People v. Madrigal

Docket No. 110194.

IN THE

SUPREME COURT

OF

THE STATE OF ILLINOIS

__________________

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

CLAUDIA MADRIGAL, Appellee.

Opinion filed March 24, 2011.

JUSTICE THOMAS delivered the judgment of the court, with

opinion.

Chief Justice Kilbride and Justices Freeman, Garman, Karmeier,

Burke, and Theis concurred in the judgment and opinion.

OPINION

Defendant, Claudia Madrigal, was indicted in the circuit court of

Kane County on one count of identity theft in violation of section

16G–15(a)(7) of the Identity Theft Law (720 ILCS 5/16G–15(a)(7)

(West 2008)). Section 16G–15(a)(7) provides that “[a] person

commits the offense of identity theft when he or she knowingly ***

uses any personal identification information or personal identification

document of another for the purpose of gaining access to any record

of the actions taken, communications made or received, or other

activities or transactions of that person, without the prior express

permission of that person.” 720 ILCS 5/16G–15(a)(7) (West 2008).

The indictment alleged that defendant “knowingly used personal

identification information of Gabriela Vasquez, being Gabriela

Vazquez’s name, date of birth, and address, to gain access to a record

of actions taken, activities or transactions of Gabriela Vazquez,

without the prior express permission of Gabriela Vasquez.” A person

convicted of violating section 16G–15(a)(7) for the first time is guilty

of a Class 3 felony, punishable by up to five years in prison. 720 ILCS

5/16G–15(d)(2) (West 2008); 730 ILCS 5/5–4.5–40(a) (West 2008).

Defendant filed a motion to dismiss the indictment, seeking

dismissal on three separate due process grounds. First, defendant

maintained that section 16G–15(a)(7) is unconstitutionally vague

because its prohibitions are not sufficiently definite, when measured

by common understanding and practices, to give a person of ordinary

intelligence fair warning as to what conduct is prohibited. Second,

defendant argued that the charging instrument is impermissibly vague.

And finally, defendant argued that section 16G–15(a)(7) fails to

require a culpable mental state and therefore can be read to apply to

conduct that is wholly innocent.

After a hearing on the motion to dismiss the indictment, the circuit

court denied the first two grounds for dismissal. But it granted the

motion to dismiss on the third ground, finding that the statutory

subsection at issue lacks a culpable mental state and captures innocent

conduct, thus violating due process. The trial court later entered an

order under Illinois Supreme Court Rule 18 (Ill. S. Ct. R. 18 (eff.

Sept. 1, 2006)), indicating that section 16G–15(a)(7) is

unconstitutional on its face as violative of substantive due process

under the fourteenth amendment of the United States Constitution

(U.S. Const., amend. XIV) and article I, section 2, of the Illinois

Constitution (Ill. Const. 1970, art. I, §2). The court further found that

the statute could not be reasonably construed in a manner that

preserves its constitutionality and that the judgment of dismissal could

not rest on any alternative grounds. The State properly appealed

directly to this court as a matter of right. See Ill. S. Ct. R. 603 (eff.

Oct. 1, 2010). We now consider the constitutionality of section

16G–15(a)(7) of the identity theft statute.

ANALYSIS

We begin by noting that the question of whether a statute is

unconstitutional is a question of law, which this court reviews de

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novo. People v. Johnson, 225 Ill. 2d 573, 584 (2007). All statutes are

presumed constitutional, and the party challenging the

constitutionality of a statute has the burden of clearly establishing that

it violates the constitution. People v. Carpenter, 228 Ill. 2d 250, 267

(2008); Johnson, 225 Ill. 2d at 584. Under the banner of its police

power, the legislature has wide discretion to fashion penalties for

criminal offenses, but this discretion is limited by the constitutional

guarantee of substantive due process, which provides that a person

may not be deprived of liberty without due process of law. People v.

Wright, 194 Ill. 2d 1, 24 (2000). When the challenged statute does not

affect a fundamental constitutional right, the appropriate test for

determining its constitutionality is the highly deferential rational basis

test. Carpenter, 228 Ill. 2d at 267; Johnson, 225 Ill. 2d at 584-85.

Under that test, a statute will be sustained if it “ ‘bears a reasonable

relationship to a public interest to be served, and the means adopted

are a reasonable method of accomplishing the desired objective.’ ”

Wright, 194 Ill. 2d at 24 (quoting People v. Adams, 144 Ill. 2d 381,

390 (1991)).

