The Volokh Conspiracy

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Free Speech

Court Sets Aside Conviction for Speech About School Principal That Violated No-Stalking Order


From Monday's decision in People v. Bourdage, by Illinois Appellate Court Justice Michael Hyman, joined by Justices Aurelia Pucinski and Mary Ellen Coghlan:

A grand jury indicted Sherri Bourdage for violating a single provision of a no-stalking-no-contact order by "indirectly communicat[ing] about Joseph Peila to his employer[.]" … The State called Chicago Public School principal Joseph Peila and CPS receptionist Regina Patillo. Peila testified that he met Bourdage in 2010 when she toured the school where he served as principal. They had many contentious encounters over the years, and by 2016, the trial court issued a two-year no-stalking-no-contact order against Bourdage. An alleged violation of this order underlies the prosecution here.

Peila testified he received emails in 2018 stating someone had spoken about him to others: (i) a school-council member emailed to say a "Susan Rice" had called and given a phone number Peila traced to a store Bourdage owns and (ii) CPS' Chief Executive Office employees emailed that Bourdage had called to talk about Peila. CPS receptionist Patillo testified she received a call from Bourdage in 2018, in which Bourdage leveled various accusations against Peila….

The State argued that Bourdage violated the no-stalking-no-contact order by calling Peila's employer, and that her accusations were defamatory and a threat to Peila's safety…. The trial court found Bourdage guilty … [and] sentenced her to two years' probation….

Bourdage was charged with violating a no-stalking-no-contact order. This offense incorporates a trial court order as an element of the offense.

The State charged Bourdage with violating a single provision in the order—"indirectly communicat[ing] about Joseph Peila to his employer[.]" Accordingly, the prosecution hinged on whether Bourdage violated a valid no-stalking-no-contact order by speaking about Peila to others.

Our supreme court [in People v. Relerford (Ill. 2017)] found identical statutory language—prohibiting "communicat[ion] to or about"—to be facially unconstitutional…. The criminal stalking statute addressed in Relerford and the Stalking No Contact Order Act here identically defined course of conduct to include communicating to or about a person. Facially unconstitutional laws are void laws. And alleged violations of facially unconstitutional statutes have no legal effect. Thus, by incorporating this language, the indictment stated no offense. Indeed, in recognition of the constitutional issues identified in Relerford, the Illinois General Assembly amended the Stalking No Contact Order Act by removing the language "communicates to or about." …

The State argues we should uphold Bourdage's conviction on other grounds, contending that Bourdage interfered with Peila's property interest in continued employment. Assuming this contention has legal merit, courts may only enforce charges that appear in the indictment….

Note that many courts, including both federal and Illinois courts, take the view that a defendant must challenge the constitutionality of an injunction on initial appeal, and can't just violate the injunction and then raise its unconstitutionality when prosecuted for that violation—this is the so-called "collateral bar rule." "[A]n erroneous or even unconstitutional injunction which was entered under proper jurisdiction must nevertheless be obeyed." Nonetheless, there is an exception "where the injunction is transparently invalid or has only a frivolous pretense to validity," and perhaps the judges implicitly thought this exception applies in light of Relerford.

For more on Relerford, where my students and I filed an amicus brief in support of the defendant, see here.