People v. Howard

Docket No. 104553.

IN THE

SUPREME COURT

OF

THE STATE OF ILLINOIS

THE PEOPLE OF THE STATE OF ILLINOIS, Appellee, v.

LYNDELL W. HOWARD, Appellant.

Opinion filed April 17, 2008.

JUSTICE GARMAN delivered the judgment of the court, with

opinion.

Chief Justice Thomas and Justices Freeman, Fitzgerald, Kilbride,

Karmeier, and Burke concurred in the judgment and opinion.

OPINION

In 2005, defendant, Lyndell W. Howard, was indicted for nine

counts of official misconduct related to his use of a City of Pekin

credit card. Six of the counts alleged that defendant violated section

33E–16 of the Criminal Code of 1961 (720 ILCS 5/33E–16 (West

2004)), while three counts alleged that defendant acted contrary to

article VIII, section 1(a), of the Illinois Constitution of 1970 (Ill.

Const. 1970, art. VIII, §1(a)). Based upon the above, the indictment

alleged that defendant violated section 33–3(c) of the Criminal Code

(720 ILCS 5/33–3(c) (West 2004)), the official misconduct statute.

Defendant moved to dismiss all of the counts against him. The

circuit court of Tazewell County dismissed the six counts predicated

on section 33E–16 of the Criminal Code. Defendant’s motion to

dismiss was not granted, however, with regard to the three counts of

official misconduct predicated on article VIII, section 1(a), of the

Illinois Constitution, which provides that “[p]ublic funds, property or

credit shall be used only for public purposes.” A jury found defendant

guilty of all three counts. Defendant was sentenced to 30 months’

probation, required to perform community service, and ordered to pay

costs. On appeal, defendant alleged that the indictment against him

was defective and the State did not prove him guilty beyond a

reasonable doubt. The appellate court affirmed. No. 3–05–0905

(unpublished order under Supreme Court Rule 23).

Defendant filed and was granted leave to appeal to this court

pursuant to Rule 315 (210 Ill. 2d R. 315). Defendant no longer

contests the sufficiency of the evidence, choosing to rely only on his

argument that the indictment against him was defective. According to

defendant, the trial court should have dismissed all of the counts

against him, including the three at issue in this case.

Background

Defendant was elected mayor of the City of Pekin in 2003. Several

years earlier, the city council of Pekin obtained a credit card (the

City’s card) from the Herget National Bank. Pursuant to council

resolution, the heads of city departments were allowed to use the

City’s card to confirm hotel reservations, pay in advance for training

sessions, order educational materials, and pay expenses while engaged

in city business. After his election as mayor, defendant received and

completed a “Business Card Application” from Herget National Bank

and became an authorized user of the City’s card.

On three separate occasions in 2004, defendant used the City’s

card to obtain over $1,400 in cash advances to play video poker at the

Par-A-Dice Casino in Peoria, Illinois. Defendant used the City’s card

only after he exhausted the funds available to him through his personal

debit and credit cards. In its brief the State asserts, and defendant does

not dispute, that defendant obtained two benefits from this use of the

City’s card: (1) additional funds with which to continue gambling; and

(2) “player points,” which could be used either to pay for meals or to

receive cash back. At oral argument and in the trial court, the State

asserted that defendant obtained a third benefit from his use of the

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City’s card, that being what the State termed “the float.” According

to the State, “the float” was essentially an interest-free loan, whereby

defendant used the City’s credit to access money and continue

gambling without paying the expense of that gambling until the City

card’s monthly bill came due.

While the City of Pekin was the sole obligor with respect to the

City’s card, defendant would pay the bills from his own assets when

they came due. Defendant conceded, however, that at least one of his

checks for payment bounced. Defendant asserts, though, that he

quickly remedied the problem and made the payment in full. If

defendant had not paid the credit card bills, the City of Pekin would

have been liable for them.

Defendant was indicted for three counts of official misconduct

based upon the conduct discussed above, one count for each occasion

he used the City’s card to obtain a cash advance. The indictment

alleged the following:

“That the said defendant, a public official, the Mayor of the

City of Pekin, while acting in his official capacity and with the

intent to obtain a personal advantage for himself, knowingly

performed an act in excess of his lawful authority in that he

used credit of the City of Pekin to receive cash to gamble at

the Paradice Casino contrary to Article 8, Section 1 of the

Constitution of the State of Illinois which provides that public

funds, property or credit shall be used only for public

purposes.”

