                            ILLINOIS OFFICIAL REPORTS
                                         Appellate Court




                           Nicholson v. Wilson, 2013 IL App (3d) 110517




Appellate Court             DONNA NICHOLSON, Petitioner-Appellee, v. JEFFREY WILSON,
Caption                     Respondent-Appellant (The State of Illinois, Intervenor-Appellee).



District & No.              Third District
                            Docket No. 3-11-0517


Filed                       August 5, 2013


Held                        The plenary no-stalking, no-contact order issued against respondent
(Note: This syllabus        pursuant to the Stalking No Contact Order Act was upheld over
constitutes no part of      respondent’s contentions that the Act is unconstitutionally vague and
the opinion of the court    violates both the equal protection clause and the first amendment, since
but has been prepared       the statute provides a person of ordinary intelligence a reasonable chance
by the Reporter of          to know what is lawful and what is unlawful for purposes of avoiding
Decisions for the           arbitrary enforcement, and the Act exempts any lawful “exercise of the
convenience of the          right to free speech or assembly.”
reader.)


Decision Under              Appeal from the Circuit Court of Peoria County, No. 11-OP-457; the
Review                      Hon. Albert L. Purham, Jr., Judge, presiding.



Judgment                    Affirmed.
Counsel on                 L. Lee Smith and Ambrose V. McCall (argued), both of Hinshaw &
Appeal                     Culbertson LLP, of Peoria, for appellant.

                           Elisabeth R. Pollock (argued) and Andrew W.B. Bequette, both of
                           Beckett & Webber, P.C., of Urbana, for appellee Donna Nicholson.

                           Lisa Madigan, Attorney General, of Chicago (Michael A. Scodro
                           (argued), Solicitor General, and Brett E. Legner, Assistant Attorney
                           General, of counsel), for appellee Illinois Department of Human Rights.


Panel                      JUSTICE HOLDRIDGE delivered the judgment of the court, with
                           opinion.
                           Justices McDade and O’Brien concurred in the judgment and opinion.




                                             OPINION

¶1          Respondent, Jeffrey Wilson, appeals from a plenary no-stalking, no-contact order entered
        July 15, 2011. The order was issued pursuant to the Stalking No Contact Order Act (Act)
        (740 ILCS 21/1 et seq. (West 2010)). In issuing the order, the circuit court of Peoria County
        rejected certain constitutional challenges to the Act. On appeal, the respondent raised, inter
        alia, those same constitutional challenges. The State of Illinois, through the Attorney
        General, sought and was granted leave by the trial court to intervene to defend the
        constitutionality of the Act. The State continues to be a party to the appeal. For the reasons
        that follow, we uphold the constitutionality of the Act.

¶2                                             FACTS
¶3          On April 29, 2011, Donna Nicholson, an officer of the Peoria police department, filed
        a verified petition for a no-stalking, no-contact order pursuant to the Act. The petition
        included allegations that the respondent, Jeffrey Wilson, another police officer in the same
        department, had engaged in allegedly inappropriate conduct toward her over the course of
        several years. The trial court rendered its ruling based upon two specific instances: (1)
        Wilson’s covertly videotaping Nicholson during the fall of 2010; and (2) his use of a GPS
        tracking device which he placed on Nicholson’s car and used to monitor her movements.
¶4          Nicholson has been a police officer with the city of Peoria since 1991 and has worked
        in the vice unit since 2002. Wilson joined the Peoria police force in 1995 and was assigned
        to the vice unit in 2000. Wilson has been the unit technical officer since he joined the unit
        and was specifically assigned responsibility for the unit’s video, audio, and surveillance

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     equipment. Wilson was specially trained in electronic surveillance, GPS installation and
     maintenance, and surveillance equipment engineering.
¶5        On November 9, 2010, Lieutenant Michael Eddlemon observed a surveillance camera
     feed labeled “office” streaming onto the computer at Wilson’s work station. Based upon
     Eddlemon’s observation, a departmental investigation was initiated. A department computer
     video expert was able to establish that a hidden camera was trained on Nicholson’s desk and
     that a pan/tilt/function had been utilized in the video recording to follow her movements
     around her desk and the office. Equipment records indicated that Wilson was the only officer
     who had access to the camera. When asked about the recordings, Wilson told his superiors
     that he had merely been testing the equipment and did not intend to use the camera to
     monitor Nicholson or anyone else. He claimed that the video must have accidentally recorded
     Nicholson. When Nicholson was informed that Wilson may have been videotaping her at the
     office, she became quite upset. She testified at the hearing that she felt victimized, betrayed,
     and angry that Wilson videotaped her after he had been ordered not to do so in 2008.
¶6        In April 2008, Nicholson had reported a similar incident where she believed that Wilson
     was monitoring her movements in the office by use of video cameras. Nicholson testified that
     she reported her suspicions to her superiors, but she did not file a formal complaint. Wilson
     denied ever being told by superiors not to videotape Nicholson. However, Sergeant Jerry
     Bainter testified that he recalled instructing Wilson not to videotape any individuals at the
     office without their permission.
¶7        In August 2010, a Sentinel GPS tracking device was discovered on Nicholson’s car.
     Wilson denied having anything to do with the device being on her car. The device discovered
     on the car was a department device that transmitted data to a specific laptop computer, which
     was kept at Wilson’s desk and for which he was responsible. Wilson denied that he placed
     the GPS device on Nicholson’s car, and he claimed that three other officers in the department
     had the knowledge to use the GPS device. Following a departmental investigation, it was
     determined that Wilson was likely responsible for the placement of the GPS device on
     Nicholson’s car. At the time of the hearing on Nicholson’s petition, the department had not
     finalized its investigation.
¶8        Evidence was also presented at the hearing on Nicholson’s petition which appears to
     indicate that Wilson was transferred to another unit during the investigation and that there
     had apparently been four “brief run-ins” between Nicholson and Wilson after that date. The
     trial court discounted the 2008 incident and the “run-ins” in reaching its decision to issue the
     no-contact order. The trial court found, however, that Wilson had been specifically instructed
     not to videotape Nicholson in 2008 but did so anyway in November 2010, without her
     knowledge or consent. The trial court also found, by a preponderance of the evidence, that
     Wilson had placed the GPS tracking device on Nicholson’s car and had used it to engage in
     surveillance of Nicholson, again without her knowledge or consent. Based upon these factual
     findings, the trial court determined that Wilson had engaged in the two or more acts of
     stalking necessary for the issuance of a no-stalking, no-contact order pursuant to the Act.




