Petition for a Writ of Certiorari — Crockett v. Illinois

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SUPREME COURT. U. & FEB 19 va

In Tue

Supreme Court of the Ruited States

OctoBer TERM, 1968

THE PEOPLE OF THE STATE OF ILLINOIS,

Respondent,

vs.

THEOPLIS CROCKETT; JOWEL HYSMITH; AUGUSTINE

NARCISSE; FRANCES HANGER; BERTHA CYRUS; ETHEL

PITTS; ELAINE STRONG; RUTH HANSEN; JOAN SMITH;

JO ANNE ORLOFF; RONALD F. GEE; and JERROLD P.

HOLZMAN,

Petitioners.

PETITION FOR WRIT OF CERTIORARI

TO THE

SUPREME COURT OF ILLINOIS

Leo E. Hott,

166 W. Washington Street,

Chicago, Illinois 60602,

Attorney for Petitioners.

MIDWEST LAW PRINTING GO., CHIGAGO 60601, FINANCIAL 6-2968

INDEX

PAGE

Opinion Below 2

The Record 2

Jurisdiction 2

Questions Presented 2

Statement . 3

Constitutional And Statutory Provisions Involved ...... 4

Reasons For Granting The Writ 4)

Certiorari Should Be Granted To Review The

Illinois Supreme Court’s Holding That The IIli-

nois Disorderly Conduct Statute Is Compatible

With The First and Fourteenth Amendments ......

Conclusion

Appendix—(Opinion of the Supreme Court of Illinois)

List Or AutTHoritIes CITED

Cases:

Connally v. General Construction Co., 269 U.S. 385,

391 (1926)

Cox v. Louisiana, 379 U.S. 536, 554 (1965) ................

Dombrowski v. Pfister, 280 U.S. 479 (1965) ............

10

11

Giaccio v. Pennsylvania, 383 U.S. 399 (1966) ............ 8

Herndon v. Lowry, 301 U.S. 242, 263 (1937) ............ 7

N.A.A.C.P. v. Button, 371 U.S. 415, 432, 483 (1963) 7

People v. Raby, 40 Ill. 2d 392 ..............-.-.-cecerecse-csceneeeere 5, 6

Thornhill v. Alabama, 310 U.S. 88, 97-98 (1940) . 7

United States v. Capital Traction Co., 34 App. D. C.

592, 19 Ann. Cas. 68 5, 6, 7

Zwicker v. Koota, 389 U.S. 241, 249-250 (1967) ...... 9

Others:

United States Constitution, Fourteenth Amendment 4

Illinois Revised Statutes, Chapter 38, Section 26-1

(a) 1 4,9

In THE

Supreme Cowt of the United States

October TERM, 1968

No.

THE PEOPLE OF THE STATE OF ILLINOIS,

Respondent,

VS.

THEOPLIS CROCKETT; JOWEL HYSMITH; AUGUSTINE

NARCISSE; FRANCES HANGER; BERTHA CYRUS; ETHEL

PITTS; ELAINE STRONG; RUTH HANSEN; JOAN SMITH;

¢O ANNE ORLOFF; RONALD F. GEE; and JERROLD P.

HOLZMAN,

Petitioners.

PETITION FOR WRIT OF CERTIORARI

TO THE

SUPREME COURT OF ILLINOIS

PETITION FOR WRIT OF CERTIORARI TO THE

ILLINOIS SUPREME COURT

Petitioners pray that a writ of certiorari issue to re-

view the judgment of the Illinois Supreme Court entered

in the above case on November 22, 1968. No petition for

rehexring was filed.

NA COLNE aI ema Bia 8 ta MIS, Nip 2 Mirae aie pet caine

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OPINION BELOW

The opinion of the Illinois Supreme Court is reported

at 41 Ill. 2d 226, 242 N.E. 2d 235 and set ovt in full as

an appendix to this petition.

THE RECORD

A certified copy of the record below has been filed in

this Court.

JURISDICTION

The judgment of the Illinois Supreme Court was en-

tered on November 22, 1968. (R. 411.)

Jurisdiction of this Court is invoked pursuant to 28

US.C., Section 1257. It is respectfully requested that

this Court issue the writ of Certiorari and that the

cause be consolidated with The People of The State of

iliinois v. Albert A. Raby, No. 863, October Term, 1968,

now pending in this Court.