While the three counts of the indictment were predicated on the

Illinois Constitution, each count alleged violation of section 33–3(c)

(720 ILCS 5/33–3(c) (West 2004)), and defendant was ultimately

convicted of violating that statute.

Defendant asserts that the above-described indictment was

insufficient because the law it identified–article VIII, section 1(a), of

the Illinois Constitution–cannot serve as a predicate unlawful act for

the offense of official misconduct. As noted, this is the only issue

defendant argues before this court. The appellate court, in considering

this issue, found that the indictment against defendant properly

charged the offense of official misconduct and a violation of the

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Illinois Constitution can serve as a predicate unlawful act for that

offense. We affirm.

Analysis

Section 33–3(c) of the Criminal Code provides that a public

officer commits misconduct when that public officer, acting in his

official capacity and with the intent to obtain a personal advantage,

performs an act in excess of his lawful authority. 720 ILCS 5/33–3(c)

(West 2004). Defendant’s argument that the Illinois Constitution

cannot serve as a predicate unlawful act for the offense of official

misconduct addresses the lawful-authority portion of the above

statute. In other words, defendant asserts that the Illinois Constitution

is not a law for the purposes of official misconduct and thus his act

contrary to article VIII, section 1(a), of the Illinois Constitution does

not constitute “an act in excess of his lawful authority” under section

33–3(c). This argument presents an issue of statutory construction,

which is a question of law, and thus the standard of review is de novo.

People v. Grever, 222 Ill. 2d 321, 335 (2006); People v. Roberson,

212 Ill. 2d 430, 437 (2004).

Defendant relies heavily on this court’s recent opinion in People

v. Grever. As in this case, Grever concerned whether particular counts

of an indictment sufficiently stated a charge of official misconduct.

While the counts at issue in this case were predicated on violations of

the Illinois Constitution, the counts at issue in Grever alleged that the

defendant “acted outside his lawful authority by breaching an

‘uncodified’ fiduciary duty to the public, ‘predicated on basic moral

principles.’ ” Grever, 222 Ill. 2d at 337.

Considering the indictment in Grever, we noted “that the official

misconduct statute requires that the charging instrument ‘specify the

“law” allegedly violated by the officer or employer in the course of

committing the offense.’ ” Grever, 222 Ill. 2d at 335, quoting

Fellhauer v. City of Geneva, 142 Ill. 2d 495, 506 (1991). Further, we

held that an “indictment must, at a minimum, allege facts that would

show defendant violated an identifiable statute, rule, regulation, or

tenet of a professional code and demonstrate how defendant exceeded

his lawful authority.” Grever, 222 Ill. 2d at 337. Considering the

above, we declined to impose criminal liability based upon the

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“amorphous concept of a ‘breach of a fiduciary duty’ ” and found that

the State failed to adequately charge the “exceeding lawful authority”

element of official misconduct under section 33–3(c). Grever, 222 Ill.

2d at 338-39.

In relying upon Grever, defendant focuses directly on the portion

of the opinion where we stated that an indictment must, “at a

minimum, allege facts that would show defendant violated an

identifiable statute, rule, regulation, or tenet of a professional code

and demonstrate how defendant exceeded his lawful authority.”

Grever, 222 Ill. 2d at 337. Defendant notes that when Grever was

before the appellate court, the above principle was stated in a slightly

different manner, and the appellate court noted that none of the

evidence in the case “prove[d] that defendant acted in contravention

of an identifiable law, that is, a rule of action or conduct prescribed by

a controlling authority, having binding legal force in the form of a

constitution, statute, ordinance, supreme court rule, administrative

rule or regulation, or tenet of professional responsibility, when he did

the acts that were allegedly in excess of his lawful authority.” People

v. Grever, 353 Ill. App. 3d 736, 766-67 (2004).

Both this court and the appellate court considered and discussed

the “law” that a defendant could violate to run afoul of the official

misconduct statute, then, but while the appellate court mentioned the

constitution, this court did not. According to defendant, this signals

this court’s disapproval of the appellate court’s reference to the

constitution in Grever and supports defendant’s position that a person

cannot be held criminally liable for violating a provision of the Illinois

Constitution.

