text:
    The PEOPLE of the State of Illinois, Plaintiff-Appellee, v. Gabriel Enrique BERRIOS, Defendant-Appellant.
    No. 2-15-0824
    Appellate Court of Illinois, Second District.
    Opinion filed April 20, 2018
    Michael J. Pelletier, Thomas A. Lilien, and Bruce Kirkham, of State Appellate Defender's Office, of Elgin, for appellant.
    Joseph H. McMahon, State's Attorney, of St. Charles (Patrick Delfino, Lawrence M. Bauer, and Stephanie Hoit Lee, of State's Attorneys Appellate Prosecutor's Office, of counsel), for the People.
   JUSTICE HUTCHINSON delivered the judgment of the court, with opinion.

¶ 1 Section 25-5(a)(3) of the Criminal Code of 2012 (the Code) ( 720 ILCS 5/25-5(a)(3) (West 2012) ) makes it a misdemeanor offense for a person to have contact with street gang members after having been, inter alia , "ordered by a judge in any non-criminal proceeding to refrain from direct or indirect contact with a streetgang member or members." After a bench trial, defendant, Gabriel Enrique Berrios, was convicted of violating this statute and sentenced to 30 days in the county jail. On appeal, he contends that the statute is unconstitutional, that he was not proven guilty of the offense beyond a reasonable doubt, and that the trial court erred in admitting hearsay evidence. We affirm.

¶ 2 The relevant facts are not in dispute. In 2012, the State filed a civil complaint under the Illinois Streetgang Terrorism Omnibus Prevention Act (Act) ( 740 ILCS 147/1 et seq. (West 2012) ), which targeted 35 named individuals and "all *** unnamed" individuals who were members of the Latin Kings street gang in Aurora. The complaint sought to hold members of the gang accountable for monetary damages and enjoin its members from further gang activity. In particular, the injunction sought to prohibit members from such activities as carrying weapons, selling drugs, drawing graffiti, and "[s]tanding, sitting, walking, gathering, meeting, or appearing anywhere in public view" with any other member of the Latin Kings or with a member of any other street gang. See People v. Latin Kings Street Gang, et al., No. 12-CH-1898 (Cir. Ct. Kane County).

¶ 3 Defendant was named as a party in the State's civil complaint. More specifically, the complaint alleged that defendant had been found in possession of a stolen gun and had fled from the police as part of Latin Kings criminal activities. Evidence attached to the complaint indicated that defendant had identified himself as a member of the Latin Kings, that he had numerous encounters with the police while in the company of other known members of the gang, that he had tattoos consistent with Latin Kings symbols, and that he had been observed displaying the gang's "colors" and hand signals.

¶ 4 Defendant was personally served with a summons and a copy of the civil complaint on May 26, 2012. The summons instructed defendant to appear in court "to answer the complaint in this case" and further advised defendant that a default judgment could be "entered against [him] for the relief prayed for in the complaint." On December 12, 2012, the State filed a motion for a default judgment against defendant. According to the State's motion, on July 10, 2012, which was the first court date on the State's complaint, defendant personally appeared in court without counsel. Thereafter, defendant did not return to court; he did not file a written appearance or answer the State's complaint. On December 21, 2012, the trial court (Judge Joseph M. Grady) entered a default judgment against him. Notice of the entry of the default judgment was mailed to defendant on January 11, 2013, which brings us to the instant criminal case.

¶ 5 According to the State's misdemeanor complaint, on July 4, 2013, defendant was arrested for having unlawful contact with a street gang member. See 720 ILCS 5/25-5(a)(3) (West 2012). Prior to trial, defendant sought to have section 25-5(a)(3) or the injunction declared unconstitutional because it impermissibly interfered with his first amendment right to freedom of speech. The trial court (Judge Donald M. Tegeler Jr.) ultimately denied the motion.

¶ 6 Although we do not have a transcript of these misdemeanor proceedings, our review is made possible by an unusually comprehensive 39-page single-spaced agreed statement of facts. See Ill. S. Ct. R. 323(d) (eff. July 1, 2017). We say unusually because most alternatives to transcripts this court receives lack such specificity. For this, the parties have our appreciation.

¶ 7 At the start of defendant's trial, the parties jointly asked the court to take judicial notice of "the entire court file" in the civil case. The court granted their request. Then, two Aurora police officers testified that, at around 5 a.m. on July 4, 2013, officers were called to the scene of a disturbance in the parking lot of an apartment complex on the west side of Aurora. When the officers arrived, they learned that defendant was attempting to mediate a dispute between two young men-Angelo Parra and Noel DeLuna. Parra and DeLuna had arrived at the apartment complex in separate cars; however, witnesses told the police that defendant and Parra had arrived in the same vehicle. One of the officers, Aaron Spooner, testified that, when he arrived, he ordered defendant out of a car while another officer was speaking to Parra. Spooner testified that he "always had a good rapport with Mr. Berrios" and that defendant "did try to help calm things down" between Parra and DeLuna. Spooner overheard defendant refer to Parra as "King" and DeLuna as "White Boy."

¶ 8 Spooner was aware of the civil injunction entered against defendant, and he searched a computerized police database to determine whether Parra and DeLuna were listed as gang members. After the computer query, Spooner arrested defendant for having unlawful contact with street gang members.

¶ 9 Aurora police investigator Erik Swastek testified as an expert on street gangs. Specifically, Swastek testified that for the last three years he had been a member of the Aurora Police Department's "Special Operations Group," or gang unit. A gang, said Swastek, is a group of three or more individuals who pursue common, and often criminal, goals. Swastek generally investigates gang-related crimes and had personally investigated between 120 and 150 gang-related offenses. Swastek also testified about the common patterns and practices of Aurora-area street gangs, including the Latin Kings. According to Swastek, the Aurora Police Department gathers information about local street gangs. Officers document all police contact with suspected gang members, and these "gang information sheets" are stored in a departmental database. Several criteria are used to determine an individual's relationship to a street gang, such as his or her self-identification, tattoos, clothing, jewelry, location, associates, and use of signs, graffiti, or hand signals. An individual may be listed as "inactive" in the database if he or she has not been the subject of a gang information sheet for at least one year.

¶ 10 As an expert on street gangs, Swastek opined that Parra was a gang member. Swastek testified that Parra had "at least seven, probably more" gang information sheets on file. One report from 2012 indicated that Parra "self-admi[tted]" that he was a gang member-specifically, a member of the Latin Kings. The gang information sheet from the day of the incident with defendant describes Parra as having a teardrop tattoo on his face. According to Swastek, a teardrop tattoo is common among gang members. Swastek also testified that defendant's reference to Parra as "King" was a way of acknowledging Parra as a fellow member of the Latin Kings. Swastek stated that, from his personal knowledge, he could not say whether Parra was a "currently active" member of the gang at the time of trial, but that Parra was listed in the database as an "active" gang member on the day of the incident. On cross-examination, Swastek testified that Parra was the subject of five gang information sheets rather than seven. (As it bears on the issues below, we note that no gang information sheets were introduced as evidence.)

¶ 11 As part of defendant's case in chief, occurrence witness Sabrina Landeros testified that "at no point" did she see defendant and Parra in the same vehicle. Landeros further stated that defendant was asked by "the officer" to go and talk to Parra and DeLuna.

¶ 12 After the parties' arguments, the trial court found defendant guilty. In its ruling, the court noted evidence that defendant had been served with the complaint in the civil case and that a default judgment was entered. The court stated that it would not consider defendant' argument that the injunction was unlawful or unconstitutional, as any challenge to the injunction "need[ed] to be raised with the civil court." Instead, the court found that the injunction was in full force and effect on the day of the offense and that, because he was served with the complaint, defendant had constructive notice of the injunction. The court found that there was unrebutted expert testimony that Parra was a member of the Latin Kings and that defendant knew that Parra was a gang member, since he referred to him as "King." The court noted that section 25-5(a)(3) required the State to prove not that Parra was a member of the Latin Kings specifically, but rather that defendant knew that Parra was a member of any street gang. The court stated that it did not believe Landeros's testimony that defendant and Parra were not in the same vehicle. However, the court noted that, even if defendant's only contact with Parra was when they spoke outside of the vehicles, defendant was still guilty of the offense; according to the court, "[t]he length of the contact [wa]s not important, because defendant was enjoined from having any direct or indirect contact with any street gang member. To the extent the court felt that defendant should be applauded "for trying to help," that fact did not negate guilt, because defendant knew that Parra was a gang member and that he could not have contact with him either in the car or in the parking lot. Accordingly , the court found defendant guilty and, as noted, he served 30 days in the county jail.

¶ 13 Before this court, defendant contends that (1) section 25-5(a)(3) of the Code is unconstitutional, (2) he was not proven guilty beyond a reasonable doubt, and (3) evidence of Parra's gang membership was "inadmissible hearsay." We will postpone our examination of the constitutionality of section 25-5(a)(3), as we must first consider all issues that do not require passing judgment on a statute. See People v. Oshana , 2012 IL App (2d) 101144, ¶ 20, 358 Ill.Dec. 695, 965 N.E.2d 1174 (citing People v. Carpenter , 228 Ill. 2d 250, 264, 320 Ill.Dec. 888, 888 N.E.2d 105 (2008) ). We therefore consider the sufficiency of the evidence and the admission of the evidence of Parra's gang membership. Because these two arguments are interrelated, we address them together.

