further, we perceive no difficulty, and
defendant points to none, in the application of the defense by
judges and juries.
Defendant has failed to meet her burden of establishing the
due process violation alleged to exist in section 10--5.5. We find
that the statute does not fail for vagueness.
Due Process and Equal Protection
In her motion to dismiss, defendant asserted that the statute
deprived her of "substantive due process" in that she, as a
divorced person with minor children, is subject to treatment in a
different fashion than are people who (1) are married and have
children, (2) were never married and have children and (3) are
divorced and have joint custody of their children. In its dismissal
order, the trial court stated, without more, that defendant's equal
protection and due process arguments were well taken.
The State, in its appellate brief, initially notes that
defendant's disparate treatment claim is incorrectly characterized
as a due process claim. The State suggests that the substance of
defendant's claim concerns, instead, equal protection. We, as
apparently does defendant, agree with the State. Due process
concerns fairness between the State and the individual dealing with
the State, regardless of how other similarly situated persons may
be treated. Evitts v. Lucey, 469 U.S. 387, 405, 83 L. Ed. 2d 821,
836, 105 S. Ct. 830, 841 (1985), quoting Ross v. Moffitt, 417 U.S. 600, 609, 41 L. Ed. 2d 341, 350, 94 S. Ct. 2437, 2443 (1974). In
her responsive brief, defendant has recharacterized her disparate
treatment claim as one for equal protection. Further, defendant has
confined her argument to a comparison of treatment given a divorced
custodial parent versus that given divorced joint custodial parents
under the statute.
The constitutional right to equal protection of the law
guarantees that the State must treat similarly situated persons in
a similar manner. People v. Kimbrough, 163 Ill. 2d 231, 237 (1994).
The clause does not deny the State the power to treat different
classes of persons in different ways. People v. Shephard, 152 Ill. 2d 489, 499 (1992). Simply stated, the guarantee prohibits the
State from statutorily dividing persons into different classes and
providing for different treatment of each class for reasons wholly
unrelated to the purpose of the legislation. People v. Reed, 148 Ill. 2d 1, 7 (1992).
Defendant argues that individuals who have been granted joint
custody and are party to a joint parenting agreement pursuant to
the Illinois Marriage and Dissolution of Marriage Act (Dissolution
Act) (750 ILCS 5/602(b) (West 1994)) could never come within the
purview of the visitation interference statute. For these
individuals, disputes and alleged breaches of the agreement may be
mediated or otherwise resolved. Contrarily, a divorced custodial
parent, like defendant, is subject to the terms of a visitation
order and is subject either to indirect criminal contempt or
criminal prosecution for violation of a visitation order. Such
disparate treatment, defendant maintains, amounts to an equal
protection violation.
The crux of defendant's claim is that the statute unfairly
burdens a divorced custodial parent with a criminal penalty for
unlawful visitation interference while divorced joint custodial
parents, in the context of their parent-child relationships, are
permitted the opportunity to mediate their disputes. It is apparent
from the scope of defendant's argument that she perceives operation
of the statute to be narrowly confined to conduct only by divorced
parents within the context of their parent-child relationships. The
act, which covers "every person" who commits the offense of
visitation interference and provides an affirmative defense for "a
person or lawful custodian" is not so limited. The law is neutral
on its face, including within its coverage any individual,
including one who may be a stranger to the parent-child
relationship, i.e., grandparents, a neighbor, even a baby-sitter.
To subject a statute to any form of equal protection review,
the party challenging the law must show that it classifies persons
in some manner. People v. Wegielnik, 152 Ill. 2d 418, 428-29
(1992), citing 2 R. Rotunda, J. Nowak & J. Young, Treatise on
Constitutional Law: Substance & Procedure 18.4, at 343-44 (1986).
To show that a law, neutral on its face, violates equal protection,
the defendant must show that the statute was enacted for a
discriminatory purpose. Wegielnik, 152 Ill. 2d at 429. Defendant
has neither alleged a discriminatory purpose nor provided any
evidence which would support such a finding. We therefore reject
her equal protection claim.
