¶1specially concurring:
¶2I write separately because, while I concur in the result reached, I believe the opinion has unnecessarily attempted to create a new general rule for the order of addressing constitutional and nonconstitutional issues in our criminal trial courts. This novel rule not only runs counter to this court’s long-established principles, as repeatedly reiterated in Mulay v. Mulay, 225 Ill. 2d 601 (2007) (citing the list of cases noted in In re E.H.), People v. Hampton, 225 Ill. 2d 238 (2007), In re E.H., 224 Ill. 2d 172 (2006) (including an extensive list of cases dating back to 1910), and People v. Lee, 214 Ill. 2d 476 (2005), but it also reaches this new rule without the benefit of direct argument by the parties, supporting legal precedent, or independent analysis. Thus, I cannot join in that portion of the opinion.
¶3In its initial review of the Garibaldi and MontesMedina cases, the opinion correctly notes that Mulay “addressed[ed] the proper procedure in the circuit court,” requiring the court to dispose of any nonconstitutional issues before resolving constitutional matters. 228 Ill. 2d at 261. The opinion then properly distinguishes Mulay from the instant case because, “in Mulay, there was no clear precedent holding a statute unconstitutional, as was the case here.” 228 Ill. 2d at 261. As the opinion later explains, the rationale for this distinction is that “ ‘if a statute creating an offense is unconstitutional, it is considered void ab initio.’ ” 228 Ill. 2d at 262, quoting Wright, 194 Ill. 2d at 24. Thus, after the appellate court in Carpenter found section 12 — 612 unconstitutional, the trial court was bound by that ruling. 228 Ill. 2d at 259, citing People v. Harris, 123 Ill. 2d 113, 128-29 (1988). Charged with violations of a section held to be unconstitutional, both Garibaldi and Montes-Medina filed motions to dismiss based on Carpenter. Under those circumstances, the trial court could not have properly continued the criminal proceedings based on a statute that had been declared void ab initio. In contrast, in Mulay, “there was no controlling authority that the circuit court was compelled to follow.” 228 Ill. 2d at 261. Thus, the procedures properly outlined in Mulay were not applicable to the cases of defendants Garibaldi and Montes-Medina.
¶4Rather than end that portion of its analysis and immediately proceed to the State’s contention that Carpenter should be vacated, however, the opinion attempts to distinguish Mulay on a second, and much more problematic, basis in dicta. Indeed, the opinion unexpectedly announces “a different rule” in criminal cases involving challenges to the constitutionality of the charging statutes. 228 Ill. 2d at 261. The opinion appears to rely on two bases for its new rule: (1) the “serious consequences” entailed in criminal prosecutions and (2) the United States Supreme Court’s decision in Babbitt v. United Farm Workers National Union, 442 U.S. 289, 60 L. Ed. 2d 895, 99 S. Ct. 2301 (1979). 228 Ill. 2d at 261. Neither basis justifies the current announcement of “a different rule” in criminal cases, and the surrounding dicta will lead to confusion on the applicability and scope of that rule.
¶5While criminal prosecutions undoubtedly entail “serious consequences,” the opinion does not cite any legal precedent to support the imposition of a new rule for the review of constitutional and nonconstitutional issues in a criminal trial. The only case cited is Babbitt, where the Supreme Court directly addresses the justiciability of a First Amendment challenge made by federal court plaintiffs who had not yet been charged under the challenged statute. Those plaintiffs sought “to secure a declaration of the unconstitutionality of various sections of the [Arizona Agricultural Employment Relations Act], as well as of the entire Act, and an injunction against its enforcement.” Babbitt, 442 U.S. at 293, 60 L. Ed. 2d at 903, 99 S. Ct. at 2306. As appellees, the plaintiffs argued, inter alia, that “to avoid criminal prosecution they must curtail their consumer [publicity campaigns], and thus forgo full exercise of what they insist are their First Amendment rights. It is urged, accordingly, that their challenge to the limitation on consumer publicity plainly poses an actual case or controversy.” (Emphasis added.) Babbitt, 442 U.S. at 301, 60 L. Ed. 2d at 908, 99 S. Ct. at 2310. In resolving these claims, the Court squarely addressed whether the plaintiffs’ first amendment challenges to the likely future application of the Act sufficiently presented an actual case or controversy to be justiciable.
