{ "id": 1725016, "name": "THE CITY OF CHICAGO, Plaintiff-Appellant, v. EDWIN ROMAN, Defendant-Appellee", "name_abbreviation": "City of Chicago v. Roman", "decision_date": "1997-09-17", "docket_number": "No. 1-96-1957", "first_page": "546", "last_page": "553", "citations": [ { "type": "official", "cite": "292 Ill. App. 3d 546" } ], "court": { "name_abbreviation": "Ill. App. Ct.", "id": 8837, "name": "Illinois Appellate Court" }, "jurisdiction": { "id": 29, "name_long": "Illinois", "name": "Ill." }, "cites_to": [ { "cite": "583 So. 2d 336", "category": "reporters:state_regional", "reporter": "So. 2d", "case_ids": [ 7490666, 7490562 ], "year": 1991, "opinion_index": 0, "case_paths": [ "/so2d/583/0336-02", "/so2d/583/0336-01" ] }, { "cite": "470 N.E.2d 266", "category": "reporters:state_regional", "reporter": "N.E.2d", "weight": 2, "year": 1984, "opinion_index": 0 }, { "cite": "103 Ill. 2d 483", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 3152375 ], "weight": 2, "year": 1984, "pin_cites": [ { "page": "503" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/103/0483-01" ] }, { "cite": "632 N.E.2d 1000", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1994, "opinion_index": 0 }, { "cite": "158 Ill. 2d 133", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 780278 ], "weight": 2, "year": 1994, "pin_cites": [ { "page": "138" }, { "page": "138" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/158/0133-01" ] }, { "cite": "632 N.E.2d 266", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1994, "opinion_index": 0 }, { "cite": "260 Ill. App. 3d 586", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 2865550 ], "year": 1994, "pin_cites": [ { "page": "588" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/260/0586-01" ] }, { "cite": "668 N.E.2d 164", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1996, "opinion_index": 0 }, { "cite": "282 Ill. App. 3d 556", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 159586 ], "weight": 2, "year": 1996, "pin_cites": [ { "page": "557" }, { "page": "558" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/282/0556-01" ] }, { "cite": "606 N.E.2d 1154", "category": "reporters:state_regional", "reporter": "N.E.2d", "weight": 2, "year": 1992, "opinion_index": 0 }, { "cite": "153 Ill. 2d 164", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 4738292 ], "weight": 4, "year": 1992, "pin_cites": [ { "page": "174-75" }, { "page": "185" }, { "page": "188" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/153/0164-01" ] }, { "cite": "388 N.E.2d 1357", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1979, "opinion_index": 0 }, { "cite": "71 Ill. App. 3d 112", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 5582623 ], "year": 1979, "opinion_index": 0, "case_paths": [ "/ill-app-3d/71/0112-01" ] }, { "cite": "397 U.S. 387", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 12054506 ], "weight": 3, "year": 1970, "opinion_index": 0, "case_paths": [ "/us/397/0387-01" ] }, { "cite": "492 N.E.2d 204", "category": "reporters:state_regional", "reporter": "N.E.2d", "weight": 2, "year": 1986, "opinion_index": 0 }, { "cite": "142 Ill. App. 3d 760", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3450156 ], "weight": 4, "year": 1986, "pin_cites": [ { "page": "761" }, { "page": "762" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/142/0760-01" ] } ], "analysis": { "cardinality": 747, "char_count": 15266, "ocr_confidence": 0.784, "pagerank": { "raw": 8.066773676474592e-08, "percentile": 0.46666755474933097 }, "sha256": "911ef2824cd08796ae1dc387363ce327ee61f693d027cda88114fd6e1294442e", "simhash": "1:993ddf41aa6f6cfe", "word_count": 2538 }, "last_updated": "2023-07-14T14:39:42.526448+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [], "parties": [ "THE CITY OF CHICAGO, Plaintiff-Appellant, v. EDWIN ROMAN, Defendant-Appellee." ], "opinions": [ { "text": "PRESIDING JUSTICE COUSINS\ndelivered the opinion of the court:\nThe City of Chicago (City) brought an action against Edwin Roman for assaulting Anthony Pupius in violation of section 8 \u2014 4\u2014080 of the City\u2019s municipal code (Chicago Municipal Code \u00a7 8 \u2014 4\u2014080 (1990)), which prohibits the assault of a person age 60 years old or over. The trial court found Roman guilty and sentenced him to 10 days of community service and one year\u2019s probation. The City appealed the sentence, which is less than the mandatory minimum sentence provided for in the ordinance.\nBACKGROUND\nOn August 23, 1994, Anthony Pupius saw Edwin Roman removing various white styrofoam cartons and boxes from a Ryder truck in an alley near his home on 7355 South Whipple Street, Chicago. Pupius approached Roman and told him to stop dumping garbage. Roman swore at Pupius and told him that it was none of his business and that he should leave. Pupius went back to his house and called \"911\u201d and then went back outside to the alley with a camera and took pictures of Roman. Roman saw Pupius taking the pictures. Roman picked up a stick and tried to hit Pupius. At trial, Pupius testified that Roman swore at him and called him vulgar names. Roman also told Pupius that he knew where he lived and would come back every night and \"take care\u201d of him. Violeta Valaityte, a witness to the incident, testified that, at one point while Pupius was in his house, Roman went up to the door of the house and yelled at Pupius.