Moreover, defendant, as a divorced custodial parent, is not
similarly situated to divorced joint custodial parents. At first
blush, because these individuals share some common traits, they may
appear similarly situated. However, for equal protection purposes,
a determination that individuals are similarly situated cannot be
made in the abstract. Usually, that determination can only be made
by considering the end or purpose of the particular legislation.
Once a court has identified an end of government which does not in
itself offend the Constitution, it can then analyze the manner in
which the government has classified persons in terms of that end.
3 R. Rotunda & J. Nowak, Treatise on Constitutional Law: Substance
& Procedure 18.2, at 9 (2d ed. 1992).
Visitation is a right or permission granted to a noncustodial
parent to visit with his or her child. See 750 ILCS 5/607(a) (West
1994). The welfare of a child usually requires that a parent who
does not have custody of their child be given liberal visitation
rights in order to assure that the child will not be estranged from
that parent. McManus v. McManus, 38 Ill. App. 3d 645 (1976); see
also 750 ILCS 5/607(a) (West 1994). The purpose of the unlawful
visitation interference statute is to provide a remedy for and to
deter violations of interference by any person, including the
child's custodial parent, with a noncustodial parent's right to
visitation.
Traits common to both a divorced custodial parent and divorced
joint custodial parents are marital status and parentage. Neither
of these traits, however, is relevant to the purposes of the act.
The statute operates irrespective of marital status, and because it
covers "every person," its operation on defendants is also
irrespective of parentage. The single, significant trait for
purposes of the statute is the capability to interfere with
visitation. It is this trait which renders a divorced custodial
parent, who has the capability to interfere with court ordered
visitation, dissimilar to divorced joint custodial parents.
As the phrase "joint custodial parents" suggests, these
individuals share custody of their children. See 720 ILCS 5/10--
5(a)(3) (West 1994) (defining lawful custodian as the person or
persons granted legal custody of a child or entitled to physical
possession of the child pursuant to a court order). When the court
determines that an award of joint custody is an appropriate
arrangement, the Dissolution Act requires that the parents produce
for the court an agreement which specifies each parent's powers,
rights and responsibilities for the personal care of the child. See
750 ILCS 5/602.1 (West 1994). Unlike in the case of a divorced
custodial parent, the Dissolution Act does not mandate visitation
for joint custodial parents. See 750 ILCS 5/607 (West 1994) ("[a]
parent NOT granted custody of the child is entitled to reasonable
visitation rights" (emphasis added)); see also 750 ILCS 5/602.1
(West 1994). The concept of visitation is simply inapplicable in
the context of such an arrangement. It follows that because
visitation is not applicable within the context of the joint
custodial parent-child relationship, such individuals cannot commit
visitation interference against each other or be subject to
prescribed penalties for such conduct.
In sum, the purpose of the statute is to deter unlawful
interference with a noncustodial parent's visitation rights. In a
joint custody arrangement, each parent is a custodial parent and,
within the context of their parent-child relationship, neither has
the ability to commit unlawful visitation interference. Contrarily,
a divorced custodial parent, who does not share custody with the
noncustodial parent, is capable of committing such an offense.
Because divorced joint custodial parents have no relationship to
the purpose of the statute, they are not similarly situated to a
divorced custodial parent. Further, that the parent-child
relationship for divorced joint custodial parents is governed by a
parenting agreement is the result of those individuals'
relationship one with another, not the unlawful visitation
interference statute.
"Equal protection is the guarantee that similar people will be
dealt with in a similar manner and that people of different
circumstances will not be treated as if they were the same." 3 R.
