Opinion

City of Chi. v. Alexander

89 N.E.3d 707
2017 IL 120350
2017 Ill. LEXIS 644

Court: Illinois Supreme Court
Filed: Jun 15, 2017
Status: Unpublished
Author: Garman
On the bench: Garman
Cited by: 8 cases
Authority: More cited than 56.9%

The opinion

2017 IL 120350

IN THE

SUPREME COURT

THE STATE OF ILLINOIS

(Docket No. 120350)

THE CITY OF CHICAGO, Appellee, v.

TIEG E. ALEXANDER et al., Appellants.

Opinion filed June 15, 2017.

JUSTICE GARMAN delivered the judgment of the court, with opinion.

Chief Justice Karmeier and Justices Freeman, Thomas, Burke, and Theis

concurred in the judgment and opinion.

Justice Kilbride dissented, with opinion.

OPINION

¶1 Plaintiff, the City of Chicago, charged defendants, members of the “Occupy

Chicago” movement, with violating chapter VII, section B(2), of the Chicago Park

District Code (Chicago Park District Code, ch. VII, § B(2) (amended July 28,

1992)). The circuit court of Cook County dismissed the charges, finding that the

ordinance was unconstitutional on its face and as applied to the defendants. The

appellate court reversed, holding that the ordinance did not violate the defendants’

right to assembly under the first amendment of the United States Constitution. On

remand from this court’s supervisory order directing it to review defendants’ claim

under article I, section 5, of the Illinois Constitution of 1970, the appellate court

again reversed and remanded for further proceedings. 2015 IL App (1st) 122858-B,

¶ 67.

¶2 We allowed defendants’ petition for leave to appeal pursuant to Illinois

Supreme Court Rule 315 (eff. Jan. 1, 2015) to determine whether the ordinance,

which closes all Chicago public parks between 11 p.m. and 6 a.m. and prohibits

people from being inside any park during these hours, is unconstitutional as applied

to defendants under article I, section 5, of the Illinois Constitution (Ill. Const. 1970,

art. I, § 5).

¶3 For the reasons that follow, we affirm the judgment of the appellate court.

¶4 BACKGROUND

¶5 Beginning on September 22, 2011, participants in the “Occupy Chicago”

movement demonstrated in the financial district of Chicago, generally near the

intersection of Jackson and LaSalle Streets. Initially, plaintiff, the City of Chicago

(City), allowed the protestors to remain on sidewalks in the financial district with

no time limitations. The City, however, prohibited the protestors from storing

provisions, erecting structures, or blocking traffic. The Chicago Police Department

(CPD) enforced those restrictions.

¶6 For approximately three weeks, protestors engaged in rallies, marches, protests,

and assemblies in Chicago’s financial district and adjacent downtown areas. CPD

was present to maintain order and assist with traffic control but otherwise engaged

in minimal policing of protestors’ activities. CPD did, however, repeatedly require

the protestors to remove or relocate supplies stored on the sidewalks. In at least one

instance, CPD issued a “move it or throw it away” ultimatum, an order some

protestors believed conflicted with prior CPD instructions.

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¶7 On October 15, 2011, Occupy Chicago demonstrators conducted a rally near

the intersection of Jackson and LaSalle Streets and then marched through the city

for about an hour. CPD directed them to move into Grant Park near the intersection

of Michigan Avenue and Congress Parkway, an area commonly known as

Congress Plaza. After their arrival there, protestors made speeches on a public

address system. Some protestors erected tents and announced their intention to

“occupy” the area.

¶8 During that evening, CPD personnel communicated with protestors and

attorneys from the National Lawyers Guild (NLG) and informed them that

protestors would not be permitted to remain in Grant Park after its posted 11 p.m.

closing time. Specifically, the police informed the protestors and their lawyers that

chapter VII, section B(2), of the Chicago Park District Code (Code) prohibited

persons from remaining in Chicago parks from 11 p.m. to 6 a.m. See Chicago Park

District Code, ch. VII, § B(2) (amended July 28, 1992).

¶9 CPD estimated that approximately 3000 protestors were in Grant Park at

around 7:15 p.m. on October 15, 2011. After repeated warnings about potential

arrests for violation of the Code, the number of protestors in the park decreased to

between 200 and 300 people by about 10:45 p.m. Many protestors who left the park

went to adjacent sidewalks on Michigan Avenue and continued to protest.

¶ 10 At approximately 1 a.m. on October 16, 2011, CPD again used the public

address system to warn protestors about Grant Park’s closure at 11 p.m. Chicago

police officers then asked each protestor individually whether he or she wanted to

leave the park or be arrested. Ultimately, police officers arrested 173 protestors

who refused to leave the park for violating chapter VII, section B(2), of the Code. 1

¶ 11 A few days later, on October 22, 2011, Occupy Chicago protestors staged

another rally in the vicinity of Jackson and LaSalle Streets and again moved their

rally to Grant Park. As before, protestors indicated their intention to remain in

Defendants’ initial pleadings misstated the charges against them as being violations of

the Chicago Municipal Code rather than the Chicago Park District Code. Ultimately, the

trial court determined that defendants were charged with violating Chapter VII, section

B(2), of the Chicago Park District Code (Chicago Park District Code, ch. VII, § B(2)

(amended July 28, 1992)).

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Grant Park after its 11 p.m. closure. CPD personnel followed a similar procedure,

warning protestors about potential arrests and affording them the opportunity to

leave. After 12:45 a.m. on October 23, 2011, Chicago police officers asked the

remaining protestors if they wanted to leave the park or be arrested. After these

warnings, 130 protestors were arrested for refusing to leave the park.

¶ 12 All of the protestors arrested on both dates were given court dates. Ninety-two

protestors, the defendants in this appeal, filed motions to dismiss the charges. 2

Eighty of the defendants were represented by NLG, and the remaining twelve

defendants were represented by the law firm of Durkin & Roberts. Both groups of

defendants argued that they were engaged in constitutionally protected expressive

conduct or symbolic speech and that the City selectively enforced the ordinance

against them in violation of their constitutional rights to equal protection.