¶ 14 With respect to the sufficiency of the evidence, in a criminal trial, the State carries the burden of proving beyond a reasonable doubt each element of an offense. People v. Siguenza-Brito , 235 Ill. 2d 213, 224, 336 Ill.Dec. 223, 920 N.E.2d 233 (2009). It is for the trier of fact to determine the credibility of witnesses, to weigh evidence and draw reasonable inferences therefrom, and to resolve any conflicts in the evidence. Id. at 228, 336 Ill.Dec. 223, 920 N.E.2d 233. Thus, on review, the relevant question is not whether the State met its burden but whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. Id. at 224, 336 Ill.Dec. 223, 920 N.E.2d 233. Accordingly, a criminal conviction will be set aside only where the evidence was so improbable or unsatisfactory as to create a reasonable doubt of the defendant's guilt. Id. at 225, 336 Ill.Dec. 223, 920 N.E.2d 233.

¶ 15 The statutory scheme at issue in this case includes portions of the Code as well as the Act. The Code defines the offense of unlawful contact with street gang members as follows:

"(a) A person commits unlawful contact with streetgang members when he or she knowingly has direct or indirect contact with a streetgang member as defined in Section 10 of the Illinois Streetgang Terrorism Omnibus Prevention Act after having been:
(1) sentenced to probation, conditional discharge, or supervision for a criminal offense with a condition of that sentence being to refrain from direct or indirect contact with a streetgang member or members;
(2) released on bond for any criminal offense with a condition of that bond being to refrain from direct or indirect contact with a streetgang member or members;
(3) ordered by a judge in any non-criminal proceeding to refrain from direct or indirect contact with a streetgang member or members; or
(4) released from the Illinois Department of Corrections on a condition of parole or mandatory supervised release that he or she refrain from direct or indirect contact with a streetgang member or members.
(b) Unlawful contact with streetgang members is a Class A misdemeanor." 720 ILCS 5/25-5(a), (b) (West 2012).

Under section 10 of the Act, a street gang member is anyone "who actually and in fact belongs to a gang." 740 ILCS 147/10 (West 2012). Section 10 further states:

" 'Streetgang' or 'gang' or 'organized gang' or 'criminal street gang' means any combination, confederation, alliance, network, conspiracy, understanding, or other similar conjoining, in law or in fact, of 3 or more persons with an established hierarchy that, through its membership or through the agency of any member engages in a course or pattern of criminal activity." Id.

The Act further provides:

" 'Course or pattern of criminal activity' means 2 or more gang-related criminal offenses committed in whole or in part within this State when:
(1) at least one such offense was committed after the effective date of this Act [ (see Pub. Act 87-932 (eff. Jan. 1, 1993) (adding 740 ILCS 147/1 et seq. ) ) ];
(2) both offenses were committed within 5 years of each other; and
(3) at least one offense involved the solicitation to commit, conspiracy to commit, attempt to commit, or commission of any offense defined as a felony or forcible felony under the Criminal Code of 1961 ***." 740 ILCS 147/10 (West 2012).

¶ 16 As noted, defendant was convicted of a violation of section 25-5(a)(3) on the basis that he knowingly had contact with Parra, a gang member, after defendant had been ordered to refrain from direct or indirect contact with any street gang member. Defendant does not dispute the trial court's finding that he had constructive notice of the injunction. Defendant also does not dispute the veracity of Spooner's testimony that he heard defendant refer to Parra as "King." Defendant also does not challenge Swastek's qualifications as an expert. Instead, defendant contends that the State failed to prove beyond a reasonable doubt that the Latin Kings were a street gang and had committed two or more gang-related offenses after January 1, 1993, within five years of each other. Defendant also contends that there was insufficient evidence to show that Parra was actually a member of the Latin Kings or of any street gang. Finally, defendant contends that it was plain error for the trial court to admit Swastek's opinion testimony concerning Parra, which Swastek based on gang information sheets, because, according to defendant, that information was improper hearsay, offered to prove the truth of the matter asserted.

¶ 17 After careful review of the record, we determine that defendant's arguments all miss the mark. With respect to the evidence of Parra's gang membership, defendant overlooks that Swastek did not testify as a lay person; if he had, we would agree that the testimony was improper, because a lay witness may testify only to detailed, personally observed facts and opinions derived from those facts. See, e.g. , People v. Fair , 159 Ill. 2d 51, 86, 201 Ill.Dec. 23, 636 N.E.2d 455 (1994). But, here, Swastek testified as an expert witness-specifically, as an expert on street gangs-and his designation as an expert (which defendant does not challenge) rendered his testimony admissible.

¶ 18 Since 1981, Illinois courts have followed the rule of evidence that " 'prohibitions against the admission of hearsay do not apply when an expert testifies to underlying facts and data, not admitted into evidence, for the purpose of explaining the basis of his opinion.' " In re Commitment of Hooker , 2012 IL App (2d) 101007, ¶ 51, 360 Ill.Dec. 334, 968 N.E.2d 1087 (quoting People v. Lovejoy , 235 Ill. 2d 97, 142, 335 Ill.Dec. 818, 919 N.E.2d 843 (2009) ); see Wilson v. Clark , 84 Ill. 2d 186, 49 Ill.Dec. 308, 417 N.E.2d 1322 (1981). This principle is now codified as Illinois Rule of Evidence 703 (eff. Jan. 1, 2011), which states as follows:

"The facts or data in the particular case upon which an expert bases an opinion or inference may be those perceived by or made known to the expert at or before the hearing. If of a type reasonably relied upon by experts in the particular field in forming opinions or inferences upon the subject, the facts or data need not be admissible in evidence."

Of course, the underlying information must be sufficiently trustworthy to make the expert's reliance reasonable. Hooker , 2012 IL App (2d) 101007, ¶ 51, 360 Ill.Dec. 334, 968 N.E.2d 1087. But, so long as these foundational requisites are met, "an expert is permitted 'not only to consider the reports commonly relied upon by experts in their particular field, but also to testify to the contents of the underlying records.' " Id. (quoting Lovejoy , 235 Ill. 2d at 143, 335 Ill.Dec. 818, 919 N.E.2d 843 ). As the United States Supreme Court recently stated, this form of expert testimony is offered not to prove the truth of the matter asserted but rather to explain the basis for the expert's opinion. See Williams v. Illinois , 567 U.S. 50, 57-58, 132 S.Ct. 2221, 183 L.Ed.2d 89 (2012). In sum, under Rule 703, an expert may give an opinion based on hearsay if it is the kind of hearsay on which an expert in his field bases professional opinions.

¶ 19 We determine that the gang information sheets were a reasonable basis for Swastek's expert opinions in this case. Case law is replete with examples of gang experts' reliance on information from centralized computer databases-such as arrest records, police reports, offense reports, jail records, probation reports, and "contact cards"-as well as other reported or recorded statements that help flesh out the experts' understanding of gang customs, alliances, rivalries, activities, "territories," hierarchies, and membership. See, e.g. , People v. Cavazos , 2015 IL App (2d) 120444, ¶ 79, 396 Ill.Dec. 465, 40 N.E.3d 118 ; People v. Clifton , 342 Ill. App. 3d 696, 708, 277 Ill.Dec. 219, 795 N.E.2d 887 (2003) ; People v. Jamesson , 329 Ill. App. 3d 446, 460, 263 Ill.Dec. 736, 768 N.E.2d 817 (2002) ; People v. Williams , 262 Ill. App. 3d 808, 820, 200 Ill.Dec. 314, 635 N.E.2d 653 (1994) ; People v. Jackson , 145 Ill. App. 3d 626, 634, 99 Ill.Dec. 472, 495 N.E.2d 1207 (1986) ; People v. Calderon , 98 Ill. App. 3d 657, 661, 53 Ill.Dec. 880, 424 N.E.2d 671 (1981). Such hearsay, which is "[not] available to an average layperson," "is probably the only way a nongang member can accumulate details of gang activity and membership rank." Jackson , 145 Ill. App. 3d at 634, 99 Ill.Dec. 472, 495 N.E.2d 1207. Accordingly, as one court has stated, such hearsay reports "are the very things gang experts are reasonably expected to rely upon." (Emphasis added.) Mendez v. Sherman , No. 2:14-cv-1950-MCE-KJN (TEMP), 2016 WL 2753773, at *8 (E.D. Cal. May 11, 2016). There is, of course, a high potential for "others' opinions, rumors and gossip" to be introduced as "hearsay in disguise" in such circumstances. (Internal quotation marks omitted.) People v. Robert P. , 354 Ill. App. 3d 1051, 1062, 290 Ill.Dec. 685, 821 N.E.2d 1259 (2005) ; cf. People v. Washington , 127 Ill. App. 3d 365, 386-87, 82 Ill.Dec. 505, 468 N.E.2d 1285 (1984) (holding investigator's nonexpert opinion of defendant's gang membership inadmissible, as it was based solely on information from one unnamed informant). But here, Swastek explained that he relied on numerous sources, including his specialized training in gang investigations, his personal experience as a gang-crimes investigator, and his familiarity with the patterns and practices of Aurora-area street gangs. Swastek then brought that information to bear when analyzing each of Parra's five gang information sheets. We note that it would have been helpful if, on direct examination, Swastek had been asked to relate more specific detail from each of the five sheets. But while that information could have been more fulsome, we are nonetheless satisfied that Swastek's testimony was not merely repackaged hearsay; rather, it was evidence in its own right (see United States v. Vera , 770 F.3d 1232, 1239 (9th Cir. 2014) ) and its admission was neither error nor plain error.

