Opposition — Holder v. Illinois

oatice - Supreme Court, U.S

| “PILED

No. 83-1599 MAY 24 Y984

EXANDER L. STEVAS,

CLERK

In THE

Supreme Court of the United States

Octosper Term, 1983

CARL HOLDER,

Petitioner,

Vv.

PEOPLE OF THE STATE OF ILLINOIS,

Respondent.

On Petition For A Writ Of Certiorari To The Appellate

Court Of Illinois, Second Judicial District

RESPONDENT'S BRIEF IN OPPOSITION

Net F. Hartican

Attorney General, State of Illinois

Mark L. Rorerr *

Assistant Attorney General

188 West Randolph Street, Suite 2200

Chicago, Illinois 60601

(312) 7938-2570

Counsel for Respondent

Marcia L. Friepi

Assistant Attorney General

188 West Randolph Street, Suite 2200

Chieago, Tlinois 60601

(312) 793-2570

Of Counsel * Counsel of Reeord

Printed by Authority of the State of Illinois (P.O. 32353—50—5-17-84)

i

QUESTIONS PRESENTED

1. Whether petitioner has presented a substantial fed-

eral question where the lower court correctly upheld the

constitutionality of subsection (aX3) of the Illinois intimida-

tion statute based upon Broadrick’s overbreadth analysis

and where there exists no viable conflict among the courts

on the issue?

2. Whether petitioner may complain that the Illinois

intimidation statute fails to give fair warning to prospec-

tive actors where his own conduct fell squarely within its

prohibition?

3. Whether petitioner has failed to present a substan-

tial federal question where long-standing precedent of this

Court has established that the states may constitutional-

ly proscribe threats to damage property in the context

of labor disputes?

ii

TABLE OF CONTENTS

QUESTIONS PRESENTED .................

TABLE OF AUTHORITIES .................

PUR be eseccccevorescdsctsenseses

STATEMENT OF THE CASE ...............

REASONS FOR DENIAL OF THE WRIT:

I.

PETITIONER HAS FAILED TO PRESENT A

SUBSTANTIAL FEDERAL QUESTION WHERE

THE LOWER COURT CORRECTLY UPHELD

THE CONSTITUTIONALITY OF SUBSECTION

(AX3) OF ILLINOIS’ INTIMIDATION STATUTE

BASED UPON BROADRICK’S OVERBREADTH

ANALYSIS AND WHERE THERE EXISTS NO

VIABLE CONFLICT AMONG THE COURTS ON

THIS TRBUR 2c ccc cccccccccsccccccccscccces

II.

PETITIONER CANNOT COMPLAIN THAT THE

ILLINOIS INTIMIDATION STATUTE FAILS TO

GIVE FAIR WARNING TO PROSPECTIVE

ACTORS WHERE HIS OWN CONDUCT FELL

SQUARELY WITHIN ITS PROHIBITION ....

ITI.

PETITIONER HAS FAILED TO PRESENT A

SUBSTANTIAL FEDERAL QUESTION WHERE

LONG-STANDING PRECEDENT OF THIS COURT

HAS ESTABLISHED THAT THE STATES MAY

CONSTITUTIONALLY PROSCRIBE THREATS

TO DAMAGE PROPERTY IN THE CONTEXT OF

LABOR DISPUTES ..........eeeeeeeceeees

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iii

TABLE OF AUTHORITIES

CASES:

Allen-Bradley Local No. 1111 v. Wisconsin Em-

ployment Relations Board, 315 U.S. 740 (1942) .

—” Workers v. Russell, 356 U.S. 634

RE did nein dS 6c5 senda cuaanersecpkeeiass

Broadrick v. Oklahoma, 413 U.S. 601 (1978) ..

Chaplinsky v. State of New Hampshire, 315 U.S.

EE Sed cdacehudba ted esetatedissceeas

Farmer v. United Brotherhood of Carpenters, 430

i Sei <ibciiveteensaseute had ences

Landry v. Daley, 280 F. Supp. 938 (N.D. Ill. 1968),

rev'd on other grounds sub nom. Boyle v.

Landry, 401 U.S. 77 (1971) ...........0008.

Lodge 76, International Association of Machinists

and Aerospace Workers v. Wisconsin Employ-

pene Relations Commission, 427 U.S. 136

SE cchiun ses nkeuasscbichveunsanedenies

an Claiborne Hardware Co., 458 U.S. 886

SE .déd6e6ee bevsdsdenbeneseneoenhshvn eee

New York v. Ferber, 458 U.S. 747 (1982) .....

