In re A.C., a Minor (The People of the State of Illinois, Petitioner-Appellee, v. A.C., Respondent-Appellant).
No. 1-15-3047
2016 IL App (1st) 153047
May 18, 2016
JUSTICE BURKE; Presiding Justice Reyes; Justice Gordon
FIFTH DIVISION; Appeal from the Circuit
JUSTICE BURKE delivered the judgment of the court, with opinion.
Presiding Justice Reyes concurred in the judgment and opinion.
Justice Gordon concurred in part and dissented in part, with opinion.
OPINION
¶ 1 Following a hearing in Juvenile Court, the circuit court adjudicated respondent, A.C., delinquent of aggravated criminal sexual abuse and he was ordered to register under the Sex Offender Registration Act (SORA) (
I. BACKGROUND
¶ 2
¶ 3 On May 11, 2013, the date the incident occurred, respondent was 16 years of age and K.J. was 8 years of age. The State filed a petition for adjudication of wardship on March 31, 2014, against respondent for aggravated criminal sexual abuse (
¶ 4 At the adjudicatory hearing, K.J. testified that on the evening of May 11, 2013, she was at her home in Chicago with her two half-brothers and one of the half-brother‘s grandmother, D.W. Respondent and a few friends of her half-brother‘s came over that evening to spend the night. Respondent was best friends with one of K.J.‘s half-brothers and K.J. had seen him before. The friends went into the basement and K.J. went to her room upstairs and watched television for a few hours. She fell asleep in her bed wearing shorts and a T-shirt. K.J. awoke at 1 or 2 a.m.; the plastic on her mattress was moving. She was on her stomach and her shorts and underwear were pulled down under her buttocks. K.J. testified that she felt respondent going up and down on her from behind. After he stood up, he told K.J. that she had “white stuff” on her. He went to the bathroom across the hall and obtained a tissue and used it to wipe the “clear stuff” or “clear crust” off of her and then he threw it in the bathroom trash and returned downstairs. K.J. woke up D.W. and told her what happened.
¶ 5 D. W. testified that around 2 a.m., K.J. asked if she could sleep with her and climbed into bed.3 K.J. then asked if she could tell D.W. something. K.J. stated, “that boy A*** was freaking on me” and that “the bed was moving.” K.J. stated that respondent used a tissue on “some white stuff.” D.W. testified that K.J. was crying and shaking.
¶ 6 K.J-H., K.J.‘s mother, testified that D.W. was watching the three children while she was away that weekend. When K.J-H. returned on May 13, 2013, she spoke with K.J. and then retrieved a tissue from the garbage in the upstairs bathroom, which she placed in a paper bag. She also retrieved K.J.‘s pajamas, underwear, and the sheets from K.J.‘s bed, and placed these items in two paper bags. She took K.J. to the Lurie Children‘s Hospital, where a criminal sexual assault kit examination was performed. Chicago police evidence technician Carla Rodriguez subsequently retrieved the bagged items from K.J-H.‘s home оn May 14, 2013, and inventoried and secured them for DNA testing.
¶ 7 Illinois State Police forensic biologist Jennifer Wagenmaker testified that she received the inventoried items and identified semen on the toilet paper and two semen stains on the underwear, of which she prepared cuttings and stored for later DNA testing. She did the same for the blood samples collected from respondent and K.J.
¶ 9 Chicago police sergeant Athena Mullen interviewed respondent with his mother present on November 26, 2013, at the police station. Following his acknowledgement of his Miranda warnings, respondent told Mullen that “he didn‘t penetrate that girl.” When Mullen asked what respondent meant, “[l]ikе a hotdog in a bun?” Respondent stated, “[s]omething like that.” Respondent stated that the girl had been lying on her stomach. The interview was terminated at that point and respondent told Mullen that he wanted to obtain some help.
¶ 10 Following closing arguments, the circuit court held that the State proved respondent committed aggravated criminal sexual abuse and entered a finding of delinquency.
¶ 11 On August 10, 2015, respondent filed a motion to declare SORA and the Notification Law unconstitutional as applied to him. Following a hearing, the circuit court denied respondent‘s motion.
¶ 12 The record reflects that respondent underwent a forensic psychological evaluation by Dr. Michael Fogel in October 2014 to assess respondent‘s risk for sexually reoffending. Based on this assessment, Dr. Fogel opined that respondent was at a low risk of sexually reoffending. In addition, probation officer Claire Johnson was assigned to perform a juvenile sex offender evaluation. Johnson‘s letter to the court dated June 29, 2015, indicated that she reviewed Dr. Fogel‘s evaluation and interviewed respondent and his mother, and opined that respondent was at a low risk to sexually reoffend and that sex offender registration could have an aggravating effect on his risk level as it could have consequences related to respondent‘s pursuit of higher education. A social investigation and supplemental social investigation of respondent also occurred.