Defendants noted that the City and CPD let people remain in Grant Park after its 11

p.m. closure for President Obama’s presidential election rally in 2008.

¶ 13 Relevant to this appeal, the NLG defendants also argued that the ordinance

violated their “rights under the First Amendment to the United States Constitution

to freedom of speech, to assemble, and to petition the government for redress of

grievances.” The Durkin & Roberts defendants argued that the charge for violating

the ordinance “fails to constitute an offense under the circumstances of this very

unique case and violates Defendants’ rights to freedom of speech, peaceable

assembly, and to petition the Government for redress of grievances,” as guaranteed

by the first amendment to the United States Constitution and related provisions in

the Illinois Constitution of 1970. On the motion of defendants, the circuit court

consolidated their cases.

¶ 14 The City filed a response, arguing that defendants’ motions to dismiss should

be denied because the ordinance constituted a reasonable time, place, and manner

restriction on the use of Grant Park and the City’s enforcement of the ordinance

was appropriate. The City also argued that the ordinance was applied in a

Although the initial motions to dismiss did not cite section 2-619 of the Code of Civil

Procedure (735 ILCS 5/2-619 (West 2010)), the parties and trial court later agreed that

those pleadings would be treated as section 2-619 motions to dismiss because this case

involved a civil matter. The parties do not dispute that procedural posture before this court.

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content-neutral manner and left open ample alternative channels of

communication. The City attached three supporting affidavits, two of them from

law enforcement officials involved in supervising the Occupy Chicago protests and

the subsequent arrests.

¶ 15 The third City affidavit was from Deputy Director of Park Services Alonzo

Williams. His affidavit described his duties, outlined the development of the

ordinance that effectively closes Chicago parks during overnight hours, and

defended the ordinance as being necessary to “keep the parks safe, clean, attractive,

and in good condition.” Williams’s affidavit noted that groups could apply for

exceptions if “both the group and its proposed activity comply with our permitting

process.” The fourth and final paragraph of Williams’s affidavit provided

additional justification for the park-closure ordinance:

“4. We believe the Code’s standard hours of closure is [sic] necessary to

properly protect and maintain our parks. The park hours of closure allow park

employees to collect trash, make repairs to park facilities, and maintain the

landscaping. Park employees are therefore able to make sure the parks remain

sanitary and pleasing the [sic] eye with limited disruption and maximum safety

to park patrons. Park closures also ensure that certain park facilities do not

become over-fatigued. Further, limited access by pedestrians during park

closure hours reduces crime against park patrons and park property. As we are

charged with keeping Chicago’s parks beautiful and vibrant for current and

future generations, we have made certain rules to that effect. Round-the-clock

use of the parks by the general public would not further our mandate and would

instead make it impossible to uphold.”

¶ 16 The City also attached decisions from trial courts in Sacramento, Boston, and

San Diego that addressed Occupy movements in those cities. Lastly, the City

attached “Chicago Police Department Special Order 4-22-01,” detailing CPD’s

procedure for issuing administrative notice of ordinance violation citations.

¶ 17 Defendants filed a reply and included supporting affidavits from various

participants in the Occupy Chicago movement.

¶ 18 After oral arguments on the motions, the City filed motions to strike

defendants’ affidavits, and defendants filed a motion for discovery. The court

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denied in part and granted in part the City’s motion to strike the affidavits and

denied defendants’ motion seeking discovery.

¶ 19 On September 27, 2012, the circuit court issued a 38-page “memorandum

opinion and order,” finding chapter VII, section B(2), of the Code unconstitutional

on its face and as applied to defendants. The court held that the ordinance violated

defendants’ right to assembly under both the United States and Illinois

Constitutions. The court explained that “the City’s claim that citizen safety, park

maintenance, and park preservation constitute the substantial government interest

that justifies closing the park seven hours nightly fails because the City routinely

closes the park for fewer than seven hours nightly, making ad hoc exceptions to the

curfew for permitted groups.” The court further explained that the ordinance

“violates the Illinois Constitution which provides a more vigorous right to free

assembly, embracing even non-expressive assemblies.” Lastly, the court concluded

that the ordinance violates defendants’ right to equal protection because it treats

similarly situated citizens differently, noting that the City did not arrest anyone

during President Obama’s rally in 2008, despite their presence in Grant Park after

its 11 p.m. closure.

¶ 20 On appeal, the appellate court reversed the circuit court’s decision but did not

expressly address the trial court’s findings under the Illinois Constitution. This

court denied defendants’ petition for leave to appeal but entered a supervisory order

directing the appellate court to vacate its opinion and review the circuit court’s

judgment that the chapter VII, section B(2), of the Chicago Park District Code

violates the right to free assembly under both the first amendment to the United

States Constitution and article I, section 5, of the Illinois Constitution.

¶ 21 The appellate court vacated its original opinion and issued a new opinion, again

reversing the circuit court’s judgment. Rejecting defendants’ facial challenge under

the first amendment to the United States Constitution, the court reasoned that the

ordinance was not unconstitutional in every circumstance and was not overbroad.

Addressing defendants’ as-applied challenge under the first amendment, the court

applied intermediate scrutiny, traditionally applicable to content-neutral

regulations, and determined that defendants’ first amendment rights were not

violated. 2015 IL App (1st) 122858-B, ¶¶ 28-48.

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¶ 22 Turning to defendants’ claims under the Illinois Constitution, the appellate

court explained that its “review of the 1970 Illinois Constitution debates and

convention supports the conclusion that the framers intended for article I, section 5

to extend a broader right of assembly than that afforded under the United States

Constitution.” Id. ¶ 61. Nevertheless, the appellate court found “nothing to indicate

that the time, place and manner analysis,” which would be applicable to first

amendment claims, “should be abandoned” for defendants’ state claims and, after

applying that analysis, concluded that the ordinance did not violate article I,

section 5, of the Illinois Constitution. Id. ¶¶ 61-65.

