*1 (No. 88228 . ILLINOIS, Appel- OF THE STATE OF
THE PEOPLE MALCHOW, Appellant. lee, CARL Rehearing denied September Opinion 2000 . filed 27, 2000. November *2 dissenting. HEIPLE, J., Will, Jr., Waukegan, appellant.
Robert P. General, Springfield, Ryan, Attorney E. James (Joel Waller, Waukegan D. Attorney, of Michael J. State’s General, L. Bertocchi, and William Browers Solicitor General, of Jay Hoffmann, Attorneys Assistant Paul counsel), People. for the Chicago, *3 of the court: opinion RATHJE delivered the JUSTICE defendant has met At in is whether appeal issue this Registra- Offender showing his Sex burden (West Act) (730 et seq. ILCS (Registration tion Act 150/1 1998)) Murderer Com- Offender and Child and the Sex (730 Law) (Notification Law ILCS munity Notification (West 1998)) We are unconstitutional. seq. et 152/101 he has not. hold that
BACKGROUND defendant, 1997, indicted 17, the State On December register as a Malchow, of failure to Carl with one count 1998)). The State sex offender 150/10 a sex register to required was that defendant alleged aggravated his conviction of because of offender (Ill. criminal sexual abuse Rev. Stat. ch. par. 16). Defendant moved to declare the Registration 12— Act and the Notification Law unconstitutional. The trial court denied the motion. a Following bench stipulated trial, the court found defendant guilty. court sentenced him months’ conditional and discharge fined him Defendant $500. and appealed, the appellate court affirmed defendant’s conviction. The court reaf firmed its in holding People earlier Logan, 302 Ill. App. (1998), 3d 319 Act and the Notifica tion Law are constitutional. 3d App. Ill. 665. The court, however, reversed defendant’s sentence because it illegal was and void. Because the trial court failed to sentence defendant to the mandatory minimum of seven days’ county confinement jail, the appellate court remanded the cause resentencing. for App. We granted 676. defendant’s for petition leave to appeal to determine whether Act and the Notification Law are constitutional. Act and the
Notification are unconstitutional for the following (1) reasons: they violate the prohibition constitutional (2) laws; the ex post application they facto cruel, unusual, impose and disproportionate punishment; (3) they a impermissibly infringe upon person’s right (4) privacy; they subject defendant to double jeopardy; (5) they process violate the due and protection equal (6) clauses; Public Act which made the 89— Registration Act and Notification Law applicable de fendant, passed single was violation of the subject (Ill. clause of the Illinois Constitution Const. art. 8(d)). §1V
The Registration Act and Notification out Law set scheme comprehensive providing registration community notification of offenders. Pursuant to the *4 (730 Act, all are sex persons who offenders 1998)) 150/2(A) (West required are under the Act ILCS (730 officials ILCS local law enforcement register with to (West 1998)). includes sex offenders category The of 150/3 of who is convicted one any person as a who is certified sex offenses or Act’s enumerated Sexually to the pursuant sexually dangerous person (West et seq. Dangerous Persons 205/0.01 1998)). identification and registrant must provide
The at of residence proof that substantiates documentation registration and must a registering pay address $10 150/3(c)(6) fee.1 730 ILCS annual renewal fee and $5 1998). (West Additionally, registrant must provide statement, registration may also and signed written registrant’s fingerprints photograph. include the 1998). (West must law Registrants keep ILCS 150/8 change of in address officials notified enforcement law periodically to appropriate and must report 1998). (West The agency. 730 ILCS enforcement 150/6 conviction, or, for after a duty register years lasts who is released sexually dangerous person case no and dis- longer sexually dangerous or found to be for or her natural life. 730 ILCS charged, the rest of his 1998). (West Registra- comply Failure to with 150/7 (West 1998). 4 felony. Act is a Class 730 ILCS tion 150/10 Law, the Department to the Notification Pursuant maintain a sex offender Police is required State identifying for sex offenders and database the purpose persons to the information about them available making in the Act. 730 ILCS specified 152/115 agency responsible enforcement law appropriate birth, name, address, date of and offense disclosing the register adjudication of all sex offenders required or information is to the Act. The pursuant board, and child principals, disclosed to the school school challenge to these fees. 1Defendant raises no constitutional *5 418
care facilities in the county where the offender
resides.
152/120(a) (West 1998).
730 ILCS
Additionally,
that same
information
may
disclosed to
person likely to
(West
152/120(b)
encounter
a sex offender
1998)), and the information
is also made available for
public
at
inspection
municipal police
and
departments
152/120(c)
county
sheriffs offices. 730 ILCS
ANALYSIS
Standard of Review
A statute is presumed constitutional,
and the party
challenging the statute
bears
burden of demonstrat
K.C.,
In
(1999).
re
ing
its
invalidity.
542,
186
2d
Ill.
550
This court has
duty
a
to construe a
statute
a manner
that upholds
validity
its
and constitutionality
if it can be
People
Fisher,
v.
reasonably
done.
184
441,
Ill. 2d
448
(1998). Whether a statute is constitutional
is a question
Fisher,
law that we review de novo.
Ex Post Facto Law first Registration Act and the Notification Law violate the constitutional prohibi ex post tions Const., I, laws. See U.S. art. facto 10; §§ I, § Ill. Const. art. 16. These constitutional Congress restrain legislatures and the state from enacting or arbitrary legislation vindictive and as sure that give statutes fair warning of their effect. Fletcher Williams, (1997). v. 179 Ill. 229 2d A law is ex if post it is both retroactive disadvantageous and facto Fletcher, to the defendant. Ill. 2d at A 230. law dis a advantages defendant if it criminalizes an act that was done, innocent when increases the punishment for a previously offense, committed or alters the rules of evi Franklin, v. People by making dence conviction easier. 2d There no Registration Act question the Notification Law At have retroactive effect. the time register offense, required he was of defendant’s Act issue of the at the version offender. Under register. See 730 ILCS case, required he this 150/ 3(c)(2) (West 1998). 2(A)(1), (B)(1), contends that Defendant further they disadvantage him because the Notification offen committed previously increase question turns on the of this contention Resolution ses. Act and of whether the provisions In People punishment. Law constitute Notification ver Adams, (1991), upheld we an earlier 144 Ill. decision, we As part sion of the Act. is not register sex offenders requiring held *6 2d does 144 Ill. at 386-90. Adams punishment. Adams, however, argument, of defendant’s dispose not completely were community notification because of that We thus consider in effect at the time decision. as it relates to post argument defendant’s ex facto Law. Notification Hendricks, 346, L. Ed. 2d
In Kansas v.
521 U.S.
138
501,
(1997),
Supreme
S. Ct. 2072
the United States
117
Violent
Sexually
considered
Kansas’
Court
whether
The defendant
punishment.
Predator
constituted
ex
argued
post
that the Kansas law violated the
that case
punishment
it
clause because
additional
imposed
facto
already been convicted
conduct for which he had
past
for
Supreme
prison
and forced to serve
sentence.
intent
legislative
behind
Court first considered
intended to cre-
legislature
held that the Kansas
law and
Hendricks,
commitment
at
521 U.S.
ate
civil
scheme.
at 2082. The
L. Ed.
at
117 S. Ct.
2d
to deter-
then examined
factors
Court
several
Supreme
its
effect
punitive
despite
mine
had a
whether
law
not. Hen-
intent,
it did
and concluded
nonpunitive
515-19,
at
Ed. 2d
dricks,
362-69,
at
138 L.
521 U.S.
have used
states
Subsequently,
Ct. at 2082-85.
several
S.
the “intent-effects”
test
to determine whether
of
fender
registration
notification laws amount
and/or
post
in violation of
ex
See,
clause.
facto
e.g., Keller v. Fayetteville Police Department, 339 Ark.
274, 5
v.
(1999);
S.W.3d 402
People
Logan,
Ill. App.
Pickens,
State v.
(1998);
327-31
We first consider
the legislative
intent behind the
In Adams,
Notification
Law.
we
legislature’s
held that the
intent
in requiring registration
of sex offenders was to
create an additional measure of
protection
children
from the increasing incidence of sexual assault and child
Adams,
abuse.
ern day equivalent of “branding shaming,” “historically, stigmatization and banishment have been considered punitive measures.” A reading of the simple shows, act however, the intent of the Notification stigmatize Law is not to and shame sex Rather, offenders. the Act carefully tailored so that the information disseminated in such a way protect public. The name, address, birth, date of adjudication and offense or *7 of sex is given offenders to school boards and child care Additionally, facilities. the information may given be anyone likely Otherwise, to encounter a sex offender. the information, already which is a record, matter public kept is at law enforcement and is headquarters available on request. The limited the dissemination of information clearly demonstrates that the Notification Law in- is tended to protect the rather than to of- public punish fenders.
421
pu-
to create a
intent
is not
legislature’s
if the
Even
legislature’s
scheme, in certain circumstances
nitive
challenging
disregarded
party
where
be
intent will
“the clearest
by
proof”
demonstrates
statute
it
negates
effect is so punitive
statute’s
361, 138 L.
Hendricks,
U.S. at
intent.
legislature’s
S.
at 2082.
Ed.
at
117 Ct.
2d
to the factors enunci
have
looked
generally
Courts
Mendoza-Martinez,
144, 9 L.
372 U.S.
Kennedy
in
v.
ated
(1963),
a
to determine whether
Ed. 2d
nextWe consider whether notification traditionally regarded punishment. has been as Defen- historically, stigmatization that, dant and banish- punitive Although ment have been considered measures. may provide true, the Notification Law does not “stigmatization provides Rather, and banishment.” it public for a limited dissemination matters record to likely boards, facilities, school child care and those clearly encounter sex offenders. This limited distribution analogous stigmatization penalties is not such as branding, stockading, pillorying, Further, or banishment. “[dissemination of such information has never been regarded punishment when done in furtherance aof legitimate governmental Verniero, interest.” E.B. (3d F.3d 1099-1100 Cir.
The next factor is whether the Law has Notification requirement. only Clearly a scienter it does not. The requirement for the ef- notification become fective munity. Accordingly, that the offender is into the released com- puni-
this factor does not indicate tive intent. community notification whether next consider
We of deterrence goals the traditional promotes that the we believe previously, As stated and retribution. the Notification passing intention in legislature’s offenders. from sex public was protection *9 likely to encounter to those release of information limited “retribu- characterized as hardly could be offenders that factor, it the possible is As to the deterrence tion.” However, effect. have a deterrent Notification Law would from com- already not deterred unlikely those it is that lengthy prison of a possibility the mitting by sex offenses of com- by possibility be deterred the additional term will an obvious deterrent Moreover, notification. even munity Depart- necessarily punitive. not make law does purpose Ranch, U.S. ment Revenue Kurth of 1937, 1946 We L. 114 S. Ct. Ed. public of the protection the statute’s is purpose believe either retribu- significantly promote and that it does tion or deterrence. Law factor ap-
The next is whether Notification criminal. factor already This plies to behavior is are of weighs appropriate people favor defendant. crimi- only those have committed people notified of who nal actions. is some purpose
The sixth factor is whether there rationally associated punishment, other than that can above, with set out we believe the Notifica- the law. As purpose protection tion Law on its face that its shows rather punishment. than public in re- The final factor whether the law is excessive words, In other we to its purpose. lation alternative of the Notification consider whether goal protecting are in relation excessive stated, the already As Notifica- from sex offenders. public about of information compilation tion Law for a provides of that infor- a limited distribution sex offenders and for Further, mation. the information disseminated applies only to those people required to register offenders, as sex and the registration requirement for most offenders (see after years terminates 730 ILCS 150/7 1998)). We do not believe that legislature has chosen excessive measures its implement goal protecting from sex public offenders. sum,
In we conclude that defendant has not met his of showing burden the Notification Law has such a punitive effect the legislature’s intent to create a nonpunitive may scheme be disregarded. After consider ing all of factors, the relevant we conclude that requirements the Notification Law are nonpunitive. We have held previously requiring sex offenders to register does not Adams, punishment. constitute 2d at 386-90. Accordingly, defendant has not been subjected to additional com previously and his ex post offense, mitted claim must therefore facto fail.
Cruel, Unusual, and Disproportionate Punishment Defendant next contends that and the Notification Law prohi violate the constitutional (U.S. bition cruel and unusual VIII). In Adams, Const., amend. we an rejected eighth challenge Act, amendment to the Registration and held registration that of sex was punishment. offenders not Adams, 144 determined Ill. 2d at We 386-90. above that the Notification Law does not punishment. constitute Ac cordingly, defendant’s must argument fail. also argues
Defendant the Registration Act violates the of the Illinois provision Constitution that, “All shall provides penalties be determined both ac to the cording seriousness offense and with the objective of the offender to restoring useful citizenship” (Ill. 11). 1970, I, § Const. art. Defendant out that points to a failing register felony sex offender is a Class (West can (730 penalty 1998)), and that this ILCS 150/10 sex offenders whose to those be applied potentially A a misde only Class was for conviction underlying 1998)). 150/2(B)(1.7) Defendant meanor not may A argument. party to this standing no make has a of the stat challenge provision to a raise constitutional Rogers, 133 People v. not him or her. that does affect ute conviction underlying Defendant’s 2d Ill. standing to thus lacks felony, and he for Class was make claim. this Privacy to
Right Registration Act and Defendant next infringe upon impermissibly the Notification in the right implied privacy to constitutional (see Ser Carey Population v. States Constitution United 678, 684, 52 L. Ed. 2d International, 431 U.S. vices (1977)) provided 2010, 2016 and explicitly 97 S. Ct. (Ill. I, art. Illinois Const. Constitution the United States Con right § The under privacy deci apply personal interpreted stitution has been contraception, involving marriage, procreation, sions and education. rearing and child family relationships, 684, 97 Ct. 684-85, at 52 L. Ed. 2d at S. Carey, 431 U.S. 2016; at 333-34. informa App. at 302 Ill. 3d Logan, under contends should be disclosed tion defendant recognized not within of these the Notification Law is right areas of the to privacy. Illinois right also under the Consti has of privacy. free from unreasonable invasions
tution to be “goes beyond constitution federal This our provision a zone guarantees by recognizing expressly constitutional “broadly this is stated personal privacy” provision Walton, restrictions.” Kunkel and without *11 (1997). however, affords protec provision, 537 This privacy. invasions tion unreasonable only Kunkel, Ill. 2d at 538.
Defendant has failed to meet his burden of demon strating that the Registration Act and Notification Law are invalid under privacy the clause of the Illinois Con stitution. Defendant devotes three short to sentences about arguing right the to privacy under the United States Constitution and never specifically with re to the spect Illinois Constitution. quotes Defendant the relevant constitutional provision at the beginning of his argument and never mentions it again. Defendant does not cite or discuss this court’s cases that have held right the to the privacy under Illinois Constitu tion is broader than its e.g., See, federal counterpart. Kunkel, In re May 1991 Will County 537; Ill. 2d at Jury, Grand 152 Ill. 2d fact, In beyond the from quotations the United States and Illinois Constitutions and the argument three sentence relating to the United States Constitution, defendant’s to right argument privacy of one consists convoluted paragraph a procedural seems process argument due a right rather than to privacy argument. earlier,
As constitutional, stated statute is presumed party challenging statute bears burden invalidity. K.C., demonstrating its A at 550. obviously cannot party meet burden of demonstrat ing a invalidity statute’s under the clause of the privacy Illinois Constitution merely by Ac quoting that clause. cordingly, defendant’s right challenge privacy Registration Act and the Notification Law must fail.
Double Jeopardy next argument makes brief subject Act and the of- Notification Law jeopardy by punishing fenders to double them a second time for an As have held that Registra- offense. we tion Act and the Notification are not we punitive, must this reject claim.
427 Equal Protection Due Process and and that the Act next Defendant and equal the due process violate the Notification and Illinois the United States of protection provisions of these conten- lumps both Constitutions. Three of those argument. seven-sentence tions into one States and from the United merely quotes sentences are amounts “argument” Defendant’s Illinois Constitutions. any absent Glaringly suggestion. to little more than Accordingly, defendant developed argument. reasoned or of showing his burden utterly satisfy has failed Law are uncon- Act and the Notification on these bases. stitutional Subject
Single 8, final Act Defendant’s contention that Public 89— such a way Act in which amended defendant, in violation of applied passed it was (Ill. Constitution single clause of the Illinois subject 8(d)). IV, on 1970, argument § Const. art. Defendant’s again very this issue is once brief. Defendant lists the amended Public Act 89—8 by various statutes were claims they single subject. and relate do not to a
In determining legislative whether a enactment was single subject clause, we passed violation of the in favor “subject” liberally construe the term of (1999). 1, v. 186 Ill. 8-9 The legislature. People Reedy, may legislature as the subject of a bill be as broad chooses, have a natu that the bill’s provided Edgar, 176 Ill. 2d ral and connection. Johnson v. logical (1997). Assembly single 515 violates the General one act subject only provi rule when it includes within sions that no fair have natural by interpretation subject. Arangold Corp. logical single connection Zehnder, Ill. 2d 354-55 187 “An Act relation to Act 89—8 was entitled Public amending matters, named criminal and correctional Acts.” Pub. Act off. March 1995. The Act 89 — (625 et amended the Illinois Vehicle Code ILCS 5/1 —100 (West seq. (705 1994)), Juvenile Act of Court seq. (West et 1994)), ILCS the Criminal of Code 405/1 —1 (720 (West seq. et 1994)), ILCS of Rights 5/1 —1 (725 et seq. Crime Victims Witnesses Act ILCS 120/1 (West (730 1994)), the Unified Code Corrections ILCS (West 1994)), et seq. the Medical Practice Act 5/1 —1—1 (225 (West et seq. 1994)), ILCS the Code of 60/1 (725 et seq. Criminal Procedure ILCS 5/100 —1 1994)), Jury Grand Statewide *13 et (West seq. 1994)), the Code of Civil Procedure 215/1 (735 (West 1994)), et seq. ILCS the Interstate 5/1 —101 (45 Agreements Sexually Dangerous on Persons Act ILCS (West 1994)), et seq. part 10.5 of the Civil 20/0.01 (20 et seq. Administrative Code of Illinois ILCS 2605/55a (West 1994)), Intergovernmental the Child Missing (325 et seq. Recovery 1994)), Act of ILCS 40/1 and the Child Sex Offender Act et seq. (West 1994)). 150/1 Wooters,
In People
(1999),
188 Ill. 2d
512-13
this court held that
the
could
legislature
pass legislation
acts,
long
that amended several
as the amendments
single
case,
related to the
of “crime.”
In
subject
that
however, we invalidated Public Act 89 —203
some
because
of the amendments
did not have
to the
any connection
Wooters,
of
subject
crime.
CONCLUSION Defendant has not demonstrated the Registra- tion Act and the Notification Law are unconstitutional. we affirm Accordingly, judgment appellate court. court
Appellate judgment affirmed. HEIPLE, JUSTICE dissenting: Because the Sex Registration Offender Act (Registra- Act) (730 (West 1998)) et tion seq. ILCS and the 150/1 Sex Offender and Community Child Murderer Notifica- (Notification Law) (730 tion Law et seq. ILCS 152/101 (West 1998)) unconstitutionally impose additional an upon already offender who has served his crime, sentence his I court-imposed dissent.
FACTS Following 20, 1998, a bench on March trial defendant of failing register was convicted as a sex offender as required by the Sex Offender 150/3(a)(2) 1998)). This conviction premised was 1988 conviction for aggravated crimi- defendant’s upon nal sexual abuse person age under of 18 (see 111. Stat. Rev. ch. For par. failing 12— with comply Registration Act, the trial court sentenced defendant discharge 18 months’ conditional addition, and fined him In defen- court ordered $500. comply dant to with the Act. argued
On defendant appeal, (1) inter alia: because, Act is unconstitutional it violates post ex clauses of the United States and Illinois facto (U.S. Const., I, 1; § art. Constitutions cl. Ill. Const. *15 (2) 16); subjects § to double defendant it I, art. and Illinois jeopardy the United States in violation (U.S. V; Ill. Const. Const., amend. Constitutions rejected appellate § defendant’s The court I, art. 306 111. arguments conviction. affirmed defendant’s appellate today majority App. affirms the 3d 665. The court.
DISCUSSION correctly majority defen observes, several of As the upon arguments depend this court or not whether dant’s punishment. Registration Act as characterizes the Registration holding Act does the 419. In that Ill. 2d at majority largely punishment, relies the not constitute People opinion upon Adams, 144 Ill. 2d in court’s this upheld an earlier ver case, this court In that holding requiring that Act after sion of the major register punishment. The not was sex offenders disposi completely ity notes, however, that Adams is community notifica bar, at because the tive of the case in Law were not effect of the Notification tion at 419. decision. 193 at the time of the Adams part upon in Indeed, Adams, this court relied holding community notification absence of cruel and unusual did not constitute Act punishment. This court held: registrant any stigma attaches to fail to see how
“We Al- already through his own actions. present is not conveyed to register, the information though required to crimi- concerning registrant’s officials law enforcement public record. history already in the nal available more information simply makes Furthermore, the law readily police. to the available disseminating community prohibited from enforcement pain criminal public large at on information ‘stigma’ requires The existence of a sanctions. transgressions past knowledge registrant’s it is a criminal conveyed general public. Since to the of- law convey this fense for enforcement officials informa public, tion to the it is unlikely the information registrant supplies will be public, distributed to the and so added.) stigma no (Emphasis attaches.” Adams, 144 Ill. 2d *16 at 389-90.
The facts of the instant case are much different from those Here, of Adams. pursuant to the provisions of the Notification Law and in stark contrast to the state of the law as it in Adams, existed law enforcement officials are affirmatively required to registrant’s disseminate personal information to numerous parties, including: school boards; school principals; and child care facilities. In addition, the Notification Law vests officials with the discretion to convey registration information to any person by deemed “likely” officials'to be to encounter any sex offender required register under the Registra- 152/120(b) (West 1998). tion Act. 730 ILCS Officials are further required to make information on registered sex offenders public available for inspection and copying. Finally, recent amendments to the Notification Law expressly authorize police to publish information concern- ing certain offenders, including the offenders’ photographs, television, on newspapers, or on In- (d) (West ternet. 152/120(c), 730 ILCS Supp. Together, the Registration Act and the Notification have Law the clear and effect unmistakable of imposing additional punishment an upon offender who has already tried, convicted, been and has served his lawful sentence. statutes, These by design, will often result in shame and ex-offenders, humiliation for causing significant hardship as they to reenter attempt society as useful citizens. Whether this shame and humiliation in the might, view some, be deserved is beside point. What matters is that the State already has had its opportunity to impose whatever measure of retribution against defendant criminal law allows. Once an offender has served his sentence, the must stop. Registra- Under punish- however, the Law, Act and the Notification tion long his has served after an offender ment continues have statutes of these such, As sentence. punishments of the historic with far more common branding the law enforcement than with and banishment Accordingly, approved I procedures in Adams. this court Registration Act and Notification hold that would jeop- subject unconstitutionally defendant to double ardy. at issue were addition, the statutes In because subsequent conviction for enacted aggravated to defendant’s application these abuse,
criminal sexual post prohibitions ex defendant violates laws to laws, as well. facto respectfully I therefore dissent.
(No. 87445 . Independent Adm’r of the NEADE, THERESE Anthony Appel- Neade, Deceased, Estate of Robert Appellants. lee, al., et v. STEVEN PORTES 26, 2000. Opinion October filed