¶ 13 At the dispositional hearing on October 9, 2015, the circuit court sentenced respondent to three years’ probation, 50 hours of community service, and juvenile sex offender counseling. Respondent registered as a sex offender on October 9, 2015. This appeal followed.
II. ANALYSIS
¶ 14
¶ 15
A. Statutory Provisions
¶ 16 On appeal, defendant challenges the constitutionality of the following provisions of SORA and the Notification Law:
¶ 17 Respondent‘s adjudication for aggravated criminal sexual abuse qualifies him a “sexual offender” under SORA.
¶ 18 Section 3 requires sexual offenders to register with the chief of police in the municipality where he resides, providing appropriate identification and proof of residence, in addition to other information such as telephone number, e-mail addresses, and Internet communications identities,
¶ 19 Section 3-5 applies these registration requirements to adjudicated delinquent juveniles.
¶ 20 In addition, section 6 imposes a duty to report in person to the appropriate law enforcement agency every year, up to four times per year, and also requires a sexual offender to report in person and register within the time period specified in section 3 (three days) if there is a change of address, employment, telephone number, or school.
¶ 21 Under the Notification Law, section 120 provides for liberal disclosure by law enforcement of a registrant‘s name, address, date of birth, place of employment, school, e-mail addresses, internet identities, and offense information to local schools, colleges, childcare centers, libraries, other social service or volunteer organizations providing services to minors and to sex offense victims.
B. Standing
¶ 22
¶ 23 Initially, we note that respondent merges individual provisions of SORA and the Notification Law together and refers to them as a single “2013 SORNA” statutory scheme for purposes of his constitutional challenges. However, as the State contends, these are two separate acts which work together to regulate sex offenders. The State argues that respondent lacks standing to challenge the constitutionality of section 10 (
¶ 25 However, even if we were to find that respondent had standing to challenge section 10, we would nevertheless conclude, as discussed further below, that his claims would fail on the merits.
C. Standard of Review
¶ 26
¶ 27 Statutes enjoy a strong presumption of constitutionality. People v. Mosley, 2015 IL 115872, ¶ 22; People v. Breedlove, 213 Ill. 2d 509, 518 (2004). “To overcome this presumption, the party challenging the statute must clearly establish its invalidity.” Mosley, 2015 IL 115872, ¶ 22. “A court will affirm the constitutionality of a statute or ordinance if it is ‘reasonably capable of such a determination’ and ‘will resolve any doubt as to the statute‘s construction in favor of its validity.’ ” Jackson v. City of Chicago, 2012 IL App (1st) 111044, ¶ 20 (quoting People v. One 1998 GMC, 2011 IL 110236, ¶ 20). This court reviews the constitutionality of a statute de novo. Mosley, 2015 IL 115872, ¶ 22.
D. Facial and As-Applied Constitutional Challenges
¶ 28
¶ 29 On appeal, respondent raises both facial and as-applied challenges to various provisions of SORA and the Notification Law.
¶ 30 A facial challenge ” ‘is the most difficult challenge to mount successfully because an enactment is invalid on its face only if no set of сircumstances exists under which it would be valid.’ ” Jackson, 2012 IL App (1st) 111044, ¶ 25 (quoting One 1998 GMC, 2011 IL 110236, ¶ 20). “If a statute can be validly applied in any situation, a facial challenge must fail.” In re Maurice D., 2015 IL App (4th) 130323, ¶ 22. In examining a facial challenge, the particular facts of a party‘s case are irrelevant. Jackson, 2012 IL App (1st) 111044, ¶ 27.
¶ 31 In contrast, an as-applied challenge requires a party to demonstrate that the statute is unconstitutional as applied in that party‘s particular circumstances, rending the party‘s factual context relevant. Jackson, 2012 IL App (1st) 111044, ¶ 26 (quoting Napleton v. Village of Hinsdale, 229 Ill. 2d 296, 306 (2008)). ” ‘[I]f a plaintiff prevails in
¶ 32 As the State observes, however, although respondent advances both facial and as-applied challenges on appeal, he presents essentially the same argumеnts in both challenges and relies largely on his own circumstances in arguing that the provisions are unconstitutional. As such, he fails to demonstrate that the challenged statutes are ” ‘unconstitutional under every circumstance.’ ” Jackson, 2012 IL App (1st) 111044, ¶ 25 (quoting One 1998 GMC, 2011 IL 110236, ¶ 58). Because a determination that the challenged statutes are “constitutional as applied to [respondent] would necessarily compel a finding that the statute[s] [are] constitutional on [their] face,” we address respondent‘s as-applied claims. In re M.A., 2015 IL 118049, ¶ 41.