Further supporting his position, defendant notes that the Criminal

Code provides that “[n]o conduct constitutes an offense unless it is

described as an offense in this Code or in another statute of this

State.” 720 ILCS 5/1–3 (West 2004). Defendant contends in his brief

that “the Illinois Constitution is not a criminal code in and of itself nor

is it a part of the Illinois Criminal Code, but, rather, it represents a

framework for and a limitation on state governmental powers, and,

accordingly, the state’s reliance on it to bootstrap a criminal violation

is misplaced and the three constitutional indictments must fail.” To

find otherwise, defendant asserts, “would allow for the prosecution of

every public official who ever does something in his official capacity

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that, while not necessarily illegal, is contrary to the United States or

Illinois constitutions.”

Responding to defendant’s arguments, the State asserts that a

constitutional violation can serve as a predicate unlawful act for the

offense of official misconduct. Considering Grever, the State

considers it extremely unlikely that this court would have held that a

violation of the Illinois Constitution could not serve as a predicate

unlawful act without some discussion of the basis for such a ruling.

This is particularly so, the State contends, where appellate authority

other than that found in the appellate court’s decision in Grever held

just the opposite when considering the official misconduct statute. In

People v. Cornille, 136 Ill. App. 3d 1011, 1016 (1985), the appellate

court held that “the phrase ‘as required by law’ used in section

33–3(a) *** includes constitutional as well as statutory duties.”

Further supporting its position, the State notes that the Illinois

Constitution is the “supreme law” of this state. See Chicago Bar

Ass’n v. Illinois State Board of Elections, 161 Ill. 2d 502, 508 (1994);

Burritt v. Commissioners of State Contracts, 120 Ill. 322, 328 (1887).

Article VIII, section 1(a), provides that “[p]ublic funds, property or

credit shall be used only for public purposes.” Ill. Const. 1970, art.

VIII, §1(a). According to the State, defendant’s violation of a clearly

established provision of the Illinois Constitution is far different from

the situation presented in Grever involving an uncodified fiduciary

duty based upon moral principles.

Responding to defendant’s claim that section 1–3 of the Criminal

Code (720 ILCS 5/1–3 (West 2004)) precludes the use of a

constitutional violation as a predicate unlawful act, the State considers

it frivolous. Section 1–3 provides that “[n]o conduct constitutes an

offense unless it is described as an offense in this Code or in another

statute of this State.” Defendant was convicted of violating section

33–3(c), though, and thus the conduct that constituted the offense of

which defendant was convicted–performing an act in excess of lawful

authority for the purposes of obtaining a personal advantage–is

described as an offense in the Code.

In the State’s view, defendant is suggesting that section 1–3

should be construed to require that not only the offense, but also any

act set forth in the indictment, be prohibited by statute. The State

asserts that this does not comport with the plain language of the

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statute, however. Moreover, the State points out that in Grever this

court approvingly cited appellate opinions holding that a charge of

official misconduct could be based on the violation of a civil or

criminal statute, supreme court rule, or administrative rule. Grever,

222 Ill. 2d at 338, citing People v. Samel, 115 Ill. App. 3d 905, 912

(1983). Accordingly, the State finds defendant’s suggestion that

section 1–3 should be construed to require that even predicate

unlawful acts must violate a specific statute unsupported by the plain

language of the section itself as well as this court’s precedent.

Finally, the State argues that defendant’s assertion that this court

should preclude the use of a constitutional violation as a predicate

unlawful act to protect defendants from overzealous prosecutors

could be leveled at almost any prosecution of the types of violations

that this court has already specifically recognized as cognizable

predicate unlawful acts, including statutes, rules and regulations, and

codes of professional conduct. See Grever, 222 Ill. 2d at 337. The

State asserts that defendant is suggesting that this court should impose

a threshold requirement for the offense of official misconduct in order

to protect potential defendants from prosecution for de minimis

violations of the official misconduct statute. The State contends that

there is no statutory basis for such an exception, however, noting that

this court has held in the past that courts should not ignore a statute’s

plain meaning by reading into it exceptions, limitations, or conditions

not expressed in the statute itself. People v. Perry, 224 Ill. 2d 312,

323-24 (2007); Lulay v. Lulay, 193 Ill. 2d 455, 466 (2000).

In light of the above arguments, we agree with the State that the

constitution can serve as a predicate unlawful act for the offense of

official misconduct. While it is true that when we considered the

sufficiency of an indictment charging official misconduct in Grever

and considered the “law” that a defendant could violate to run afoul

of that statute we did not specifically reference the constitution, that

does not mean we meant to exclude the constitution. The constitution

was not at issue in Grever and thus we had no reason to decide

whether a violation of the constitution could serve as a predicate

unlawful act for the purposes of official misconduct. Squarely

considering the issue in this case, we hold that it can.