Accordingly, we must first determine the statute’s purpose in

order to assess whether the prohibitions contained in section

16G–15(a)(7) reasonably implement that purpose. The language of the

statute itself is the best indicator of the legislative intent and statutory

purpose. Carpenter, 228 Ill. 2d at 268. We will therefore look to the

specific language of the Identity Theft Law to determine its purpose.

The legislative declaration in section 16G–5(a) of the Identity

Theft Law states that it is the “public policy of this State that the

substantial burden placed upon the economy *** as a result of the

rising incidence of identity theft and the negative effect of this crime

on the People of this State and its victims is a matter of grave concern

*** and therefore identity theft shall be identified and dealt with

swiftly and appropriately.” 720 ILCS 5/16G–5(a) (West 2008).

Section 16G–5(b) continues by declaring that the “widespread

availability and unauthorized access to personal identification

information have led and will lead to a substantial increase in identity

theft related crimes.” 720 ILCS 5/16G–5(b) (West 2008). From the

foregoing, it is clear, and both parties agree, that the purpose of the

identity theft statute is to protect the economy and people of Illinois

from the ill-effects of identity theft.

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Crucial to defendant’s argument that section 16G–15(a)(7) is

unconstitutional is the charge that it does not contain a culpable

mental state and therefore results in potentially punishing wholly

innocent conduct. This court has repeatedly held that a statute violates

the due process clauses of both the Illinois and United States

Constitutions if it potentially subjects wholly innocent conduct to

criminal penalty without requiring a culpable mental state beyond

mere knowledge. See, e.g., Carpenter, 228 Ill. 2d at 269 (struck down

a statute that “potentially criminalizes innocent conduct, as it visits the

status of a felon upon anyone who owns or operates a vehicle he or

she knows to contain a false or secret compartment, defined as one

intended and designed to conceal the compartment or its contents

from law enforcement officers”); Wright, 194 Ill. 2d at 25, 28 (struck

down record-keeping statute because it “potentially subjects ***

innocent conduct to *** a severe penalty”); In re K.C., 186 Ill. 2d

542, 549, 553 (1999) (invalidated criminal trespass to a vehicle statute

that prohibited entering a vehicle whenever it was done “knowingly

and without authority” because it “potentially punish[ed] wholly

innocent conduct without requiring proof of a culpable mental state”);

People v. Zaremba, 158 Ill. 2d 36, 42-43 (1994) (theft statute did not

bear a reasonable relationship to its purpose because “it potentially

subject[ed] wholly innocent conduct to punishment” and failed to

require a culpable mental state other than that the defendant do the

prohibited actions “knowingly”); People v. Wick, 107 Ill. 2d 62, 66

(1985) (“Because aggravated arson as defined by the statute does not

require an unlawful purpose in setting a fire, however, the statute as

presently constituted sweeps too broadly by punishing innocent as

well as culpable conduct in setting fires.”).

Simply put, this court has held that in such cases, a statute fails the

rational basis test because it does not represent a reasonable method

of preventing the targeted conduct. See Carpenter, 228 Ill. 2d at 269;

Wright, 194 Ill. 2d at 25. In Carpenter, we considered the facial

constitutionality of a statute that banned false or secret compartments

in automobiles. Because the statute in that case lacked a culpable

mental state beyond both knowledge of the compartment’s capacity

to conceal and an intent to conceal, we held that the statute “d[id] not

contain a reasonable means of preventing the targeted conduct, and it

therefore violate[d] due process.” Carpenter, 228 Ill. 2d at 269.

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In Wright, we considered the constitutionality of an automobile

record-keeping statute designed to prevent the transfer or sale of

stolen motor vehicles (see 625 ILCS 5/5–401.2(a) (West 1996)). In

declaring the statute unconstitutional on its face, we held that it could

not “withstand scrutiny under the rational basis test.” Wright, 194 Ill.

2d at 25. We found that “[i]n analogous cases, this court and courts

in other jurisdictions have held that criminal statutes that potentially

punish innocent conduct violate due process principles because they

are not reasonably designed to achieve their purposes.” Wright, 194

Ill. 2d at 25.