E. Substantive Due Process
¶ 33
i. Strict Scrutiny
¶ 34
¶ 35 Respondent seeks strict scrutiny review of the challenged statutes. He argues that they violate his fundamental right to liberty, privacy, pursue happiness, and reputation because the registration and notification provisions are complex and difficult to follow. They require disclosure to his school and those “at risk,” without restricting subsequent disclosure. He contends that universities may rescind admission offers or financial aid, and other students or future employers may find out.
¶ 36 Both the federal and state constitutions provide that no individual shall be deprived of lifе, liberty, or property without the due process of law.
¶ 37 Initially, we must determine whether respondent‘s claim involves a fundamental right warranting strict scrutiny analysis. Cornelius, 213 Ill. 2d at 204. In so doing, we “exercise the utmost care,” as a fundamental right is one that is “deeply rooted” in our nation‘s history and legal traditions. (Internal quotation marks omitted.) Avila-Briones, 2015 IL App (1st) 132221, ¶ 72 (quoting Reno v. Flores, 507 U.S. 292, 302 (1993), and Washington v. Glucksberg, 521 U.S. 702, 721 (1997)).
¶ 38 We find respondent‘s contention that a fundamental interest is at stake
¶ 39 In the juvenile context, our supreme court in In re J.W., 204 Ill. 2d 50, 67 (2003), observed with respect to a substantive due process challenge to SORA that the respondent “does not argue, nor do we find, that” SORA violated the juvenile respondent‘s substantive due process rights in requiring him to register as a sex offender, and it upheld the law under rational basis review. See also People v. Adams, 144 Ill. 2d 381, 390 (1991) (holding that SORA registration was reasonable and rationally related to the interest of protecting children); People v. Malchow, 193 Ill. 2d 413, 425-26 (2000) (finding that SORA and the Notification Law did not violate the state or federal right to privacy).
¶ 40 This court followed In re J.W. in ruling that “the supreme court first noted that the respondent did not argue, and it did not find, that the Registration Act affected a fundamental right.” In re J.R., 341 Ill. App. 3d 784, 792 (2003). Accordingly, the In re J.R. court did not apply strict scrutiny analysis to the juvenile respondent‘s substantive due process challenge to SORA and the Notification Law, and it upheld the laws under the rational basis standard. Id. at 792-94.
¶ 41 Similarly, in In re T.C., 384 Ill. App. 3d 870, 874 (2008), the juvenile respondent argued the SORA deprived him of a protected liberty interest, where he was a “sexual predator” required to register for natural life. The court held that these provisions did not implicate a protected liberty interest as the respondent failed to show “how such registration requirements deprived him of his right to be free from physical restraints, to be free in the enjoyment of his faculties, and to live and work where he will,” and he was therefore not entitled to the procedural safeguard of a jury trial on that issue. Id. at 874-75.
¶ 42 More recently, in Avila-Briones, the defendant challenged several provisions in SORA and the Notification Law on substantive due process grounds, and this court observed that “the weight of authority shows that laws similar to the Statutory Scheme do not affect fundamental rights. Our supreme court has stated that SORA does nоt affect fundamental rights.” Avila-Briones, 2015 IL App (1st) 132221, ¶ 74 (citing In re J.W., 204 Ill. 2d at 67). With respect to the Notification Law, this court observed that “our supreme court has held that Internet dissemination of sex offenders’ personal information does not impact fundamental rights because the right to be free from the shame, stigma and embarrassment resulting from a conviction for sexually abusing a child is not the kind of fundamental right contemplated by our constitution.” (Internal
¶ 43 Accordingly, in keeping with the binding precedential decisions of our supreme court, and in light of persuasive and on-point decisions from our appellate court, we rejеct respondent‘s argument that a fundamental right is at stake here. Strict scrutiny analysis is not appropriate. “It is well-settled that when our supreme court has declared law on any point, only [the supreme court] can modify or overrule its previous decisions, and all lower courts are bound to follow supreme court precedent until such precedent is changed by the supreme court.” Rosewood Care Center, Inc. v. Caterpillar, Inc., 366 Ill. App. 3d 730, 734 (2006), aff‘d on other grounds, 226 Ill. 2d 559 (2007).