¶ 23 This court allowed defendants’ petition for leave to appeal. Ill. S. Ct. R. 315

(eff. Jan. 1, 2015). We also granted the Illinois Municipal League leave to file an

amicus curiae brief in support of the City. Ill. S. Ct. R. 345 (eff. Sept. 20, 2010).

¶ 24 ANALYSIS

¶ 25 The ordinance at issue in this case prohibits any person from being or remaining

in any city park “between the hours of 11:00 p.m. and 6:00 a.m. on the following

day.” Chicago Park District Code, ch. VII, § B(2) (amended July 28, 1992). The

penalty for violating the ordinance is a fine not to exceed $500 and restitution in the

event of property damage. Chicago Municipal Code § 10-36-185 (added Apr. 21,

1999).

¶ 26 Defendants’ petition for leave to appeal sought review of two issues. First,

defendants asked whether the protections afforded by article I, section 5, of the

Illinois Constitution of 1970 are subject to the same “time, place, or manner”

analysis that applies to the first amendment right of assembly. Defendants’ position

is that the Illinois Constitution grants broader protection than the first amendment

and, thus, strict scrutiny applies to an ordinance that restricts the right to conduct

demonstrations in public forums such as parks, at least when the gathering is

political in nature. This question requires this court to decide whether article I,

section 5, of the Illinois Constitution provides broader protection than the assembly

clause of the first amendment to the United States Constitution under this court’s

limited lockstep doctrine. Second, if this court determines that the ordinance is not

subject to strict scrutiny and that the intermediate standard of time, place, or

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manner analysis applies, defendants ask us to apply the analysis “more robustly”

than the appellate court did here.

¶ 27 The Chicago Park District Code has the same force as a municipal ordinance.

Chicago Park District v. Canfield, 382 Ill. 218, 223-24 (1943). Thus, when

considering the validity of a provision of a park district code, we treat it as a

municipal ordinance, applying the same standards that govern a challenge to the

constitutionality of a statute. City of Chicago v. Pooh Bah Enterprises, Inc., 224 Ill.

2d 390, 406 (2006). A municipal ordinance is presumed constitutional, and the

challenging party has the burden of rebutting that presumption. Id. Unlike a facial

challenge, which requires a showing that the ordinance is unconstitutional under

any set of facts, an as-applied challenge requires a showing that the ordinance

violates the constitution as it applies to the facts and circumstances of the

challenging party. See People v. Rizzo, 2016 IL 118599, ¶ 24.

¶ 28 We review de novo the grant of a motion to dismiss. Richter v. Prairie Farms

Dairy, Inc., 2016 IL 119518, ¶ 18. We also review de novo a determination that a

legislative enactment is unconstitutional. Kanerva v. Weems, 2014 IL 115811, ¶ 33.

¶ 29 The Right of Assembly Under the State Constitution

¶ 30 The question of whether article I, section 5, of the Illinois Constitution provides

greater protection for the right of assembly than the first amendment presents a

question of first impression for this court.

¶ 31 We apply a “limited lockstep” approach when interpreting cognate provisions

of our state and federal constitutions. People v. Caballes, 221 Ill. 2d 282, 297

(2006).

“Under this approach, when the language of the provisions within our state and

federal constitutions is nearly identical, departure from the United States

Supreme Court’s construction of the provision will generally be warranted only

if we find ‘in the language of our constitution, or in the debates and the

committee reports of the constitutional convention, something which will

indicate that the provisions of our constitution are intended to be construed

differently than are similar provisions in the Federal Constitution, after which

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they are patterned.’ ” (Internal quotation marks omitted.) Hope Clinic for

Women, Ltd. v. Flores, 2013 IL 112673, ¶ 47 (quoting Caballes, 221 Ill. 2d at

297).

¶ 32 Defendants argue that the “language and history” of article I, section 5,

“demonstrate that the drafters intended to provide the people of Illinois with greater

rights of assembly than the First Amendment.” They cite Village of South Holland

v. Stein, 373 Ill. 472, 479 (1940), for the proposition that the rights guaranteed by

the state constitution are “even more far-reaching” than those guaranteed by the

first amendment. They further rely upon People v. DiGuida, 152 Ill. 2d 104, 118

(1992), to argue that “where the language of the State constitution, or where

debates and committee reports of the constitutional convention show that the

Framers intended a different construction,” this court should “construe similar

provisions in a different way from that of the [United States] Supreme Court.”

¶ 33 We note that Stein predates the adoption of the 1970 Constitution and both Stein

and DiGuida predate our 2006 decision in People v. Caballes. Neither Stein nor

DiGuida involved the right of assembly. In addition, while DiGuida did, indeed,

say that a state constitutional provision may be construed more broadly than its

federal counterpart, this court declined in that case to construe the right of free

speech in article I, section 4, of the state constitution more broadly than the free

speech clause of the first amendment. Id. at 124.

¶ 34 Defendants also cite Vineyard Christian Fellowship of Evanston, Inc. v. City of

Evanston, 250 F. Supp. 2d 961 (2003), for the proposition that the Illinois

constitutional guarantee of freedom of assembly is broader than the corresponding

guarantee in the United States Constitution. The federal district court in Vineyard

did purport to be applying both the federal and state constitutions to a claim that a

zoning ordinance was unconstitutional. Id. at 979 n.12. However, this dictum

provides no support for defendants’ position in the present case. The case cited by

the district court in its footnote, City of Blue Island v. Kozul, 379 Ill. 511, 520

(1942), did indeed say that “the constitution of Illinois is even more far-reaching

than that of the constitution of the United States in providing that every person may

speak freely, write or publish on all subjects, being responsible for the abuse of that

liberty.” However, this statement refers to article II, section 4, of the Illinois

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Constitution of 1870, not to the peaceable assembly clause of the 1970 Constitution

and, therefore, is not relevant to the current issue.

