The People Of The State Of Ill. v. Kane

397 Ill.App.3d 851

924 N.E.2d 1120

338 Ill.Dec. 594

The PEOPLE of the State of Illinois, Plaintiff-Appellee,v.Kathleen KANE, Defendant-Appellant.

No. 3-08-1008.

Appellate Court of Illinois Third District.

Jan. 11, 2010.

Daniel G. O'Day, Peoria, for Appellant.

Terry A. Mertel, Deputy Director, Rita Kennedy Mertel, State's Attorneys Appellate Prosecutor, Ottawa, James Glasgow, State's Attorney, Joliet, for Appellee.

Justice SCHMIDT delivered the opinion of the court:

The State charged defendant, Kathleen Kane, with violating section 15 of the Smoke Free Illinois Act (the Smoke Free Act) (410 ILCS 82/15 (West 2008)). Defendant filed a variety of motions attacking the manner in which she was prosecuted, the charging instrument, as well as the constitutionality of the Smoke Free Act. The circuit court of Will County denied those motions. Defendant was convicted following a jury trial. Defendant appeals, claiming that the Smoke Free Act is not enforceable through criminal proceedings, that the trial court erred in refusing to instruct the jury regarding the meaning of the term “bar,” and that the Smoke Free Act is unconstitutional.

BACKGROUND

Police detective Kevin O'Boyle and Cynthia Jackson from the Will County health department observed defendant smoking in Woody's tavern in Will County, Illinois. Detective O'Boyle issued defendant a ticket, using the Illinois citation and complaint form, accusing her of violating section 15 of the Smoke Free Act. 410 ILCS 82/15 (West 2008). Defendant filed various unsuccessful motions to dismiss the case against her, attacking the charging instrument, the constitutionality of the Smoke Free Act, the alleged search of Woody's Tavern, and her prosecution through the criminal courts. The case proceeded to jury trial; defendant was found guilty. The circuit court sentenced defendant to six months' court supervision and ordered her to pay a fine in the amount of $231.

Defendant filed a posttrial motion, arguing that the Smoke Free Act is unconstitutional, and in the alternative, if the Smoke Free Act is constitutional, then it may only be enforced through administrative proceedings and not in criminal cases initiated in the Illinois courts. Defendant's posttrial motions also claimed that the State failed to prove defendant guilty beyond a reasonable doubt and that the trial court erred in instructing the jury. Defendant's posttrial motion was denied and this appeal followed.

ANALYSIS

Defendant argues on appeal that the State cannot prosecute violations of the Smoke Free Act through the use of criminal proceedings in the circuit courts. Specifically, defendant argues that the fines discussed in the Smoke Free Act are neither criminal nor penal, and that it was the legislature's intent to enforce the fines discussed in the Smoke Free Act through administrative proceedings. Defendant asks us to declare that the trial court did not have jurisdiction to hear this matter and, therefore, reverse her conviction and dismiss this case. The State responds by claiming the Smoke Free Act does not contain any language specifically depriving the circuit court of jurisdiction and, therefore, we must find the circuit courts have concurrent jurisdiction with the Department of Public Health to issue fines in violation of the Smoke Free Act. To support its position, the State cites People v. NL Industries, 152 Ill.2d 82, 178 Ill.Dec. 93, 604 N.E.2d 349 (1992), and Employers Mutual Cos. v. Skilling, 163 Ill.2d 284, 206 Ill.Dec. 110, 644 N.E.2d 1163 (1994).

It is well settled that the courts of Illinois have original jurisdiction over all justiciable matters. Ill. Const. 1970, art. VI, § 9. The legislature, however, may vest exclusive original jurisdiction in an administrative agency. People v. NL Industries, 152 Ill.2d 82, 178 Ill.Dec. 93, 604 N.E.2d 349 (1992). For a legislative enactment to divest circuit courts of their original jurisdiction through a comprehensive statutory scheme, it must do so explicitly. NL Industries, 152 Ill.2d at 96-97, 178 Ill.Dec. 93, 604 N.E.2d 349.

In People v. NL Industries, our supreme court held that since the Illinois Environmental Protection Act (the Environmental Act) contained no language explicitly excluding the circuit courts from hearing cases seeking cost recovery, punitive damages, civil penalties, and attorney fees pursuant to the Environmental Act, the circuit courts had concurrent jurisdiction with the Pollution Control Board to address such matters. People v. NL Industries, 152 Ill.2d at 97, 178 Ill.Dec. 93, 604 N.E.2d 349. The NL Industries court held that the circuit court retained its general original jurisdiction since the defendant could not show that the legislature intended, by enacting the Environmental Act, to deprive the circuit courts of jurisdiction to entertain such matters. People v. NL Industries, 152 Ill.2d at 96, 178 Ill.Dec. 93, 604 N.E.2d 349.