As indicated, this court has stated that the Illinois Constitution is

the “supreme law” of this state. See Chicago Bar Ass’n v. Illinois

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State Board of Elections, 161 Ill. 2d 502, 508 (1994); Burritt v.

Commissioners of State Contracts, 120 Ill. 322, 328 (1887). In

recognizing that “[t]he constitution is the supreme law” in the past, we

have also stated that “every citizen is bound to obey it and every court

is bound to enforce its provisions.” People ex rel. Miller v. Hotz, 327

Ill. 433, 437 (1927). The appellate court has recognized this in the

context of the official misconduct statute and held the same, not only

in this case, but also in Grever and Cornille. Had this court decided

to stray from this principle in Grever, we would have done so

explicitly and confronted the above precedent directly.

Section 1–3 does not alter our analysis. Section 1–3 provides that

“[n]o conduct constitutes an offense unless it is described as an

offense in this Code or in another statute of this State.” 720 ILCS

5/1–3 (West 2004). Defendant was convicted of violating section

33–3(c) of the Criminal Code, and thus his conduct is described as an

offense in the Code. Our finding in Grever that an indictment charging

official misconduct must “allege facts that would show defendant

violated an identifiable statute, rule, regulation, or tenet of a

professional code” only supports this finding, indicating as it does that

a conviction for official misconduct can be predicated on acts not

specifically described in the Code. Grever, 222 Ill. 2d at 337.

Likewise, our ultimate finding in this case is not altered by

defendant’s suggestion that allowing a constitutional violation to

suffice as a predicate unlawful act for purposes of the official

misconduct statute will result in the overzealous prosecution of

undeserving defendants. Such a charge could be leveled against almost

any prosecution for the violations that this court recognized in Grever

as cognizable predicate unlawful acts under the official misconduct

statute. Moreover, the plain language of the official misconduct

statute provides no basis for the imposition of a de minimis exception.

Perry, 224 Ill. 2d at 323 (“[w]here the language of the statute is clear

and unambiguous, we must apply it as written, without resort to

extrinsic aids to statutory construction”); People v. Martinez, 184 Ill.

2d 547, 550 (1998) (“[a] court should not depart from the language

of the statute by reading into it exceptions, limitations or conditions

that conflict with the intent of the legislature”).

While the specter of overzealous prosecution does not alter the

outcome in this case, we are not unsympathetic to defendant’s

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argument. Moreover, we think it important to note that even the State

would acknowledge that winning a conviction under the official

misconduct statute is not a simple matter, particularly if a prosecutor

should attempt to utilize the statute without considering that its reach

is not limitless. At oral argument, the State pointed out that one of the

elements of official misconduct is that a defendant must have acted

with the intent to obtain a personal advantage. Accordingly, if a

defendant has otherwise violated the official misconduct statute, but

only unintentionally obtained a personal advantage, a conviction will

not stand.

Defendant’s overzealous-prosecutor argument essentially

constitutes an assertion that the official misconduct statute would be

improved by the addition of a de minimis exception. This is a policy

argument and it could be asserted against a great many criminal

statutes. As we have stated in the past, “ ‘few, if any, laws are ever

enacted which are not subject to some criticism or capable of some

improvement. The question as to whether or not a better law might

have been enacted is for the legislature and not for the courts, and

criticisms against the wisdom, policy or practicability of a law are

subjects for legislative consideration and not for the courts.’ ” People

ex rel. Armstrong v. Huggins, 407 Ill. 157, 174 (1950), quoting

Perkins v. Board of County Commissioners, 271 Ill. 449, 471 (1916).

As we noted above, then, it is not that we are unsympathetic to

defendant’s argument regarding overzealous prosecution; rather, we

believe that it is the legislature that must decide whether the official

misconduct statute would benefit from a de minimis exception.

Finding no support for such an exception in the plain language of the

statute, we will not carve it out on our own initiative. We do believe,

however, that the proper scope of the official misconduct statute is an

issue ripe for legislative review, and we strongly suggest that the

parameters of the statute be addressed in that forum.

Conclusion

We hold that a violation of the constitution can serve as a

predicate unlawful act for the purposes of the official misconduct

statute. Accordingly, the indictment against defendant in this case,

alleging a violation of article VIII, section 1(a), of the Illinois

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constitution, was sufficient. As such, we affirm the judgment of the

appellate court.

Affirmed.

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