¶ 35 In addition, the bulk of the defendants’ argument relates to what they describe

as the “wholesale importation” of the first amendment time, place, or manner

analysis into the application of article I, section 5, of the state constitution. This

argument neglects to answer the threshold questions posed by Caballes: does the

language of the state constitutional provision so nearly track the language of the

federal constitution that the provision should be applied in lockstep with federal

precedent? And, if so, is there any reason based in our history to justify a departure

from lockstep? See Caballes, 221 Ill. 2d at 314.

¶ 36 Article I, section 5, of the Illinois Constitution provides that “[t]he people have

the right to assemble in a peaceable manner, to consult for the common good, to

make known their opinions to their representatives and to apply for redress of

grievances.” Ill. Const. 1970, art. I, § 5. The cognate provision of the United States

Constitution is found in the first amendment, which provides, in pertinent part, that

“Congress shall make no law *** abridging *** the right of the people peaceably to

assemble ***.” U.S. Const., amend. I. This right has been incorporated against state

and local governments under the due process clause of the fourteenth amendment.

See De Jonge v. Oregon, 299 U.S. 353, 365 (1937).

¶ 37 Caballes explained that there are “three possible scenarios” to consider when

comparing the language of the state and federal constitutions. A provision may be

“unique to the state constitution,” it may be similar to a provision in the federal

constitution “but differ from it in some significant respect,” or it may be “identical

to or synonymous with the federal constitutional provision.” Caballes, 221 Ill. 2d at

289-90. Thus, the first step in our analysis must be to determine which of these

three categories applies by comparing the assembly clause of the Illinois

Constitution to the assembly clause in the first amendment of the United States

Constitution.

¶ 38 The phrases “to assemble in a peaceable manner” and “peaceably to assemble”

are virtually identical. Both use the verb “assemble”; one uses the adjectival phrase

“peaceable manner,” while the other uses the adverb “peaceably” to convey the

same meaning. On the basis of the language alone, we see no significant difference

between the two constitutions with regard to the right of assembly.

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¶ 39 Defendants, however, point to the history of this provision to suggest that these

virtually identical words convey a different meaning. We, thus, turn to the

evolution of this provision throughout our state’s history.

¶ 40 Illinois became a state on December 3, 1818. Our first state constitution

provided in article VIII, section 19, that “the people have a right to assemble

together in a peaceable manner to consult for their common good, to instruct their

representatives, and to apply to the general assembly for redress of grievances.” Ill.

Const. 1818, art. VIII, § 19. Unfortunately, most of the records of the 1818

Constitutional Convention were lost or destroyed by 1891. See Elliott Anthony,

The Constitutional History of Illinois (1891). We do know that the first state

constitutional convention lasted for three weeks in August 1818 and that the

drafters relied heavily on the constitutions of other states to provide the wording.

Ohio, Kentucky, Tennessee, and Indiana were specifically noted as providing

“[t]he wording of the Illinois Bill of Rights ***, with little thought given to changes

in these basic statements of individual rights.” Janet Cornelius, Constitution

Making in Illinois, 1818-1970, at 16-17.

¶ 41 This provision remained unchanged in the 1848 Constitution, which provided

in article XIII, section 21, that “the people have a right to assemble together in a

peaceable manner to consult for their common good, to instruct their

representatives, and to apply to the general assembly for redress of grievances.” Ill.

Const. 1848, art. XIII, § 21. However, The Constitutional Debates of 1847 contains

no relevant discussion of this provision.

¶ 42 This language was altered slightly in the 1870 Illinois Constitution, which

continued to protect a right to assembly through its guarantee that “[t]he people

have the right to assemble in a peaceable manner to consult for the common good,

to make known their opinions to their Representatives, and to apply for redress of

grievances.” Ill. Const. 1870, art. II, § 17.

¶ 43 Although the fourteenth amendment had been ratified in 1868, the guarantees

of the Bill of Rights had not yet been incorporated against the states. See Barron v.

Baltimore, 32 U.S. 243 (1833) (holding that the Bill of Rights applied only to the

federal government); United States v. Cruikshank, 92 U.S. 542, 554-55 (1875)

(despite ratification of the fourteenth amendment in 1868, the first and second

amendments to the United States Constitution did not apply to state governments).

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Thus, the drafters of the 1870 Constitution were aware that if the people of Illinois

were to be guaranteed the same rights under state law as they were guaranteed

under federal law, our state constitution would have to expressly protect those

rights. 3 Yet nothing in the record of the 1870 constitutional convention reveals an

intent to do more than that with regard to freedom of assembly; nothing in the case

law decided under that constitution reveals an understanding that the state

constitution was more protective of the right of assembly than the federal

constitution.

¶ 44 The landscape changed in 1937 when the United States Supreme Court

expressly incorporated the first amendment guarantee of freedom of assembly

against the states in De Jonge. 4 After incorporation, a state constitutional provision

that was more protective of the right of assembly than the first amendment would

pass constitutional muster, but a statute that was less protective would violate the

United States Constitution. See Caballes, 221 Ill. 2d at 314 (“[S]tate courts are free

to independently construe their state constitutions to provide more protection than

the federal constitution.”).

¶ 45 Notably, in our 1870 Constitution, no comma appeared after the words

“peaceable manner.” Thus, the 1870 constitution protected the right to assemble for

Incorporation of provisions of the United States Constitution against the states

pursuant to the fourteenth amendment began with Gitlow v. New York, 268 U.S. 652, 666

(1925) (assuming, arguendo, that the first amendment right of freedom of speech is one of

the liberties protected from impairment by the states under the due process clause of the

fourteenth amendment).

For example, prior to incorporation of the religion clauses of the first amendment (see

Everson v. Board of Education, 330 U.S. 1 (1947) (establishment of religion); Cantwell v.

