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Docket No. 86105-Agenda 14-September 1999.

THE PEOPLE OF THE STATE OF ILLINOIS, Appellant, v. ANTHONY NANCE, Appellee.

Opinion filed January 21, 2000.

CHIEF JUSTICE HARRISON delivered the opinion of the court:

Anthony Nance was arrested by Chicago police and charged by complaint with violating section 25-1(a)(2) of the Criminal Code of 1961, a subsection of the mob action statute prohibiting "[t]he assembly of 2 or more persons to do an unlawful act." 720 ILCS 5/25-1(a)(2) (West 1996). Following a hearing, the circuit court of Cook County dismissed the complaint with prejudice, holding that the statute violates the first and fourteenth amendments to the United States Constitution (U.S. Const., amends. I, XIV). The State appealed the dismissal. 145 Ill. 2d R. 604(a)(1). Because a statute of this state was held invalid, the appeal was brought directly to our court. 134 Ill. 2d R. 603. We affirm.

The validity of section 25-1(a)(2) of the Criminal Code of 1961 (720 ILCS 5/25-1(a)(2) (West 1996)) was before this court in People v. Nash, 173 Ill. 2d 423 (1996). As we noted in Nash, the statute is the same one declared unconstitutional in 1968 by a three-judge federal district court in Landry v. Daley, 280 F. Supp. 938, 955 (N.D. Ill. 1968). The federal court found the law facially invalid under the first amendment to the United States Constitution (U.S. Const., amend. I) because it is impermissibly vague and overbroad. Landry, 280 F. Supp. at 955. Based on this determination, the federal court "perpetually enjoined and restrained" the State and the City of Chicago from enforcing or bringing prosecutions under the law. Nash, 173 Ill. 2d at 426.

In Nash, the same circuit judge who invalidated the statute in this case declared the law unconstitutional. When the State and the City appealed, the Nash defendants moved to dismiss, arguing that the appeal was barred by the permanent injunction entered by the Landry court. We did not address that contention, however, because we found another, more fundamental obstacle to the State's prosecution: the charging instruments were fatally defective. In light of that disposition, we had no occasion to make our own, independent assessment of the law's constitutionality. Nash, 173 Ill. 2d at 432.

The case before us today parallels Nash in several key respects. Most significantly, it has revived the issue as to the effect of the permanent injunction entered by the federal court in Landry. Because the Landry injunction has become a recurrent source of controversy and because it appears that the State and the City of Chicago intend on continuing to enforce section 25-1(a)(2) despite the injunction, we believe that sound considerations of judicial administration require us to settle the question of the injunction's validity.

In this case, the State contends that the Landry decision is void because it was overturned on appeal. The State is incorrect. As we pointed out in Nash, 173 Ill. 2d at 426, the United States Supreme Court did reverse the district court's rulings with respect to a separate statutory provision; however, that portion of the district court's judgment invalidating section 25-1(a)(2) and prohibiting its enforcement was never appealed and was not before the court. The United States Supreme Court said so plainly and unambiguously in its opinion. Boyle v. Landry, 401 U.S. 77, 80, 27 L. Ed. 3d 696, 699, 91 S. Ct. 758, 759-60 (1971). The injunction against enforcement of section 25-1(a)(2) therefore remained in effect. The district court's order following remand from the United States Supreme Court made this clear. Nash, 173 Ill. 2d at 426.

The State argues, in the alternative, that it should not be bound by the Landry injunction because that decision is based on a view of the law which is no longer sound. The problem with the State's argument is that it overlooks basic principles governing injunctions. It is true that an injunction can be modified or dissolved when the court finds that the law has changed or that equity no longer justifies a continuance of the injunction. An injunction remains in full force and effect, however, until it has been vacated or modified by the court which granted it or until the order or decree awarding it has been set aside on appeal. Unless it has been overturned or modified by orderly processes of review, an injunction must be obeyed, even if it is erroneous. People ex rel. Illinois State Dental Society v. Norris, 79 Ill. App. 3d 890, 895-96 (1979).

The implications of these principles are clear. If the State and the City of Chicago believed that the Landry injunction was no longer proper or fair, it was incumbent on them to have it modified or dissolved. As we noted in Nash, 173 Ill. 2d at 426, they have never sought such relief, and the legislature has not amended the statute to cure the constitutional defects cited by the Landry court. The Landry court's order perpetually enjoining and restraining them from enforcing section 25-1(a)(2) therefore remains in effect. The State and the City of Chicago have no valid basis for refusing to honor it.

The State and the City cannot justify their continued enforcement of section 25-1(a)(2) on the grounds that the relief afforded by the Landry injunction was limited to the particular individuals who initiated that litigation. The litigation in Landry was brought on behalf of "all negroes in the City of Chicago." Landry, 280 F. Supp. at 944. The defendant in this case is African-American who resides and was arrested in the City of Chicago. Moreover, the Landry decision was not confined to the law as applied to the particular conduct of the plaintiffs in that case. The court found the law invalid on its face because it was "impermissively vague and overbroad" in violation of the first amendment. Landry, 280 F. Supp. at 955. A statute which is facially invalid has no force and effect upon any person or entity regardless of their specific circumstances. In re Marriage of Lappe, 176 Ill. 2d 414, 439 (1997) (Freeman, J., dissenting). If the State's theory were correct and the Landry decision could only be invoked by the individual plaintiffs from that case, it would defeat the purpose behind overbreadth challenges, which is to protect the first amendment rights of other parties in situations not before the court. Desnick v. Department of Professional Regulation, 171 Ill. 2d 510, 520 (1996).