Parker v. Levy, 417 U.S. 733 (1974) ..........

~~ v. Gallo, 54 Ill. 2d 343, 297 N.E.2d 569

MD 4 seGcvens cuusulsceh een teusdreneaces

P A Smith, 78 Ill. 2d 298, 399 N.E.2d 1289

DE vcevavke chansdiattnes bekedncnbséueus

Spence v. Washington, 414 U.S. 405 (1974) (per

SID cw ccnenceuevnsdcs Ukaevewaccncacacs

United Construction Workers v. Laburnum Con-

struction Corp., 347 U.S. 656 (1954) .......

Village of Hoffman Estates v. Flipside, Hoffman

Estates, Inc., 455 U.S. 489 (1982) ..........

Watts v. United States, 394 U.S. 705 (1965) ...

Wurtz v. Risley, 719 F.2d 1438 (9th Cir. 1983) .

Youngdahl v. Rainfair, Inc., 355 U.S. 131 (1957) .

STATUTES:

3, 4,

8

7

4

6

5

3

3

8

6

7

2

8

Ill. Rev. Stat. 1979, ch. 38, § 12-G(aX3) ....... passim

BD UBL 8D oc cccvcccscccccsconccccosesces

In Tue

Supreme Court of the Anited States

Ocroser Term, 1983

CARL HOLDER,

Petitioner,

Vv.

PEOPLE OF THE STATE OF ILLINOIS,

Respondent.

On Petition For A Writ Of Certiorari To The Appellate

Court Of Illinois, Second Judicial District

RESPONDENT'S BRIEF IN OPPOSITION

JURISDICTION

The jurisdictional requisites are adequately set forth in

the petition. However, as treated more fully in the argu-

ment contained herein, respondent does not believe that

petitioner has shown any reason for this Court to exer-

cise its sound judicial discretion to grant the writ.

STATEMENT OF THE CASE

Respondent accepts the Statement of the Case pre-

sented by petitioner.

ain

REASONS FOR DENIAL OF THE WRIT

PETITIONER HAS FAILED TO PRESENT A SUBSTAN-

TIAL FEDERAL QUESTION WHERE THE LOWER

COURT CORRECTLY UPHELD THE CONSTITUTIONAL-

ITY OF SUBSECTION (AX3) OF ILLINOIS’ INTIMIDA-

TION STATUTE BASED UPON BROADRICK’S OVER-

BREADTH ANALYSIS AND WHERE THERE EXISTS

NO VIABLE CONFLICT AMONG THE COURTS ON THE

ISSUE.

Petitioner argues that certiorari should be granted

because the Illinois Supreme Court incorrectly applied the

first amendment analysis of Broadrick v. Oklahoma, 413

U.S. 601 (1973), in upholding the constitutionality of the

Illinois intimidation statute [Tll. Rev. Stat. 1979, ch. 38,

§ 12-6(aX3)] and because the decision is in conflict with

those of one federal district and one federal circuit court.

Broadrick, however, clearly supports the court’s require-

ment that petitioner establish section 12-6(aX3) to be

substantially overbroad and was decided after Landry v.

Daley, 280 F. Supp. 938 (N.D. Ill. 1968), rev’d on other

grounds sub nom. Boyle v. Landry, 401 U.S. 77 (1971),

the district court case upon which petitioner relies.

Neither is the court’s rejection of petitioner’s first amend-

ment challenge in conflict with the Ninth Circuit’s ruling

in Wurtz v. Risley, 719 F.2d 1438 (9th Cir. 1983). Peti-

tioner has, therefore, not presented a substantial federal

question for review by this Court.

Broadrick recognized that the potential application of

a statute to an area protected by the first amendment

does not necessarily serve to invalidate the statute in its

entirety:

=}.

Although such laws, of too broadly worded, may

deter protected speech to some unknown extent,

there comes a point where that effect—at best a

prediction—cannot, with confidence, —- invali-

dating a statute on its face and so prohibiting a State

from enforcing the statute against conduct that is ad-

mittedly within its power to proscribe.

42 U.S.C. at 615. Accordingly, this Court held:

. . . [PJarticularly where conduct and not merel

speech is involved, we believe that the por ltrmmnee ~ |

of a statute must not only be real, but substantial

as well, judged in relation to the statute’s plainly

legitimate sweep.

Id.