In the present case, section 16G–15(a) of the Identity Theft Law

attempts to implement its statutory purpose of preventing identity

theft as follows:

“(a) A person commits the offense of identity theft when

he or she knowingly:

(1) uses any personal identifying information or

personal identification document of another person to

fraudulently obtain credit, money, goods, services, or

other property, or

(2) uses any personal identifying information or

personal identification document of another with intent to

commit any felony theft or other felony violation of State

law not set forth in paragraph (1) of this subsection (a), or

(3) obtains, records, possesses, sells, transfers,

purchases, or manufactures any personal identification

information or personal identification document of another

with intent to commit or to aid or abet another in

committing any felony theft or other felony violation of

State law, or

(4) uses, obtains, records, possesses, sells, transfers,

purchases, or manufactures any personal identification

information or personal identification document of another

knowing that such personal identification information or

personal information documents were stolen or produced

without lawful authority, or

(5) uses, transfers, or possesses document-making

implements to produce false identification or false

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documents with knowledge that they will be used by the

person or another to commit any felony theft or other

felony violation of State law, or

(6) uses any personal identification information or

personal identification document of another to portray

himself or herself as that person, or otherwise, for the

purpose of gaining access to any personal identification

information or personal identification document of that

person, without the prior express permission of that

person, or

(7) uses any personal identification information or

personal identification document of another for the

purpose of gaining access to any record of the actions

taken, communications made or received, or other

activities or transactions of that person, without the prior

express permission of that person.” (Emphasis added.)

720 ILCS 5/16G–15(a) (West 2008).

All seven of the subparagraphs in section 16G–15(a) require at least

a mental state of mere knowledge, as introductory paragraph (a)

makes clear: “A person commits the offense of identity theft when he

or she knowingly” does anything proscribed by the different offenses

in subparagraphs (a)(1) through (a)(7). (Emphasis added.) 720 ILCS

5/16G–15(a) (West 2008). The first five offenses listed in

subparagraphs (a)(1) through (a)(5), however, also require the

additional element of criminal intent or knowledge. In other words,

they require a criminal purpose in addition to the general knowledge

that one is committing the actions specified. Subparagraphs (a)(1)

through (a)(5) are not at issue in this case and clearly do not fall

within the parameters of the line of cases that deal with statutes that

potentially punish innocent conduct. Unlike the offenses described in

subparagraphs (a)(1) through (a)(5), however, subparagraph (a)(7)

clearly does not require criminal intent, criminal knowledge, or a

criminal purpose in order to subject one to a felony conviction and

punishment.1

1

Subparagraph (a)(6) of the statute also does not appear to require

criminal intent, criminal knowledge or a criminal purpose. See 720 ILCS

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Section 16G–15(a)(7) requires only that a person knowingly use

any “personal identification information or personal identification

document of another for the purpose of gaining access to any record

of the actions taken, communications made or received, or other

activities or transactions of that person, without the prior express

permission of that person.” (Emphasis added.) 720 ILCS

5/16G–15(a)(7) (West 2008). “Personal identifying information” is

defined for purposes of the statute so as to include everything from a

person’s name, address, date of birth, or telephone number to

obviously more confidential identifying information such as social

security numbers, bank account numbers or credit card numbers. See

720 ILCS 5/16G–10(b) (West 2008). Because any one of the pieces

of information listed qualifies as “personal identifying information” for

purposes of committing the offense listed in section 16G–15(a)(7), a

person who simply uses someone’s name for the purpose of gaining

access to any record of the actions taken, communications made or

received, or other activities or transactions of that person, without the

prior express permission of that person, is guilty of a Class 3 felony.

The net result is that section 16G–15(a)(7) would potentially

punish as a felony a wide array of wholly innocent conduct. For

example, doing a computer search through Google or some other

search engine or through a social networking site such as Facebook

or MySpace, by entering someone’s name, could uncover numerous

records of actions taken, communications made or received, or other

activities or transactions of that person. Thus, the statute as it

currently reads would criminalize such innocuous conduct as someone

using the internet to look up how their neighbor did in the Chicago

Marathon. Moreover, a husband who calls a repair shop for his wife,

without her “prior express permission,” to see if her car is ready, what

was wrong, and how much the repair bill is, would be seeking

information in violation of the statute. A person who calls an employer

of a friend to see if the friend is working or on vacation, and who

receives an answer to his inquiry would be a potential felon under the

statute. The person might be told that the friend resigned (record of

actions taken), that he called in sick (record of communications made

5/16G–15(a)(6) (West 2008). That subsection, however, is not at issue here,

and we make no ruling with respect to its constitutionality.