Finally, the State and the City cannot evade the Landry injunction by arguing that the state courts of Illinois are not bound by decisions of lower federal courts. As a general rule, the interpretation given to Illinois statutes by the lower federal courts is not conclusive on the courts of this state. Hanrahan v. Williams, 174 Ill. 2d 268, 277 (1996). That rule, however, is addressed to the situation where the federal court's decision is being invoked as precedent on a point of law. In the case before us, the Landry decision is not being cited for its legal analysis. Whether the federal court's analysis is correct is irrelevant. Whatever one thinks of the federal district court's reasoning, its decision is binding because it constitutes a valid judgment by a duly-constituted tribunal on the same question presented here and prohibits the same prosecuting officials involved in this case from enforcing the same statute against the same class of defendants to which the defendant in this case belongs.

Under the doctrine of collateral estoppel a party is precluded from relitigating an issue decided in a prior proceeding. The doctrine is applicable where, as here, the issued decided in the prior adjudication is identical with the one presented in the suit in question, there was a final judgment on the merits in the prior adjudication, and the party against whom estoppel is asserted was a party or in privity with a party to the prior adjudication. Talarico v. Dunlap, 177 Ill. 2d 185, 191 (1997).

No possible claim can be made that application of the doctrine would be unfair in this case. In Landry, the State had the opportunity and incentive to litigate the matter fully (see Talarico, 177 Ill. 2d at 192) and did so. Having litigated and lost, it is not entitled to a "second bite of the apple." There would be no question of this had the original proceeding taken place in the courts of Illinois. The result should not be different merely because the Landry judgment was entered by a court of the United States. Although states are free to allocate decisionmaking authority among their own tribunals as they please, they are not free to prefer their processes to those of the federal courts and to decline to respect federal judgments. In re Cook, 49 F.3d 263, 266 (7th Cir. 1995).

The same conclusion is mandated by principles of state and federal comity. Where a federal court has declared a state statute invalid and enjoined the state from enforcing it, courts of review in other jurisdictions have recognized that they are bound by the federal court's injunction (see State ex rel. Department of Human Resources, Adult & Family Services Division v. Northland Insurance Co., 139 Or. App. 92, 100, 911 P.2d 942, 947 (1996)) and that "until such time as the federal court's decision is reversed by the appropriate appellate court, the permanent injunction issued by the federal district court will be binding on the State *** and its instrumentalities." Unborn Child Amendment Committee v. Ward, 318 Ark. 165, 167-68, 883 S.W.2d 817, 818 (1994).

In sum, the attempt by the State to relitigate the viability of section 25-1(a)(2) of the Criminal Code of 1961 constitutes an impermissible collateral attack on the federal court's judgment. If the State seeks relief from that judgment, its recourse is with the federal courts, not the courts of this state. Until the federal courts modify or dissolve the injunction, the courts of Illinois cannot permit the State to prosecute defendants in violation of the injunction's commands. Our judiciary will not be the agent for contumacious conduct.

For the foregoing reasons, the circuit court of Cook County was correct in once again dismissing a complaint filed by the State under section 25-1(a)(2) of the Criminal Code of 1961. The circuit court's judgment is therefore affirmed.

Affirmed.

JUSTICE HEIPLE, dissenting:

Anthony Nance was charged in Cook County circuit court with violating section (a)(2) of the mob action statute, which prohibits "the assembly of 2 or more persons to do an unlawful act." 720 ILCS 5/25-1(a)(2) (West 1996). The trial court declared the mob action statute unconstitutional and dismissed the charges against defendant. The State appealed directly to this court, and the majority affirms, holding that in the interests of state and federal comity, this court should defer to a 30-year-old injunction issued by a federal district court which permanently enjoined enforcement of section (a)(2) of the mob action statute in Cook County. Landry v. Daley, 280 F. Supp. 938 (N.D. Ill. 1968) (holding mob action statute vague and overbroad). The district court's injunction, however, should not be enforced by this court because it is an illegitimate federal intrusion into state criminal prosecutions and is based on an inaccurate construction of the mob action statute. Therefore, I respectfully dissent.

The majority holds that this court should enforce the district court's injunction based on state and federal comity. Slip op. at 4-5. Comity, this court has noted, is not a constitutional command. Schoeberlein v. Purdue University, 129 Ill. 2d 372, 377 (1989). Comity, therefore, gives effect to the judicial decisions of another jurisdiction " 'not as a matter of obligation, but out of deference and respect.' " Rollins v. Ellwood, 141 Ill. 2d 244, 256 (1990), quoting Schoeberlein, 129 Ill. 2d at 378; see also 16 Am. Jur. 2d Conflict of Laws