Rotunda & J. Nowak, Treatise on Constitutional Law: Substance &
Procedure 18.2, at 8 (2d ed. 1992); see also People v. Esposito,
121 Ill. 2d 491, 500-01 (1988). The legislature is not restrained
from remedying a particular problem merely because that problem
exists for one group of individuals and not for another. Given that
a divorced custodial parent and divorced joint custodial parents
are not similarly situated for purposes of the act, equal
protection is not offended by their different treatment.
In the trial court, defendant advanced an additional equal
protection challenge. She there asserted that the unlawful
visitation interference statute was unconstitutional because the
statute gives a noncustodial parent the power to elect a civil or
criminal remedy for "visitation abuse" but a custodial parent is
limited to remedies afforded under the Dissolution Act.
Defendant's argument is flawed. Visitation abuse and unlawful
visitation interference are separate and distinct statutory
offenses. Under the unlawful visitation interference statute
noncustodial parents are given a criminal remedy for interference
with court ordered visitation. Under the Dissolution Act, both
custodial and noncustodial parents are given a civil remedy for
visitation abuse.
The Dissolution Act provides that visitation abuse occurs when
a party has: (1) denied another party visitation as provided for by
court order or (2) exercised his or her visitation rights in a
manner that is harmful to the child or the child's custodian. 750
ILCS 5/607.1(a) (West 1994). As is apparent, either a custodial or
a noncustodial parent may be aggrieved by visitation abuse.
Contrarily, only noncustodial parents can be aggrieved by
visitation interference. Simply put, defendant, unlike noncustodial
parents, is not entitled to a remedy for visitation interference
because she, unlike noncustodial parents, is not subject to be
offended by such conduct. As a custodial parent, visitation rights
are not applicable to her. See 750 ILCS 5/607(a) (West 1994).
We are aware that detention and concealment under the
interference statute may also constitute deprivation under the
abuse statute, thereby giving a noncustodial parent the option to
proceed either under the Dissolution Act or under the interference
statute. However, the fact that particular conduct by a defendant
presents a plaintiff with the opportunity to elect either a civil
or a criminal remedy does not in and of itself implicate equal
protection. As a practical matter, where visitation interference,
which might also constitute visitation abuse, is committed by a
person other than the custodial parent, the express remedies
provided under the Dissolution Act for abuse, which include, inter
alia, modification of the visitation order, would be ineffectual.
Nevertheless, equal protection is not offended by the availability
of an election.
We conclude that because the unlawful visitation interference
statute creates no classifications on its face and, further,
because defendant has failed to present any evidence to support a
finding of discriminatory purpose, she has failed to state an equal
protection claim. Further, we conclude that because a divorced
custodial parent is not similarly situated to divorced joint
custodial parents for purposes of the statute, equal protection is
not implicated. Finally, that an aggrieved party may elect either
a criminal or a civil remedy, does not, of itself, present an equal
protection concern.
Separation of Powers
Our constitution provides that the legislative, executive and
judicial branches of government are separate and that "[n]o branch
shall exercise powers properly belonging to another." Ill. Const.
1970, art. II, 1. Although judicial power is vested in the courts
(Ill. Const. 1970, art. VI, 1), the separation of powers provision
does not create rigid boundaries prohibiting every exercise of
functions by one branch of government which ordinarily are
exercised by another. People v. Walker, 119 Ill. 2d 465, 473-74
(1988). Thus, we have consistently recognized that the legislature,
which is vested with the power to enact laws, may also enact
legislation which governs judicial practices, as long as it does
not unduly infringe upon the powers of the court. People v.
Bainter, 126 Ill. 2d 292, 303 (1989).
The unlawful visitation interference statute provides that a
person shall not be subject to a civil contempt citation for the
same conduct for violating a visitation provision of a court order
issued under the Dissolution Act. 720 ILCS 5/10--5.5(h) (West
1994). Such a provision, the trial court ruled, is violative of
Illinois' separation of powers provision. We note a corresponding
provision in the Dissolution Act. See 750 ILCS 5/607.1 (West 1994).
