Russell v. Dept. of Natural Resources

Annotate this Case
Russell v. Dept. of Natural Resources, No. 84162 (10/1/98)
Docket No. 84162--Agenda 33--May 1998.
JACK E. RUSSELL, Appellee, v. THE DEPARTMENT OF
NATURAL RESOURCES et al., Appellants.
Opinion filed October 1, 1998.

JUSTICE BILANDIC delivered the opinion of the court:
Section 3.36(a) of the Wildlife Code (Code) provides that
a license or permit issued under the Code may be revoked for
up to five years if the person holding it is found guilty of any
Code violation. 520 ILCS 5/3.36(a) (West 1994). We hold that
this provision is not unconstitutionally vague.

BACKGROUND
In 1992, Jack E. Russell pleaded guilty to four violations of
the Code. These violations included hunting turkeys by the use
of bait, hunting turkeys without a permit, hunting turkeys out of
season, and hunting turkeys before hunting hours. Later, in
October of 1994, Russell pleaded guilty to another Code
violation, hunting deer by the use of bait, which is a Class B
misdemeanor. 520 ILCS 5/2.26 (West 1994).
On March 29, 1995, the Department of Conservation
(Department) filed an administrative complaint seeking the
revocation and suspension of Russell's hunting licenses and
permits for a period not to exceed five years. The complaint was
based on Russell's violation of hunting deer with bait. The
complaint notified Russell that his privilege to hunt in Illinois
had been suspended pending a final administrative order
pursuant to Department rule (17 Ill. Adm. Code sec. 2530.320(c)
(1996)). Russell requested an administrative hearing on the
complaint. (As of July 1, 1995, the Department of Conservation
was merged into the Department of Natural Resources.)
A hearing officer for the Department conducted the
administrative hearing on August 23, 1995. The attorney for the
Department presented evidence of Russell's guilty plea to the
offense on which the Department's claim was based. She then
presented evidence of Russell's four previous conservation
offenses. She requested that Russell's hunting privileges be
revoked and suspended for five years.
Russell called as his first witness Thomas Wakolbinger,
deputy chief of the Department's law enforcement division.
Wakolbinger testified in general terms about the procedures for
revoking and suspending hunting licenses. Typically, a
conservation police officer in the field initiates the request for
license revocation and suspension. Three layers of supervisors
then review the officer's request before the filing of an
administrative complaint. Wakolbinger estimated that out of the
20,000 conservation citations issued each year, 300 to 500 result
in the filing of an administrative complaint for license
revocation and suspension. The Department uses license
revocation and suspension for serious violations and for repeat
violators.
Russell testified on his own behalf that he would not have
pleaded guilty to hunting deer with bait in October 1994 had he
known that his hunting license could be revoked and suspended
as a result. Although Russell was in an area baited with corn
and a salt block, he did not know that corn was illegal bait or
that the salt block was there. Russell had permits to kill five
deer, but had harvested only one. Russell claimed that the
officer who had issued his citation for hunting deer with bait
was angry with him. The same officer had issued Russell a
citation in April 1994, for which Russell was found not guilty
after a trial. Directly after that trial, the officer threatened to
hang Russell and had to be physically restrained by other
individuals. Later, the same officer threatened to kill Russell's
dog. Russell also described at length the various forms of
assistance that he had provided to the Department in the past.
Russell's wife testified, and she corroborated Russell's
testimony in certain respects.
Following the hearing, the hearing officer entered a written
order in which he refused to dismiss the Department's complaint
based on Russell's assertions that section 3.36(a) of the Code is
unconstitutional. The hearing officer also issued a written report
and recommended that any hunting licenses, stamps or permits
issued to Russell be revoked and that his hunting privileges be
suspended for a period of three years effective March 30, 1995.
On September 22, 1995, Brent Manning, Director of Natural
Resources, issued a final administrative order in which he
adopted the hearing officer's recommendations in their entirety.
Russell sought judicial review of the Department's decision
by filing a complaint for administrative review in the circuit
court of Mason County on October 13, 1995. The Department
moved to dismiss the complaint, arguing that administrative
review was not available. Russell then filed a motion seeking
leave to file a petition for a common law writ of certiorari.
Russell attached to the motion his petition for writ of certiorari,
which contained allegations similar to those in his complaint for
administrative review. The circuit court granted both the
Department's motion to dismiss the complaint for administrative
review and Russell's motion for leave to file the petition for
writ of certiorari. The circuit court also granted the
Department's oral motion for a change of venue and transferred
the cause to the circuit court of Sangamon County.