Connecticut, 310 U.S. 296 (1940) (free exercise of religion)), this court held in People

ex rel. Ring v. Board of Education of District 24, 245 Ill. 334, 338 (1910), that the first

amendment to the federal constitution prohibits Congress, but not the states, from “making

any law respecting an establishment of religion or prohibiting the free exercise thereof.”

Further, this court noted that the states “are thus left free to enact such laws in respect to

religion as they may deem proper, restrained only by the limitations of the respective State

constitutions.” Id. In Ring, this court held that a practice of Bible reading, hymn singing,

and praying in the public schools violated article VIII, section 3, of the Illinois Constitution

of 1870. Id. at 352.

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three enumerated purposes: “to consult for the common good, to make known their

opinions to their representatives and to apply for redress of grievances.” Giving

effect to the presence of commas in a series of restrictive clauses, 5 it did not protect

the right to assemble for any other purpose.

¶ 46 In the years between 1937 and 1970, this court did not have occasion to address

or resolve this apparent tension between the two provisions. If the issue had been

presented, it would have been necessary to conclude that the Illinois provision was

unconstitutional. The question was not clearly addressed in City of Chicago v.

Joyce, 38 Ill. 2d 368, 371 (1967), when this court affirmed the conviction for

disorderly conduct of a protestor who blocked entrance to city hall and obstructed

pedestrian traffic on the basis that such conduct “has no connection with the

constitutional protections she seeks to invoke.” The defendant’s argument did not

specify whether she was claiming violation of the state or federal constitution, and

this court did not distinguish between the state constitutional guarantee of freedom

of assembly and the first amendment guarantee. However, in reaching its decision,

this court relied on Cox v. Louisiana, 379 U.S. 536, 554 (1965), thus implicitly

acknowledging that federal precedent applied.

¶ 47 In 1965, the Illinois General Assembly created the Illinois Constitutional Study

Commission. A comment by Melvin Rishe was submitted to the Commission. See

Melvin Rishe, Comment, Freedom of Assembly, 15 DePaul L. Rev. 317 (1966).

This comment provides useful insight into the history of the provision and its

subsequent amendment in the 1970 Constitution.

¶ 48 The author noted that by 1965, “[a]ll but two states constitutionally

guarantee[d] the right of assembly,” and most of the state assembly clauses were

“similar to the provision of the first amendment.” Id. at 336. However, the

constitutions of “[t]hirty nine states, including Illinois, ha[d] qualified the right of

See, e.g., Rich v. Principal Life Insurance Co., 226 Ill. 2d 359, 374 (2007)

(concluding that the absence of a comma in a policy limitation provision indicated a series

of restrictive clauses that identified or defined the antecedent noun (citing William Strunk

& E.B. White, The Elements of Style 3-4 (3d ed. 1979) (discussing restrictive and

nonrestrictive clauses)).

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the people peaceably to assemble, by inserting the phrase ‘for the common good.’ ”

(Emphasis in original.) Id. The author observed that:

“It is somewhat strange that this clause should have found its way into so many

of the states’ constitutions and not into the federal constitution. At the

Constitutional Convention of 1787, the delegates, contending that the

Constitution should contain a declaration of freedoms, proposed amendments

for this purpose and most of the clauses pertinent to the right of assembly

contained the phrase ‘for the common good.’ Yet, when the Bill of Rights was

adopted by the Convention, this phrase was deleted from the guarantee of

assembly.” Id. (citing Edward Dumbauld, The Bill of Rights 172-205 (1957)).

¶ 49 The author rejected the suggestion that this exclusion was inadvertent, noting

that the framers of the constitution and the Bill of Rights “were extremely careful in

their choice of words so that there is reason to believe that there was a purpose in

drafting the first amendment without the proposed phrase for the common good.”

(Emphasis in original.) Id. at 336-37.

“The historical setting of the constitutional Convention and the court’s

interpretation of the right of assembly point out that,

‘[n]o purpose in ratifying the Bill of Rights was clearer than that of securing

for the people of the United States much greater freedom of religion,

expression, assembly, and petition than the people of Great Britain had ever

enjoyed. It cannot be denied, for example, that [the] restrictions upon

assembly then prevalent in England would have been regarded as measures

which the Constitution prohibited the American Congress from passing. . . .

Ratified as it was while the memory of many oppressive English restrictions

on the enumerated liberties was still fresh, the First Amendment cannot

reasonably be taken as approving prevalent English practices. On the

contrary, the only conclusion supported by history is that the unqualified

prohibitions laid down by the framers were intended to give [the liberties

enumerated] the broadest scope that could be countenanced in an orderly

society.’ ” Id. at 337 (quoting Bridges v. California, 314 U.S. 252, 265

(1941)).

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¶ 50 The author further explained that “[t]he clause, for the common good, qualifies

an otherwise unqualified provision: it is ambiguous and undefined. Few Americans

will consider a meeting to advocate fascism for the common good. *** A meeting

condemning Negroes and Jews does not serve the common good, but the United

States Supreme Court has held such an assembly guaranteed by the constitution.”

Id. (citing Terminiello v. City of Chicago, 337 U.S. 1, 4-5 (1949) (reversing this

court’s affirmance of a conviction for disorderly conduct on the basis that De Jonge

had incorporated the right of assembly against the states and that the city ordinance

was too restrictive of first amendment rights)). As author Rishe noted, “Were the

courts truly bound to delve into whether or not an assembly served the common

good, it is likely that many assemblies that have been held to be protected by the

constitution would lose this protection.” Id.

¶ 51 Turning to the Illinois Constitution, the author noted that the right to freedom of

assembly in article II, section 17, of the Illinois Constitution of 1870 “differs

substantively from the federal constitution only in the insertion of the ‘common

good’ clause. This is a limitation on the general right ***.” Id. at 338. Taking the

language literally, he opined, many “would be denied their right to assemble

because their assembly does not meet the standard of the common good.” Id.