In the trial court, defendant asserted the statute's
divestiture of the domestic relations division of the circuit
court's jurisdiction as the basis for her separation of powers
challenge. The trial court, however, did not pass on the substance
of that claim, basing its ruling, instead, on the statute's civil
contempt provision. Defendant has not pressed her jurisdiction
claim in this court. Because the trial court did not rule on
defendant's jurisdiction claim and, further, because defendant does
not assert the claim here, we do not address it. Consistent with
the trial court's ruling, defendant here urges that the statute's
restriction on the court's contempt powers is an unconstitutional
infringement on the judiciary.
A court is vested with inherent power to enforce its orders
and preserve its dignity by the use of contempt proceedings. In re
Baker, 71 Ill. 2d 480, 484 (1978) (citing cases). Such proceedings,
while usually characterized as civil or criminal, are, strictly
speaking, neither. They may best be described as sui generis, and
may partake of the features of either. People ex rel. Chicago Bar
Ass'n v. Barasch, 21 Ill. 2d 407, 409 (1961). Although there has
been continuing debate over the difficulty in distinguishing
between criminal and civil contempt (see International Union,
United Mine Workers of America v. Bagwell, 512 U.S. ____, ____ n.3,
129 L. Ed. 2d 642, 651 n.3, 114 S. Ct. 2552, 2557 n.3 (1994);
Barasch, 21 Ill. 2d at 409), there are particular features which
determine the nature of each.
Generally, civil contempt is recognized as a sanction or
penalty designed to compel future compliance with a court order.
See People v. Shukovsky, 128 Ill. 2d 210, 220 (1988). As such,
civil sanctions are considered to be coercive and avoidable through
obedience. Bagwell, 512 U.S. at ____, 129 L. Ed. 2d at 651, 114 U.S. at 2557. Criminal contempt, on the other hand, is punitive in
nature and is instituted to punish, as opposed to coerce, a
contemnor for past contumacious conduct. In re Marriage of Betts,
200 Ill. App. 3d 26, 43 (1990); see also Gompers v. Bucks Stove &
Range Co., 221 U.S. 418, 441, 55 L. Ed. 797, 806, 31 S. Ct. 492,
498 (1911); Shukovsky, 128 Ill. 2d at 220. In sum, civil contempt
occurs when the contemnor fails to do that which the court has
ordered, whereas criminal contempt consists of doing that which has
been prohibited. See Betts, 200 Ill. App. 3d at 43-45; see also R.
Johnston & K. Bry, An Overview of Illinois Contempt Law: A Court's
Inherent Power and the Appropriate Procedures and Sanctions, 26 J.
Marshall L. Rev. 223 (1993).
The State urges that the legislature has not impermissibly
infringed on a judicial function. It is the State's position that
the purpose of the legislative restriction is, properly, in
consideration of double jeopardy protections.
The State concedes that civil contempt does not implicate
double jeopardy concerns. See People v. Rodriguez, 162 Ill. App. 3d
149 (1987); People v. Doherty, 165 Ill. App. 3d 630 (1988); Small
v. Commonwealth of Virginia, 12 Va. App. 314, 398 S.E.2d 98 (1990);
see also Annotation, Contempt Finding as Precluding Substantive
Criminal Charges Relating to Same Transaction, 26 A.L.R.4th 950,
956 (1983) (citing cases where defendant was held in civil contempt
could subsequently be prosecuted on substantive criminal charges
for same actions which resulted in contempt sanction). Thus, to fit
the statute within the realm of permissible legislature action, the
State argues that the legislature's characterization of contempt as
"civil" is a misnomer and that the term "has no meaning."
Specifically, the State reasons, where a court imposes a
contempt sanction to punish past misconduct, the sanction is
characterized as criminal contempt. A contempt sanction for an
unlawful visitation interference case arises when a spouse is held
in contempt by a family court for noncompliance with a visitation
order. Sanctions are only likely to be imposed after the order has
been violated. It seems unlikely, the State argues, that a court
will enter a sanction designed to "coerce" the violating spouse
into future compliance with the visitation order to benefit the
nonviolating spouse. The State believes, instead, that if a
sanction is entered, it will be designed to punish the past
violation of the order, thereby showing the violator that the
court's orders should be taken seriously.