¶ 20 As it might bear on future cases, we note that it is critical to maintain the distinction between using information as the basis for an expert's opinion and treating that information as fact. That otherwise inadmissible evidence may serve as the basis for an expert's opinion does not mean that the evidence is admissible for some other purpose. "If for example the expert witness (call him A) bases his opinion in part on a fact (call it X) that the party's lawyer told him, the lawyer cannot in closing argument tell the jury, 'See, we proved X through our expert witness, A.' " In re James Wilson Associates , 965 F.2d 160, 173 (7th Cir. 1992). To maintain this distinction, we note that it is critical that a jury receive appropriate limiting instructions during a trial. See generally In re Commitment of Gavin , 2014 IL App (1st) 122918, ¶ 78, 383 Ill.Dec. 552, 14 N.E.3d 1163 (noting the occasional confusion of jurors asked to consider aspects of expert testimony in different ways (citing David H. Kaye, The New Wigmore: A Treatise on Evidence: Expert Evidence § 4.7.2 (2d ed. 2010) ) ). Here, however, defendant received a bench trial, and we see no indication that the trial court improperly considered Swastek's testimony.

¶ 21 Having rejected defendant's hearsay argument, we now turn to the sufficiency of the evidence. Again, in Swastek's expert opinion, Parra was a gang member. Swastek explained that his opinion was based on Parra's reported 2012 admission of his gang membership, Parra's reported teardrop tattoo, Spooner's report that defendant referred to Parra as "King," and Parra's association with defendant. As the trial court pointed out, Swastek's opinion on that evidence was never refuted. Accordingly, we determine that a trier of fact could reasonably conclude that Parra was a gang member.

¶ 22 We also determine that there was sufficient evidence that the Latin Kings are a street gang. We have previously held that "an expert on gangs may opine on the ultimate issue of whether an organization is a street gang engaged in a course or pattern of criminal activity without testifying to specific dates or incidents." People v. Murray , 2017 IL App (2d) 150599, ¶ 83, 419 Ill.Dec. 674, 94 N.E.3d 212 (citing Jamesson , 329 Ill. App. 3d at 460, 263 Ill.Dec. 736, 768 N.E.2d 817 ). Here, Swastek testified that he had been a member of the gang unit for three years and that the gang unit "track[s]" the Latin Kings and other street gangs. In so stating, Swastek expressed the opinion that the Latin Kings are, in fact, a street gang. Under our precedents, nothing more was required. See id. As with Swastek's testimony concerning Parra, however, we note that Swastek's testimony concerning the Latin Kings could have been more comprehensive. See, e.g. , Jamesson , 329 Ill. App. 3d at 449-52, 263 Ill.Dec. 736, 768 N.E.2d 817. Still, as in Murray and Jamesson , we find that the evidence was sufficient to support a reasonable determination that the Latin Kings are a street gang-having engaged in a course or pattern of criminal activity-within the meaning of section 10 of the Act.

¶ 23 We turn next to defendant's first amendment challenge. Defendant asserts that section 25-5(a)(3) of the Code violates the first amendment because it "indefinitely criminalizes innocent contact with persons known or unknown to a defendant " to be gang members. Defendant acknowledges that in Jamesson we rejected a similar challenge and upheld a related subsection of the same statute, under which a defendant could be convicted of having unlawful contact with a street gang member after being ordered to refrain from such contact as a condition of his criminal supervision. But defendant here submits that Jamesson is distinguishable because a term of supervision necessarily has a definite endpoint. By contrast, an injunction like the one in this case may be of indefinite duration, resulting in "potentially life-long limitations on a person's right to free speech" under the first amendment.

¶ 24 In general, statutes are presumed constitutional and a statute will be construed in a manner that upholds its constitutionality if doing so is reasonably possible. People v. Relerford , 2017 IL 121094, ¶ 30, --- Ill.Dec. ----, --- N.E.3d ----. Whether a statute is constitutional is a question of law, which we review de novo . Id.

¶ 25 We note at the outset that the right described by defendant -i.e. , the right not to be indefinitely prohibited by a court order from having contact with gang members-is not specifically found in the United States Constitution (or, for that matter, our state constitution). Moreover, defendant has cited no authority, and our own research has turned up none, in support of his position. Finally, we point out that the United States Supreme Court has explained that there is generally no recognized "First Amendment 'right of association' " applicable to "social contact between gang members[.]" City of Chicago v. Morales , 527 U.S. 41, 53, 119 S.Ct. 1849, 144 L.Ed.2d 67 (1999) ; cf. Roberts v. United States Jaycees , 468 U.S. 609, 618, 104 S.Ct. 3244, 82 L.Ed.2d 462 (1984) (discussing limited recognition of the rights of "intimate association" and of "expressive association").

¶ 26 That said, as we explained in Jamesson , the first amendment has limits and speech is not protected when it is integral to criminal conduct. Jamesson , 329 Ill. App. 3d at 453, 263 Ill.Dec. 736, 768 N.E.2d 817 ; see also Relerford , 2017 IL 121094, ¶ 33, --- Ill.Dec. ----, --- N.E.3d ---- (citing Giboney v. Empire Storage & Ice Co. , 336 U.S. 490, 69 S.Ct. 684, 93 L.Ed. 834 (1949) ). That a criminal act takes the form of speech does not mean that the notion of free speech relieves the speaker from all consequences. Were it otherwise, this all-encompassing notion of free speech would cancel all laws against disseminating state secrets or child pornography, engaging in a conspiracy or soliciting another to commit a crime, making actual threats, or publishing information that could lead to the harassment of witnesses or jurors. In such cases, words beget action. For example, in Chicago Real Estate Board v. City of Chicago , 36 Ill. 2d 530, 224 N.E.2d 793 (1967), our supreme court upheld a fair-housing ordinance that prohibited certain solicitations to sell or lease property on the basis of racial preferences. The ordinance was upheld because bias-motivated speech, when it is "an integral part of unlawful conduct, has no constitutional protection." Id. at 552-53, 224 N.E.2d 793. In that regard, we see no real distinction between the fair-housing ordinance and section 25-5(a)(3). Both laws target the speaker and his or her intent when speaking, rather than merely the content of his or her statements.

¶ 27 While we agree with defendant, at least in theory, that an endless restriction on his speech rights could at some point become so burdensome as to violate the first amendment, that problem has little to do with section 25-5(a)(3) specifically and more to do with the underlying injunction. See generally Madsen v. Women's Health Center, Inc. , 512 U.S. 753, 762, 114 S.Ct. 2516, 129 L.Ed.2d 593 (1994)(distinguishing between a challenge to a statute and a challenge to an injunctive order predicated on a statute). Given the posture of the case here, compliance with the court order must prevail over the frustration of defendant's constitutional liberties-or at least those liberties as defendant sees them. Cf. Morales , 527 U.S. at 53, 119 S.Ct. 1849. On this point, although defendant helpfully quotes authority from our supreme court's decision in People v. Nance , 189 Ill. 2d 142, 244 Ill.Dec. 1, 724 N.E.2d 889 (2000), he does so only in part. We find that a slightly longer quotation proves more illuminating:

"The problem with [defendant's] argument is that it overlooks basic principles governing injunctions. It is true that an injunction can be modified or dissolved when the court finds that the law has changed or that equity no longer justifies a continuance of the injunction. An injunction remains in full force and effect, however, until it has been vacated or modified by the court which granted it or until the order or decree awarding it has been set aside on appeal. Unless it has been overturned or modified by orderly processes of review, an injunction must be obeyed, even if it is erroneous . [Citation.]" (Emphasis added.) Id. at 145, 244 Ill.Dec. 1, 724 N.E.2d 889.

A default judgment is no exception, for an injunction based on a complaint "served upon persons made parties therein and within the jurisdiction, must be obeyed by them, however erroneous the action of the court may be." United States v. United Mine Workers of America , 330 U.S. 258, 293-94, 67 S.Ct. 677, 91 L.Ed. 884 (1947). In fact, "[t]he only possible exception to the rule that an erroneous or even unconstitutional injunction *** must nevertheless be obeyed is where the injunction is transparently invalid or has only a frivolous pretense to validity." People ex rel. Watson v. Spinka , 58 Ill. App. 3d 729, 734, 16 Ill.Dec. 12, 374 N.E.2d 787 (1978) (citing Walker v. City of Birmingham , 388 U.S. 307, 315-16, 87 S.Ct. 1824, 18 L.Ed.2d 1210 (1967) ). Those certainly are not the facts of this case. In short, even if defendant believed that the injunction was unconstitutional, no matter how sincere his belief might have been, he had no lawful basis to refuse to obey it.