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¶9                                           ANALYSIS
¶ 10                                     Standard of Review
¶ 11       Wilson raises three constitutional arguments and one factual argument against the trial
       court’s issuance of the plenary no-stalking, no-contact order. His three constitutional
       arguments are that the Act is unconstitutionally vague, violates the equal protection clause,
       and violates the first amendment. Whether a legislative enactment is constitutional presents
       a question of law, which is reviewed de novo. City of Chicago v. Pooh Bah Enterprises, Inc.,
       224 Ill. 2d 390, 406 (2006). His final argument is that the evidence presented was insufficient
       to establish that a no-stalking, no-contact order under the Act was warranted. The parties are
       in agreement that the trial court’s decision to issue the order should be affirmed unless it is
       against the manifest weight of the evidence. See Best v. Best, 223 Ill. 2d 342, 350 (2006) (all
       findings based upon the presence of a preponderance of the evidence are reviewed under the
       manifest weight standard of review).

¶ 12                                           Vagueness
¶ 13        The first issue to be addressed is whether the Act is unconstitutionally vague. Statutes
       are presumed constitutional, and the burden of rebutting that presumption is always on the
       party challenging the statute. City of Chicago, 224 Ill. 2d at 406. A statute is considered
       impermissibly vague for either of two independent reasons: “(1) if it fails to provide people
       of ordinary intelligence a reasonable opportunity to understand what conduct it prohibits, or
       (2) if it authorizes or even encourages arbitrary and discriminatory enforcement.” Id. at 441-
       42. Here, Wilson argues that the statute is unconstitutionally vague because no reasonably
       intelligent person can determine what conduct the Act prohibits.
¶ 14        Nicholson and the State counter by arguing that Wilson’s own conduct in conducting
       covert surveillance on her fell squarely within the statute’s prohibition, such that he cannot
       maintain that no person could ascertain what conduct is prohibited. We agree. The language
       of the Act clearly defines “stalking” as “2 or more acts” in which the respondent “directly”
       or “indirectly” used a “method” or “device” to “follow[ ], monitor[ ],observe[ ], surveil[ ],”
       “a specific person” in a manner that “would cause a reasonable person to fear for his or her
       safety” or “suffer emotional distress.” 740 ILCS 21/10 (West 2010).
¶ 15        The evidence adduced in this matter established that Wilson was on notice that
       videotaping and GPS surveillance of Nicholson were within the conduct the Act sought to
       prohibit. The Act provides that a “reasonable person” is “a person in the petitioner’s
       circumstances” who has “the petitioner’s knowledge of the respondent and the respondent’s
       prior acts.” 740 ILCS 21/10 (West 2010). Wilson maintains that this statutory language
       converts the “reasonable person” from the usual objective test (see McGrath v. Fahey, 126
       Ill. 2d 78 (1988)) to a subjective test, which would require a respondent to be able to predict
       the subjective emotional state of the petitioner in order to conform his conduct to the
       requirements of the Act. We disagree. A law survives a vagueness challenge so long as it
       “give[s] a person of ordinary intelligence a reasonable opportunity to know what conduct is
       lawful and what conduct is unlawful” and “convey[s] sufficiently clear standards so as to
       avoid its arbitrary enforcement.” (Internal quotation marks omitted.) People v. Bailey, 167

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       Ill. 2d 210, 228, 230 (1995). Under the facts of this case, the Act is clearly sufficient to pass
       this constitutional muster. Here, Wilson engaged in conduct which, from an objective
       standpoint, would cause a reasonable person to have some fear for his or her safety or cause
       that person emotional distress. Wilson placed a tracking device on Nicholson’s car for the
       purpose of surreptitiously tracking her movement and trained a hidden video camera on her
       desk to secretly record her activities. It cannot be seriously argued that such conduct would
       not cause fear and emotional distress for a reasonable person in Nicholson’s position. We
       therefore reject Wilson’s vagueness challenge to the constitutionality of the Act.