¶6That scenario bears no resemblance to the cases of defendants Garibaldi and Montes-Medina. Garibaldi and Montes-Medina involved ongoing criminal prosecutions based on past violations of the challenged statute. Thus, the Court’s discussion about justiciability, the only issue decided in Babbitt, is inapposite in the instant cases. The discussion’s complete inapplicability is manifested within the quote it cites in support, stating that “ ‘when fear of criminal prosecution under an allegedly unconstitutional statute is not imaginary or wholly speculative a plaintiff need not “first expose himself to actual arrest or prosecution to be entitled to challenge [the] statute.” ’ ” (Emphasis added.) 228 Ill. 2d at 261-62, quoting Babbitt, 442 U.S. at 302, 60 L. Ed. 2d at 909, 99 S. Ct. at 2310-11, quoting Steffel v. Thompson, 415 U.S. 452, 459, 39 L. Ed. 2d 505, 514, 94 S. Ct. 1209, 1216 (1974). The quote is obviously directed toward the limited issue of whether the plaintiffs’ constitutional challenge is justiciable and thus can even be heard by a federal district court. It has no application here because the defendants have already faced actual arrest and prosecution. Moreover, the constitutional challenges in the instant case arose only after the defendants were arrested and charged, unlike the anticipatory claims raised in Babbitt. Here, the question the opinion unnecessarily attempts to answer by creating its new rule in criminal cases is not whether the defendants may properly raise their constitutional challenges before the trial court but when they may do so. It is undisputed that Garibaldi and Montes-Medina have a right to challenge the constitutionality of section 12— 612. The only issue that could remain is when the trial court should address those claims.
¶7In this instance, however, it is improper for this court to address that issue because the trial court could not have properly gone forward with the criminal proceedings against Garibaldi and Montes-Medina after they filed their motions to dismiss based on our appellate court’s holding in Carpenter that section 12 — 612 is unconstitutional on its face. Thus, the opinion unjustifiably delves into dicta when it announces its “different rule” to be applied in criminal trials. That announcement is not only purely advisory and unsupported by relevant precedent, but it is also likely to spawn extensive litigation over its actual scope and application due to its status as dicta. Thus, I cannot join that portion of the opinion.
¶8In this case, we need not consider applying a “different rule” for the proper order for addressing constitutional and nonconstitutional challenges in our criminal trial courts. The parties have not fully briefed and argued the merits of each side, and the issue is not squarely before us. Accordingly, I respectfully specially concur in the majority opinion.
¶9JUSTICES FREEMAN and BURKE join in this special concurrence.
¶10also specially concurring:
¶11I agree with the majority’s ultimate holding that the secret compartment statute, section 12 — 612 of the Illinois Vehicle Code (625 ILCS 5/12 — 612 (West 2004)), is unconstitutional in that it violates substantive due process. However, I find the analysis employed in reaching this conclusion to be confusing and, at times, incorrect. Accordingly, I cannot join fully in the opinion and specially concur.
¶12In this appeal, the court addresses the consolidated cases of People v. Carpenter, No. 103616, People v. Garibaldi, No. 103856, and People v. Montes-Medina, No. 103857. Defendant Carpenter was found guilty of violating the secret compartment statute. On appeal, the appellate court reversed the conviction, ruling the statute unconstitutional because it violates substantive due process by sweeping too broadly and potentially encompassing innocent conduct. The State then petitioned to appeal that ruling as a matter of right pursuant to Supreme Court Rule 612(b), which we granted. Subsequently, defendants Garibaldi and Montes-Medina were each charged, in separate cases, with violating section 12 — 612. In the circuit court they sought and obtained dismissal of the charges based on the ruling in Carpenter, 368 Ill. App. 3d 288. The State appealed the dismissals directly to this court, as permitted by Supreme Court Rule 603.
¶13Before this court, the State’s main argument is that the lower courts’ orders should be vacated and remanded for consideration of nonconstitutional grounds that were not addressed by those courts. The State contends that in Carpenter the appellate court should have first considered whether there had been sufficient evidence to support the defendant’s conviction, and that the circuit court in People v. Garibaldi and People v. Montes-Medina should not have dismissed the matters before ruling on the defendants’ motions to quash arrest and suppress evidence.