Russell, in support of his petition for writ of certiorari,
filed a memorandum of law in which he challenged the
constitutionality of section 3.36(a) of the Code on several
grounds. Russell asserted that section 3.36(a) is
unconstitutionally vague in violation of his right to due process
of law. Russell also asserted, inter alia, that section 3.36(a)
violated his rights to substantive due process and equal
protection.
After hearing oral argument, the circuit court entered an
order declaring section 3.36(a) unconstitutional. The court
concluded that section 3.36(a) violated Russell's constitutional
right to due process of law because it is impermissibly vague.
According to the court, section 3.36(a) resulted in arbitrary and
discriminatory enforcement of Russell because it does not
contain any standards as to who may face revocation and
suspension and for what length of time. The circuit court
ordered that Russell be issued his permit or license. The
Department filed a motion to reconsider, which the circuit court
denied.
The Department and its director appeal directly to this court
pursuant to Supreme Court Rule 302(a)(1) (134 Ill. 2d R.
302(a)(1)).

ANALYSIS
As an initial matter, we address, sua sponte, whether the
circuit court had jurisdiction. See People v. Bounds, 182 Ill. 2d 1, 3 (1998). Russell first sought judicial review of the
Department's decision under the Administrative Review Law
(735 ILCS 5/3--101 et seq. (West 1994)). The circuit court
properly dismissed this complaint. In Wilkins v. State of Illinois
Department of Public Aid, 51 Ill. 2d 88, 90 (1972), this court
held that "the Administrative Review Act is applicable only in
those instances where it has been adopted by express reference
by the act creating or conferring jurisdiction upon the
administrative agency involved." Neither the Wildlife Code (520
ILCS 5/1.1 et seq. (West 1994)) nor the Department's enabling
statute (20 ILCS 805/63a et seq. (West 1994)) adopts the
Administrative Review Law as an available means of judicial
review. Consequently, administrative review was not available
to Russell.
Russell also sought judicial review by requesting leave to
file his petition for a common law writ of certiorari. The circuit
court granted Russell's request. This action by the circuit court
was proper as well. Where, as here, the statute conferring power
on an administrative agency does not expressly adopt the
Administrative Review Law and provides for no other form of
review, the common law writ of certiorari may be utilized to
obtain circuit court review of administrative proceedings. See
Hanrahan v. Williams, 174 Ill. 2d 268, 272 (1996); Stratton v.
Wenona Community Unit District No. 1, 133 Ill. 2d 413, 427
(1990); Smith v. Department of Public Aid, 67 Ill. 2d 529, 540-
41 (1977). The circuit court therefore had jurisdiction to
consider Russell's petition for writ of certiorari.
We now turn to the merits of this appeal. This court
reviews de novo a circuit court's holding with respect to the
constitutionality of a statute. See Brown's Furniture, Inc. v.
Wagner, 171 Ill. 2d 410, 420 (1996). All statutes carry a strong
presumption of constitutionality. See People v. Blackorby, 146 Ill. 2d 307, 318 (1992). The party challenging the
constitutionality of a statute bears the burden of rebutting this
presumption and clearly establishing a constitutional violation.
See Blackorby, 146 Ill. 2d at 318. Here, that party is Russell.
Section 3.36(a) of the Wildlife Code states in pertinent part:
"Whenever a license or permit is issued to any person
under this Act, and the holder thereof is found guilty ***
of a violation of any of the provisions of this Act, *** his
license or permit may be revoked by the Department, and
the Department may refuse to issue any permit or license to
such person and may suspend the person from engaging in
the activity requiring the permit or license for a period of
time not to exceed 5 years following such revocation.
Department revocation procedures shall be established
by Administrative rule." 520 ILCS 5/3.36(a) (West 1994).
Russell contends that section 3.36(a) is unconstitutionally
vague in violation of his right to due process of law. Russell
argues that section 3.36(a) results in arbitrary and discriminatory
enforcement because it provides no standards as to who may
face revocation and suspension and for what length of time.
According to Russell, the Department should adopt a point
system for determining whose hunting privileges to suspend and
for how long.
The constitutional principle of due process of law requires
that a statute "give the person of ordinary intelligence a
reasonable opportunity to know what is prohibited, so that he
may act accordingly." Grayned v. City of Rockford, 408 U.S. 104, 108, 33 L. Ed. 2d 222, 227, 92 S. Ct. 2294, 2298 (1972).
In addition, a statute must provide explicit standards for those
police officers, judges, and juries who apply them, in order to
prevent arbitrary and discriminatory enforcement. Grayned, 408 U.S. at 108-09, 33 L. Ed. 2d at 227-28, 92 S. Ct. at 2299; see
also East St. Louis Federation of Teachers, Local 1220 v. East
St. Louis School District No. 189 Financial Oversight Panel,
178 Ill. 2d 399, 425 (1997); Desnick v. Department of
Professional Regulation, 171 Ill. 2d 510, 537 (1996).