¶ 28 Although defendant argues that the statute prohibiting contact with street gang members is unconstitutional, because it incorporates a potentially unconstitutional injunction, any flaw here would be with the injunction, not the statute. Thus, any injury to defendant's free-speech rights was entirely the result of his own inaction. Indeed, defendant could have done any number of things to contest the scope of the injunction. He could have filed a motion in civil court to have the default judgment vacated within 30 days (see 735 ILCS 5/2-1301 (West 2012) ), or if that was demonstrably not possible, he could have returned to the civil court by way of a collateral petition within two years of the judgment (see 735 ILCS 5/2-1401 (West 2012) ). He could have even sought an injunction on the injunction in state or federal court. See generally 42 U.S.C. § 1983 (2012) (providing a civil action for deprivation of rights, privileges, and immunities secured by laws or the constitution). Better still, defendant could have answered the State's civil complaint.

¶ 29 Instead, however, defendant never challenged the injunction, and as the trial court correctly recognized, defendant's failure to do so does not render section 25-5(a)(3) of the Code susceptible to his constitutional challenge. That the penalty for defendant's violation of the injunction was visited upon him by statute rather than by, say, a contempt proceeding is a distinction without a difference. Criminal penalties "have uniformly been recognized as a proper judgment for the violation of a prohibitory injunction of a civil nature" in order "to vindicate the authority of the court." Rothschild & Co. v. Steger & Sons Piano Manufacturing Co. , 256 Ill. 196, 201, 99 N.E. 920 (1912). In other words, defendant could no more complain about section 25-5(a)(3) on the basis of the civil injunction than he could about a contempt proceeding to enforce the injunction.

¶ 30 To recap: There was sufficient evidence to support defendant's conviction, there was no plain error in the admission of Swastek's testimony, and defendant has failed to establish that section 25-5(a)(3) violates the first amendment. Accordingly, we affirm the judgment of the circuit court of Kane County. In addition, we grant the State's request that defendant be assessed $50 as costs for this appeal. 55 ILCS 5/4-2002(a) (West 2016); see also People v. Nicholls , 71 Ill. 2d 166, 178, 15 Ill.Dec. 759, 374 N.E.2d 194 (1978).

¶ 31 Affirmed.

Presiding Justice Hudson and Justice Schostok concurred in the judgment and opinion.


source: Caselaw Access Project

license: Public Domain

text:
    Walter PAUL, Linette DeHaven, and Curtis DeHaven, Plaintiffs-Appellants, v. The COUNTY OF OGLE, Mike Stukenberg, Colleen M. Stukenberg, and STKE, LLC, Defendants-Appellees.
    No. 2-17-0696
    Appellate Court of Illinois, Second District.
    Opinion filed April 20, 2018
    James R. Griffin, of Schain Banks, Ltd., of Chicago, and Dan G. Fishburn, of Fishburn Whiton Thruman, of Freeport, for appellants.
    Nicole M. Bauer and Ryan R. Stodden, of Plager, Krug, Bauer & Rudolph, Ltd., of Freeport, for appellee Styke, LLC.
    No brief filed for other appellees.
   JUSTICE SCHOSTOK delivered the judgment of the court, with opinion.

¶ 1 Plaintiffs-Walter Paul, Linette DeHaven, and Curtis DeHaven-appeal the trial court's order dismissing their amended complaint against defendants-the County of Ogle (county), Mike Stukenberg, Colleen M. Stukenberg, and STKE, LLC. Plaintiffs contend that the trial court erroneously held that they lacked standing to challenge the county's granting of a special-use permit on nearby property and that they did not allege a facial challenge, as required, to the ordinance approving the special use. We reverse and remand.

¶ 2 Plaintiffs' amended complaint alleged the following. The county had granted a special-use permit to operate a "Motor Carrier Facility" to store garbage trucks and dumpsters on property owned by the Stukenbergs and STKE, LLC. The property was located in an AG-1 agricultural zoning district. It was surrounded by private property containing unimproved farmland and rural home sites, farm buildings, and single-family homes. The surrounding property was generally being used consistently with the AG-1 zoning.

¶ 3 Paul owned property adjacent to the Stukenberg property, and the DeHavens owned property approximately 1250 feet away. Plaintiffs alleged that the proposed use would be unconstitutional as applied to their properties pursuant to the factors enumerated in La Salle National Bank of Chicago v. County of Cook , 12 Ill. 2d 40, 145 N.E.2d 65 (1957), and Sinclair Pipe Line Co. v. Village of Richton Park , 19 Ill. 2d 370, 167 N.E.2d 406 (1960). The complaint alleged that each of the La Salle / Sinclair factors militated against granting the proposed use.

¶ 4 Specifically, plaintiffs alleged that their properties would be devalued by the proposed use. Dumpsters would be stored near Paul's property. A staff report from the county planning and zoning department showed that approximately 30% of the Stukenbergs' property drained poorly and flooded frequently. Any runoff from dumpsters and garbage trucks would drain to the low-lying areas immediately adjacent to Paul's property. "All further drainage" from the Stukenbergs' property would drain across the Paul property and there was a potential for groundwater contamination. There would be increased noise and odors, as well as increased traffic.

¶ 5 The complaint further alleged that the proposed use did not promote the health, safety, or general welfare of the public. Moreover, the Stukenbergs' property was not suitable for the proposed use, as it was zoned AG-1, included a house, and was frequently flooded. According to the staff report, the property consisted of " 'prime farm land.' "

¶ 6 The complaint alleged that the property had not been vacant as zoned, having been purchased in 2016. It also alleged that there was no community need for the proposed use and that the use was inconsistent with the comprehensive plans of both the county and the Village of Forreston. Accordingly, count I sought a declaratory judgment that the ordinance approving the special use was unconstitutional.

¶ 7 Count II alleged that the county violated its own zoning ordinance in approving the special use. Plaintiffs alleged that a "Motor Carrier Facility," as defined by the county's zoning ordinance, allowed for the storage of trucks or buses but did not allow for the storage of dumpsters. Further, the ordinance provided that vehicle maintenance be conducted only on vehicles owned and operated by the owner of the property, whereas the vehicles to be stored on the property here were owned by another entity and would need to be serviced if they did not run properly. Count III sought to enjoin defendants from developing the site pursuant to the special-use permit.

¶ 8 Defendants moved to dismiss ( 735 ILCS 5/2-615 (West 2016) ), arguing that Napleton v. Village of Hinsdale , 229 Ill. 2d 296, 322 Ill.Dec. 548, 891 N.E.2d 839 (2008), required plaintiffs to mount a facial attack on the special-use ordinance, which they had failed to do and which, in any event, they lacked standing to do. The trial court agreed and dismissed the complaint with prejudice. Plaintiffs timely appeal.

¶ 9 Plaintiffs first contend that the trial court erred in concluding that they lack standing. Standing requires some injury to a legally cognizable interest. Village of Chatham v. County of Sangamon , 216 Ill. 2d 402, 419, 297 Ill.Dec. 249, 837 N.E.2d 29 (2005). The claimed injury, whether actual or threatened, must be distinct and palpable, fairly traceable to the defendant's actions, and substantially likely to be prevented or redressed by granting the relief requested. Id. at 419-20, 297 Ill.Dec. 249, 837 N.E.2d 29.

¶ 10 We note that the cases are unclear as to what, if anything, a plaintiff must plead to establish standing in a case such as this one. Plaintiffs invoke the general rule that lack of standing is an affirmative defense that may be raised in a motion pursuant to section 2-619(a)(9) of the Code of Civil Procedure ( 735 ILCS 5/2-619(a)(9) (West 2016) ).

Winnebago County Citizens for Controlled Growth v. County of Winnebago , 383 Ill. App. 3d 735, 739, 322 Ill.Dec. 433, 891 N.E.2d 448 (2008). Generally, a plaintiff need not allege facts to establish his or her standing; rather, it is the defendant's burden to plead and prove a lack of standing. Id.

¶ 11 However, defendants rely on Garner v. County of Du Page , 8 Ill. 2d 155, 133 N.E.2d 303 (1956), where the court stated that "for a party to have standing in a court of equity to complain about the use of another's property, he has the burden of proving that he has suffered a special damage by reason of such use which differs from that suffered by the general public." Id. at 158-59, 133 N.E.2d 303. In that case, the complaint was not dismissed pretrial but, after trial, the court entered judgment for the defendant. The supreme court affirmed, holding that the plaintiffs, who lived 1½ and 3 miles from the proposed development, "failed to prove damage which is different from that suffered by the public generally and therefore have no standing to maintain the action." Id. at 159, 133 N.E.2d 303. Defendants also cite Treadway v. City of Rockford , 28 Ill. 2d 370, 192 N.E.2d 351 (1963). There, the court held that the plaintiffs proved a "sufficient special interest and damage to justify maintenance of this action," in that their property would be devalued by the construction of a proposed shopping center. Id. at 376, 192 N.E.2d 351.