As a preliminary matter, we disagree with the State's
assessment of the legislature's use of the term "civil contempt."
When a statute employs words, such as these, which have well-known
legal significance, absent any contrary expression, courts assume
that the legislature intended the words to have that meaning.
People ex rel. Mayfield v. City of Springfield, 16 Ill. 2d 609, 615
(1959). We therefore presume that by use of the term "civil
contempt," the legislature meant "civil contempt" in its usual and
customary meaning.
In support of its criminal sanctions for past conduct
argument, the State invites our attention to People v. Totten, 118 Ill. 2d 124 (1987). Totten teaches that the exercise of this
court's power to impose criminal contempt sanctions must
necessarily yield to double jeopardy prohibitions. Totten, however,
is inapplicable here. As we have stated above, the statute
expressly restricts the court's civil contempt power. We do not
presume that the legislature meant otherwise.
The power to punish for contempt does not depend on
constitutional or legislature grant. Because such power inheres in
the judicial branch of government, the legislature may not restrict
its use. In re G.B., 88 Ill. 2d 36, 41 (1981); Baker, 71 Ill. 2d at
484; People ex rel. Rusch v. White, 334 Ill. 465, 484 (1929). We
hold, therefore, that the provision in the unlawful visitation
interference statute which prohibits the court's imposition of
civil contempt sanctions following a conviction for unlawful
visitation interference is an undue infringement on the court's
inherent powers. Furthermore, even assuming that such a sanction
would be, as the State argues, in the nature of criminal contempt,
we are not, in this case, prepared to surrender the court's
inherent authority over to legislative decisionmaking.
We are left then to consider the effect of the statute's
unconstitutional contempt provision on the balance of the act. In
so doing, we presume that the legislature intended to enact a
statute that was consistent with our constitution. Therefore, we
must give effect to as much of this statute as is possible,
consistent with our constitution. See Dornfeld v. Julian, 104 Ill. 2d 261, 266 (1984).
In appropriate cases, an invalid portion of a statute may be
severed from those portions which remain valid. Authority for
severability may be found either in a specific severability
provision of the particular statute or pursuant to a general
severability statute. See 5 ILCS 70/1.31 (West 1994). In either
case, the question of severability is essentially a question of
legislative intent. Russell Stewart Oil Co. v. State of Illinois,
124 Ill. 2d 116, 128 (1988); Springfield Rare Coin Galleries, Inc.
v. Johnson, 115 Ill. 2d 221, 237 (1986). In ascertaining
legislative intent, we recognize that general severability statutes
carry less weight than do even specific severability provisions.
People ex rel. Chicago Bar Ass'n v. State Board of Elections, 136 Ill. 2d 513, 532 (1990).
The unlawful visitation interference statute does not contain
a specific severability provision. Prior to simply applying our
general severability statute, we must determine whether severance
is possible. The governing test, as articulated in Fiorito v.
Jones, 39 Ill. 2d 531, 540-41 (1968) is:
"whether the valid and invalid provisions of the Act are
`so mutually "connected with and dependent on each other,
as conditions, considerations or compensations for each
other, as to warrant the belief that the legislature
intended them as a whole ***." ' [Citation.] The
provisions are not severable if `they are essentially and
inseparably connected in substance.' [Citation.]"
In addition to application of the Fiorito test, before a
severance provision can be given effect, the court must determine
whether the legislature would have passed the valid portions of the
statute absent the invalid portions. See State Board of Elections,
136 Ill. 2d at 534. If the legislature would not have passed the
statute with the invalid portion eliminated, the entire statute
must be held unconstitutional. People ex rel. Adamowski v. Wilson,
20 Ill. 2d 568, 582 (1960).
The primary purpose of the unlawful visitation interference
statute is to deter interference by any person with a noncustodial
parent's court ordered visitation. To that end, the statute (1)
defines the nature of the offense, (2) provides the procedures by
which a charge may be brought, (3) sets out the applicable
penalties, and (4) recites the available affirmative defenses.