We first determine whether Russell is challenging the
statute as being unconstitutional on its face or only as applied
to him. The rule is well established that " '[v]agueness
challenges to statutes which do not involve First Amendment
freedoms must be examined in the light of the facts of the case
at hand.' " Village of Hoffman Estates v. Flipside, Hoffman
Estates, Inc., 455 U.S. 489, 495 n.7, 71 L. Ed. 2d 362, 369 n.7,
102 S. Ct. 1186, 1191 n.7 (1982), quoting United States v.
Mazurie, 419 U.S. 544, 550, 42 L. Ed. 2d 706, 713, 95 S. Ct. 710, 714 (1975); see People v. Jihan, 127 Ill. 2d 379, 385
(1989). The Department asserts that section 3.36(a) does not
purport to regulate any first amendment activity, and Russell
does not dispute this claim. Given that no first amendment
concern is implicated here, Russell does not have the right to
challenge the statute as being vague on its face if it clearly
applies to his own conduct. See Jihan, 127 Ill. 2d at 386. Thus,
the issue before us is whether section 3.36(a) is
unconstitutionally vague as applied to Russell's own conduct in
this case.
Preliminarily, we note that the Department characterizes
section 3.36(a) as civil, as opposed to criminal, in nature.
Russell does not contest this characterization. The Supreme
Court has stated that it tolerates less precision in enactments
with civil rather than criminal penalties "because the
consequences of imprecision are qualitatively less severe."
Flipside, Hoffman Estates, Inc., 455 U.S. at 498-99, 71 L. Ed. 2d at 372, 102 S. Ct. at 1193. Accordingly, because section
3.36(a) imposes only civil penalties, less precision in its
language may be tolerated.
In applying the established principles earlier set forth, it is
readily apparent that section 3.36(a) of the Code is not
unconstitutionally vague as applied to Russell. The language of
section 3.36(a) is sufficiently clear to provide a person of
ordinary intelligence with fair notice that, if found guilty of a
Code violation, the Department may revoke and suspend that
person's hunting privileges for up to five years. Here, Russell
pleaded guilty to the Code violation of hunting deer with bait.
Section 3.36(a) gave Russell fair and clear warning that one
possible consequence of his being found guilty of this Code
violation was the revocation and suspension of his hunting
privileges for up to five years.
In addition, section 3.36(a) provides sufficient standards to
guide the Department and to prevent its arbitrary and
discriminatory application. Russell contends that section 3.36(a)
results in arbitrary and discriminatory enforcement because it
provides no standards as to who may face revocation and
suspension and for what length of time. This argument is
erroneous. First, the Department does not possess the discretion
to revoke and suspend the hunting privileges of any person on
a whim. To the contrary, the Department can only revoke and
suspend such privileges after a particular hunter is found guilty
of a violation of the Code or its accompanying regulations. Nor
does the Department possess limitless discretion to determine
the length of time that hunting privileges can be suspended in
a particular case. Rather, the legislature has explicitly mandated
that suspensions cannot exceed five years. The Department
followed these standards in applying section 3.36(a) to Russell.
Russell pleaded guilty to a Code violation, hunting deer with
bait. He then fell within the class of persons subject to the
possible revocation and suspension of hunting privileges.
Moreover, the Department suspended Russell's hunting
privileges for three years. The Department thus complied with
the legislature's mandate that suspensions not exceed five years.
We note, furthermore, that the Department has adopted
additional standards in its administrative regulations to guide the
hearing officer and its director in determining whether
revocation and suspension of hunting privileges are appropriate
measures in a particular case and, if so, for what length of time.
Section 2530.420(f)(2) of the Illinois Administrative Code
specifically directs the hearing officer to consider the following
matters in contested cases in which the Department is seeking
to revoke or suspend a license or permit: the respondent's
history of past conservation offenses; whether the respondent's
course of conduct threatened the biological balance of any
protected species; whether the respondent's conduct threatened
the safety of any person; any evidence that the respondent was
ignorant of a material fact which led to the unlawful conduct;
the degree of cooperation the respondent exhibited with
Department officials; the degree to which the respondent
profited economically from the unlawful conduct; and, finally,
any other evidence offered and noted by the hearing officer as
demonstrating factors in mitigation or aggravation. 17 Ill. Adm.
Code sec. 2530.420(f)(2) (1996).