¶ 12 In People ex rel. Klaeren v. Village of Lisle , 202 Ill. 2d 164, 176, 269 Ill.Dec. 426, 781 N.E.2d 223 (2002), the court again considered whether neighboring landowners had standing to complain about a proposed development. The court cited Yusuf v. Village of Villa Park , 120 Ill. App. 3d 533, 538, 76 Ill.Dec. 175, 458 N.E.2d 575 (1983), which held that allegations of a diminution in value and a loss of quiet enjoyment of property, caused by additional traffic and noise, were enough to confer standing on adjoining property owners. Klaeren , 202 Ill. 2d at 176, 269 Ill.Dec. 426, 781 N.E.2d 223. The Klaeren court found that identical allegations in the case before it, as well as testimony from a preliminary injunction hearing, were sufficient to convey standing. Id.

¶ 13 It is thus unclear whether a plaintiff challenging the granting of a special-use permit for a neighboring property has a duty to plead special damages. We need not resolve the issue here, however, as plaintiffs have clearly done so.

¶ 14 It is true that the complaint does not contain the magic words that plaintiffs will suffer damages different from those sustained by the general public, but defendants cite no case holding that such language is required. Indeed, the allegations in the complaint are very similar to those found to be sufficient to confer standing in cases such as Klaeren. See also Whipple v. Village of North Utica , 2017 IL App (3d) 150547, 414 Ill.Dec. 32, 79 N.E.3d 667. Plaintiffs allege that Paul's property is immediately adjacent to the subject tract and that the DeHavens' property is within 1250 feet of it. Based on proximity alone, common sense dictates that effects such as noise and odors will be felt more acutely on plaintiffs' properties than on those many miles distant. Cf. Garner , 8 Ill. 2d at 159, 133 N.E.2d 303.

¶ 15 Further, the complaint does contain allegations of harm specific to plaintiffs' properties. For example, plaintiffs allege that "run-off from the garbage dumpsters and garbage trucks will drain to the bottomland areas which are immediately adjacent to the Walter Paul property." Thus, plaintiffs, at least at this stage of the proceedings, have adequately pleaded that they will suffer damages different from those of the public generally.

¶ 16 Plaintiffs further contend that the trial court erred by holding that they had to mount a facial challenge to the ordinance granting the special-use permit. Defendants insist that Napleton mandates that plaintiffs mount a facial challenge to the ordinance and that their allegations, focused as they are on plaintiffs' particular circumstances, are insufficient to do so. They observe that section 5-12012.1 of the Counties Code ( 55 ILCS 5/5-12012.1 (West 2016) ) provides that zoning decisions be reviewed de novo as legislative acts and Napleton stated that, where the effect of a successful challenge would be to invalidate the entire ordinance, the challenge is facial. They argue that, if plaintiffs succeed, the entire ordinance allowing the special use on the subject property would be invalid. Thus, defendants assert, plaintiffs must make a facial challenge. To fully understand the parties' arguments, we must examine in some detail the history of judicial challenges to decisions on special-use permits in Illinois.

¶ 17 By the time the supreme court decided La Salle in 1957, the right to challenge in court municipal decisions concerning special-use permits was already well established. Thus, the court was able to derive from the numerous earlier cases a list of considerations to apply in such cases, which have come to be known as the La Salle factors. See La Salle , 12 Ill. 2d at 46-47, 145 N.E.2d 65.

¶ 18 Confusion arose over whether, in ruling on special-use permits, municipal bodies acted in a legislative or administrative capacity. As the answer to the question potentially affected the standard of review, the supreme court considered the conflicting views in City of Chicago Heights v. Living Word Outreach Full Gospel Church & Ministries, Inc. , 196 Ill. 2d 1, 13-16, 255 Ill.Dec. 434, 749 N.E.2d 916 (2001). The court first acknowledged the "widely held" view that a legislative body acts in an administrative, rather than a legislative, capacity when ruling on an application for a special-use permit. Id. at 13, 255 Ill.Dec. 434, 749 N.E.2d 916. When a body acts administratively in ruling on a permit application, its decision is subject to general principles of administrative review, and thus the decision can be reversed only if it was without support in the record or was otherwise arbitrary. Id. The court then explained that Illinois has generally followed a different approach:

"Although the clear weight of authority in the United States holds that a legislative body acts administratively when it rules on applications for special use permits, there is authority in this state which holds that the granting or denial of a permit application is a legislative act. For example, a line of cases from this court holds, with respect to the legislative bodies of counties, that the decision to grant or deny an application for a special use permit is a legislative act. [Citation.] When a legislative body acts in a legislative capacity in ruling on a permit application, its decision is not subject to principles of administrative review. Instead, the legislative body's decision is reviewed for arbitrariness as a matter of substantive due process under the six-part test set forth in [ La Salle ]." Id. at 14, 255 Ill.Dec. 434, 749 N.E.2d 916.

The court found "considerable force" to the view that such decisions should be considered administrative ( id. at 15, 255 Ill.Dec. 434, 749 N.E.2d 916 ), but declined to decide the issue going forward, concluding that the result in the case before it would be the same under either test ( id. at 16, 255 Ill.Dec. 434, 749 N.E.2d 916 ).

¶ 19 The court commented on the unique nature of a special-use-permit decision. It explained that "[i]n general, a 'special use' is a type of property use that is expressly permitted within a zoning district by the controlling zoning ordinance so long as the use meets certain criteria or conditions." Id. Thus, a special use " 'is a "permitted use" when allowed under a special permit. Thus, there has been a local legislative determination that the use, as such, is neither inconsistent with the public's health, safety, morals or general welfare, nor out of harmony with the town's general zoning plan.' " Id. at 17, 255 Ill.Dec. 434, 749 N.E.2d 916 (quoting 3 Edward H. Ziegler et al. , Rathkopf's The Law of Zoning and Planning § 41.08, at 41-34 (4th ed. 1992) ); see also 83 Am. Jur. 2d Zoning and Planning § 974, at 814 (1992) ("Where a zoning ordinance authorizes a business as a special use, such authorization is tantamont [sic ] to a legislative conclusion that the use is appropriate in the district.").

¶ 20 The following year, in Klaeren , the court answered the question it had left open in Living Word Outreach. It explicitly held that decisions on special-use permits were administrative rather than legislative actions. Klaeren , 202 Ill. 2d at 183, 269 Ill.Dec. 426, 781 N.E.2d 223.

¶ 21 In response to Klaeren , the legislature enacted section 12012.1, which currently provides:

"Any decision by the county board of any county, home rule or non-home rule, in regard to any petition or application for a special use * * * shall be subject to de novo judicial review as a legislative decision, regardless of whether the process in relation thereto is considered administrative for other purposes." 55 ILCS 5/5-12012.1(a) (West 2016).

¶ 22 In Millineum Maintenance Management, Inc. v. County of Lake , 384 Ill. App. 3d 638, 323 Ill.Dec. 819, 894 N.E.2d 845 (2008), a defendant argued, inter alia , that section 12012.1 violated separation-of-powers principles ( Ill. Const. 1970, art. II, § 1 ) in that the legislature purported to direct the courts how to decide a particular type of case. We first held that "de novo judicial review" did not mean the type of review usually contemplated by the phrase "de novo review," but instead merely permitted the introduction of new evidence that had not been considered by the legislative body. Millineum Maintenance , 384 Ill. App. 3d at 651-52, 323 Ill.Dec. 819, 894 N.E.2d 845. We further held that, in order to avoid a constitutional infirmity, we would interpret the statute to mean that "the evidence received must bear on the court's review 'for arbitrariness as a matter of substantive due process under the six-part test set forth in [ La Salle ].' " Id. at 653, 323 Ill.Dec. 819, 894 N.E.2d 845 (quoting Living Word Outreach , 196 Ill. 2d at 14, 255 Ill.Dec. 434, 749 N.E.2d 916 ).

¶ 23 In Napleton , the plaintiff challenged a text amendment to the defendant village's zoning code to ban financial institutions on ground-floor spaces in the B-1 and B-3 zoning districts. Napleton , 229 Ill. 2d at 302, 322 Ill.Dec. 548, 891 N.E.2d 839. The plaintiff contended that the ordinance would diminish the value of her property by limiting the pool of potential tenants. Id. at 303, 322 Ill.Dec. 548, 891 N.E.2d 839. The court, after noting that the plaintiff had expressly proceeded with a facial challenge after agreeing with the village that her as-applied challenge was premature, went on to explain the difference between facial and as-applied challenges:

"A facial challenge to the constitutionality of a legislative enactment is the most difficult challenge to mount successfully [citations], because an enactment is facially invalid only if no set of circumstances exists under which it would be valid. [Citation.] The fact that the enactment could be found unconstitutional under some set of circumstances does not establish its facial invalidity. [Citations.] In contrast, in an 'as-applied' challenge a plaintiff protests against how an enactment was applied in the particular context in which the plaintiff acted or proposed to act, and the facts surrounding the plaintiff's particular circumstances become relevant. [Citation.] If a plaintiff prevails in an as-applied claim, he may enjoin the objectionable enforcement of the enactment only against himself, while a successful facial attack voids the enactment in its entirety and in all applications." Id. at 305-06, 322 Ill.Dec. 548, 891 N.E.2d 839.