QUESTIONS PRESENTED

Whether the proscription of Section 26-1 (a) of Chap-

ter 38, Illinois Revised Statutes violates the Fourteenth

Amendment by reason of vagueness and overbreadth?

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STATEMENT

On May 18, 1967, the petitioners Theopolis Crockett,

Jowel Hysmith, Augustine Narcisse, Frances Hanger,

Bertha Cyrus, Ethel Pitts, Elaine Strong, Ruth Hansen,

Joan Phillips, and Joan Smith, along with other mem-

bers of the Independent Union of Public Aid Employees

went to the County Building of Cook County, Illinois

to discuss matters of public welfare. While there some

or all of the petitioners sat in the hallway of the County

Building while other members of their group spoke with

the County Board President. (R. 255, 256.)

On June 1, 1967, the petitioners, Jo Anne Orloff, Ron-

ald F. Gee, and Jerrold P. Holzman along with other

members of the Independent Union of Fublic Aid Em-

ployees met with County Comunissioner George Dunne

in his office at the County Building in Cook County, Illi-

nois, to discuss public welfare matters. Commissioner

Dunne terminated the meeting and the defendants re-

mained seaced in his office. (A. 391, 392.)

The petitioners were thereafter charged with vio-

lating Chapter 38, Section 26-1 (a) of the Illinois Re-

vised Statutes. (R. 24, 38, 60, 82, 104, 126, 148, 170, 192,

214, 322, 331, 353.) Prior to the trial the petitioners filed

a motion to strike the complaint on the ground that the

statute was unconstitutionally void for vagueness and

overbreadth and violative of the Fourteenth Amendment.

(R. 31-33, 45-47, 67-69, 89-91, 111-113, 133-135, 155-157,

177-179, 199-201, 221-223, 336-338, 357-359, 369-371.) This

motion was denied. (R. 50, 72, 94, 116, 138, 160, 182, 204,

226, 234, 341, 362, 374.)

wa

On review, the Illinois Supreme Court held that Sec-

tion 26-1 (a)’s proscription is not vague and overbroad

by incorporating its decision in People v. Raby. (Ap-

pendix, p. 13.) The Court. held by reference that the

words ‘‘knowingly’’ and ‘‘unreasonable’”’? save the dis-

orderly conduct statute from unconstitutionality. See Peo-

ple v. Raby, 40 Ill. 2d 392, now pending in this Court,

No. 863.

CONSTITUTIONAL AND STATUTORY

PROVISIONS INVOLVED

United States Constitution, Fourteenth Amendment,

Section I

All persons born or naturalized in the United States,

and subject to the jurisdiction thereof, are citizens of the

United States and of the State wherein they reside. No

State shall make or enforce any law which shall abridge

the privileges or immunities of citizens of the United

States; nor shall any State deprive any person of life,

liberty, or property, without due process of law; nor

deny to any within its jurisdiction the equal protection

of the law.

Illinois Revised Statutes, Chapter 38,

Section 26-1 (a) (1)

A person commits disorderly conduct when he know-

ingly:

(1) Does any act in such unreasonable manner as to

alarm or disturb another and to provoke a breach

of the peace; or...

sinillliais

REASONS FOR GRANTING THE WRIT

CERTIORARI SHOULD BE GRANTED TO REVIEW THE

ILLINOIS SUPREME COURT’S HOLDING THAT THE ILLI-

NOIS DISORDERLY CONDUCT STATUTE IS COMPATIBLE

WITH THE FIRST AND FOURTEENTH AMENDMENTS.

The petitioners were convicted on general findings of

guilty of disorderly conduct. (R. 48-49, 70-71, 92-93, 114-

115, 136-137, 158-159, 180-181, 202-203, 224-225, 232-233,

339-340, 360-361, 371-372.) Illinois Revised Statutes, Chap-

ter 38, Section 26-1 (a) 1. The charges and finding of

guilty squarely present the problems of vagueness and

overbreadth, whose constitutionality under the First and

Fourteenth Amendments petitioners challenged below and

challenges here.

