People v. Grever

JUSTICE McLAREN, specially concurring:

Although I agree with the result the court reaches, I write separately to note my disagreement with the analysis used with respect to whether the State must prove knowledge of the mandatory duty to prove a charge of official misconduct under section 33 — 3(a). The majority answers this question in the negative by characterizing the mandatory duty element as providing absolute liability. I would also answer the question in the negative but believe the label of “absolute liability” is incorrect and unnecessary. The better answer to the question is that knowledge of an official’s mandatory duty is presumed because of the deeply embedded principle of jurisprudence that ignorance of the law is no excuse. See People v. Izzo, 195 Ill. 2d 109, 115 (2001). Defendant’s argument that the State is required to prove that he knew that he had a mandatory duty is like a speeder arguing that the State must prove that he knew the speed limit. Of course, the State is not required to prove that a speeder knew it was against the law to speed, because we are all presumed to know the law. Just like defendant in this case is presumed to know the law. Now, if the speeder says that he is not guilty because he did not intend to speed, the response would be that mens rea is not an element of the offense because speeding is an absolute liability offense. But that argument is different from arguing that the speeder did not know there was a law providing for maximum speed limits. Like the mandatory duty element in this case, the State is not required to prove that the speeder knew of the existence of the law.

Allowing defendant to frame the issue, the majority mistakenly discusses whether the mandatory duty element requires a mental state. However, defendant’s mental state cannot be the issue because he is presumed to know the law, that is, he is presumed to know his mandatory duties as defined by the legislature.

Defendant essentially claims that ignorance of the law is an excuse. However, defendant was aware of the law but claims he misinterpreted it. Neither Campbell nor any authority of which I am aware allows a defendant to act under a law repeatedly and later claim that he is not guilty based upon an unreasonable interpretation of the law. The State proved that defendant was aware of the law and failed to act according to its clear and unambiguous mandate. I submit the surrounding facts and circumstances, when viewed in the best light of the prosecution’s position, sustain defendant’s convictions. Despite defendant’s contention that he lacked intent based upon his unreasonable interpretation, a trier of fact could have determined that defendant knew he had a duty and failed to perform it. In this case, the State is not required to prove a mental state because the attendant circumstances that the State must prove have little or nothing to do with intent. Rather, they have to do with the clear and unambiguous language of the statute and what it requires or proscribes. The State has not only proven what the statute clearly requires, it has also successfully refuted defendant’s interpretation of the statute. The State was not required to disprove defendant’s claimed knowledge of the law prescribing the mandatory duty.

The majority’s assertion that the legislature intended absolute liability is not borne out by the language of the statute and the long-settled rules of statutory construction. Absent either a clear indication that the legislature intended to impose absolute liability or an important public policy favoring it, our supreme court has been unwilling to interpret a statute as creating an absolute liability offense. People v. O’Brien, 197 Ill. 2d 88 , 92 (2001). The penalty for a violation of a statute is an important factor in determining whether the legislature intended to impose absolute liability. Lawrence v. Regent Realty Group, Inc., 197 Ill. 2d 1, 21 (2001). The legislature has provided that an offense that “is a misdemeanor which is not punishable by incarceration or by a fine exceeding $500 *** clearly indicates a legislative purpose to impose absolute liability for the conduct described.” 720 ILCS 5/4 — 9 (West 1998). Conversely, where the penalty is severe, the likelihood of a legislative intent to impose absolute liability is reduced. O’Brien, 197 Ill. 2d at 94 . A violation of the statute at issue in this case, section 33 — 3, is a Class 3 felony carrying a penalty of two to five years’ imprisonment. See 720 ILCS 5/33 — 3 (West 1998); 730 ILCS 5/5 — 8—1 (West 1998). Given the gravity of the penalty and the lack of clear language indicating an intent to impose absolute liability on the attendant circumstances, I cannot agree with the majority’s interpretation.

In addition, the majority’s citation to Scharlau to support its position is puzzling because the majority’s analysis is not in accord with our supreme court in Scharlau. In Scharlau our supreme court analyzed section 33 — 3(c) and held that knowledge of the attendant circumstance is not an element of the offense. Scharlau, 141 Ill. 2d at 199. What is noticeably absent from the supreme court’s analysis is the label “absolute liability.” I assert that the supreme court avoided that label because it does not accurately describe the legislative intent as indicated by the language of the statute. Rather than using the label “absolute liability,” I would hold as the supreme court did, that knowledge is simply not an element of proving the attendant circumstance. See Scharlau, 141 Ill. 2d at 199.

In conclusion, I submit that my interpretation allows for exoneration based upon a mistake of fact, assuming arguendo that mens rea was a part of the attendant circumstance/mandatory duty. My interpretation as stated above does not allow for exoneration based upon a mistake of law. The majority interpretation would not allow exoneration based upon a mistake of fact or of law, assuming arguendo that mens rea was a part of the attendant circumstance/mandatory duty. See analogically People v. Becker, 179 Ill. App. 446, 453 (1913), quoting McGuire v. State, 26 Tenn. (7 Hum.) 54 , 56 (1846) (“ ‘If the voter believe himself to be twenty-one years of age, when he is not, and vote, he does not know of the existence of the disqualifying fact and may, on that ground, be excused. But, if he knew that he is only twenty years of age, yet believes he is old enough in point of law to vote, such ignorance of the law will not excuse him’ ”). The majority would not allow the former defense. I would; therefore, I specially concur.