In Employers Mutual Cos. v. Skilling, our supreme court acknowledged the Workers' Compensation Act's pronouncement that all questions arising under the Workers' Compensation Act shall be determined by the Industrial Commission. Employers Mutual Cos. v. Skilling, 163 Ill.2d at 289, 206 Ill.Dec. 110, 644 N.E.2d 1163. Nevertheless, the Skilling court, relying heavily on NL Industries, held that circuit courts do have jurisdiction to resolve certain disputes in workers' compensation matters. Skilling, 163 Ill.2d at 289, 206 Ill.Dec. 110, 644 N.E.2d 1163. Relying on passages from NL Industries and Skilling, the State argues that it is clear the circuit courts have concurrent jurisdiction with the Illinois Department of Public Health concerning enforcement of the Smoke Free Act. We disagree.

Skilling involved a declaratory judgment action filed by the insurance carrier for an employer following an employee's injury. Skilling, 163 Ill.2d at 285, 206 Ill.Dec. 110, 644 N.E.2d 1163. The employee was injured in Illinois and the carrier filed a declaratory judgment action seeking a declaration by the court that its policy only covered injuries occurring in Wisconsin. Skilling, 163 Ill.2d at 285, 206 Ill.Dec. 110, 644 N.E.2d 1163. The employee and employer sought dismissal of the declaratory judgment action, arguing that the Industrial Commission had exclusive jurisdiction over all workers' compensation matters and the carrier failed to exhaust its administrative remedies with the Industrial Commission prior to bringing the declaratory action. The trial court agreed and dismissed the suit, and the appellate court affirmed. Skilling, 163 Ill.2d at 286, 206 Ill.Dec. 110, 644 N.E.2d 1163.

The supreme court, however, found the circuit court and the Industrial Commission had concurrent jurisdiction “to hear the insurance coverage issue.” Skilling, 163 Ill.2d at 287, 206 Ill.Dec. 110, 644 N.E.2d 1163. Since it “is the particular province of the courts to resolve questions of law such as the” coverage dispute between the parties, the Skilling court found it was proper for the circuit court to exercise jurisdiction in the matter. Skilling, 163 Ill.2d at 289, 206 Ill.Dec. 110, 644 N.E.2d 1163. The Skilling court cited to section 2-701 of the Code of Civil Procedure, which pertains to declaratory judgment actions, and acknowledged a circuit court's authority to make binding declarations of rights in cases of actual controversy, including the determination of the construction of a contract and the rights of the parties thereunder. Skilling, 163 Ill.2d at 289, 206 Ill.Dec. 110, 644 N.E.2d 1163, citing 735 ILCS 5/2-701 (West 1992).

The Skilling court then stated that the circuit court was only asked to determine whether injuries in Illinois were included in the scope of coverage under the plaintiff's workers' compensation insurance contract with defendant's employer. This, the Skilling court found, presented a question of law best addressed by a court. Skilling, 163 Ill.2d at 289, 206 Ill.Dec. 110, 644 N.E.2d 1163.

While Skilling discusses theories of concurrent jurisdiction, it is far from being on all fours with the case at bar. Skilling involved a civil, and not quasi-criminal, matter in which a court was asked to declare the parties' rights and duties under a contract. That task, the Skilling court acknowledged, presented a “question of law.” Skilling, 163 Ill.2d at 290, 206 Ill.Dec. 110, 644 N.E.2d 1163. As such, the Workers' Compensation Act's pronouncement that all questions arising under the Act shall be adjudicated by the Industrial Commission did not defeat the circuit court's authority to enter declaratory judgments pursuant to section 2-701 of the Illinois Code of Civil Procedure. Skilling, 163 Ill.2d at 290, 206 Ill.Dec. 110, 644 N.E.2d 1163.

Such principles are only marginally relevant in the case at bar. The matter before us does not involve a declaratory judgment action. Unlike the Workers' Compensation Act, there is no specific pronouncement in the Smoke Free Act that all controversies thereunder must be litigated administratively by an entity other than the circuit courts. 410 ILCS 82/1 et seq. (West Supp. 2007). As no explicit language is present in the Smoke Free Act divesting the circuit courts of their original jurisdiction, we find the circuit courts have jurisdiction with regard to matters discussed in the Smoke Free Act. The question we must answer, however, is: jurisdiction to do what?

Notably, section 50 of the Smoke Free Act provides that a circuit court may “enjoin violations” of the Smoke Free Act for repeated violations. 410 ILCS 82/50 (West Supp.2007). Clearly, the circuit courts have subject matter jurisdiction regarding matters that arise under the Smoke Free Act.

Does this mean that the State, as here, can charge one with violating the Smoke Free Act in a criminal court proceeding? We think not.

Our supreme court has noted:

“Where the legislature enacts a comprehensive statutory scheme, creating rights and duties which have no counterpart in common law or equity, the

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