Petitioners submit that the disorderly conduct is not

drawn v'th the narrow specificity required to inform men

of common intelligence what is sought to be prohibited

by the statute. Connally v. General Construction Co., 269

U.S. 385, 391 (1926). Here, as in Connally v. General Con-

struction Co., 269 U.S. 385, 391 (1926), and United States

v. Capital Traction Co., 34 App. D.C. 592, 19 Ann. Cas.

68 we have convictions under a statute where there is a

total absence of any definition of what shall constitute

the crime.

The Illinois Supreme Court incorporated by reference

its opinion in People v. Raby, 40 Ill. 2d 392, now pending

Certiorari in this Court, No. 863, October Term, 1968,

and thereby rejected petitioners’ vagueness challenge to

the disorderly conduct statute, saying:

The legislature deliberately chose to frame the pro-

vision in general terms, prompted by the futility of

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an effort to anticipate and enumerate all of the

methods of disrupting public order that fertile minds

might devise. ‘‘Section 26-1 (a) is a general pro-

vision intended to encompass all the usual types of

‘disorderly conduct’ and ‘disturbing the peace.’ Ac-

tivity of this sort is so varied and contingent upon

surrounding circumstances as to almost defy defini-

tion. In addition, the task of defining disorderly

conduct is further complicated by the fact that the

type of conduct alone is not determinative but

rather culpability is equally dependent upon the

surrounding circumstances * * * These considera-

tions have led the Committee to abandon any at-

tempt to enumerate ‘types’ of disorderly conduct.

Instead, another approach has been taken. As de-

fined by the Code, the gist of the offense is not so

much‘.that a certain overt type of behavior was

accomplished, as it is- that the offender knowingly

engaged in some activity in an unreasonable man-

ner which he knew or should have known would tend

to disturb, alarm or provoke others. The emphasis

is on the unreasonableness of his conduct and its

tendency to disturb.’’ People v. Raby, 40 Ill. 2d 392.

The Court holds here, as in Raby, that the words

‘*knowingly’’ and ‘‘unreasonable’’ saved the provision

from unconstitutionality, apparently on the theory that

the petitioners are not in a position to complain about

lack of fair notice, since they know better than anyone

exactly what they did wrong.

Given this construction, the decision of the Illinois

Supreme Court flies in the face of this Court’s decision

in Connally v. General Construction Co., 269 U.S. 385,

393, where this Court quoted with approval from United

States v. Capital Traction Co., saying:

“|. The dividing line between what is lawful and

unla’ ful cannot be left to conjecture. The eitizen

cannot be heard to answer charges based upon penal

egac.r so

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statutes whose mandates are so uncertain that they

will reasonably admit of different constructions. A

criminal statute cannot rest upon an uncertain foun-

dation. The crime, and the elements constituting it,

must be so clearly expressed that the ordinary per-

son can intelligently choose, in advance, what course

it is lawful for him to pursue. Penal statutes pro-

hibiting the doing of certain things and providing a

punishment for their violation, should not admit of

such a double meaning that the citizen may act upon

one conception of its requirements and the courts

upon another.’? (Emphasis supplied)

One reason for the requirement of specificity as a part

of the due process clause is that overly vague statutes

allow courts to reach arbitrary, ad hominem, or ad hoc

results. Although the void-for-vagueness doctrine had

traditionally been viewed as concerned principally with

the problem of fair notice to the potential criminal actor,

-a somewhat more subtle consideration has long been

evident in the opinions of this Court’s vagueness deci-

sions. This is the concept that a vague statute funda-

mentally affronts the rule of law embodied in the Due

Process clause by permitting and encouraging more or

less arbitrary and erratic arrests and convictions. An

over-vague criminal law, this Court has recognized ‘‘li-

* eenses the jury to create its own standard in each

ease.’’ Herndon v. Lowry, 301 U.S. 242, 263 (1967). It

is ‘‘susceptible of sweeping and improper application,”’

N.A.A.C.P. v. Button, 371 U.S. 415, 482, 433 (1963), fur-

nishing a convenient tool for ‘‘harsh and discriminatory

enforcement by prosecuting officials, against particular

groups deemed to merit their displeasure.’? Thornhill

v. Alabama, 310 U.S. 88, 97-98 (1940). It “‘lends itself

to selective enforcement against unpopular causes.’’

N.A.AC.P. v. Button, 371 U.S. 415, 482, 433.