¶ 52 In light of this background, we turn to the question raised by the parties—the

significance of the insertion of a comma in the 1970 Constitution. Defendants argue

that the addition of this comma creates an independent right to assemble, with no

limitation on its purpose so that it would apply to those that involve traditionally

expressive conduct, like political protests, and those that do not. This, they assert,

indicates that the Illinois provision provides broader rights than the federal

provision.

¶ 53 The records of the 1970 Constitutional Convention, however, demonstrate the

delegates’ awareness of the incorporation doctrine, the link between the state right

of assembly provision and the cognate provision in the United States Constitution,

as well as their intent that the two provisions remain in harmony. For example, the

vice president of the convention observed that existing section 17 was “quite

parallel *** to the First Amendment of the United States Constitution.” 3 Record of

Proceedings, Sixth Illinois Constitutional Convention 1488 (statements of Vice

President Smith). Another delegate referred to the bill of rights in the state

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constitution as “almost surplusage” in light of the guarantees of the federal

constitution but urged retention of Illinois’s language, that is, the common good

clause, for its “historical resonance.” 4 Record of Proceedings, Sixth Illinois

Constitutional Convention 3645 (statements of Delegate Foster).

¶ 54 We conclude that the addition of the comma, as a matter of grammatical

construction, altered the meaning of this section but not in the manner suggested by

the defendants. Under the 1870 Constitution, the right to peaceably assemble was

limited to three purposes: to consult for the common good, to make known opinions

to elected representatives, and to apply for redress of grievances. As such, it had

been out of step with the United States Constitution since 1937, and these

limitations were, therefore, ineffective. See Terminiello, 337 U.S. at 4-5. The

addition of the comma corrected this inconsistency, resulting in a state

constitutional provision that now lists four independent rights: the right of the

people to peaceably assemble, their right to consult for the common good, the right

to make known their opinions to their representatives, and their right to apply for

redress of grievances.

¶ 55 Our conclusion is supported by the 1970 Illinois constitutional debates and

convention. Specifically, Father Francis Lawlor, speaking on behalf of the Bill of

Rights Committee, explained that “[t]he purpose of inserting a comma after the

word ‘manner’ was to assure that the right to assemble in a peaceable manner was

an independent right, not subject to qualification by any of the succeeding phrases.”

3 Record of Proceedings, Sixth Constitutional Convention 1480 (statements of

Delegate Lawlor). Father Lawlor further explained that “people have the right to

assemble in a peaceable manner, even though their purpose is other than to consult

for the common good, or to make known their opinions to their representatives, or

to apply for redress of grievances.” Id. Father Lawlor’s comments echo the

concerns raised by Rishe in his comment.

¶ 56 Further, the official text of the proposed new constitution and the

accompanying explanation that were provided to voters described the change from

the 1870 language to the proposed new language of article I, section 5, as

“requiring only that an assembly for any purpose be peaceable.” 7 Record of

Proceedings, Sixth Illinois Constitutional Convention 2683.

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¶ 57 We therefore hold that because the two provisions are virtually identical in

language and were intended by the drafters of the Illinois Constitution of 1970 to

express the same meaning, the right to assemble guaranteed in article I, section 5, of

the Illinois Constitution of 1970 is to be interpreted and applied in lockstep with the

federal precedents interpreting and applying the assembly clause of the first

amendment of the United States Constitution.

¶ 58 Presence of Language Unique to the Illinois Constitution of 1970

¶ 59 In Caballes, we noted that a provision “may be unique to the state constitution

and, therefore, must be interpreted without reference to a federal counterpart.”

Caballes, 221 Ill. 2d at 289. Article I, section 5, of the Illinois Constitution of 1970

contains such unique language, specifically, the language referring to the right to

consult for the common good and the right to make opinions known to one’s

representatives.

¶ 60 Our holding above is quite similar to our holding in Caballes, where we noted

that article I, section 6, of the 1970 Constitution contained not only the search and

seizure clause but also included “two new clauses, each of which created a right not

expressly stated in the 1870 constitution,” and not contained in the fourth

amendment to the United States Constitution. Caballes, 221 Ill. 2d at 293. These

are the “right to be secure against unreasonable invasions of privacy by the state

and the right to be secure against unreasonable interceptions of communications by

the state.” Id. The presence of this additional language, however, did not affect our

decision to continue to interpret the search and seizure clause of article I, section 6,

of the Illinois Constitution in lockstep with the search and seizure clause of the

fourth amendment to the United States Constitution.

¶ 61 Similarly, the presence of additional language in article I, section 5, does not

weigh against interpreting and applying the assembly clause of the Illinois

Constitution in lockstep with the corresponding clause in the first amendment.

¶ 62 That said, in their reply brief, defendants argue that the ban on overnight

assembly in Grant Park also violates their independent rights under the Illinois

Constitution to “consult for the common good” and “to make known their opinions

to their representatives.”

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¶ 63 We need not determine the contours of these two separate “rights” for two

reasons. First, defendants have forfeited any issues regarding violations of these

separate rights by not raising them as separate issues in their petition for leave to

appeal. Buenz v. Frontline Transportation Co., 227 Ill. 2d 302, 320-21 (2008)

(failure to raise an issue in a petition for leave to appeal forfeits the issue on the

merits). Second, even if the argument were properly presented, defendants have

posited no nexus between their desire to exercise these rights and the need to gather

together in Grant Park during the overnight hours. Defendants argue only that their

right to consult with “passers-by” for the common good is impaired by the park’s

closing, when law-abiding members of the public would not be present.

¶ 64 We thus leave for a later date any consideration of the scope of the language “to

consult for the common good, to make known their opinions to their

representatives” and of whether these words protect actions not otherwise protected

by the first amendment.

¶ 65 Application of Time, Place, and Manner Analysis in Lockstep

¶ 66 Under the United States Supreme Court’s jurisprudence regarding the right of

assembly, which we apply in lockstep, this court applies intermediate scrutiny to

content-neutral regulations that affect the time, place, or manner of expression. See

People ex rel. Ryan v. World Church of the Creator, 198 Ill. 2d 115, 120 (2001);

People v. Jones, 188 Ill. 2d 352, 356-57 (1999); City of Chicago v. Lynd, 47 Ill. 2d

205, 208-09 (1970); Chicago Park District v. Lyons, 39 Ill. 2d 584, 590-91 (1968).