\nRoman testified that he never threatened Pupius. Ricardo Diaz, Roman\u2019s codefendant on the dumping charge, testified that he did not see Roman with a stick or chasing Pupius. \u201e\nCity police officers arrested Roman for dumping garbage in violation of section 221b of the Criminal Jurisprudence Act (Health and Safety Public Nuisance) (740 ILCS 55/221(b) (West 1992)) and for assault against an elderly person under section 8 \u2014 4\u2014080 of the Municipal Code of Chicago. Chicago Municipal Code \u00a7 8 \u2014 4\u2014080 (1990). Section 8 \u2014 4\u2014080 provides in relevant part:\n\"8 \u2014 4\u2014080 Definitions \u2014 Assault defined \u2014 Mandatory sentence.\n(1) Definitions. The following definitions are applicable strictly in the context of this ordinance:\n(A) 'Elderly\u2019 refers to any person 60 years of age or older.\n* * *\n(2) There is hereby created the offense of assault against the elderly, developmentally disabled, or handicapped. A person commits assault against the elderly, developmentally disabled, or handicapped when he engages in conduct which places a person as defined above in reasonable apprehension of receiving a battery. Upon conviction of this offense, a mandatory sentence of imprisonment shall be imposed, not to be less than 90 days nor more than 180 days.\u201d Chicago Municipal Code \u00a7 8 \u2014 4\u2014080 (1990).\nFollowing the bench trial, Roman was found guilty of the assault charge. Thereafter, Roman presented a motion to declare section 8 \u2014 4\u2014080 unconstitutional. The trial court denied the motion but questioned the City\u2019s power to set a mandatory minimum sentence for the assault offense. The court suggested sua sponte that Roman attack the City\u2019s ordinance on that basis. Roman then filed a motion to declare the ordinance unconstitutional. In his motion, Roman asserted that: (1) the mandatory minimum sentence exceeded the City\u2019s home rule powers because state law provides for a different penalty; (2) the ordinance usurps the trial judge\u2019s authority to impose a proper sentence; (3) the ordinance did not relate to a local concern; and (4) the ordinance violates the guarantees of equal protection found in the United States and Illinois Constitutions. The trial court denied Roman\u2019s request to declare the ordinance unconstitutional but ruled that the mandatory minimum sentence exceeded the City\u2019s home rule authority. The trial court stated in pertinent part:\n\"[I] don\u2019t think I am bound by the mandates of the City, and I think that they have overreached by telling \u2014 by their telling a legislative branch, telling the judicial branch that I don\u2019t have discretion in the sentencing, although, I mean, the Courts [szc] have upheld that. And certainly there are statutes that mandate certain minimum sentences. And I think that that is something left \u2014 best left in the hands of the state legislature, especially when we are talking about depriving someone of their liberty. And I don\u2019t think I am bound by the 90 days mandate of the City, counsel.\n* * *\nI think that the mandatory nature of the sentence which would make Mr. Roman different because he did this in the City of Chicago, as opposed to due process as well and within the same crime occurring in Bridgeview. And I don\u2019t think that the City [council] can mandate something that the State legislature hasn\u2019t mandated.\n* * *\nI think that that [szc] making it a mandatory minimum goes beyond the Home Rule, and I don\u2019t think that \u2014 I think that it\u2019s well covered in the state statutes and doesn\u2019t have to be covered again by the ordinance.\u201d\nThe City filed a motion to reconsider the sentencing decision and asked the trial court to apply the City\u2019s mandatory minimum sentence provision. The trial court denied the City\u2019s motion and stated further:\n\"I think that there is, although the Public Defender\u2019s office may not specifically have raised it, but the State refers to it as an 8th Amendment cruel and unusual punishment. It may be that, but it may be a due process problem, and I think that the difference here is that the municipality is not talking about raising fines. They are talking about taking away a man\u2019s liberty, and I don\u2019t think that that was the intent of the home rule, and I find it very disproportionate that had he actually struck the man I could give him supervision, but the fact that he merely threatened to do it in the City of Chicago, I don\u2019t have the right to give him supervision, and as a matter of fact, I didn\u2019t give him supervision, but I don\u2019t think that home rule was intended to do that, so my ruling will stand.