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This potential for impermissible and abusive adminis-

tration may helpfully be conceived in two intimately re-

lated but distinguishable aspects. First, there is the au-

thor:ty which vague laws confer upon the police for

arbitrary street enforcement, arbitrary arrest, and simi-

lar harassmenats. Second, there is the propensity of

vague laws to enable arbitrary court enforcement, arbi-

trary conviction. The first aspect was initially recog-

nized by this Court in cases like Herndon and Button,

in which the challenged legislation lent itself to use, and

actually appeared to have been used, for the suppression

of unpopular political expression, and was voided under

the particularly stringent standards of statutory spe-

cificity evolved by this Court for First Amendment cases.

Because of its origin in these cases, and because in each

case the same statutory obscurity which licenses ‘‘the

jury to create by its own standards”’ also confronted the

citizen with an unfairly and repressively vague line of

prohibition, the concern for lawless or arbitrary court

enforcement failed for a time to emerge from a complex

of other concerns, including traditional fair-notice con-

cerns and free-speech concerns. But in Giaccio v. Penn-

sylvania, 382 U.S. 399 (1966), constitutional invalida-

tion of laws authorizing arbitrary court enforcement

came into its own. No question of protecting freedom of

expression was involved; and since an issue of judicial

standards for sanctions, rather than of standards for

conduct demanded of the defendant was presented no

problem of fair notice could be made out. This Court

held the statute unconstituticnal simply because it ‘‘con-

tains no standards at all, nor does it place any condi-

tions of any kind upon the jury’s power to impose costs

... Certainly one of the basic purposes of the Due Proc-

ess Clause has always been to protect a person against

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having the Government impose burden upon him except

in accordance with the valid laws of the land.’’

The Illinois Court also rejected the overbreadth chal-

lenge to Section 26-1 (a), on the ground that petitioners’

conduct was not constitutionally protected. The Court

cited Cox v. Louisiana, 379 U.S. 536, 554 (1965) for the

proposition that petitioners’ conduct fell within the am-

bit of the Coz dictum that no one could contrary to

traffic regulation insist upon a street meeting in the

middle of Times Square at the rush hour as a form of

freedom of speech or assembly.’? See: People v. Raby,

40 Ill. 2d 392. While the court below does not specifically

discuss petitioners’ overbreadth challenge it applied the

decision in Raby to the petitioners.

Here, as in Raby, the trouble is that petitioners were

not convicted for violation of a valid statute which speci-

fically defines the prohibited conduct. Petitioners’ con-

duct if criminal in any respect violated the provisions of

the Criminal Trespass to Land Statute, Chapter 38, Sec-

tion 21-3 of the Illinois Revised Statutes. The holding

that petitioners’ conduct violated Section 26-1 (a) sweeps

unnecessarily broadly, and thereby may invade the area

of protected freedoms. ef. Zwicker v. Koota, 389 U.S. 241,

949-250 (1967). The statute as construed also sweeps all

of the remaining provisions of the Illinois Criminal Code

into Section 26-1 (a). It is no answer that the stdtute

might be narrowly construed in a given situation, the

statute as it presently stands, has a chilling effect on

free speech conduct. See Dombrowski v. Pfister, 380 US.

479 (1965). Nor is it relevant that the acts of the peti-

tioners are not constitutionally protected. It is the vice

of the statutes rather than the virtue of the petitioners

that becomes the ratio decedendi.

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CONCLUSION >

For the reasons set out above, petitioners ask this

Court to grant review, consolidate the cause with People

v. Raby, No. 863, October Term, 1968, and to reverse

the Court below.

Respectfully submitted,

Leo E. Ho tt,

166 W. Washington Street,

Chicago, Illinois 60602,

Attorney for Petitioners.

* 4 rire

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APPENDIX

Docket Nos. 41110, 41111 cons.; Agenda 21,

September, 1968

The People of the Staie of Illinois, Appellee,

VS.

Theoplis A. Crockett et al., Appellants.

Mr. Cutzr Justice Sotrispure delivered the opinion of

the court:

This case involves two appeals from disorderly conduct

convictions in the circuit court of Cuok County arising out

of certain demonstrations in the County Building. Since

the legal questions in both appeals are identical we have

consolidated them for review.