Clearly, deterrence of visitation interference may be obtained by
operation of these separate provisions. The civil contempt
provision is not necessary to the achievement of that end. We
therefore find that the statute is complete and capable of being
executed wholly independently of the civil contempt provision.
The possibility of severance having been settled, we must next
determine whether the legislature would have enacted the statute
absent the contempt provision. For that purpose, we have considered
the legislative debates on the unlawful visitation interference
statute, previously known as House Bill 2139. There is no
indication from the debates that, but for the inclusion of the
contempt restriction, House Bill 2139 would have failed.
During the course of the senate debate on the bill, Senator
Cullerton pointed out that one of the bar association's concerns
about the bill was that, currently if a person interfered with the
visitation rights of another, he or she could either be held in
contempt of court or the aggrieved party could seek other nonpenal
remedies. Many people, Senator Cullerton stated, felt it
unnecessary to "go to a criminal route," as opposed to leaving such
matters within the judges' contempt powers. According to Senator
Cullerton, "[t]hat's why the Bar Association [was] opposed to the
bill." 88th Ill. Gen. Assem., Senate Proceedings, May 17, 1993, at
59-60 (statements of Senator Cullerton).
In further debate, Senator Berman questioned whether the
legislature could even interfere with the court's contempt power.
In response, Senator Woodyard, who characterized the provision in
terms of an amendment to the bill, stated that the amendment was
requested by the Illinois Bar Association. 88th Ill. Gen. Assem.,
Senate Proceedings, May 17, 1993, at 62, 63 (statements of Senators
Berman and Woodyard).
As is apparent from the debates, the legislature had no vested
interest in the inclusion of the civil contempt provision in the
statute. In point of fact, the legislature deemed such a
restriction to be problematic and, indeed, questioned its authority
to so restrict. Based upon our reading of the debates, we conclude
that the legislature would have passed the unlawful visitation
interference statute without the invalid contempt restriction
portion.
In sum, the intent of the legislature may be given effect
without the invalid civil contempt provision. Further, we perceive
from the legislative debates that the legislature would have passed
this bill without the invalid portion. Therefore, pursuant to the
general severability statute (5 ILCS 70/1.31 (West 1994)), we sever
that portion of the unlawful visitation interference statute which
restricts the court's contempt power (720 ILCS 5/10--5.5(h) (West
1994)) and leave intact the balance of the statute.
Other Claims
As a final challenge, the trial court noted that the statute,
by making the first two offenses for unlawful visitation
interference petty offenses, may allow the custodial parent to buy
out the other parents's visitation for the petty offense bond of
$75. The court did not indicate in what manner the constitutional
guarantees are offended by this supposed conduct and defendant does
not advance the argument here on appeal. At any rate, that
individuals find a way to manipulate the statute or to defeat its
intended purpose does not implicate a constitutional infirmity.
CONCLUSION
We find that the unlawful visitation interference statute is
not unconstitutionally vague or violative of equal protection. That
portion of the statute which restricts the court's inherent
contempt powers is an undue infringement and, therefore, violative
of separation of powers. Therefore, the civil contempt provision of
the statute, section 10--5.5(h), is severed, and the balance of the
statute is left intact.
Accordingly, we affirm in part and reverse in part the
judgment of the circuit court and remand this cause to the circuit
court for further proceedings.
Circuit court affirmed in part and
reversed in part;
cause remanded.
Some case metadata and case summaries were written with the help of AI, which can produce inaccuracies. You should read the full case before relying on it for legal research purposes.
This site is protected by reCAPTCHA and the Google Privacy Policy and Terms of Service apply.
