also dissenting:
To deal effectively with its case load, this court must husband its time and resources properly. The majority ignores these realities. Its continued invocation of jurisdiction, where none exists, imposes an undue burden upon this court, and severely curtails the role of our appellate court in constitutional review. Jurisdiction is not appropriate in this case. Accordingly, I must dissent.
Supreme Court Rule 603 (134 Ill. 2d R. 603) provides: “Appeals in criminal cases in which a statute of the United States or of this State has been held invalid and appeals by defendants from judgments of the circuit courts imposing a sentence of death shall lie directly to the Supreme Court as a matter of right. All other appeals in criminal cases shall be taken to the Appellate Court.”
Thus, with the exception of cases in which a defendant has been sentenced to death, the jurisdiction of this court in criminal cases is limited to appeals in which a statute of the United States or of Illinois has been held invalid.
This court has long recognized the distinction between a statute which is unconstitutional on its face and a statute which is unconstitutional as applied. When a statute is unconstitutional on its face, the statute is invalid from its inception and has no force and effect upon any person or entity. People v. Zeisler, 125 Ill. 2d 42 (1988); People v. Manuel, 94 Ill. 2d 242 (1983); Van Driel Drug Store, Inc. v. Mahin, 47 Ill. 2d 378 (1970). In contrast, when a statute is unconstitutional as applied, the statute itself is not invalid; it is simply not applied to a particular person or entity because to do so would violate a constitutional right. See East St. Louis Federation of Teachers, Local 1220 v. East St. Louis School District No. 189 Financial Oversight Panel, 178 Ill. 2d 399 (1997); People v. Hamm, 149 Ill. 2d 201 (1992); see also 1 N. Singer, Sutherland on Statutory Construction § 2.06 (5th ed. 1994). It follows that when a statute is declared unconstitutional on its face, the parties may appeal directly to this court under Rule 603. However, when a statute is found to be unconstitutional as applied, the statute has not been declared invalid and jurisdiction properly lies in the appellate court.
In the case at bar, a police officer observed defendants’ vehicle exceed the speed limit, and stopped the vehicle on a public way within 1,000 feet of a church. The officer searched defendant Gabriella Falbe and found more than 70 grams of cocaine on her person. Unlawful possession of cocaine with intent to deliver is a Class 1 felony. 720 ILCS 570/401(c)(2) (West 1998). However, if the conduct takes place within 1,000 feet of a church, the Class 1 felony is enhanced to a Class X felony. 720 ILCS 570/ 407(b)(1) (West 1998). Since defendants were apprehended within 1,000 feet of a church, they were charged with a Class X felony.
In the trial court, defendants argued that section 407(b)(1) was unconstitutional as applied. The trial court agreed. The court found that defendants’ arrest near the church was “the direct result of police activity in a traffic stop without any showing that defendants started, stopped or ever intended to stop in the protected zone.” (Emphasis in original.) The court ruled that “based on the facts in this case, the compelling state interest to enhance the penalty for drug delivery in specified protected zones is neither promoted or served.”
The trial court declared section 407(b)(1) unconstitutional as applied, not invalid on its face. Indeed, in People v. Shephard, 152 Ill. 2d 489 (1992), this court upheld the constitutionality of section 407(b)(1) (Ill. Rev. Stat. 1989, ch. 56V2, par. 1407(b)(1), now codified at 720 ILCS 570/ 407(b)(1) (West 1998)) with respect to commission of drug crimes within 1,000 feet of public housing. See also People v. R.L., 158 Ill. 2d 432 (1994); People v. Brooks, 271 Ill. App. 3d 570 (1995). And in People v. Pacheco, 281 Ill. App. 3d 179 (1996), our appellate court upheld the validity of section 407(b)(1) with respect to commission of drug crimes within 1,000 feet of school property. See also People v. Owens, 240 Ill. App. 3d 168 (1992); People v. Clark, 231 Ill. App. 3d 571 (1992). Since section 407(b)(1) is constitutional on its face, but was declared invalid as applied, an appeal to the appellate court was appropriate.
As Justice McMorrow observed in her dissent in People v. Fuller, 187 Ill. 2d 1, 27-28 (1999) (McMorrow, J., dissenting), Rule 603 and Rule 302(a) (134 Ill. 2d R. 302(a)) are:
“based on the premise that some types of cases are of such pressing importance that, upon review, they should bypass the normal appellate process and proceed directly to this court. Rehg [a. Ulinois Department of Revenue, 152 Ill. 2d 504 (1992) (overruled in part by Fuller, 187 Ill. 2d 1, and by Wilson v. Department of Revenue, 169 Ill. 2d 306 (1996))] determined that circuit court decisions holding a statute facially unconstitutional rise to this level of importance. Implicitly, Rehg recognized that holding a statute facially invalid attacks the power of the legislature to enact the statutory provision itself, and therefore, that as a general matter, such a holding will be of sufficient importance and general applicability to warrant direct review in this court.”
On the other hand, a decision of the circuit court holding a statute unconstitutional as applied affects only the particular litigants and not the public at large. Such a decision is not infused with the sense of urgency and public importance which justify bypassing the normal appellate review process. I, for one, have faith in the ability of our appellate court judges to deal effectively with their jurisdictional case load. To invoke direct appellate jurisdiction, as the majority does in the present case, is to effectively curtail participation of the appellate court in the constitutional review process.
In his dissent in Fuller, 187 Ill. 2d at 22, Justice Bilandic observed:
“because this court has a limited amount of time and resources, we must be able to decline to hear those rulings that are not publicly significant.” Fuller, 187 Ill. 2d at 22 (Bilandic, J., dissenting).
Justice McMorrow elaborated:
“Each year this court receives thousands of petitions for leave to appeal from decisions of the appellate court under Rule 315 (177 Ill. 2d R. 315). Because this court has a finite amount of time and resources, many of these petitions must be denied, despite the important issues they raise. Viewed in this context, providing mandatory direct appellate review to appeals brought under Rule 302(a)(1) or Rule 603 is justifiable when the cases are of public importance, but it is clearly not justifiable when the issues are of significance to only a single litigant. Inevitably, as a result of the majority’s decision today, important appellate court decisions appealed under Rule 315 will not be reviewed by this court.” Fuller, 187 Ill. 2d at 30 (McMorrow, J., dissenting).
The majority is not justified in invoking jurisdiction in the present case. The appellate court should be given an opportunity to resolve constitutionality of the statute in question. For these reasons, I respectfully dissent.
JUSTICE McMORROW joins in this dissent.