The defendants in Docket No. 41111, Theoplis Crock-

ett, Jowel F. Hysmith, Augustine C. Narcisse, Frances E.

Hanger, Bertha M. Cyrus, Ethel L. Pitts, Elaine B. Strong,

Joan Rae Phillips, Joan A. Smith, and Ruth A. Hansen

were arrested on May 18, 1967 and charged with a viola-

tion of article 26 of Criminal Code of 1961 (Ill. Rev. Stat.

1967, chap. 38, par. 26—i(a),) in that they “knowingly did

an act in such unreasonable manner as to alarm or disturb

another and to provoke a breach of the peace; to-wit, Loit-

ering in the Fifth Floor Hallway [of the County Buiiding],

Sitting on the floor.”

The defendants in No. 41110, JoAnne Orlof, Ronald F.

Gee, and Jerrold P. Holzman, were arrested on June 1,

1967 and charged with the same offense, in that they

“knowingly did an act in such unreasonable manner as to

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(Supreme Court Opinion)

alarm or disturb another and to provoke a breach of the

peace, to-wit: By remaining seated in the private office of

Cook County Commissioner George Dunne and refusing to

leave when ordered to do so.”

Motions to strike the complaints and for discharge were

presented on behalf of all defendants, and were denied.

Thereafter defendants waived jury trial, pleaded not guil-

ty and were tried on stipulation of facts, on September 13,

1967.

Neither the State nor the defendants presented any evi-

dence but the cases were submitted on the following stipu-

lations:

In No. 41111:

“Mr. Karton: [Assistant State’s Attorneyj If it

please the court, at this time I believe there will be a

stipulation by and between the defendants in their

own proper persons and by Mr. Holt, their attorney,

and by the people of the State of Illinois represented

by John Stamos, State’s Attorney of Cook County,

that the testimony would show and will show that

the facts set forth in the complaint are true and that

the said facts set forth in the complaint are sufficient to

sustain a finding of guilty as charged in the complaint

and that the venue is Chicago, Cook County, Illinois.

Mr. Hott: [defendants’ attorney] On behalf of

each of the defendants we would so stipulate.”

In No. 41110:

“Mr. Karton: There is a stipulation between each

of the defendants in his own proper person as repre-

sented by counsel, Mr. Holt, and the people of the

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(Supreme Court Opinion)

State of Illinois, represented by John Stamos, State’s

Attorney of Cook County, that were Officer Bernard

to testify, that his testimony would be the same as

the facts set forth in the complaint. It is further stipu-

lated that the matter took place in Chicago, Cook

County, Illinois, and that the ages of the three defend-

ants, Ronald Gee, Jerrold Holtzman and JoAnne Orlof

are over 21.

Mr. Hott: So stipulated.”

Upon the stipulations all defendants were found guilty

and fined $100. The defendants appeal directly to this

court alleging a violation of their constitutional rights.

Defendants first contend that the disorderly conduct

provision of the Criminal Code under which they were

convicted is unconstitutional on its face in that it is “vague

and over broad.” Defendants’ argument adds nothing to

that advanced in People v. Raby, Docket No. 40596, May

Term, 1968, 40 Ill. 2d 392. We carefully considered these

arguments in that case, and here hold the statute con-

stitutional on its face and as applied to these defendants

for the reasons set forth in that opinion. See also United

States v. Woodward (7th cir.), 376 F. 2d 136, 141-142.

Defendants next contend that the complaints did not

charge the offense with the specificity required by the con-

stitution. We feel that the defendants were adequately in-

formed of the charges and the particular conduct which

gave rise to the arrest and complaint. At no time did de-

fendants request a more detailed statement of the offense,

and under such circumstances defendants may not main-

tain that the complaint lacks specificity upon review. City

of Chicago v. Joyce, 38 Ill. 2d 368.

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(Supreme Court Opinion)

Defendants last contend that the evidence does not

establish their guilt beyond a reasonable doubt. We can-

not agree. As we read the stipulations, they establish

prima facie that the defendants were guilty of the offenses

charged. In the absence of any evidence to the contrary,

the trial court was justified in finding defendants guilty

as charged.

The “idgments of the circuit court of Cook County are

accordingly affirmed.

Judgments affirmed.