Petitioner attempts to avoid the Broadrick ruling by

arguing that subsection 12-6(aX3) of the Illinois intimi-

dation statute regulates pure speech. The statute’s pro-

hibition, however, involves conduct as well as speech when

analyzed in light of first amendment concerns. One’s

physical conduct may be protected as a consequence of

its role in the communication of information or opinion.

See, e.g., Spence v. Washington, 418 U.S. 405 (1974) (per

curiam). Conversely, speech may not involve the communi-

cation of information or opinion and, as such, may be fairly

considered a “verbal act.” See, e.g., Chaplinsky v. State

of New Hampshire, 315 U.S. 568 (1942). The threats con-

templated by the intimidation statute are clearly not com-

munications of information or belief. The threat itself must

be one to engage in criminal conduct. Further, the com-

munication must be made with the specific intent to

coerce [People v. Smith, 78 Ill. 2d 298, 399 N.E.2d 1289

(1980)] and must, in its context, have a reasonable ten-

dency to create a fear in the victim that the speaker will

perform the threatened act. People v. Gallo, 54 Ill. 2d

343, 297 N.E.2d 569 (1973). An attempt to coerce another

—h-

through language, under circumstances reasonably caus-

ing apprehension that the threat will be carried out, is

no less “conduct” than an attempt to physically restrain

the individual. Because the statute is not directed at

speech, but rather the intended coercive effect of threats

to violate the law, it is like any other statute defining

a crime which may incidentally involve communication.

In any event, any need to arbitrarily categorize stat-

utes regulating speech and those regulating conduct has

been alleviated by New York v. Ferber, 458 U.S. 747

(1982), where this Court applied the substantial over-

breadth doctrine in the context of traditional forms of ex-

pression such as books and films. Although Ferber in-

volved the state’s regulation of child pornography, no-

where did this Court intimate that Broadrick’s rationale

should not control in all areas of so-called “pure speech.”

To the contrary, this Court reiterated that the over-

breadth doctrine should be employed by the courts only

as a last resort.

Petitioner argues that the lower court’s ruling is none-

theless inconsistent with the Ninth Circuit’s decision in

Wurtz, where the court examined Montana’s intimidation

statute, employing language similar to that found in Ili-

nois’, for substantial overbreadth. Wurtz recognized that

while threats have traditionally been punishable without

offending the first amendment, the threat must have a

reasonable tendency to produce a fear that the threat will

be carried out. Because the Montana statute had not been

so limited by state judicial construction, the court found

it to be substantially overbroad. In Illinois, on the other

hand, it has been clear since 1973 that a threat punish-

able by section 12-6 must have a reasonable tendency to

create apprehension that the threat will be carried out

and must be coercive. See People v. Gallo, 54 Ill. 2d 343,

——

297 N.E.2d 569 (1973). Not only is the victim likely to

suffer personal apprehension from the coercive threat, he

can fail to comply with the speaker’s demands only at the

risk that a criminal offense will be committed. If the of-

fense is actually committed, it will have been the direct

result of the victim’s non-compliance. Yet a criminal

offense, committed against all citizens of the State, is

deemed too serious to leave the law’s enforcement in the

hands of private citizens.

Because section 12-6 is limited to true threats which

have a reasonable tendency to force another to act against

his will, a majority of the hypothetical threats offered by

petitioner would not, under normal circumstances, con-

stitute intimidation. As in Broadrick, the extent that the

statute as construed may infringe upon specific protected

activity is insubstantial in relation to the broad range of

activity sought to be prohibited which is manifestly sub-

ject to state regulation. Further, as in Broadrick, the

statute is not censorial, directed at particular groups or

viewpoints; rather, it seeks to regulate activity in an even-

handed and neutral manner. Because the Illinois Supreme

Court’s decision in this case is mandated by Broadrick

and there exists no actual conflict among the courts on

the issue, exercise of this Court’s certiorari jurisdiction

is not warranted.

PETITIONER CANNOT COMPLAIN THAT THE ILLI-

NOIS INTIMIDATION STATUTE FAILS TO GIVE FAIR

WARNING TO PROSPECTIVE ACTORS WHERE HIS

OWN CONDUCT FELL SQUARELY WITHIN ITS PRO-

HIBITION.