¶ 24 The court then considered the level of scrutiny to apply to the plaintiff's constitutional challenge, concluding that the traditional rational-basis test was appropriate. Id. at 308-09, 322 Ill.Dec. 548, 891 N.E.2d 839. The plaintiff contended, however, that La Salle mandated more exacting scrutiny. The court rejected this argument, noting that the plaintiff's challenge was facial whereas La Salle involved an as-applied challenge:

"The difference between a facial and an as-applied zoning challenge is significant: a zoning ordinance that may be valid in its general aspects may nevertheless be invalid as to a specific parcel of property because the balance of hardships-the gain to the public in general against the detriment to the individual owner-overwhelmingly burdens the individual owner. [Citation.] In light of this possibility, the La Salle opinion set forth a list of factors that may be relevant in an as-applied challenge to assist in balancing the gain to the public against the specific burdens experienced by an individual property owner. In addition, as a result of the difference in focus of each type of challenge, the evidence needed to sustain a claim of invalidity will be different depending upon whether the challenge is facial-alleging a universal invalidity-or as applied to a particular property. We agree with the appellate court below that if the same evidentiary standard were used in each type of challenge, there would be no difference between these challenges, leading to the absurd result that a zoning ordinance 'could never be generally valid but invalid as to a particular piece of property; instead, it would be either valid as to all or invalid as to all.' [Citation.] That the La Salle factors do not lend themselves to application to a facial challenge is evident not only from the fact that they focus upon the specific effect of the challenged ordinance upon a particular parcel of property, but also in that plaintiff suggests that this court modify these factors for application to a facial challenge, acknowledging that 'some of the La Salle factors that deal with the specifics of a parcel of property may not be relevant or applicable in a facial challenge, which * * * maintain[s] that the ordinance at issue is invalid in all applications.' " Id. at 318-19, 322 Ill.Dec. 548, 891 N.E.2d 839.

¶ 25 Finally, in Our Savior Evangelical Lutheran Church v. Saville , 397 Ill. App. 3d 1003, 337 Ill.Dec. 566, 922 N.E.2d 1143 (2009), the plaintiff challenged the denial of a special-use permit. Quoting the above passage, we held that the La Salle factors continued to govern as-applied challenges such as the one in question. Id. at 1029, 337 Ill.Dec. 566, 922 N.E.2d 1143.

¶ 26 Here, defendants seize on the statement that "a successful facial attack voids the enactment in its entirety" ( Napleton , 229 Ill. 2d at 306, 322 Ill.Dec. 548, 891 N.E.2d 839 ) and argue that, because the ordinance in question applies only to the subject property, a successful challenge will "void[ ] the enactment in its entirety." They argue, in essence, that all challenges to the granting of a special-use permit are facial because the effect of such a challenge is to void the ordinance entirely. This argument is fatally flawed for several reasons.

¶ 27 First, defendants fail to account for the unique nature of special-use permits, which, by design and definition, are granted on a case-by-case basis. The supreme court recognized the unique nature of such proceedings in Living Word Outreach , where it observed that they were functionally equivalent to administrative proceedings and noted that a majority of jurisdictions consider them to be such. In Millineum Maintenance , we held that, despite the legislature's characterization of such proceedings as legislative, courts should continue to review them as before, using the La Salle factors, and we reaffirmed that conclusion in Our Savior.

¶ 28 Second, defendants err in assigning the distinction between facial and as-applied challenges talismanic significance. The United States Supreme Court has cautioned that "[t]he distinction is both instructive and necessary, for it goes to the breadth of the remedy employed by the Court, not what must be pleaded in a complaint." Citizens United v. Federal Election Comm'n , 558 U.S. 310, 331, 130 S.Ct. 876, 175 L.Ed.2d 753 (2010) ; see also Richard H. Fallon, Jr., As-Applied and Facial Challenges and Third-Party Standing , 113 Harv. L. Rev. 1321, 1327-28 (2000) ("In order to raise a constitutional objection to a statute, a litigant must always assert that the statute's application to her case violates the Constitution. But when holding that a statute cannot be enforced against a particular litigant, a court will typically apply a general norm or test and, in doing so, may engage in reasoning that marks the statute as unenforceable in its totality." (Emphasis omitted.) ).

¶ 29 An Illinois supreme court justice has observed:

"The difficulty may lie in the doctrine itself. One commentator has charged that 'categorizing constitutional cases into "facial" and "as-applied" challenges, and relying on these categories to shape doctrine and inform case outcomes, is an inherently flawed and fundamentally incoherent undertaking.' [Citation.] Another has lamented that the 'distinction between as-applied and facial challenges may confuse more than it illuminates' and argued that the distinction between facial and as-applied challenges should be eliminated altogether." People v. One 1998 GMC , 2011 IL 110236, ¶ 85, 355 Ill.Dec. 900, 960 N.E.2d 1071 (Karmeier, J., specially concurring).

¶ 30 But more fundamentally, Napleton itself emphatically rejected the reading defendants assign to it. Far from rejecting the La Salle factors as applicable to cases that-like this one-must necessarily be decided on an as-applied basis, the court held that the La Salle factors can be "relevant in an as-applied challenge" and labeled "absurd" the suggestion that a zoning ordinance could never be invalid as applied to a particular piece of property.

Napleton , 229 Ill. 2d at 318-19, 322 Ill.Dec. 548, 891 N.E.2d 839. Defendants cite the above-quoted language from Napleton in support of their argument that the La Salle factors do not apply to a facial challenge but fail to grasp the bigger point that La Salle itself involved a special-use permit. Defendants thus advance the paradoxical contention that the supreme court specifically endorsed the La Salle factors as appropriate for special-use cases, precisely because they focus on the parties' specific circumstances, but simultaneously forbade their use in special-use cases because all such challenges must be facial.

¶ 31 Moreover, to agree with defendants would be to effectively leave neighboring landowners without a remedy-something Illinois courts have said they have had for more than 60 years. The only way for a neighboring landowner to succeed on a facial challenge would be to argue that the special use is not appropriate anywhere in the relevant zoning district. However, as Living Word Outreach explained, the very existence of the special use within the zoning district demonstrates the legislative body's conclusion that it is appropriate in the zoning district if certain conditions are met. Living Word Outreach , 196 Ill. 2d at 17, 255 Ill.Dec. 434, 749 N.E.2d 916.

¶ 32 Napleton did not purport to overrule Living Word Outreach , Klaeren , or other cases applying the La Salle factors to cases of this type. Those cases explain that special-use permits are, by their nature, decided on a case-by-case basis and are thus the functional equivalent of administrative decisions regardless of how they are categorized for other purposes. It is only because of the fact-specific nature of the decision that the "entire ordinance" will be invalidated by a successful challenge. Cases from other districts since Napleton have continued to apply the La Salle factors to neighbor challenges. See Whipple , 2017 IL App (3d) 150547, 414 Ill.Dec. 32, 79 N.E.3d 667 ; Robrock v. County of Piatt , 2012 IL App (4th) 110590, 359 Ill.Dec. 792, 967 N.E.2d 822. Thus, here, as the ordinance itself is fact-specific, plaintiffs' challenge to it is properly fact-specific as well.

¶ 33 Citing Conaghan v. City of Harvard , 2016 IL App (2d) 151034, 406 Ill.Dec. 436, 60 N.E.3d 987, defendants further contend that section 12012.1 does not create a cause of action. Conaghan considered a parallel provision in the Illinois Municipal Code ( 65 ILCS 5/11-13-25 (West 2016) ), holding that it did not create a new cause of action but merely imposed standards for preexisting actions. Conaghan , 2016 IL App (2d) 151034, ¶ 73, 406 Ill.Dec. 436, 60 N.E.3d 987. In Conaghan , the plaintiffs pleaded no other basis for relief. See id. ¶ 74. Here, although the complaint states that it is brought under section 12012.1, it also invokes the declaratory judgment provision of the Civil Practice Law ( 735 ILCS 5/2-701 et seq. (West 2016) ) as well as La Salle . This fact distinguishes this case from Conaghan . In neither Our Savior nor Millineum Maintenance did we hold that section 12012.1 was a bar to proceeding with a traditional action for review of a special-use-permit decision pursuant to the La Salle factors. Our Savior , 397 Ill. App. 3d at 1029, 337 Ill.Dec. 566, 922 N.E.2d 1143 ; Millineum Maintenance , 384 Ill. App. 3d at 653, 323 Ill.Dec. 819, 894 N.E.2d 845.

¶ 34 Defendants make some additional arguments that plaintiffs' allegations are insufficient. They contend that the allegations are conclusional. A pleading that merely paraphrases the elements of a cause of action in conclusory terms is insufficient. Landers-Scelfo v. Corporate Office Systems, Inc. , 356 Ill. App. 3d 1060, 1065, 293 Ill.Dec. 170, 827 N.E.2d 1051 (2005). On the other hand, a plaintiff need not set out his or her evidence in the complaint. A fact is well pleaded if a plaintiff has clearly set out the ultimate fact he or she intends to prove. Id. A motion to dismiss under section 2-615 raises issues of law; we therefore review the dismissal de novo . Id.