\u201d\nThe City appealed.\nWe reverse and remand with directions.\nANALYSIS\nThe issues presented in this case are whether the City, as a home rule unit, had authority to set a mandatory minimum penalty of imprisonment for violation of a municipal ordinance and whether that ordinance is preempted by state law. We hold that the ordinance at issue is properly within the City\u2019s home rule authority and that state law does not preempt the authority of the City to set a mandatory minimum penalty of imprisonment for violation of its ordinance.\nBefore addressing the merits of this appeal, we must first determine whether the City may appeal the trial court\u2019s sentence. Citing Town of Normal v. Bowsky, 142 Ill. App. 3d 760, 492 N.E.2d 204 (1986), defendant argues that the City has no jurisdictional basis to appeal and that appeal by the City violates the double jeopardy clauses of the fifth and fourteenth amendments to the United States Constitution (U.S. Const., amends. V, XIV) and article I, section 10, of the Illinois Constitution (Ill. Const. 1970, art. I, \u00a7 10), because the municipal ordinance is criminal in nature.\nIn our view, Normal v. Bowsky, 142 Ill. App. 3d 760, 492 N.E.2d 204, is distinguishable from the instant case. In Normal, the defendant was acquitted of violating a town ordinance that prohibited possession of alcoholic beverages by a person under age 21. The Town of Normal appealed. The appellate court noted the United States Supreme Court\u2019s ruling in Waller v. Florida, 397 U.S. 387, 25 L. Ed. 2d 435, 90 S. Ct. 1184 (1970), that a defendant could not be tried in state court after having been tried in municipal court for the same offense. Normal, 142 Ill. App. 3d at 761. However, the appellate court held that the Town of Normal could properly appeal the acquittal of a municipal ordinance violation without violating proscriptions against double jeopardy because of the Illinois Supreme Court\u2019s characterization of municipal ordinance prosecutions as quasi-criminal proceedings that share the characteristics of both a civil action and a criminal prosecution. Normal, 142 Ill. App. 3d at 762.\nHere, the defendant was not acquitted but was found guilty of violating the municipal ordinance. The City appeals only the sentence imposed for violation of the ordinance. Reversal of the trial court\u2019s sentence would not subject defendant to another trial or to additional punishment. See City of Springfield v. Ushman, 71 Ill. App. 3d 112, 388 N.E.2d 1357 (1979) (appellate court had jurisdiction to entertain city\u2019s appeal of trial court\u2019s judgment imposing fines for violation of a municipal ordinance which were less than the minimum amount provided for in the ordinance and reversal and remand with directions to trial court to impose a proper fine would not place defendant in double jeopardy). Accordingly, we have jurisdiction to review the instant appeal.\nRelative to the merits of this appeal, it is our view that the trial court erred in failing to follow the penalty provision of the City\u2019s ordinance. The City of Chicago is a home rule municipality.\nThe powers of home rule municipalities, those municipalities with a population greater than 25,000, are derived from article VII, section 6(a), of the Illinois Constitution of 1970 (Ill. Const. 1970, art. VII, \u00a7 6(a)). Section 6(a) provides in relevant part:\n\"[A] home rule unit may exercise any power and perform any function pertaining to its government and affairs including, but not limited to, the power to regulate for the protection of the public health, safety, morals and welfare; to license; to tax; and to incur debt.\u201d Ill. Const. 1970, art. VII, \u00a7 6(a).\nSection 6(a) gives home rule units \"the broadest powers possible.\u201d Scadron v. City of Des Plaines, 153 Ill. 2d 164, 174-75, 606 N.E.2d 1154 (1992), citing Ill. Ann. Stat., 1970 Const., art. VII, \u00a7 6, Constitutional Commentary, at 24 (Smith-Hurd 1971); Town of Cicero v. LaFrancis, 282 Ill. App. 3d 556, 557, 668 N.E.2d 164 (1996).\nUnder section 6(i) of the Illinois Constitution, a municipality\u2019s home rule powers are preempted by the state under very narrow circumstances:\n\"Home rule units may exercise and perform concurrently with the State any power or function of a home rule unit to the extent that the General Assembly by law does not specifically limit the concurrent exercise or specifically declare the State\u2019s exercise to be exclusive.\u201d Ill. Const. 1970, art. VII, \u00a7 6(i).