¶ 44 We also reject respondent‘s claim that there is a heightened right of privacy for juvenile offenders embodied in the Juvenile Court Act of 1987 (
¶ 45 Along the same lines, we also disagree with respondent‘s contention that the challenged provisions violate a right to happiness or reputation. His citation to Wisconsin v. Constantineau, 400 U.S. 433, 436-37 (1971), does not apply, as that case involved a procedural due process claim and the statute at issue, which permitted posting а sign prohibiting liquor stores from selling to individuals the sheriff deemed excessive drinkers, was unconstitutional as it provided for no notice or a hearing.
¶ 46 Respondent also attempts to establish that injury to reputation coupled with the loss of future or present employment may establish a due process violation, citing Lyon v. Department of Children & Family Services, 209 Ill. 2d 264, 273 (2004). However, respondent‘s claim of impairment to his educational interests and employment opportunities is speculative, unlike in Lyon, where the issue was whether listing an indicated report about a teacher on the Department of Children and Family Services central register violated due process where he lost two teaching positions after the report was posted. Id. at 273-74. Moreover, this court has determined that subjecting juveniles to registration does not impair the right to reputation, as it compiles truthful, accurate information, and any stigma suffered “is a result of the offender‘s status as being adjudicated as a delinquent sex offender and not as a direct result of the notification.” In re J.R., 341 Ill. App. 3d at 799; see also Paul, 424 U.S. at 710-12 (no deprivation of a рrotectable liberty or property interest occurs by damage to reputation alone, without some accompanying alteration to “a right or status previous recognized by state law“).
¶ 47 Respondent also relies on numerous cases from foreign jurisdictions in support of his argument. However, we decline to follow them. See In re J.B., 107 A.3d 1, 16-17 (Pa. 2014) (involving a specific “right to reputation” as recognized in Pennsylvania‘s constitution). Clearly, cases from foreign jurisdictions are not precedential or binding on this court. Kostal v. Pinkus Dermatopathology Laboratory, P.C., 357 Ill. App. 3d 381, 395 (2005). Although comparable decisions from other jurisdictions may be considered for their persuasive value, “[w]hen there is Illinois case law directly on point, we need not look to case law from other states for guidance,” when we have our own precedent to follow. Id.
¶ 48
ii. Rational Basis
¶ 49 To satisfy the rational basis test, ” ‘a statute need only bear a rational relationship to the purpose the legislature sought to accomplish in enacting the statute.’ ” In re J.R., 341 Ill. App. 3d at 791-92 (quoting In re J.W., 204 Ill. 2d at 67). Accordingly, a stаtute will be upheld where it bears a reasonable relationship to the public interest intended
¶ 50 Relying on a 2014 report by the Illinois Juvenile Justice Commission,7 respondent and amici contend that SORA and the Notification Law provisions no longer bear a rational relationship to the purposes they are intended to serve, i.e., protecting the public, because the offense-based, categorical registration requirements are over-inclusive and counterproductive to rehabilitation of juvenile delinquents. They argue instead for an individualized determination of risk before subjecting a juvenile to registration and notification requirements.
¶ 51 The commission‘s report found that adjudicated juvenile sexual offenders have a low risk of reoffending. The report concluded that subjecting juvenile sexual offenders to Illinois‘s registration laws without regard to risk did not enhance public safety and could undermine juveniles’ efforts toward rehabilitation. Illinоis Juvenile Justice Commission, Improving Illinois’ Response to Sexual Offenses Committed by Youth, at 4. The report indicates that Illinois and 19 other states use a categorical (offense-classification based) system of registration, and Illinois‘s registry laws do not consider the juvenile‘s age at the time of the offense or other individual characteristics. Id. at 52.
¶ 52 Regardless of the conclusions outlined in the Commission‘s report, it is, of course, not binding precedent on this court. We are bound to follow our supreme court‘s decision in In re J.W., which determined that SORA and the Notification Law did not violate substantive due process as they are rationally related to the legitimate government interest of protecting the public and they constitute a reasonable means of accomplishing this goal. Rosewood Care Center, 366 Ill. App. 3d at 734. ” ‘[W]hether the legislature will act on the Commission‘s recommendations remains to be seen. Unless and until that happens, In re J.W. guides the analysis of the issue of whether the Act‘s provisions bear a rational relationship to the protection of the public.’ ” In re Maurice D., 2015 IL App (4th) 130323, ¶ 38 (quoting In re M.A., 2014 IL App (1st) 132540, ¶ 42, aff‘d in part & rev‘d in part, 2015 IL 118049). Respondеnt‘s policy arguments more properly belong to the province of the legislature. “It is best left to the legislature and not the courts to determine whether a statute is wise or whether it is the best means to achieve the desired result.” In re J.W., 204 Ill. 2d at 72.