¶ 35 Here, plaintiffs' allegations include ultimate facts. For example, the complaint alleges that the value of Paul's property will be diminished by the proposed use and lists five specific ways in which that will occur. It alleges that "run-off from the garbage dumpsters and garbage trucks will drain to the bottomland areas which are immediately adjacent to the Walter Paul Property. All further drainage from the Subject Property drains over and across the Walter Paul Property. There is a potential for ground water contamination on the Walter Paul Property." This seems to be reasonably specific, and defendants do not specify what additional information they require.

¶ 36 Plaintiffs' allegations are similar to those found sufficient in similar cases. In Whipple , for example, the plaintiffs challenged the granting of a permit to operate a mine on a nearby property. Their complaint closely tracked the La Salle factors, much like the complaint here. The reviewing court held that the lower court erred in dismissing it. Whipple , 2017 IL App (3d) 150547, ¶ 53, 414 Ill.Dec. 32, 79 N.E.3d 667.

¶ 37 Defendants further contend that plaintiffs' allegations are "speculative." In a case of this type, allegations will always be speculative in the sense that the proposed use has not commenced, so it would be impossible to calculate with mathematical precision the damages to the plaintiffs' properties. As the First District has observed, "Defendants call plaintiffs' allegations of harm speculative, but plaintiffs respond that any zoning case involves expert projections that an opponent will wish to term speculative. Plaintiffs correctly add that, at the pleading stage, they have not yet had a chance to prove what defendants contend is speculative." Rodriguez v. Henderson , 217 Ill. App. 3d 1024, 1035, 160 Ill.Dec. 878, 578 N.E.2d 57 (1991).

¶ 38 Defendants argue that, even if the trial court erred in dismissing the entire complaint, its dismissal of count II should nevertheless be affirmed because the count fails to state a claim. See Ultsch v. Illinois Municipal Retirement Fund , 226 Ill. 2d 169, 192, 314 Ill.Dec. 91, 874 N.E.2d 1 (2007) (reviewing court may affirm on any basis supported by the record). In count II, plaintiffs allege that the county failed to follow its own zoning ordinance in granting the special-use permit. Defendants' argument on this point consists only of a brief general assertion that this count improperly seeks administrative review of a legislative decision. We disagree. A municipality must follow its own valid ordinances.

People ex rel. J.C. Penney Properties, Inc. v. Village of Oak Lawn , 38 Ill. App. 3d 1016, 1019, 349 N.E.2d 637 (1976). If a municipality violates its own valid ordinance, its action is illegal, and the courts may enjoin it. Tierney v. Village of Schaumburg , 182 Ill. App. 3d 1055, 1059, 131 Ill.Dec. 529, 538 N.E.2d 904 (1989). As we reject defendants' alternative basis for affirming it, we reverse the dismissal of count II.

¶ 39 Plaintiffs assert that count III, seeking to enjoin the proposed use, likewise was improperly dismissed. A party seeking a permanent injunction must allege that he or she has a clear and ascertainable right that needs protection, there is no adequate remedy at law, and he or she will suffer irreparable harm if such relief is not granted. Helping Others Maintain Environmental Standards v. Bos , 406 Ill. App. 3d 669, 688, 346 Ill.Dec. 789, 941 N.E.2d 347 (2010). Injunctive relief can be appropriate to prevent a prospective use of neighboring property, at least where that use would constitute a nuisance. See Whipple , 2017 IL App (3d) 150547, ¶ 45, 414 Ill.Dec. 32, 79 N.E.3d 667 ; Helping Others Maintain Environmental Standards , 406 Ill. App. 3d at 689, 346 Ill.Dec. 789, 941 N.E.2d 347.

¶ 40 As with count II, the trial court did not specifically rule on the sufficiency of this count. Defendants' argument that it is insufficient largely restates their previous arguments about the complaint in general. Thus, we do not consider whether plaintiffs' specific allegations are sufficient to state a cause of action for injunctive relief. We reverse the dismissal of this count as well.

¶ 41 The judgment of the circuit court of Ogle County is reversed and the cause is remanded.

¶ 42 Reversed and remanded.

Justices Zenoff and Burke concurred in the judgment and opinion.

      The subject property is within Forreston's 1½-mile planning "buffer zone." See 65 ILCS 5/11-12-5(1) (West 2016).

      Sinclair , 19 Ill. 2d at 378, 167 N.E.2d 406, added two additional factors. For convenience, we refer to all the factors as the La Salle factors.

      Millineum Maintenance was decided 10 weeks after the supreme court's opinion in Napleton , but cited only this court's opinion. Millineum Maintenance , 384 Ill. App. 3d at 643, 653, 323 Ill.Dec. 819, 894 N.E.2d 845 (citing Napleton v. Village of Hinsdale , 374 Ill. App. 3d 1098, 313 Ill.Dec. 263, 872 N.E.2d 23 (2007) ).

      Given that the right to challenge the granting of special-use permits for neighboring properties is rooted in due process, it is unlikely that the remedy could be completely abolished. However, as plaintiffs do not make the argument that due process requires any particular remedy, we do not consider it further.

      We do not say that there could never be a distinction between facial and as-applied challenges to special-use permits. It is possible that an ordinance could affect different properties differently. Here, at least at this stage of the proceedings, that is not an issue.

      There is some authority that the rule that municipalities must follow their own ordinances does not apply to home-rule units, which many counties are. However, the parties do not raise this argument, and the record contains no information on whether the county here is a home-rule unit. Thus, we do not consider the issue further.


text:
    Elizabeth CASTILLO, a Minor, by her Mother, Esperanza Castillo, Esperanza Castillo, Rosalino Castillo, Maria Castillo, Yesenia Castillo, and Enrique Castillo, Plaintiffs-Appellants, v. The BOARD OF EDUCATION OF the CITY OF CHICAGO, Defendant-Appellee.
    No. 1-17-1053
    Appellate Court of Illinois, First District, Second Division.
    Opinion filed April 24, 2018
    David W. Hepplewhite, of David W. Hepplewhite, P.C., and Sheldon Minkow, of Minkow Domin, both of Chicago, for appellants.
    Law Department of Board of Education of the City of Chicago, of Chicago (Ronald L. Marmer and Lee Ann Lowder, of counsel), for appellee.
   JUSTICE HYMAN delivered the judgment of the court, with opinion.

¶ 1 Elizabeth Castillo, a high school student, and her family sued the Chicago Board of Education, after Estrella Martinez, a fellow student, physically attacked her off-campus. Castillo alleged that school officials failed to protect Castillo from Martinez's on-campus harassment and eventual off-campus attack. The trial court held that the Board was immune from suit.

¶ 2 We affirm because that is what the law requires. The Board's alleged failure to prevent on-campus harassment depended on discretionary decisions regarding school discipline. And its alleged failure to protect Castillo from an off-campus attack involves police protection. In both areas, the Board has statutory immunity. Finally, Castillo did not sufficiently allege that the Board spoiled evidence by not preserving a diary where she recorded Martinez's harassment.

¶ 3 Background

¶ 4 According to Castillo's suit, Martinez physically attacked her off-campus. Before the attack, Martinez had previously attacked Castillo on school grounds, in front of school officials, including once on the day of the off-campus attack. In the two years before the attack, Castillo's mother had spoken several times to school officials about Martinez harassing Castillo at school. Castillo's mother called the school just before the attack to complain about Martinez, but no one would talk to her. After the attack, Castillo's mother went to the school to retrieve the contents of Castillo's locker, including a diary in which her daughter had written about the harassment; but school officials refused to give Castillo's belongings to her mother, and the diary was never found.

¶ 5 Castillo alleged that the Board had been negligent by allowing Martinez to remain a student despite her conduct; failing to prevent Martinez's harassment or the attack by expelling her, calling the police or the girls' parents, or providing a safe place on school grounds for Castillo to wait and avoid Martinez; and failing to warn Castillo of Martinez's planned attack. Castillo also alleged that the Board had committed spoliation of evidence by losing, destroying, or failing to preserve her diary.

¶ 6 The Board moved to dismiss Castillo's complaint, arguing that it was immune because school officials had no duty to perform police functions by preventing Martinez's off-campus attack on Castillo and disciplinary matters are discretionary. The Board also argued that it had no duty to preserve Castillo's diary, that there were no facts alleging that school officials knew about the diary, and that it was not foreseeable that the diary would become important in the eventual lawsuit.

¶ 7 The trial court dismissed Castillo's complaint.

¶ 8 Standard of Review

¶ 9 We review a trial court's dismissal under section 2-619 of the Code of Civil Procedure ( 735 ILCS 5/2-619 (West 2016) ) de novo , taking as true all well-pleaded facts and interpreting pleadings in the light most favorable to the nonmoving party. Mulvey v. Carl Sandburg High School , 2016 IL App (1st) 151615, ¶ 41, 408 Ill.Dec. 715, 66 N.E.3d 507.

¶ 10 Analysis

¶ 11 Castillo frames her brief around whether she sufficiently alleged a cause of action or a prima facie case against the Board. Like the trial court, we will assume that Castillo alleged that the Board had duties to protect her from Martinez.

¶ 12 Castillo's factual allegations fall into two categories: (i) the Board's failure to protect her from Martinez's harassment on school property (which, according to Castillo, happened in full view of school employees) and (ii) Martinez's off-campus attack on Castillo.