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or received), or that he is on vacation sailing in the Carribean (record

of activities of the person). A person who calls a hotel to see if her

husband has registered, checked in yet, or made a reservation, without

getting his express permission first, is subject to felony imprisonment.

The statute could also likely quell the work of biographers, journalists

or anyone attempting to do a family genealogy, which all might

require using personal identifying information to gain access to

records of communications, activities or actions of a person.

The Identity Theft Law does contain some narrow exemptions that

do not appear to affect the examples noted above. See 720 ILCS

5/16G–40 (West 2008). Among other things, section 16G–40 states

that the Identity Theft Law does not prohibit the capture or

transmission of personal identifying information in “the ordinary and

lawful course of business”; nor does it apply to peace officers who are

in lawful performance of their duties, or to “activities authorized under

any other statute.” See 720 ILCS 5/16G–40 (West 2008).

The problem with section 16G–15(a)(7), then, is that it lacks a

culpable mental state, as it does not require a criminal purpose for a

person to be convicted of a felony. Because the statute potentially

punishes a significant amount of wholly innocent conduct not related

to the statute’s purpose, we simply do not believe that this is a rational

way of addressing the problem of identity theft.

The State argued before the circuit court that identity theft itself

is less likely to occur if the sort of information banned by section

16G–15(a)(7) can be prevented from being gathered in the first place.

This may be true. But what is wrongful is not the gathering of such

information by using a person’s name or address, but rather gathering

or using such information for the purpose of committing identity theft.

We note that in addition to our established case law noted above,

“courts of other jurisdictions have similarly struck down laws” falling

under the same category as the one before us “as being violative of

substantive due process, if the prohibition is ‘too sweeping in

encompassing activity which is wholly innocent.’ ” D.P. v. State, 705

So. 2d 593, 600 (Fla. Dist. Ct. App. 1997) (Green, J., dissenting); see

also Wyche v. State, 619 So. 2d 231, 235-37 (Fla. 1993) (struck down

ordinance prohibiting a “known prostitute” from engaging in certain

routine activities); State v. Saiez, 489 So. 2d 1125, 1127-29 (Fla.

1986) (invalidated statute criminalizing mere possession of a credit

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card embossing machine without regard to the intent of the

possessor); People v. Munoz, 172 N.E.2d 535 (N.Y. 1961) (struck

down law that prohibited the possession of “a knife or sharp pointed

or edged instrument” by a person under the age of 21); People v.

Bunis, 172 N.E.2d 273 (N.Y. 1961) (held invalid a law that prohibited

the knowing sale of a magazine or other publication without a cover);

State v. Birdsell, 104 So. 2d 148 (La. 1958) (invalidated law that

prohibited possession of a hypodermic needle, regardless of the use

for which the needle was possessed); but, c.f., Village of Hoffman

Estates v. The Flipside, Hoffman Estates, Inc., 455 U.S. 489, 497 n.9

(1982) (noted ordinance banning drug paraphernalia was not irrational

means of discouraging drug use even though there might be innocent

uses for the banned items; but court did not foreclose a substantive

due process challenge to a statute that bans or punishes a significant

amount of innocent conduct in other contexts).

Bunis is particularly instructive. There, New York’s highest court

invalidated a state law that prohibited the sale of magazines and other

publications without covers, regardless of the circumstances. The

court noted that “[w]hat was wrongful [was] not the sale of coverless

magazines, but rather their sale by a vendor who takes part in a

scheme to defraud a magazine publisher.” Bunis, 172 N.E.2d at 274.

The court continued by correctly reasoning as follows:

“Admittedly, by denominating as criminal all sales, [the

statute] necessarily tends to prevent corrupt sales. But, even

were we to suppose that it had power to prohibit such corrupt

sales, it is unreasonable and beyond the legitimate exercise of

the police power for the Legislature to interdict all sales,

permissible and illicit alike, in order to prevent those which are

illicit. The Legislature may not validly make it a crime to do

something which is innocent in itself merely because it is

sometimes done improperly, sometimes attended by improper

motives or done as part of an illegal scheme.” Bunis, 172

N.E.2d at 274.

