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.

Comments

[Tom for equal rights]

Waiting for post on the extensive corruption within the FBI detailed in Durham report

[David Nieporent]

The Durham report revealed no “corruption.” After four years of investigation of the investigation — much longer than the investigation being investigated — it found no wrongdoing other than Kevin Clinesmith’s, exactly as the IG had said years before.

MAGA nuts live in a world where the Mueller report exonerated Trump but the Durham report proved wrongdoing. In the real world, of course, the reverse is true.

[Tom for equal rights]

Substantial corruption –

continuing an investigation after the FBI knew the allegations were fabricated by the Hillary Campaign for the purposes of swinging an election

If that is not corruption – then what is corruption?

The facts are detailed in the report – which parts are you going to deny

[WuzYoungOnceToo]

If you were any more full of shit you’d have to be declared an EPA superfund cleanup site.

[rloquitur]

I believe you mean to say “No wrongdoing for which I will bring a criminal charge.” In reality, you had law enforcement and the intelligence services putting their thumb on the scale in a US election. That’s a problem, and it’s not hidden by pointing out the lack of a charge.

And it’s not what the IG said–the IG said that there was no documented evidence of bias, but that there was no really good explanation.

And Mr. Nieporent, the FBI did a bunch of things to fix the problem.

[David Nieporent]

And it’s not what the IG said–the IG said that there was no documented evidence of bias, but that there was no really good explanation.

The IG expressly found that the investigation was properly justified.

[David Nieporent]

I believe you mean to say “No wrongdoing for which I will bring a criminal charge.” In reality, you had law enforcement and the intelligence services putting their thumb on the scale in a US election. That’s a problem, and it’s not hidden by pointing out the lack of a charge.

No, I mean no wrongdoing. Secretly surveilling Carter Page was not a “thumb on the scale in a US election.” The “thumb on the scale” by DOJ was against Hillary, repeatedly making announcements about investigations of her.

[rloquitur]

OMG. Dude, the FBI covered for Clinton–anyone who knows anything about handling classified info knows that using the server for State Dept. business (which necessarily involves classified material) was a crime. The FBI then looked to protect itself institutionally. Net net it helped Clinton.

The IG report specifically found that it: “did not receive satisfactory explanations for the errors or problems [it] identified . . . .” The Clinton campaign provided the FBI/DOJ with a bogus dossier, and the FBI ran with it.

[David Nieporent]

OMG. Dude, the FBI covered for Clinton–anyone who knows anything about handling classified info knows that using the server for State Dept. business (which necessarily involves classified material) was a crime.

That’s completely wrong. You are confusing her unclassified State account with the SIPRnet or ClassNet stuff used for classified material. She used her server in place of the former, not the latter.

[Dr. Ed 2]

There is another issue here — educrats using the power of the state to silence critics. Its part of why k12 is such a mess.

[TwelveInchPianist]

Yup. Volokh has written about how harassment law threatens the first amendment. The primary beneficiaries of these orders are going to be people who criticize government officials.

[Longtobefree]

Just bring back dueling.

[Dr. Ed 2]

Dueling was never legal.

[John F. Carr]

A Bit of Fry & Laurie – The Duel (only the bit from 0:28 to 0:48 is really worth the watch).

[apedad]

Right decision but really sloppy legal support on both sides.

“Here, a grand jury indicted Bourdage for violating a specific provision in the no-stalkingno-contact order by indirectly communicating about Peila to his employer. Under Benitez, the State may not prosecute Bourdage with violating a no-stalking-no-contact order for any other reason without first returning to the grand jury. We reject the State’s attempt to expand this offense unilaterally.”

“We reach this conclusion although Bourdage’s appellant brief is rife with problems, including rudimentary violations of Illinois Supreme Court Rule 341.”

[JimM47]

I immediately thought of the “collateral bar” rule when I read the headline.

I am highly skeptical of the wisdom of that rule in the First Amendment context.

But, if we are following that rule, I am also skeptical that the “frivolous pretense to validity” exception so clearly saves this decision.

For instance, the Court in Walker v. City of Birmingham, 388 U.S. 307, 315 (1967) thought that an injunction incorporating the language of an ordinance wasn’t patently invalid even though the same Court subsequently made pretty short work of that ordinance in Shuttlesworth v. City of Birmingham, Ala., 394 U.S. 147, 148 (1969), saying that a long line of prior decisions had clearly resolved the precise issue in question.

[David Nieporent]

Well, to state the obvious: this is a state court case, so it is not bound by Walker v. City of Birmingham or its reasoning.

Oddly, the court here did not even mention the collateral bar rule, not even to explain why it doesn’t apply.

[Jyeasting]

Ordinarily, Illinois courts would apply the collateral bar rule — they’d use the phrase “collateral estoppel” — to something like this. But, Illinois law includes a ”voidness” doctrine that allow a litigant to bypass these kind of procedural barriers when a statute or order incorporates a facially unconstitutional statute by reference. The breadth of that doctrine is controversial.

[Sherribourdage]

I am Sherri Bourdage. My allegations were that he was humiliating kids that did not conform to a blue pants white shirt uniform code at a public school and he was withholding meeting minutes from the community since there were so many complaints from parents. He Publicly shamed kids and forced them to change into a dirty shirt assigning them a big number with big letters saying “LOANER” and he did this behind the backs of parents. He was indoctrinating kids and he was hanging Nazi flags in the gym. I went through all proper channels and my alderman would not help since He said the public school system is not in his wheelhouse.