¶ 53 Accordingly, our analysis is directed by In re J.W., in which our supreme court found that requiring a 12-year-old juvenile to register as a sex offender for his natural life did not violate substantive due process. In re J.W., 204 Ill. 2d at 66, 72. Similar to respondent in the case at bar, the juvenile respondent in In re J.W. argued that registration was unreasonable because juveniles were less culpable and more amenable to treatment and rehabilitation than adults. Id. at 68. The Illinois Supreme Court reiterated that SORA was rationally related to the public interest of protecting children and there was “nothing unreasonable in the statute‘s
¶ 54 We are also guided by this court‘s decision in In re J.R., where this court followed the principles set forth in In re J.W. in holding that SORA and the Notification Law did not violate substantive due process. In re J.R., 341 Ill. App. 3d at 791. The juvenile respondent in In re J.R., like respondent here, challenged the mandatory registration and disclosure of offender information without an assessment of whether the offender was a continuing danger. Id. This court held that a rational relationship existed between registration of juvenile sex offenders and disclosure of their information and protection of the public. Id. at 793-94. The court noted that whether “therе are better means to achieve this purpose, such as further limiting the time frame during which disclosure may occur, is a matter better left to the legislature.” Id.
¶ 55 Respondent argues that SORA and the Notification Law have been amended since these cases were decided and the “2013” versions contain additional provisions, the constitutionality of which has not yet been scrutinized by the courts. However, the amendments to SORA and the Notification Law generally extend even more protection to juvenile offenders. The Illinois Supreme Court found that the 2007 amendments to SORA:
“significantly reduce[d] the impact of the minor‘s registration requirement. Public Act 95-658 eliminated the provisions that would have required the minor to register as an adult when he reached 17 years of age. See Pub. Act 95-658, § 5, eff. October 11, 2007 (amending
730 ILCS 150/2(A)(5) ,3(a) ). The minor‘s registration information will, therefore, be available only to a very limited group of people, including individuals whose ‘safety may be compromised for some reason’ by him, and the principal, chief administrative officer, or guidancе counselor of a school he attends.730 ILCS 152/121 (West Supp. 2007). In contrast, the adult registry provides for wide dissemination of registration information to the public. See730 ILCS 152/120(c) ,(d) (West Supp. 2007).The minor may also petition for termination of his registration after five years. Pub. Act 95-658, § 5, eff. October 11, 2007 (adding
730 ILCS 150/3-5(c) ). The right to petition for termination is not available to adults.” People ex rel. Birkett v. Konetski, 233 Ill. 2d 185, 203 (2009).
¶ 56 As our supreme court observed in In re M.A., the termination provision in
¶ 57 Contrary to respondent‘s contention, these amendments demonstrate that our legislature already accounted for in the act that juveniles are different from adults. Their information is not made publicly available on the Internet, they are not required to register as adults once reaching 17 years of age, and they may petition for termination of registration after five years. The fact that their information is provided to their school and anyone else whose safety may be compromised constitutes a reasonable method of protecting the public. Accordingly, we find respondent has not shown that SORA and the Notification Law violate substantive due process under the rational basis test. They are rationally related to the purpose of protection of the public from sexual offenders and constitute a reasonable means of accomplishing this goal.
F. Procedural Due Process
¶ 58
¶ 59 Respondent next argues that requiring juveniles to register upon adjudication of specified sex offenses without first providing an individualized determination regarding risk level violates procedural due process. Respondent cites recent cases from the United States Supreme Court which have emphasized the unique characteristics of juvenile offenders. See Miller v. Alabama, 567 U.S. 460, 132 S. Ct. 2455 (2012) (finding that mandatory life imprisonment without рarole where the offense was committed as a juvenile violates eighth amendment); Graham v. Florida, 560 U.S. 48 (2010) (holding that sentence of life without parole for non-homicide crimes committed as a juvenile violated eighth amendment); Roper v. Simmons, 543 U.S. 551 (2005) (finding that the imposition of the death penalty on individuals who commit offenses as juveniles violated eighth and fourteenth amendments).