Similarly, we find that a statute, such as section 16G–15(a)(7), which

criminalizes the use of mere names, or other commonly and publicly

available information such as addresses and phone numbers, for the

purpose of gaining access to innocent information about people

without any criminal intent, purpose or knowledge is an invalid

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exercise of the police power and is not reasonably related to the

purpose of the statute.

To avoid the constitutional problem, the State suggests that this

court read a culpable mental state into the statute so that a criminal

purpose is required for a violation. This court rejected the same

argument in Wright and Carpenter under similar circumstances, with

both courts holding that where a statute already contains a mental

state of mere knowledge, this court cannot read a criminal-purpose

requirement into the statute. Carpenter, 228 Ill. 2d at 270; Wright,

194 Ill. 2d at 29-30. Wright specifically distinguished People v.

Tolliver, 147 Ill. 2d 397 (1992), which was “able to imply the mental

state of knowledge plus criminal purpose as an element of [the statute

at issue there] because that provision contained no mental state.”

Wright, 194 Ill. 2d at 29.

Carpenter relied upon Wright to find that if a statute already

contains one or more mental states and none of them provide

culpability, a court may not add a culpable mental state. Carpenter,

228 Ill. 2d at 270. Carpenter then distinguished People v. Bailey, 167

Ill. 2d 210 (1995). In Bailey, this court interpreted the stalking statute

to require the prohibited conduct be performed “without lawful

authority,” even though those words were not in the statute. See

Carpenter, 228 Ill. 2d at 271-72; Bailey, 167 Ill. 2d at 224. The

stalking statute at issue in Bailey provided that a person committed

the offense “when he or she transmits to another person a threat with

the intent to place that person in reasonable apprehension of death,

bodily harm, sexual assault, confinement or restraint, and in

furtherance of the threat knowingly does any one or more of the

following acts on at least 2 separate occasions.” 720 ILCS

5/12–7.3(a) (West 1992). The second part of the statute then required

that the defendant follow “the person, other than within the residence

of the defendant,” or place “the person under surveillance by

remaining present outside” any one of a number of locations specified

in the statute. 720 ILCS 5/12–7.3(a)(1), (a)(2) (West 1992).

Carpenter noted that the holding in Bailey was limited to its facts.

Carpenter, 228 Ill. 2d at 272. Moreover, Carpenter observed that

interpreting the statute in Bailey to include the phrase “without lawful

authority” was probably not necessary because the statute did not

punish any innocent conduct as written, as it already contained “a

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requirement of ‘knowing’ conduct in furtherance of a clearly culpable

objective, i.e., the intent to place another person in ‘reasonable

apprehension of death, bodily harm, sexual assault, confinement or

restraint.’ ” Carpenter, 228 Ill. 2d at 272 (quoting 720 ILCS 5/12–7.3

(West 1992)). Unlike the statute in Bailey, section 16G–15(a)(7) at

issue in this case does not prohibit conduct that is malum in se.

Accordingly, we likewise find that the statute in Bailey cannot be

compared with section 16G–15(a)(7), which criminalizes the wholly

innocent conduct of using a mere name or address of a person to gain

information about the actions taken by that person.

Similarly, the State’s reliance upon People v. Williams, 235 Ill. 2d

178 (2009), is misplaced. There, we upheld the unidentified use of

sound recordings statute, contained in section 16–8 of the Criminal

Code of 1961 (720 ILCS 5/16–8 (West 2004)), against a substantive

due process challenge. In doing so, we distinguished Carpenter,

Wright, K.C., Zaremba and Wick on the basis that unlike the statutes

in those cases, the unidentified recordings statute “capture[d] the

precise activities that it was meant to punish.” Williams, 235 Ill. 2d at

209. We rejected the notion that section 16–8 potentially punished any

innocent conduct (Williams, 235 Ill. 2d at 212) and further noted that

if any additional intent elements were supplied to section 16–8, it

would defeat the legislative purpose in enacting the statute (Williams,

235 Ill. 2d at 210-11). In contrast to the statute in Williams, section

16G–15(a)(7) potentially punishes a wide array of innocent conduct

beyond what the legislature could have reasonably meant to punish.

We therefore conclude that the present case falls squarely under the

Carpenter-Wick line of cases.