Nor has petitioner presented a substantial federal ques-

tion concerning the alleged vagueness of section 12-6(aX3).

ah

Petitioner argues that the phrases “without lawful au-

thority” and “any criminal offense” render the statute

vague because he could not discern the proscribed con-

duct from within its four corners. Incorporation by refer-

ence to other laws, however, is perfectly permissible. See,

e.g., Village of Hoffman Estates v. Flipside, Hoffman Es-

tates, Inc., 455 U.S. 489 (1982). Moreover, as explained

in Argument III, infra, petitioner’s conduct fell squarely

within the statute’s prohibition and one to whom a statute

clearly applies may not successfully challenge it for vague-

ness. Parker v. Levy, 417 U.S. 733 (1974).

PETITIONER HAS FAILED TO PRESENT A SUBSTAN-

TIAL FEDERAL QUESTION WHERE LONG-STANDING

PRECEDENT OF THIS COURT HAS ESTABLISHED

THAT THE STATES MAY CONSTITUTIONALLY PRO-

SCRIBE THREATS TO DAMAGE PROPERTY IN THE

CONTEXT OF LABOR DISPUTES.

Petitioner argues that the threat underlying his in-

timidation conviction was merely a threat to strike pro-

tected by the first amendment and Section 13 of the Na-

tional Labor Relations Act (29 U.S.C. § 163), and that

state control over his conduct has been preempted. Peti-

tioner’s threat, however, was not merely a threat to strike

but a coercive, express threat to imminently and intention-

ally damage his employer’s property. Such threats have

consistently been found by this Court to be constitutional-

ly prohibited by the states in an exercise of their police

powers.

Contrary to petitioner’s suggestion, the appellate court

did not find his threat, “the trucks that . . . just left are

sitting down the road and the drums aren ¢ turning till

{[Countryman] signed a contract” (R. 488), to be a mere

=

threat to strike. Rather, both the jury and the appellate

court found petitioner’s statement to be an unequivocal,

coercive threat to criminally damage his employer’s prop-

erty. People v. Holder, 119 Ill. App. 3d 366, 372, 456

N.E.2d 628, 632, 633 (2nd Dist. 1983).* Further, the fac-

tual finding is clearly supported by the record. Both peti-

tioner and his victim were aware that the concrete in the

trucks, which petitioner had assured were under the em-

ployees’ sole control, would harden and damage the trucks

should the drums be immobilized. (R. 483, 825) The threat

was repeated in precisely the same language to one per-

son (R. 557) and it was again stated to another “that

Countryman should come out and sign a contract, that

the trucks weren’t moving, that the drums would get

hard.” (R. 548) Petitioner specifically admitted that his

intent was to force his employer to sign the lengthy, com-

plex document presented “blind.” (R. 811)

Petitioner’s threat did not, as that in Watts v. United

States, 394 U.S. 705 (1965), constitute hyperbole. Further,

although the mere fact that speech may be coercive does

not remove it from the reach of the first amendment,

coercive threats of violence to persons or property have

never been protected. See NAACP v. Claiborne Hard-

ware Co., 458 U.S. 886 (1983). Nor was petitioner’s con-

duct, occurring in the context of a labor dispute, author-

ized by federal labor law or its state regulation pre-

empted. Since this Court’s decision in Allen-Bradley Local

No. 1111 v. Wisconsin Employment Relations Board, 315

U.S. 740 (1942), this Court has repeatedly observed that

* In a ee, s co-defendants of intimidation on an

accountability , the jury without question that

petitioner had exceeded any authorit en him to convey a mere

threat to strike. 7 bs

=(

“policing of actual or threatened violence to persons or

destruction of property has been held most clearly a

matter for the States.” Lodge 76, International Associa-

tion of Machinists and Aerospace Workers v. Wisconsin

Employment Relations Commission, 427 U.S. 132, 136

(1976). See also Automobile Workers v. Russell, 356 U.S.

634 (1958); Farmer v. United Brotherhood of Carpenters,

430 U.S. 290, 299 (1977); United Construction Workers

v. Laburnum Construction Corp., 347 U.S. 656 (1954);

Youngdahl v. Rainfair, Inc., 355 U.S. 131 (1957). Because

this Court’s precedent establishes petitioner’s intentionally

coercive threat to lie within the ambit of conduct properly

regulated by the State of Illinois, he has failed to pre-

sent a substantial federal question for review.

CONCLUSION

For the foregoing reasons, respondent submits that

there exists no reason for this Court to exercise its juris-

diction over this case and requests that the Petition for

a Writ of Certiorari be denied.

Respectfully submitted,

NEIL F. HARTIGAN

Attorney General, State of Illinois

Mark L. Rorert*

Assistant Attorney General

Counsel for Respondent

Marcia L. FRIEDL

Assistant Attorney General

Of Counsel * Counsel of Record