¶ 60 However, the eighth amendment analyses in these Supreme Court cases cannot support a due process challenge here. “A ruling on a specific flavor of constitutional claim may not justify a similar ruling brought pursuant to another constitutional provision.” People v. Patterson, 2014 IL 115102, ¶ 97 (reh‘g denied Jan. 26, 2015), cert. denied, 577 U.S. 936, 136 S. Ct. 399 (2015) (where the defendant cited the eighth amendment analyses in Roper, Graham, and Miller in challenging the Illinois automatic transfer statute, the court found that due process and eighth amendment standards “differ considerably“). “[A] constitutional challenge raised under one theory cannot be supported by decisional law based purely on another provision.” Id. The reasoning in Patterson applies here, and we find respondent‘s reliance on these cases unavailing.
¶ 61 “A procedural due process claim challenges the cоnstitutionality of specific procedures used to deny a person‘s life, liberty or property.” In re M.A., 2015 IL 118049, ¶ 35. “The fundamental requirements of due process are notice of the proceeding and
¶ 62 Respondent refers to the liberty interests at stake as those he previously identified in his substantive due process challenge, discussed supra, and he argues that the opportunity to petition for termination of registration after five years fails to protect these interests because this time period is essential for juvenile development and, as in this case, he posed no threat to society at the time of disposition. He contends that additional procedural safeguards would ensure efficient use of state resоurces and would not place a financial or administrative burden on the State.
¶ 63 As previously stated, however, SORA and the Notification Law do not implicate protected liberty or property interests. See Cornelius, 213 Ill. 2d at 204; In re J.W., 204 Ill. 2d at 67; Malchow, 193 Ill. 2d at 425-26; In re J.R., 341 Ill. App. 3d at 792; In re T.C., 384 Ill. App. 3d at 874-75; Avila-Briones, 2015 IL App (1st) 132221, ¶ 74. Moreover, our supreme court in Konetski, 233 Ill. 2d at 200-01, rejected the argument that requiring all juvenile offenders to register, without an initial and individualized determination of risk, violates procedural due process.
¶ 64 In Konetski, the juvenile respondent contended that the various registration obligations of SORA constrained his liberty interests and he was entitled to the additional procedural safeguard of a jury trial. Konetski, 233 Ill. 2d at 200-01. Despite respondent‘s contention that his liberty interests are infringed, the Konetski court found that the ability to petition for termination of registration after five years and the limited dissemination of registration information (that is, a minor is not required to register as an adult upon reaching the age of 17, he is not placed on the publicly available registry online, and his information is only available to his school and those whose safety may be at risk) “significantly reduce the impact” of the registration requirements on juveniles and did not violate any liberty interests. Konetski, 233 Ill. 2d at 203. In fact, the ability to petition for termination of registration after five years constituted an additional procedural safeguard not available to adult offenders. Id. As such, the Konetski court held that the provisions were “not sufficiently burdensome to mandate the additional procedural protection of a jury trial.” Id. The court observed that minors were afforded several key procedural safeguards in juvenile proceedings, such as the right to notice, to counsel, to confront witnesses, to avoid self-incrimination, and to be proven guilty beyond a reasonable doubt. Id. at 201-02. The court held the requirements were reasonable and the additional safeguards were “sufficient to satisfy the minor‘s constitutional right to procedural due process.” Id. at 206.8
¶
¶ 66 Additionally, as the State contends, whether the State‘s interest in public safety is served by inclusion of juveniles such as respondent on the registry is a matter more appropriately left to the legislature. ” ‘[T]he judiciary may not sit as a superlegislature to judge the wisdom or desirability of legislative policy determinations made in areas thаt neither affect fundamental rights nor proceed along suspect lines ***.’ [Citation.] ‘A statute is not invalid under the Constitution because it might have gone farther than it did.’ [Citaiton.] ” In re M.A., 2015 IL 118049, ¶ 70. We also conclude that the registration and notification provisions accord with the purposes of the Juvenile Court Act, which include rehabilitation of minors, protecting the public from juvenile crime, and holding juvenile offenders accountable. It is appropriate to apply SORA and the Notification Law to juveniles given their intent to protect the public. In re T.C., 384 Ill. App. 3d at 877 (citing In re J.W., 204 Ill. 2d at 70). Accordingly, we are bound by our supreme court‘s decisions finding that SORA and the Notification
G. Eighth Amendment and Proportionate Penalties Clause
¶ 67
¶ 68 In his final claim, respondent raises eighth amendment and proportionate penalties challenges on appeal, arguing that the “2013 SORNA” laws are more onerous and punitive than the versions previously considered by our supreme court.