Under that standard, a time, place, or manner regulation must not only be

content-neutral, it must be “narrowly tailored to serve a significant government

interest, and must leave open ample alternative channels for communication of the

information.” Jones, 188 Ill. 2d at 356-57.

¶ 67 By holding that the lockstep doctrine applies and that we will be guided by

federal precedent, we have rejected defendants’ argument that we should apply

strict scrutiny to an ordinance affecting the right of assembly. Defendants,

however, have argued in the alternative that if intermediate scrutiny is proper, this

court should apply the time, place, and manner analysis “more robustly” than it was

applied by the appellate court.

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¶ 68 In their petition for leave to appeal, defendants argued that the appellate court

erred by relying on the affidavit from the park district official to find that the

ordinance is narrowly tailored to serve a significant government interest; they

argued further that the appellate court’s finding of ample alternative channels of

communication for their protected conduct “defie[d] common sense and

practicality.” In their brief, they argued that the appellate court applied the time,

place, and manner standard “with insufficient rigor,” continuing to invoke the

“broader rights” that they claimed article I, section 5, of the Illinois Constitution

guarantees.

¶ 69 We find it unclear from the defendants’ petition for leave to appeal and their

brief whether this argument is intended to be an argument for departure from

lockstep, which we have already rejected, or an argument that the appellate court

improperly applied the standard mandated by lockstep.

¶ 70 When questioned at oral argument on the exact nature of this argument,

defendants’ counsel confirmed that they sought review only of the appellate court’s

rejection of their Illinois constitutional challenge to the ordinance.

¶ 71 Thus, any claim by defendants that the appellate court failed to properly

conduct intermediate review under the applicable first amendment jurisprudence is

forfeited. Buenz, 227 Ill. 2d at 320-21. Their petition for leave to appeal did not

preserve the application of federal law as a separate issue. Their brief did not argue

this issue except in the context of arguing for a departure from lockstep based on

their claim of broader protection of the right of assembly under the Illinois

Constitution.

¶ 72 We, therefore, agree with the City that defendants have forfeited any challenge

to the appellate court’s application of first amendment jurisprudence and, by logical

extension, to its ultimate conclusion that the ordinance is not unconstitutional as

applied to them.

¶ 73 CONCLUSION

¶ 74 For these reasons, we vacate that portion of the appellate court’s opinion stating

that the Illinois Constitution provides broader protection for the right of assembly

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than the United States Constitution. In all other respects, we affirm the appellate

court’s judgment that rejected defendants’ constitutional challenge to the ordinance

under article I, section 5, of the Illinois Constitution.

¶ 75 Appellate court judgment affirmed.

¶ 76 Circuit court judgment reversed and remanded.

¶ 77 JUSTICE KILBRIDE, dissenting:

¶ 78 The only issue in this case is whether the challenged Chicago Park District

ordinance is unconstitutional as applied to defendants under article I, section 5, of

the Illinois Constitution (Ill. Const. 1970, art. I, § 5), a point confirmed at oral

argument. Remarkably, despite the clear framing of this issue, the majority

concludes that defendants have “forfeited” their substantive as-applied challenge

under the Illinois Constitution. See supra ¶ 72 (determining that defendants have

“forfeited any challenge to the appellate court’s *** ultimate conclusion that the

ordinance is not unconstitutional as applied to them”). I cannot agree. More

critically, because the majority effectively endorses the resolution of an as-applied

constitutional challenge in the absence of an evidentiary hearing and on a record

inadequate to resolve that claim, I must dissent.

¶ 79 Forfeiture “is the failure to make the timely assertion of [a] right.” (Internal

quotation marks omitted.) Gallagher v. Lenart, 226 Ill. 2d 208, 229 (2007).

Although an issue may be considered forfeited if not raised in a petition for leave to

appeal (Buenz v. Frontline Transportation Co., 227 Ill. 2d 302, 320-21 (2008)),

defendants did, in fact, raise their as-applied constitutional challenge in their

petition for leave to appeal. As the majority correctly acknowledges:

“We allowed defendants’ petition for leave to appeal pursuant to Illinois

Supreme Court Rule 315 (eff. Jan. 1, 2015) to determine whether the ordinance,

which closes all Chicago public parks between 11 p.m. and 6 a.m. and prohibits

people from being inside any park during these hours, is unconstitutional as

applied to defendants under article I, section 5, of the Illinois Constitution (Ill.

Const. 1970, art. I, § 5).” Supra ¶ 2.

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Thus, it is simply inaccurate to claim, as the majority does, that defendants’

substantive as-applied constitutional challenge to the ordinance has been

“forfeited.” Supra ¶ 72.

¶ 80 The majority’s approach is also confusing. Why does the majority bother

conducting a limited lockstep analysis if defendants’ underlying constitutional

claim has been forfeited? It is settled that “cases should be decided on

nonconstitutional grounds whenever possible, reaching constitutional issues only

as a last resort.” In re E.H., 224 Ill. 2d 172, 178 (2006) (collecting cases). If

defendants’ as-applied challenge under the Illinois Constitution is forfeited there is

no need for the majority to engage in its extensive limited lockstep analysis or

conduct any constitutional analysis for that matter.