Finally, the State argues that we should abandon the Carpenter-

Wick line of precedent and its requirement that statutes contain a

culpable mental state to avoid punishing wholly innocent conduct. The

State claims that we should abandon our precedent because it is at

odds with the United States Supreme Court’s interpretation of

substantive due process under the federal constitution. The State’s

claim that there is a divergence in our jurisprudence from that of the

United States Supreme Court in this area is not correct.

In support of its argument, the State relies upon United States v.

Salerno, 481 U.S. 739 (1987), for the following principle:

“A facial challenge to a legislative Act is, of course, the

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most difficult challenge to mount successfully, since the

challenger must establish that no set of circumstances exists

under which the Act would be valid. The fact that the [statute]

might operate unconstitutionally under some conceivable set

of circumstances is insufficient to render it wholly invalid

***.” Salerno, 481 U.S. at 745.

The State also relies upon the proposition that a “ ‘law need not be in

every respect logically consistent with its aims to be constitutional[;]

[i]t is enough that there is an evil at hand for correction, and that it

might be thought that the particular legislative measure was a rational

way to correct it.’ ” United States v. Comstock, 560 U.S. ___, ___,

130 S. Ct. 1949, 1966 (2010) (Kennedy, J., concurring) (quoting

Williamson v. Lee Optical of Oklahoma, Inc., 348 U.S. 483, 487-88

(1955)).

The case law relied upon by the State informs our constitutional

analysis, but ultimately is not controlling of the outcome of the present

case because none of the State’s cases involved a penal statute that

lacked a culpable mental state and thereby criminalized a significant

amount of innocent conduct. Rather, the principles noted here by the

State were used as general aids to assessing the constitutionality of

statutes that were regulatory or civil in nature and that did not involve

any criminal prohibitions. The State’s argument “ignores the particular

care [the United States Supreme Court] ha[s] taken to avoid

construing a statute to dispense with mens rea where doing so would

‘criminalize a broad range of apparently innocent conduct.’ ” Staples

v. United States, 511 U.S. 600, 610 (1994) (quoting Liparota v.

United States, 471 U.S. 419, 426 (1985)); see also City of Houston,

Texas v. Hill, 482 U.S. 451, 459 (1987) (“Criminal statutes must be

scrutinized with particular care [citation]; those that make unlawful a

substantial amount of constitutionally protected conduct may be held

facially invalid even if they also have legitimate application.”). The

United States Court of Appeals, Sixth Circuit, has also observed that

“where a criminal statute prohibits and punishes seemingly innocent

or innocuous conduct that does not in itself furnish grounds to allow

the presumption that defendant knew his actions must be wrongful,

conviction without some other, extraneous proof of blameworthiness

or culpable mental state is forbidden by the Due Process Clause.”

Stanley v. Turner, 6 F.3d 399, 404 (6th Cir. 1993). Moreover, as

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previously noted, in addition to our own Carpenter-Wick line of

precedent, courts in many other jurisdictions have avoided

criminalizing innocent conduct by proceeding to strike down criminal

statutes as facially unconstitutional where those statutes had the

potential to punish innocent conduct. See, e.g., Wyche, 619 So. 2d at

235-37; Saiez, 489 So. 2d at 1127-29; Munoz, 172 N.E.2d at 539-40;

Bunis, 172 N.E.2d at 275; Birdsell, 104 So. 2d at 153-54; see also

People v. Lardie, 551 N.W.2d 656, 669 n.53 (Mich. 1996) (a criminal

statute that lacks a criminal intent element may be upheld only if it

does not punish conduct “innocent or innocuous in itself” and the law

is designed for the protection of the public health and safety and has

no common law background that included a particular criminal intent).

CONCLUSION

For the foregoing reasons, we find no solid reason to depart from

our precedent in Carpenter, Wright, K.C., Zaremba, and Wick.

Applying that precedent to this case, we conclude that defendant met

her burden of showing that section 16G–15(a)(7) is facially

unconstitutional. We emphasize that our ruling does not affect any of

the other provisions of the Identity Theft Law, including those

contained in sections 16G–15(a)(1) through (a)(6). Because section

16G–15(a)(7) aims at the laudable goal of combating identity theft, we

encourage the legislature to consider curing the constitutional defect

in the provision.

We therefore affirm the judgment of the circuit court of Kane

County, which found section 16G–15(a)(7) to be unconstitutional

under both the state and federal constitutions.

Affirmed.

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