¶ 69 “The cruel and unusual punishment clause of the United Statеs Constitution, which is made applicable to the states through the fourteenth amendment, provides that ‘[e]xcessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.’ ” Maurice, 2015 IL App (4th) 130323, ¶ 25 (quoting
¶ 70 The Illinois Supreme Court has repeatedly held that SORA and the Notification Law do not constitute punishment. See Adams, 144 Ill. 2d at 387-89 (the duty to register under SORA did not constitute punishment as the law had the non-penal purpose of protecting children from sеxual crimes and aiding law enforcement in monitoring sexual offenders); Malchow, 193 Ill. 2d at 419-24 (rejecting the defendant‘s ex post facto challenge to SORA and the Notification Law and finding that their intent was protection of the public, not punishment); Cornelius, 213 Ill. 2d at 207-09 (holding that the amendment to the Notification Law providing for dissemination of sex offender information on the Internet did not violate ex post facto protections as it was nonpunitive); People v. Cardona, 2013 IL 114076, ¶ 24 (noting that sex offender registration is not punishment).10
¶ 72 Accordingly, the precedent from the Illinois Supreme Court clearly holds that SORA and the Notification Law are not punitive. Rosewood Care Center, 366 Ill. App. 3d at 734. However, respondent invites this court to analyze the current provisions under the test set forth in Kennedy v. Mendoza-Martinez, 372 U.S. 144 (1963), arguing that recent amendments have a punitive effect because they expand who must register (
¶ 73 Under the Mendoza-Martinez test, the court examines seven factors in determining whether a civil statue has a punitive effect:
“(1) whether the sanction involves an affirmative disability or restraint; (2) whether the sanction has been historically regarded as punishment; (3) whether the sanction comes into play only on a finding of scienter; (4) whether operation of the sanction will promote retribution and deterrence; (5) whether the behavior to which the sanction applies is already a crime; (6) whether an alternative purpose to which the sanction may rationally be connected is assignable to it; and (7) whether the sanction appears excessive in relation to the alternative purpose assigned.” People v Fredericks, 2014 IL App (1st) 122122, 58 (citing Malchow, 193 Ill. 2d at 421 (citing Mendoza-Martinez, 372 U.S. at 168-69)).
Respondent must demonstrate the punitive effect of the challenged provisions by “the clearest proof.” (Internal quotation marks omitted.) Malchow, 193 Ill. 2d at 421.
¶ 74 Our supreme court analyzed the 1998 version of SORA and the Notification Law under the Mendoza-Martinez test in Malchow and concluded that the first four factors and the final two factors weighed in favor of finding the Notification Law nonpunitive, while only the fifth factor weighed in favor of the defendant. Malchow, 193 Ill. 2d at 421-24. The court held that the laws did not constitute an affirmative disability or restraint as they placed no restrictions on an offender‘s movements or
¶ 75 In Cornelius, the court upheld the Internet dissemination provision in the Notification Law, basing its analysis on Smith v. Doe, 538 U.S. 84 (2003), which concerned similar registration and notification laws in Alaska. Cornelius, 213 Ill. 2d at 207-09. In Smith, the United States Supreme Court held that, under the Mendoza-Martinez factors, Alaska‘s laws were nonpunitive as the laws did not create an affirmative disability or restraint because offenders were free to change jobs or residences, the laws did not promote the traditional aims of punishment, they bore a rational relationship to the nonpunitive purpose of public safety, and they were not excessive in relation to this purpose. Smith, 538 U.S. at 90-92, 98-103.
¶ 76 More recently, in Fredericks, 2014 IL App (1st) 122122, ¶¶ 58-61, our court undertook a Mendoza-Martinez analysis of a recent amendment to SORA which provided that a sex offender convicted of any subsequent felony was required to register for life and concluded that the sex offender registration scheme has not transformed into a punishment since Malchow. Id. ¶ 58. The court noted that retroactive application of lifetime sex offender registration to the defendant “appears more punitive” because his sex offense conviction occurred in 1999 and he had already cоmpleted a 10-year registration period without reoffending, but he was now required to register for life because of a recent drug offense conviction. Id. ¶ 59. Nevertheless, the court held that it was still bound by Malchow and concluded that SORA had not become punitive because it served the purpose of protecting the public from sex offenders while limiting application to those who commit a new felony. Id. ¶¶ 60-61.