¶14Initially, this majority rejects the State’s arguments with respect to the Garibaldi and Montes-Medina cases, recognizing that once the appellate court held the secret compartment statute unconstitutional in Carpenter, the circuit court was bound by that ruling and that it would be “absurd” to require them to litigate other matters before obtaining dismissal based on Carpenter. 228 Ill. 2d at 260. Although this response is certainly sufficient to dispose of the State’s arguments with respect to Garibaldi and Montes-Medina, the majority, nevertheless, goes on to engage in a long discussion which is confusing, at best, and incorrect at worst. As Justice Kilbride points out in his special concurrence, the majority alludes to creating a “different rule” (see 228 Ill. 2d at 274 (Kilbride, J., specially concurring, joined by Freeman and Burke, JJ.)) for the treatment of criminal cases and supports this notion with a detailed discussion of Babbitt v. United Farm Workers National Union, 442 U.S. 289, 60 L. Ed. 2d 895, 99 S. Ct. 2301 (1979), a case that is wholly inapposite to the situation here.
¶15I note, additionally, that despite repeated readings of the majority’s opinion, I have been unable to discern exactly what this “different rule” might be. The majority concludes its discussion by stating: “Our jurisprudence, like that of our federal counterparts, does not require criminal defendants to pursue other pretrial alternatives as a prerequisite to challenging the constitutionality of the statute under which they are charged; that is particularly true where a court of review has declared the statute unconstitutional.” 228 Ill. 2d at 262. However, this is not a new or different rule, but a statement of long-standing precedent. As the majority itself acknowledges, appellate court decisions have always been binding on circuit courts. People v. Harris, 123 Ill. 2d 113, 128 (1988). Confusion also stems from the fact that the majority’s conclusion — that “Defendants Garibaldi and Montes-Medina were not required to pursue other procedural alternatives prior to litigating their motions to dismiss” — speaks to a defendant’s ability to raise the issue of constitutionality, not the court’s ability to reach the issue of constitutionality, which is the focus of the State’s appeal.
¶16The majority then turns to Carpenter and engages in a lengthy discussion to come to the already-settled rule— that a court of review should consider the constitutionality of a statute as a matter of last resort. The majority then concludes that the appellate court erred when it found section 12 — 612 unconstitutional because it did not first determine whether the State proved defendant Carpenter guilty of violating section 12 — 612 beyond a reasonable doubt. Although the majority, too, eventually addresses the constitutionality of the statute, it does so only after reviewing the evidence adduced at Carpenter’s trial to determine whether it sufficed to prove defendant guilty of violating the statute.
¶17In my view, the majority’s analysis when reviewing the sufficiency of the evidence demonstrates the folly of engaging in this endeavor and underscores why the appellate court proceeded in the manner it did. In order to determine whether the State adduced sufficient evidence to convict defendant at trial, it is necessary to first decide the question of what evidence must be looked at to see whether it was sufficient. That inquiry can only be accomplished by construing the statute and, when the majority construes the statute, it reads into it a criminal-purpose requirement which is not in the language of the statute and which is precisely the infirmity complained of by defendant and found by the appellate court to render the statute violative of substantive due process.
¶18I agree with Carpenter’s argument that “reasonable doubt and due process arguments are inextricably intertwined with arguments relating to the constitutionality of the statute under which he was convicted” and that, in order to determine whether he was properly convicted of the crime charged, the appellate court had to necessarily first consider what conduct, if any, the statute criminalized and whether the statute’s proscription of the conduct was constitutional. See 228 Ill. 2d at 259.
¶19In sum, I join in the majority’s holding that section 12 — 612 of the Vehicle Code is unconstitutional. However, based on the above, I would affirm the appellate court judgment in Carpenter in its entirety and reject the State’s argument that the constitutionality of the statute should not have been reached by the lower court. Further, for the reasons stated in this special concurrence, I would affirm the circuit court orders in the Garibaldi and Montes-Medina cases.
¶20JUSTICES FREEMAN and KILBRIDE join in this special concurrence.