The record shows that the Department considered these
guidelines before it revoked and suspended Russell's hunting
privileges for three years. At the administrative hearing, the
attorney for the Department presented evidence of Russell's four
prior conservation offenses for improperly hunting turkey. She
argued that Russell's history of prior offenses warranted a full
five-year suspension. Russell, on the other hand, argued the
presence of factors in his favor and asked to retain his hunting
privileges. Russell contended that his violation for hunting deer
with bait had not threatened the biological balance of that
species. He asked the hearing officer to note that a "deer
management problem" existed at the time, and that he had been
authorized by permit to kill five deer but had harvested only
one. Russell also claimed ignorance of certain facts material to
his offense; namely, that corn was illegal bait and that the salt
block was present. Russell then described at length the various
forms of assistance that he had provided to the Department in
the past. Lastly, Russell asked the hearing officer to consider as
a factor in mitigation the "personality conflict" between Russell
and the officer who had issued his citation for hunting deer with
bait. After considering all the evidence, the hearing officer
recommended that Russell's hunting privileges be revoked and
suspended for three years. The Director adopted this
recommendation.
The Department's utilization of the standards set forth in
section 2530.420(f)(2) persuades us that the Department did not
act in an arbitrary and discriminatory manner when it revoked
and suspended Russell's hunting privileges for three years.
According to the Department's deputy chief of law enforcement,
who testified at the hearing, the Department's policy was to use
license revocation and suspension for serious violations and for
repeat violators. The standards in section 2530.420(f)(2) appear
to implement that policy. Russell had been convicted of five
conservation offenses in little more than two years. Russell's
status as a repeat violator of the Code caused the Department to
conclude that license revocation and suspension were
appropriate measures. We see nothing improper in this exercise
of discretion by the Department.
In conclusion, section 3.36(a) is not unconstitutionally
vague as applied to Russell. Section 3.36(a) gave Russell fair
and clear warning that one possible consequence of his being
found guilty of a Code violation was the revocation and
suspension of his hunting privileges for up to five years. In
addition, section 3.36(a) contains sufficient standards to guide
the Department and to prevent its arbitrary and discriminatory
application. The additional guidelines provided by the
Department itself acted as a secondary safeguard and ensured
that the Department did not apply section 3.36(a) to Russell in
an arbitrary and discriminatory manner. Having concluded that
section 3.36(a) is not unconstitutionally vague as applied to
Russell, we need not address his argument that the Department
should adopt a point system for determining whose licenses to
suspend and for how long.
Russell makes two additional arguments in support of the
circuit court's judgment. He contends that section 3.36(a)
violates his rights to substantive due process and to equal
protection.
Russell asserts that section 3.36(a) violates substantive due
process because it is not rationally related to a legitimate state
purpose. Russell concedes that conservation of wildlife is a
legitimate state purpose. He nonetheless maintains that section
3.36(a)'s system of license revocation and suspension is not a
reasonable method of accomplishing this purpose.
Where, as here, no fundamental constitutional right is
implicated, this court reviews the statute under consideration
using the rational basis test. See People v. Lindner, 127 Ill. 2d 174, 179 (1989). Under this test, the statute must bear a
reasonable relationship to the public interest intended to be
protected, and the means adopted must be a reasonable method
of accomplishing the desired objective. See Lindner, 127 Ill. 2d
at 180.
Section 3.36(a) meets this test. Section 3.36(a) provides that
if a person is found guilty of a violation of the Wildlife Code,
then the Department may revoke and suspend that person's
hunting privileges for up to five years. The public interest that
it intends to protect is the conservation of wildlife. Section
3.36(a) bears a reasonable relationship to this interest, and the
method it uses to further this interest is reasonable. Revoking
and suspending the hunting privileges of those persons who
violate the Wildlife Code can protect wildlife. Consequently, we
reject Russell's substantive due process claim.
Russell lastly contends that section 3.36(a) violates his right
to equal protection because there is no rational basis for the
disparate treatment of license holders. Russell and the
Department agree that this claim should be evaluated using the
rational basis test.
Under this rational basis test, "judicial review of legislative
classifications is limited and generally deferential; the court
simply inquires whether the method or means employed in the
statute to achieve the stated goal or purpose of the legislation is
rationally related to that goal." In re A.A., 181 Ill. 2d 32, 38
(1998). The classification must be upheld if any set of facts can
reasonably be conceived to justify it. See In re A.A., 181 Ill. 2d
at 38.
Section 3.36(a) meets this rational basis test as well. Section
3.36(a) distinguishes between those persons who have violated
the Wildlife Code and those who have not, and subjects the
former class of persons to possible license revocation and
suspension. This is a reasonable means with which to achieve
wildlife conservation. Therefore, Russell's equal protection
challenge fails.

CONCLUSION
Section 3.36(a) survives all of Russell's constitutional
challenges. We therefore reverse the circuit court's order
declaring section 3.36(a) to be unconstitutionally vague. We also
reverse the circuit court's order directing the Department to
issue Russell his permit or license.

Circuit court judgment reversed.