¶ 77 In the case at bar, we conclude that we are bound by our supreme court‘s decisions in Malchow and Cornelius and we do not find a punitive intent behind the challenged provisions in SORA and the Notification Law. As noted in Malchow, defendant‘s speculation “about the collateral consequences of community notification” is not relevant to whether the laws place ”an affirmative disability or restraint on sex offenders.” (Emphasis in original.) Malchow, 193 Ill. 2d at 422. Although he contends that SORA and the Notification Law have evolved to become more punitive, these changes reflect social changes and do not manifest a punitive bent. We acknowledge that the scope of who must register has expanded to include those who commit certain “precursor” crimes and the time period for registration was shortened. However, these changes reflect an awareness that such crimes demonstrate a heightened danger of future harm and the shortened time period reflects an individual‘s increased mobility, both of which are rationally related to protecting the public by closely monitoring convicted sex offenders.
¶ 78 Respondent also complains that a sex offender must provide more information, such as social media information, but this simply demonstrates the legislature‘s recognition that society has become increasingly digital since 1998. We also find no punitive purpose behind the registration fees, as a waiver is available in case of
¶ 79 As we find no punitive intent behind the challenged provisions, we also reject respondent‘s contentions that he was subjected to cruel and unusual and grossly disproportionate punishment. “Only governmental action that inflicts ‘punishment’ may be restricted by the eighth amendment and the proportionate penalties clause.” Avila-Briones, 2015 IL App (1st) 132221, ¶ 46. We are not persuaded that the challenged provisions here are similar to subjecting a juvenile to mandatory life-without-parole imprisonment like the juvenile in Miller, 567 U.S. at 132 S. Ct. at 2470. Our supreme court has rejected the argument that, considering the unique characteristics of juveniles as recognized by United States Supreme Court cases such as Roper, 543 U.S. 551, registration requirements transform into punishment when applied to minors. Konetski, 233 Ill. 2d at 207. The record does not support that respondent was subjected to grossly disproportionate punishment. His registration and notification requirements are not the same as the punishment of lifetime incarceration.
III. CONCLUSION
¶ 80
¶ 81 For the reasons stated above, we affirm respondent‘s finding of delinquency and sentence requiring his registration as a sex offender and his continued compliance with the notification laws.
¶ 82 Affirmed.
¶ 83 JUSTICE GORDON, concurring in part and dissenting in part.
¶ 84 The majority concludes that respondent lacks standing to challenge the penalty provision of the registration acts and then proceeds to consider the constitutionality of these same acts. This makes no sense to me, and I must respectfully dissent from the majority‘s section on standing. I concur in the majority‘s ultimate holding, but I dissent from the majority‘s conclusion that respondent lacks standing to challenge the penalty provision.
¶ 85 What respondent did, he did under threat of the penalty provision. But for the penalty provision, he would have lacked any incentive to register. Thus, if he has standing to challenge the other provisions, he must have standing to challenge this provision as well.
¶ 86 The State argues that respondent does not have standing because no penalty has yet been imposed. The purpose of standing is to ensure that courts are deciding actual, specific controversies and not abstract or moot issues. Borsellino v. Putnam, 2011 IL App (1st) 102242, ¶ 90. “To have standing to challenge the constitutionality of a statute, a person must have suffered or be in immediate danger of suffering a direct injury as a result of [the] enforcement of the challenged statute.” (Emphasis added.) People v. Greco, 204 Ill. 2d 400, 409 (2003). Thus, one cannot separate a statute from its enforcement mechanism.
¶ 87 For a person to have standing, his or her claimed injury: (1) must be fairly traceable to a resрondent‘s actions; (2) must be substantially likely to be prevented or redressed by the grant of the requested relief; and (3) must consist of a distinct and palpable injury. Burnette v. Stroger, 389 Ill. App. 3d 321, 331 (2009). In the case at bar, (1) respondent registered only due to the threat of the penalty provision; (2) the requested relief, which is the striking of this provision, would redress the problem because then there would be no consequence and, hence, no reason to register; and (3) the distinct and palpable injury is the ramification of being identified as a juvenile sex offender. Thus, respondent has satisfied the requirements for standing.
¶ 88 In sum, I would conclude that respondent does, in fact, have standing to challenge the penalty provision and that this is what permits us to proceed to consider the constitutional issue. Thus, I must respectfully dissent from the majority‘s discussion of standing, although I concur with the majority‘s ultimate holding.