\nThe purpose of section 6(i) is to eliminate, or at least reduce to a bare minimum, the circumstances under which local home rule powers are preempted by judicial interpretation of unexpressed legislative intention. Scadron, 153 Ill. 2d at 185; see also Congress Care Center Associates v. Chicago Department of Health, 260 Ill. App. 3d 586, 588, 632 N.E.2d 266 (1994). Under section 6(i), the General Assembly can restrict the concurrent exercise of a home rule unit\u2019s power by enacting a law that specifically limits such power; but, unless a state law specifically states that a home rule unit\u2019s power is limited, the authority of a home rule unit to act concurrently with the state cannot be considered restricted. Scadron, 153 Ill. 2d at 188; see also Village of Bolingbrook v. Citizens Utilities Co., 158 Ill. 2d 133, 138, 632 N.E.2d 1000 (1994). Where the legislature has not been specific, courts will not find preemption of home rule authority. Town of Cicero v. LaFrancis, 282 Ill. App. 3d at 558. The City argues that the trial court erred in its finding that the City could not mandate imprisonment for a violation of its assault ordinance when the comparable state law did not provide for such a penalty. Defendant argues that the City cannot enact an ordinance that imposes a mandatory term of imprisonment where the identical offense under state law allows a discretionary sentence of imprisonment, probation or conditional discharge. However, defendant fails to show where the state statute specifically limits the power of home rule municipalities to legislate assault against the elderly and provide mandatory imprisonment as a penalty. Without such specificity, defendant essentially asks this court to hold that state, law, by enacting legislation relative to the crime of assault, preempts the City\u2019s ordinance by implication. However, the Illinois Supreme Court has upheld the right of local governments to enact their own solutions to various problems of local concern in the face of less stringent or conflicting state regulations and has followed a determination that the state\u2019s expression of interest in a subject, as evidenced by its statutory scheme, does not amount to an express attempt to declare the subject as one requiring exclusive state control. Kalodimos v. Village of Morton Grove, 103 Ill. 2d 483, 503, 470 N.E.2d 266 (1984). In our view, traditional rules have been established in the area of state preemption of municipal ordinances and the issues relative to the powers of home rule units are generally well settled. See, e.g., Scadron v. City of Des Plaines, 153 Ill. 2d 164, 606 N.E.2d 1154; Kalodimos, 103 Ill. 2d 483, 470 N.E.2d 266.\nThe precise issue of whether a home rule unit can impose mandatory imprisonment as a penalty for violation of an ordinance is an issue of first impression. We do not believe the nature of the ordinance here requires a deviation from the traditional rule. See Thomas v. State, 583 So. 2d 336 (Fla. Dist. Ct. App. 1991) (there is no constitutional or statutory limitation on the city\u2019s power to prescribe incarceration as a penalty for violation of city ordinance requiring that bicycles be equipped with bell or gong as a warning device and ordinance was not preempted by state legislation that required some specified equipment on bicycles and did not specifically prohibit bells, gongs, or other audible warning devices). In order to meet the requirements of section 6 of the Illinois Constitution (Ill. Const. 1970, art. VII, \u00a7 6), legislation must contain express language that the area covered by the legislation is to be exclusively controlled by the state; it is not enough that the state comprehensively regulates an area that otherwise would fall into home rule power. See Village of Bolingbrook, 158 Ill. 2d at 138.\nHaving failed to identify specific language to show that the state wishes to limit the power of home rule units to legislate assault against the elderly, we conclude that state law does not restrict the City from providing mandatory imprisonment as a penalty in its ordinance. Therefore, we believe the City\u2019s choice to have a sentencing scheme that is different from the state\u2019s is well within the City\u2019s constitutional powers as a home rule unit. Accordingly we reverse the judgment of the trial court and remand for sentencing only.\nReversed and remanded with directions.\nGORDON and LEAVITT, JJ., concur.", "type": "majority", "author": "PRESIDING JUSTICE COUSINS" } ], "attorneys": [ "Patricia T. Bergeson, Corporation Counsel, of Chicago (Lawrence Rosenthal, Benna Ruth Solomon, and Timothy W. Joranko, Assistant Corporation Counsel, of counsel), for appellant.", "Rita A. Fry, Public Defender, of Chicago (Lester Finkle, Assistant Public Defender, of counsel), for appellee." ], "corrections": "", "head_matter": "THE CITY OF CHICAGO, Plaintiff-Appellant, v. EDWIN ROMAN, Defendant-Appellee.\nFirst District (3rd Division)\nNo. 1 \u2014 96\u20141957\nOpinion filed September 17, 1997.\nPatricia T. Bergeson, Corporation Counsel, of Chicago (Lawrence Rosenthal, Benna Ruth Solomon, and Timothy W. Joranko, Assistant Corporation Counsel, of counsel), for appellant.\nRita A. Fry, Public Defender, of Chicago (Lester Finkle, Assistant Public Defender, of counsel), for appellee." }, "file_name": "0546-01", "first_page_order": 564, "last_page_order": 571 }