specially concurring:
I write separately because, while I concur in the result reached, I believe the opinion has unnecessarily attempted to create a new general rule for the order of addressing constitutional and nonconstitutional issues in our criminal trial courts. This novel rule not only runs counter to this court’s long-established principles, as repeatedly reiterated in Mulay v. Mulay, 225 Ill. 2d 601 (2007) (citing the list of cases noted in In re E.H.), People v. Hampton, 225 Ill. 2d 238 (2007), In re E.H., 224 Ill. 2d 172 (2006) (including an extensive list of cases dating back to 1910), and People v. Lee, 214 Ill. 2d 476 (2005), but it also reaches this new rule without the benefit of direct argument by the parties, supporting legal precedent, or independent analysis. Thus, I cannot join in that portion of the opinion.
In its initial review of the Garibaldi and MontesMedina cases, the opinion correctly notes that Mulay “addressed[ed] the proper procedure in the circuit court,” requiring the court to dispose of any nonconstitutional issues before resolving constitutional matters. 228 Ill. 2d at 261. The opinion then properly distinguishes Mulay from the instant case because, “in Mulay, there was no clear precedent holding a statute unconstitutional, as was the case here.” 228 Ill. 2d at 261. As the opinion later explains, the rationale for this distinction is that “ ‘if a statute creating an offense is unconstitutional, it is considered void ab initio.’ ” 228 Ill. 2d at 262, quoting Wright, 194 Ill. 2d at 24. Thus, after the appellate court in Carpenter found section 12 — 612 unconstitutional, the trial court was bound by that ruling. 228 Ill. 2d at 259, citing People v. Harris, 123 Ill. 2d 113, 128-29 (1988). Charged with violations of a section held to be unconstitutional, both Garibaldi and Montes-Medina filed motions to dismiss based on Carpenter. Under those circumstances, the trial court could not have properly continued the criminal proceedings based on a statute that had been declared void ab initio. In contrast, in Mulay, “there was no controlling authority that the circuit court was compelled to follow.” 228 Ill. 2d at 261. Thus, the procedures properly outlined in Mulay were not applicable to the cases of defendants Garibaldi and Montes-Medina.
Rather than end that portion of its analysis and immediately proceed to the State’s contention that Carpenter should be vacated, however, the opinion attempts to distinguish Mulay on a second, and much more problematic, basis in dicta. Indeed, the opinion unexpectedly announces “a different rule” in criminal cases involving challenges to the constitutionality of the charging statutes. 228 Ill. 2d at 261. The opinion appears to rely on two bases for its new rule: (1) the “serious consequences” entailed in criminal prosecutions and (2) the United States Supreme Court’s decision in Babbitt v. United Farm Workers National Union, 442 U.S. 289, 60 L. Ed. 2d 895, 99 S. Ct. 2301 (1979). 228 Ill. 2d at 261. Neither basis justifies the current announcement of “a different rule” in criminal cases, and the surrounding dicta will lead to confusion on the applicability and scope of that rule.
While criminal prosecutions undoubtedly entail “serious consequences,” the opinion does not cite any legal precedent to support the imposition of a new rule for the review of constitutional and nonconstitutional issues in a criminal trial. The only case cited is Babbitt, where the Supreme Court directly addresses the justiciability of a First Amendment challenge made by federal court plaintiffs who had not yet been charged under the challenged statute. Those plaintiffs sought “to secure a declaration of the unconstitutionality of various sections of the [Arizona Agricultural Employment Relations Act], as well as of the entire Act, and an injunction against its enforcement.” Babbitt, 442 U.S. at 293, 60 L. Ed. 2d at 903, 99 S. Ct. at 2306. As appellees, the plaintiffs argued, inter alia, that “to avoid criminal prosecution they must curtail their consumer [publicity campaigns], and thus forgo full exercise of what they insist are their First Amendment rights. It is urged, accordingly, that their challenge to the limitation on consumer publicity plainly poses an actual case or controversy.” (Emphasis added.) Babbitt, 442 U.S. at 301, 60 L. Ed. 2d at 908, 99 S. Ct. at 2310. In resolving these claims, the Court squarely addressed whether the plaintiffs’ first amendment challenges to the likely future application of the Act sufficiently presented an actual case or controversy to be justiciable.
That scenario bears no resemblance to the cases of defendants Garibaldi and Montes-Medina. Garibaldi and Montes-Medina involved ongoing criminal prosecutions based on past violations of the challenged statute. Thus, the Court’s discussion about justiciability, the only issue decided in Babbitt, is inapposite in the instant cases. The discussion’s complete inapplicability is manifested within the quote it cites in support, stating that “ ‘when fear of criminal prosecution under an allegedly unconstitutional statute is not imaginary or wholly speculative a plaintiff need not “first expose himself to actual arrest or prosecution to be entitled to challenge [the] statute.” ’ ” (Emphasis added.) 228 Ill. 2d at 261-62, quoting Babbitt, 442 U.S. at 302, 60 L. Ed. 2d at 909, 99 S. Ct. at 2310-11, quoting Steffel v. Thompson, 415 U.S. 452, 459, 39 L. Ed. 2d 505, 514, 94 S. Ct. 1209, 1216 (1974). The quote is obviously directed toward the limited issue of whether the plaintiffs’ constitutional challenge is justiciable and thus can even be heard by a federal district court. It has no application here because the defendants have already faced actual arrest and prosecution. Moreover, the constitutional challenges in the instant case arose only after the defendants were arrested and charged, unlike the anticipatory claims raised in Babbitt. Here, the question the opinion unnecessarily attempts to answer by creating its new rule in criminal cases is not whether the defendants may properly raise their constitutional challenges before the trial court but when they may do so. It is undisputed that Garibaldi and Montes-Medina have a right to challenge the constitutionality of section 12— 612. The only issue that could remain is when the trial court should address those claims.
In this instance, however, it is improper for this court to address that issue because the trial court could not have properly gone forward with the criminal proceedings against Garibaldi and Montes-Medina after they filed their motions to dismiss based on our appellate court’s holding in Carpenter that section 12 — 612 is unconstitutional on its face. Thus, the opinion unjustifiably delves into dicta when it announces its “different rule” to be applied in criminal trials. That announcement is not only purely advisory and unsupported by relevant precedent, but it is also likely to spawn extensive litigation over its actual scope and application due to its status as dicta. Thus, I cannot join that portion of the opinion.
In this case, we need not consider applying a “different rule” for the proper order for addressing constitutional and nonconstitutional challenges in our criminal trial courts. The parties have not fully briefed and argued the merits of each side, and the issue is not squarely before us. Accordingly, I respectfully specially concur in the majority opinion.
JUSTICES FREEMAN and BURKE join in this special concurrence.