¶ 13 Section 2-201 Immunity: School Discipline

¶ 14 Castillo argues that the Board's failure to discipline Martinez for her on-campus harassment violated the bullying-prevention statute ( 105 ILCS 5/27-23.7 (West 2016) ) and the Board's own anti-bullying policy. The trial court held that the Board was immune under section 2-201 of the Local Governmental and Governmental Employees Tort Immunity Act ( 745 ILCS 10/2-201 (West 2016) ), which states that "a public employee serving in a position involving the determination of policy or the exercise of discretion is not liable for an injury resulting from his act or omission in determining policy when acting in the exercise of such discretion even though abused." Because the statute was enacted in derogation of common law, it must be strictly construed. Van Meter v. Darien Park District , 207 Ill. 2d 359, 368, 278 Ill.Dec. 555, 799 N.E.2d 273 (2003). Section 2-201 applies to employees performing discretionary functions, but not "ministerial" acts that require no discretion by the employee to implement a given policy. Malinksi v. Grayslake Community High School District 127 , 2014 IL App (2d) 130685, ¶ 8, 384 Ill.Dec. 522, 16 N.E.3d 915.

¶ 15 Castillo argues that section 2-201's immunity applies only to "policy-making discretion," not to the exercise of discretion in the implementation of policy. Courts have repeatedly rejected this argument and have applied section 2-201 immunity to school officials implementing anti-bullying policies similar to the one here. See Mulvey , 2016 IL App (1st) 151615, ¶¶ 47-48, 408 Ill.Dec. 715, 66 N.E.3d 507 (implementation of school's anti-bullying policy requires discretionary determinations of whether bullying occurred and appropriate consequences, not just ministerial acts);

Malinksi , 2014 IL App (2d) 130685, ¶¶ 12-13, 384 Ill.Dec. 522, 16 N.E.3d 915(implementation of anti-bullying policy under bullying-prevention statute does not render school official's actions ministerial); Hascall v. Williams , 2013 IL App (4th) 121131, ¶ 25, 375 Ill.Dec. 112, 996 N.E.2d 1168 (school officials must determine whether bullying has occurred and appropriate consequences, which are "discretionary acts and policy determinations").

¶ 16 Review of the Board's anti-bullying policy shows that its implementation requires both discretion and decision-making by school officials, at every level. Even as it defines bullying behavior, it cautions that the list is "illustrative and non-exhaustive" and directs school officials to consider "the student's intent, the frequency or recurrence of the inappropriate behavior, and whether there are power imbalances between the students involved." That is, a school employee could determine whether a behavior constitutes "bullying" even if the behavior does not fall within the listed examples of "harassment, threats, intimidation" and the like.

¶ 17 The policy directs school employees to intervene in bullying incidents "in a manner that is appropriate to the context," and after investigation, to assign consequences "in a manner tailored to the individual incident, considering the nature of the behavior, the developmental age of the student, and the student's history of problem behaviors and performance." While the policy directs school employees to deal with bullying incidents, it assumes, and indeed mandates, discretionary decisions by employees. Like the policy in Mulvey , this policy is "discretionary in nature and does not mandate a specific response to every set of circumstances." Mulvey , 2016 IL App (1st) 151615, ¶ 48, 408 Ill.Dec. 715, 66 N.E.3d 507 ; see also Hascall , 2013 IL App (4th) 121131, ¶ 29, 375 Ill.Dec. 112, 996 N.E.2d 1168 (school officials' alleged acts and omissions constituted discretionary acts and policy determinations, so officials were immune under section 2-201 ). It could hardly be otherwise. For the Board to promulgate a policy that would inhibit individual school officials from making their own determinations as to what constitutes bullying and the appropriate disciplinary response would be difficult, if not impossible, to establish.

¶ 18 Castillo relies on Barr v. Cunningham , 2016 IL App (1st) 150437, ¶¶ 3-4, 402 Ill.Dec. 600, 52 N.E.3d 521, where a student who had been injured during gym class sued the gym teacher for failing to require the students to wear safety equipment. The appellate court held that the gym teacher was not entitled to immunity under section 2-201 because the decision of whether to require safety equipment was not a policy-making decision. Id. ¶ 28. Barr was overturned by the Illinois Supreme Court on other grounds. Barr v. Cunningham , 2017 IL 120751, 417 Ill.Dec. 667, 89 N.E.3d 315. We reject its remaining analysis on the question of policy determination versus discretionary decision-making. Hascall , Mulvey , and Malinksi - cases that also involve decisions under an anti-bullying policy-fit better factually with this case than Barr .

¶ 19 Further, Castillo argues that the Board does not warrant section 2-201 immunity because it violated the bullying-prevention statute. 105 ILCS 5/27-23.7(d) (West 2016). But this statute only mandates that every school district create a policy on bullying; it does not mandate that a school respond to a particular instance of bullying in a particular way. The Board complied with the statute by creating an anti-bullying policy, and so Castillo cannot evade section 2-201 immunity by relying on the statute alone.

¶ 20 Section 4-102 Immunity: Police Protection

¶ 21 Next, we will address the Board's alleged failure to prevent Martinez's off-campus attack at the core of this case. The Board argues, and the trial court held, that the Board retains immunity from suit because Castillo alleged a failure to protect her from a crime-a public entity is not liable for failure to "provide police protection service." 745 ILCS 10/4-102 (West 2016).

¶ 22 The Board cites two cases for the proposition that school officials are immune from suit when a student is harmed off school property, even if school officials knew that violence was likely. In Green v. Chicago Board of Education , a high school student was shot and killed by a fellow student. 407 Ill. App. 3d 721, 723, 348 Ill.Dec. 506, 944 N.E.2d 459 (2011). Though school officials knew of rising tensions between rival student groups, the victim, Ruben Ivy, was required to leave school after dismissal. Id. A large group of armed individuals were waiting outside, and Ivy was shot. Id. Emily Green, the special administrator of Ivy's estate, argued that the school should have, among other things, notified police and provided safe passage in and out of the school, but failed by dismissing students from school when there were armed people outside. Id. The appellate court held that the "police protection" clause of section 4-102 afforded the Board immunity, as Green's allegations "focus[ed] on security and police measures around the school." Id. at 728, 348 Ill.Dec. 506, 944 N.E.2d 459.

¶ 23 Similarly, in Albert v. Board of Education of the City of Chicago , 2014 IL App (1st) 123544, 388 Ill.Dec. 120, 24 N.E.3d 28, a student was killed in a fight on his way home from school. The appellate court followed Green , holding that the Board was immune from claims that it should have protected Albert after school and off-campus because the actions would be "police protection." Id. ¶ 56.

¶ 24 As in Green and Albert , Castillo alleges an attack after school and off school grounds and claims that the Board should have protected her from this attack.

¶ 25 Castillo attempts to distinguish Green and Albert by arguing that she has not alleged that the Board should have acted in the role of police to prevent Martinez's crime, but rather that the Board should have protected her through "supervisory" actions, such as calling parents, calling the police, or allowing Castillo to remain at the school to avoid Martinez. According to Castillo, this would make section 4-102 inapplicable if Castillo could show that the Board had undertaken to "supervise an activity" but committed "willful and wanton conduct." 745 ILCS 10/3-108 (West 2016). Green rejected this precise argument. 407 Ill. App. 3d at 728, 348 Ill.Dec. 506, 944 N.E.2d 459 (finding that section 3-108 is not an exception to section 4-102, and Green's allegations focused on security measures, not failure to supervise activity). Further, Castillo has provided no case, and we have found none, distinguishing the actions she suggests as "supervisory" rather than "police." Finally, many of the "supervisory" actions the Board allegedly could have taken inevitably slide into the area of school discipline, which, as discussed, is covered by section 2-201 immunity.

¶ 26 Spoliation of Evidence

¶ 27 Castillo alleged spoliation of evidence, specifically, that the Board had a duty to preserve the contents of Castillo's school locker, including a diary in which Castillo recorded Martinez's harassment. Spoliation is a form of negligence, and the general rule is that there is no duty to preserve evidence.

Martin v. Keeley & Sons, Inc ., 2012 IL 113270, ¶ 27, 365 Ill.Dec. 656, 979 N.E.2d 22. Castillo must show that an "agreement, contract, statute, special circumstance, or voluntary undertaking" gave rise to a duty by the Board to preserve the diary and that a reasonable person in the Board's position "should have foreseen that the evidence was material to a potential civil action." Id.

¶ 28 The claim fails on the second prong of foreseeability. Castillo has not alleged facts indicating that the diary's evidentiary worth would have been foreseeable by a reasonable person in the Board's position. There is no allegation that Castillo, or anyone else, told school officials that she was recording Martinez's harassment or that she even had a diary in her locker. Nor has Castillo explained why a reasonable school employee cleaning out Castillo's locker would recognize that the object contained the factual basis of an eventual lawsuit. Differentiating the diary from the normal locker contents of a high school student would have required the school employees to open and read it, which they certainly had no responsibility to do. Disposing of the locker contents may have been careless, but Castillo did not allege sufficient facts to show that the Board committed spoliation of evidence.

¶ 29 Affirmed.

Presiding Justice Neville and Justice Mason concurred in the judgment and opinion.