¶ 81 I also find it unusual for this court to issue initially a supervisory order directing

the appellate court to address the merits of defendants’ claims under the Illinois

Constitution, including their as-applied constitutional challenge, but then decline to

reach that same exact claim when the case returned to this court—as the majority

does now. See City of Chicago v. Alexander, No. 118799 (Ill. May 27, 2015)

(supervisory order) (this court earlier directing the appellate court to vacate its

original opinion in defendants’ case and to “review the circuit court’s judgment that

[the challenged ordinance] violates the right to free assembly under both the first

amendment to the United States Constitution and article I, section 5 of the Illinois

Constitution”); see also People v. Hughes, 2015 IL 117242, ¶ 64 (Burke, J.,

specially concurring, joined by Thomas and Kilbride, JJ.) (asserting that “[i]f an

issue is of such importance to the proceedings that the parties must be ordered to

submit additional briefing, then surely it is a matter that must be addressed by this

court” (emphasis omitted)).

¶ 82 Rather than resolving defendants’ as-applied constitutional challenge on the

questionable basis of forfeiture, I would address it substantively. Both parties have

fully briefed the issue. This case is not only important for the parties but also

involves a matter of public interest. On multiple separate occasions, and as recently

as this year, Illinois citizens have assembled in public forums in Chicago and

throughout the state to engage in constitutionally protected speech activity on a

variety of political, social, and governmental concerns. Defendants also chose to

assemble in a public space. They assembled in Chicago’s Grant Park to protest

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wealth inequality, corporate political influences, and the government’s response to

those issues. Those concerns are undoubtedly shared by many of their fellow

citizens in Illinois, not to mention people across the country.

¶ 83 As this court has long recognized, municipalities are permitted to “adopt

regulatory provisions governing the use of public property to the extent that such

regulations are compatible with constitutional guaranties of free speech and press.”

Chicago Park District v. Lyons, 39 Ill. 2d 584, 587 (1968). Without question, this

principle applies equally to the right to assembly protected by article I, section 5, of

the Illinois Constitution. Unfortunately, by choosing to resolve defendants’

as-applied challenge on the basis of forfeiture, the majority fails to clarify the scope

of permissible governmental restriction on that right.

¶ 84 If the majority were to engage defendants’ substantive challenge under the

Illinois Constitution, I believe they would reach the same conclusion that I do—the

record in this case is woefully inadequate to resolve defendants’ as-applied

challenge under article I, section 5.

¶ 85 To succeed on their challenge to the ordinance, defendants must establish that

the ordinance is unconstitutional as applied to them. People v. Minnis, 2016 IL

119563, ¶ 18 (citing People v. Garvin, 219 Ill. 2d 104, 117 (2006)). It is settled that

an as-applied constitutional challenge is inherently fact intensive because it

depends on the particular facts and circumstances of the challenging party in each

individual case. Minnis, 2016 IL 119563, ¶ 18; In re M.A., 2015 IL 118049,

¶¶ 39-40; People v. Thompson, 2015 IL 118151, ¶ 36. Because of the factual focus

of an as-applied challenge, this court has emphasized that it is fundamentally

different than a facial challenge. See People v. Rizzo, 2016 IL 118599, ¶ 24 (noting

that “[t]his court has recently reiterated that facial and as-applied challenges are not

interchangeable, and there are fundamental distinctions between them”).

¶ 86 Logically, in most if not all cases, an evidentiary hearing will be required to

resolve an as-applied constitutional challenge. This is true because, unlike a facial

challenge, an as-applied challenge generally requires a factual evidentiary basis

related to the specific circumstances of the particular case. Thompson, 2015 IL

118151, ¶ 36. A trial court’s failure to conduct an evidentiary hearing before

declaring an as-applied constitutional violation is improper because “[i]n such a

factual vacuum, a court is not capable of making an ‘as applied’ determination of

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unconstitutionality.” Minnis, 2016 IL 119563, ¶ 19; see also Rizzo, 2016 IL

118599, ¶ 26 (concluding that a circuit court cannot make an as-applied

constitutional ruling in the absence of an evidentiary hearing); People v. Mosley,

2015 IL 115872, ¶ 46 (same).

¶ 87 Here, in one of defendants’ responsive pleadings, defendants suggested that “an

evidentiary hearing may be required if the court determines that it cannot grant

defendants’ motion based solely on defendants’ legal arguments.” Defendants also

filed a motion for discovery. The trial court, however, denied the motion for

discovery and did not conduct an evidentiary hearing. Ultimately, the trial court

determined, in relevant part, that the ordinance was unconstitutional as applied to

defendants under article I, section 5, of the Illinois Constitution of 1970, without

conducting an evidentiary hearing.

¶ 88 In my opinion, the trial court’s ruling on defendants’ as-applied constitutional

issue was premature. This conclusion becomes readily apparent after reviewing the

record. Notably, the record contains minimal evidence on the most critical issues in

this case—whether, as applied to defendants’ case, the ordinance’s nightly closing

of Chicago public parks is narrowly tailored to serve a significant government

interest and whether it allows ample alternative channels of communication. See

People v. Jones, 188 Ill. 2d 352, 356-57 (1999) (for content-neutral statutes that

constitute time, place, or manner restrictions on speech, the key issue is whether the

restriction is narrowly tailored to serve the government’s interest and whether it

allows ample alternative channels of communication).

¶ 89 Chicago’s Grant Park, the historically significant public venue at issue here, is a

vast public space that consists of approximately 319 acres. It is not clear from the

record how much space within that expansive public area was actually used by

defendants. Presumably, it was much less than 319 acres. Nor is there any evidence

in the record on how much time is needed within the nightly 11 p.m. to 6 a.m.

closure to maintain the limited area used by defendants. Defendants note that other

large urban areas, including Washington, D.C., San Diego, and Boston,

successfully maintain 24-hour access to their large public parks.

¶ 90 The bulk of the record consists of affidavits that provide largely irrelevant

general background information but not specific facts that address defendants’

as-applied challenge. Only one of the City’s three affidavits, from Deputy Director

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of Park Services Williams, provides pertinent information on the rationale

underlying the ordinance’s closing requirements. Even that information, however,

consists of a single paragraph that fails to address the circumstances presented here.

Highlighting the sheer lack of information specific to defendants’ as-applied

challenge, the only evidence in the record arguably relevant to defendants’ claims

provides as follows: