People v. PepitonePeople v. Pepitone
- Reporters:
- , , ,
- Before:
- McDade, Holdridge, Carter
¶ 1 The defendant, Marc A. Pepitone, was convicted of being a child sex offender in a public park (
¶ 2 FACTS
¶ 3 On March 8, 2013, Bolingbrook police officer Steven Alexander was on patrol in Indian Boundary Park, which was maintained by the Bolingbrook Park District. Alexander noticed a green van parked across three parking spots, so he ran the registration on the vehicle. Alexander learned that the vehicle was registered to Pepitone, who had previously been convicted of a child sex offense. While Alexander was looking in the vehicle to determine if the defendant was inside, Pepitone returned with the dog he had been walking and asked the officer if something was wrong with the vehicle. Alexander told Pepitone that he was forbidden to be on park property. Pepitone stated that he was unaware of that ban. Alexander ultimately arrested Pepitone for the criminal offense of being a sex offender in a public park (
¶ 4 Pepitone was charged and filed a motion to dismiss alleging the statute was unconstitutional. The motion was denied.
¶ 5 At the jury trial on April 30, 2014, in addition to Alexander‘s testimony, the State introduced a certified copy of Pepitone‘s 1999 conviction for predatory criminal sexual assault of a child, for which he had been sentenced to six years of imprisonment. The jury found him guilty of being in the park, and he was sentenced to 24 months of conditional discharge, required to perform 100 hours of community service, and ordered to pay specified fines.
¶ 6 Pepitone moved for a new trial and reconsideration of the community service portion of his sentence. The circuit court denied the motion for a new trial and granted the motion to reconsider sentence. The defendant then appealed.
¶ 7 ANALYSIS
¶ 8 Pepitone‘s first argument on appeal is that
“the specific issue this Court must address under this argument is whether an all-out banishment, of all child sex offenders, from all public parks, including forest preserves and all conservation areas, at all times, regardless of the presence or even likely presence of persons under the age of 18, or of any person whatsoever, and for all remaining years of a child sex offender‘s life, is a reasonable means of achieving the
legislature‘s stated goal of ‘protect[ing] users of public parks from child sex offenders and sexual predators.’ ”
His claim is that
¶ 9 Pepitone alleges a violation of substantive due process. Our supreme court has stated:
“When confronted with a claim that a statute violates the due process guarantees of the United States and Illinois Constitutions, courts must first determine the nature of the right purportedly infringed upon by the statute. [Citation.] Where the statute does not affect a fundamental constitutional right, the test for determining whether the statute complies with substantive due process is the rational basis test. [Citation.] To satisfy this test, a statute need only bear a rational relationship to the purpose the legislature sought to accomplish in enacting the statute. [Citation.] Pursuant to this test, a statute will be upheld if it ‘bears a reasonable relationship to a public interest to be served, and the means adopted are a reasonable method of accomplishing the desired objective.’ [Citation.]” In re J.W., 204 Ill. 2d 50, 66-67 (2003).
¶ 10
¶ 11 It is clear that
¶ 12 The constitutionality of
¶ 13 In People v. Pollard, 2016 IL App (5th) 130514, the Fifth District considered the same substantive due process constitutional challenge reviewed by the Avila-Briones court. Id. ¶¶ 1, 19. When deciding whether statutes like
¶ 14 We are not persuaded by the rationale used in Avila-Briones and Pollard, which we perceive to be incomplete and truncated analyses of the issue. While we acknowledge that under the rational basis test, “[a] statute need not be the best means of accomplishing the stated objective” and “[i]f there is any conceivable set of facts that show a rational basis for the statute, the statute will be upheld” (In re M.A., 2015 IL 118049, ¶ 55), we also recognize that “[a]lthough this standard of review is quite deferential, it is not ‘toothless’ ” (People v. Jones, 223 Ill. 2d 569, 596 (2006)). As our supreme court stated in M.A., to pass constitutional muster under rational basis review, a statute must not be arbitrary or unreasonable. M.A., 2015 IL 118049, ¶ 55.
¶ 15 Of particular significance in the disposition of this case is a line of cases from our supreme court in which statutes were stuck down on substantive due process grounds because they were found to sweep too broadly in that they criminalized innocent conduct. In People v. Wick, 107 Ill. 2d 62 (1985), an aggravated arson statute that did not require an unlawful purpose in setting a fire was invalidated by the supreme court. Id. at 66. The Wick court held that the statute swept too broadly because it criminalized innocent conduct; under the statute, a farmer could be prosecuted for demolishing a deteriorated barn by fire if a firefighter was standing nearby and was injured by the fire. Id.
¶ 16 In People v. Zaremba, 158 Ill. 2d 36 (1994), the supreme court struck down a theft provision that criminalized obtaining or controlling property in law enforcement custody when law enforcement represents that the property was stolen. Id. at 39-40. The Zaremba court held that the provision did not require a culpable mental state and therefore criminalized innocent conduct (id. at 42), including, as the defendant pointed out, an evidence technician who was given stolen property by law enforcement for safekeeping (id. at 38-39). Thus, the court held that the statute was not reasonably related to its purpose of aiding law enforcement officers attempting to break up fencing operations. Id. at 42.
¶ 17 The supreme court struck down a statute that imposed absolute liability, inter alia, on anyone who damaged or removed any part of a vehicle without permission or who tampered with or entered a vehicle without permission to do so. In re K.C., 186 Ill. 2d 542, 545-50 (1999). The court held that the statute criminalized innocent conduct, including, for example, a person who entered someone else‘s vehicle simply to turn off headlights that had been left on, people who decorated a bride or groom‘s car for a wedding, and a person who got into a car accident. Id. at 552-53. In so ruling, the court acknowledged that “a statute violates the due process clauses of both the Illinois and the United States Constitutions if it potentially subjects wholly innocent conduct to criminal penalty without requiring a culpable mental state.” Id. at 551.
¶ 19 The supreme court also invalidated a statute that criminalized operating a vehicle that an individual knew contained a false or secret compartment or installing, creating, building, or fabricating such a compartment. People v. Carpenter, 228 Ill. 2d 250, 268 (2008). The court held that the statute criminalized innocent conduct because while it was aimed at punishing people who concealed firearms or contraband in false or secret compartments, it did not require the contents of the compartment to be illegal. Id. at 269. In so ruling, the court noted that the intent to conceal something from law enforcement need not entail illegal conduct and that individuals have a reasonable expectation of privacy with regard to their possessions and the containers in which those possessions are kept. Id. at 269-70.
¶ 20 These cases, while very different in their facts, are significant for our purposes because the statutes at issue, like
¶ 21 Further, the legislature has attempted to actually fit statutes in other instances within the purview of their stated government interest, including the related predecessor provision to the statute at issue in this case. The abandoned provision read:
“It is unlawful for a child sex offender to knowingly be present in any public park building or on real property comprising any public park when persons under the age of 18 are present in the building or on the grounds and to approach, contact, or communicate with a child under 18 years of age, unless the offender is a parent or guardian of a person under 18 years of age present in the building or on the grounds.” (Emphasis added.)
720 ILCS 5/11-9.4(a) (West 2010) (repealed by Pub. Act 96-1551 (eff. July 1, 2011)).
Without commenting on the constitutionality of this and other similar statutes, we note that at least the predecessor provision actually attempted to tie the child sex offender‘s presence to times when children were also present. See also People v. Stork, 305 Ill. App. 3d 714, 722 (1999) (holding that a statute prohibiting child sex offenders from being in school zones without permission proscribed only that specific conduct and did not reach innocent conduct as well). The legislature made no such attempt in
¶ 22 By contrast, the sweep of the current iteration of the statutory prohibition is extraordinary. At most,
¶ 23 Further, the statute also criminalizes substantial amounts of innocent conduct, including the walking of a dog. As appellate counsel for the defendant pointed out during oral arguments, the list of activities that routinely occur in public park buildings or on public park property, and in which individuals subject to this statute‘s ban cannot partake is extensive. These can include attending concerts, picnics, rallies, and Chicago Bears games at Soldier Field; or expeditions to the Field Museum, the Shedd Aquarium, the Art Institute, the Adler Planetarium, or the Museum of Science and Industry, all of which are public buildings on park land; bird-watching; photography; hunting; fishing; swimming at a public beach; walking along riverwalks; cycling on bike trails; hiking at Starved Rock; and the list goes on and on. We believe that this statute contains the type of overly broad sweep that doomed the statutes in Wick, Zaremba, K.C., Wright, and Carpenter. As our supreme court stated in Wright, “statutes that potentially punish innocent conduct violate due process principles because they are not reasonably designed to achieve their purposes.” Wright, 194 Ill. 2d at 25.
¶ 24 Accordingly, we hold that
¶ 25 Our ruling on the defendant‘s first argument obviates the need to address his second argument that
¶ 26 CONCLUSION
¶ 27 The judgment of the circuit court of Will County is reversed.
¶ 28 Reversed.
¶ 29 JUSTICE CARTER, dissenting.
¶ 30 I respectfully dissent from the majority‘s decision in the present case. I would find that
¶ 31 In its analysis, the majority cites the decisions on this issue from two other districts of the appellate court in the Avila-Briones case and the Pollard case. The appellate court in those cases found that
¶ 32 As the majority itself notes, to satisfy the rational basis test, the means adopted in the statute do not have to be the best means of accomplishing the legislature‘s objectives. See Avila-Briones, 2015 IL App (1st) 132221, ¶¶ 83-84; Pollard, 2016 IL App (5th) 130514, ¶ 42. Rather, as long as the statute has a rational relationship to the government objectives, it is valid even if it is to some extent overinclusive or underinclusive. See Avila-Briones, 2015 IL App (1st) 132221, ¶ 83; Pollard, 2016 IL App (5th) 130514, ¶ 42. By keeping sex offenders who have committed sex offenses against children away from areas where children are present, the legislature could have rationally sought to avoid giving those sex offenders an opportunity to reoffend. See Avila-Briones, 2015 IL App (1st) 132221, ¶ 84; Pollard, 2016 IL App (5th) 130514, ¶ 42; see also Doe, 377 F.3d at 773. Whether the statute could be more finely-tuned to accomplish that goal is a question for the legislature, not for the courts. See Avila-Briones, 2015 IL App (1st) 132221, ¶ 84; Pollard, 2016 IL App (5th) 130514, ¶ 42.
¶ 33 Because I believe that