¶ 16                                        Equal Protection
¶ 17       Wilson next maintains that the Act violates his equal protection rights. Specifically, he
       maintains that the exemption in the Act for actions arising under a bona fide labor dispute
       violates the equal protection clause by creating two classes of potential respondents under
       that Act and subjecting the two classes to disparate treatment. We note that our supreme
       court rejected the same equal protection argument in the context of the criminal stalking
       statute (720 ILCS 5/12-7.3 (West 2002)) originally raised in People v. Bailey, 167 Ill. 2d at
       233. In Bailey, the court held that the distinction between picketing a workplace during a
       “bona fide labor dispute” and other forms of picketing was rationally based upon legitimate
       state interests. The court held:
                 “We find that a rational basis exists for exempting picketing during a bona fide labor
            dispute from the purview of the statute. The State has a legitimate interest in protecting
            people from physical injury, and it is reasonable to conclude that the conduct the
            legislature was trying to combat was not the type of conduct that occurs during picketing.
            It is also rational to conclude that the legislature exempted picketing during bona fide
            labor disputes in an effort to ensure that constitutionally protected activity would not be
            punished. It therefore was rational for the legislature to exempt this conduct. Because a
            rational basis exists for the exemption, the stalking statute does not violate the equal
            protection clause.” Bailey, 167 Ill. 2d at 233-34.
¶ 18       We also note that, unlike the criminal stalking statute at issue in Bailey, the civil stalking
       Act at issue herein does not treat labor picketing more favorably than any other form of
       protected speech or associational conduct. Unlike the criminal stalking statute, which carved
       out an exception for labor picketing alone, the Act at issue herein excludes labor picketing
       from its definition of stalking, but only after first exempting any lawful “exercise of the right
       to free speech or assembly.” 740 ILCS 21/10 (West 2010). So, while the Act at issue herein
       exempts labor picketing, it does the same for nonlabor picketing and all other acts of
       protected expression or association (so long as, like bona fide labor picketing, the acts are
       “otherwise lawful,” e.g., do not involve unlawful trespass or are otherwise unlawful). We
       find, therefore, that the Act does not violate the equal protection clause.

¶ 19                                     First Amendment
¶ 20       Wilson’s final constitutional objection to the Act is that it violates his constitutional right
       to freedom of speech. We disagree. The Act narrowly restricts only the act of stalking, i.e.,

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       following, monitoring, observing, surveilling, or interfering with a person, and does not seek
       to regulate speech. Further, we note that the only speech that is prohibited by the Act are
       threats of violence or intimidation, which are not constitutionally protected in any event. See
       Bailey, 167 Ill. 2d at 226-28. Moreover, as we have previously noted, the Act specifically
       exempts from prohibition any lawful “exercise of the right of free speech or assembly.” 740
       ILCS 21/10 (West 2010). Clearly, Wilson’s first amendment argument lacks merit.

¶ 21                               Preponderance of the Evidence
¶ 22       Wilson lastly maintains that, even if the Act passes constitutional muster, the court’s
       determination that a preponderance of the evidence established that he violated the Act and
       that a plenary order against him was warranted was against the manifest weight of the
       evidence. A finding is against the manifest weight of the evidence only if the opposite
       conclusion is clearly apparent or if the finding itself is unreasonable, arbitrary, or not based
       on the evidence presented. Best, 223 Ill. 2d at 350.
¶ 23       For Nicholson to prevail in her petition for a plenary order, she was required to prove by
       a preponderance of the evidence that, on at least two occasions, Wilson followed, monitored,
       or engaged in surveillance of her, while he knew or should have known that his course of
       conduct would cause a reasonable person to fear for his or her safety or suffer emotional
       distress. 740 ILCS 21/10 (West 2010). Here, the evidence clearly established that it was more
       likely true than not true that Wilson had engaged in at least two such actions. While Wilson
       denied engaging in such acts, there was sufficient evidence upon which the court could have
       disbelieved Wilson. Moreover, the evidence supported the conclusion that, given Wilson’s
       professional background and expertise with surveillance equipment, it was highly unlikely
       that he “accidentally” videotaped Nicholson while testing his equipment.
¶ 24       As to whether Wilson knew or should have known that his activities were likely to cause
       a reasonable person to fear for her safety or suffer emotional distress, the record supports the
       conclusion that Nicholson would likely suffer emotional distress. She had sought assistance
       from the employer regarding pervious acts of surveillance upon her and indicated that she
       was very upset about the 2008 incident, regardless of whether Wilson was proven to be the
       perpetrator. The trial court’s finding, therefore, that Wilson’s actions were covered under the
       Act and that a plenary order was warranted to prevent further conduct of a similar nature was
       not against the manifest weight of the evidence.

¶ 25                                    CONCLUSION
¶ 26      For the foregoing reasons, the order of the circuit court of Peoria County is affirmed.

¶ 27      Affirmed.




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