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Illinois Voices Legal Efforts
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Challenging Illinois Laws in Court
Illinois Voices has partnered with civil rights attorneys to challenge laws it believes are unconstitutional and ineffective. Our goal is to get poorly crafted laws overturned, and then work closely with lawmakers to enact legislation that is based on sound, empirical research. Information provided here is for informational purposes only and is not legal advice. You should consult a licensed attorney for legal advice.
Illinois Voices has partnered with civil rights attorneys to challenge laws it believes are unconstitutional and ineffective. Our goal is to get poorly crafted laws overturned, and then work closely with lawmakers to enact legislation that is based on sound, empirical research. Information provided here is for informational purposes only and is not legal advice. You should consult a licensed attorney for legal advice.
Recent Victories
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Up Next
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Cases of Interest
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OLD LEGAL PAGE CONTENT IS BELOW:
Lawsuits Filed By Our Partner Attorneys...
Other Lawsuits of Interest...
Other Recent Decisions of Interest...
- Void for Vagueness Presence Restrictions (Does 1-4 et al v. Kwame Raoul et al)
- Residence Restrictions (Joshua Vasquez, et al v. Kimberly Foxx, et al)
- "3 to Life" Mandatory Supervised Release (Murphy et al v. Kwame Raoul et al)
- IDOC Prevents Contact with Minor Children (Frazier, Edwards, Tyree, Montoya v. IDOC)
- IDOC MSR Internet Restrictions (Tucker, Barron, class v. IDOC)
- Automatic "Sexual Predator" Label (Winter v. Illinois State Police)
- Name Change (Illinois: Ortiz et al v. Foxx et al / Wisconsin: Krebs v. Graveley)
- Wayside Cross Ministries (Plaintiffs v. City of Aurora)
- Challenge to One-per-address Statute (Barnes v. Jeffreys)
Other Lawsuits of Interest...
- Park Restriction "Right of a Parent" Challenge (People v. Legoo)
- MSR is Unconstitutional (People of Illinois v. Parker)
- Ex Post Facto Registration Challenge (People of Illinois v. Bingham)
- Park Restriction "Innocent Conduct" Challenge (People of Illinois v. Pepitone)
- Illinois Sex Offender Laws - Disproportionate Penalty (People v. Tetter)
- Illinois Sex Offender Laws - Disproportionate Penalty (People v. Kochevar)
- Internet Identifier Challenge (People of Illinois v. Minnis)
Other Recent Decisions of Interest...
- Ban on Social Media Access Unconstitutional (People v. Morger)
- As-Applied Challenge of 720 ILCS 5/11-9.3(c) (People of Illinois v. Haberkorn)
- Re-Registering an Already Registered Address After Returning to that Address After a Temporary Absence (People of Illinois v. Pearse)
- Loss of Employment is not Change in "Place of Employment" (People of Illinois v. Kayer)
- NARSOL: Legal-Courts Blog
- NARSOL: List of Significant Court Decisions
Lawsuits Filed by our Partner Attorneys...
Lawsuit #1: Void For Vagueness Presence Restrictions
Does 1-4 et al v. Madigan et al
U.S. District Court for the Northern District of Illinois Case #: 1:16-cv-04847
This lawsuit focuses on the way certain laws are written. The attorneys argue that the laws are written in such a vague and confusing way that the “average citizen” would have trouble following them. These laws pertain to restrictions on where certain individuals convicted of a sex offense are not allowed to be present. The lawsuit claims these laws are “vague” and therefore, under the U.S. Constitution, void. If a judge agrees, he can strike down these laws as unconstitutional. Our goal is that when lawmakers have to start writing new legislation, Illinois Voices will have a voice in assuring that the laws are based on sound research and that they consider the constitutional rights of everyone, including those on the registry.
Four vague statutes are being challenged in this lawsuit:
Does 1-4 et al v. Madigan et al
U.S. District Court for the Northern District of Illinois Case #: 1:16-cv-04847
This lawsuit focuses on the way certain laws are written. The attorneys argue that the laws are written in such a vague and confusing way that the “average citizen” would have trouble following them. These laws pertain to restrictions on where certain individuals convicted of a sex offense are not allowed to be present. The lawsuit claims these laws are “vague” and therefore, under the U.S. Constitution, void. If a judge agrees, he can strike down these laws as unconstitutional. Our goal is that when lawmakers have to start writing new legislation, Illinois Voices will have a voice in assuring that the laws are based on sound research and that they consider the constitutional rights of everyone, including those on the registry.
Four vague statutes are being challenged in this lawsuit:
- 720 ILCS 5/11-9.3(c), which prohibits child sex offenders from knowingly being present at any “facility providing programs or services exclusively directed toward persons under the age of 18”
- 720 ILCS 5/11-9.3(c-2), which makes it unlawful for a child sex offender “to participate in a holiday event involving children under 18 years of age”
- 720 ILCS 5/11-9.4-1(b) and (c), which make it unlawful for a child sex offender or a sexual predator to “knowingly be present in any public park building or on real property comprising any public park” or to “knowingly loiter on a public way within 500 feet of a public park building or real property comprising any public park.”
- 720 ILCS 5/11-9.3(b) which makes it unlawful for a child sex offender to “knowingly loiter within 500 feet of a school building or real property comprising any school while persons under the age of 18 are present in the building or on the grounds.”
On 3/7/17 the U.S. District Court (Judge Norgle) denied the state's motion to dismiss this case. In the Order on Motion to Dismiss (see link below) he cited the pending cases of Packingham v. North Carolina and Illinois v. Pepitone, where an Illinois Appellate Court found the Section 9.4-1 (park restrictions) facially unconstitutional since they criminalize innocent conduct. He indicated that because the final decisions in those cases may determine the outcome of this litigation, the Court finds it prudent to stay all further action in this matter until the resolution of these two cases. The U.S. Supreme Court ruled in favor of Packingham on 6/19/17. The IL Supreme Court ruled against Pepitone on 4/15/18.
Update 7/3/19: The Court denied the state’s motion to dismiss. The case is currently stalled.
Update 3/26/20: No recent action.
Update 7/3/19: The Court denied the state’s motion to dismiss. The case is currently stalled.
Update 3/26/20: No recent action.
Lawsuit #2: Residence Restrictions
Joshua Vasquez, et al v. Kimberly Foxx, et al
U.S. Court of Appeals for the 7th Circuit Circuit Docket #: 17-1061
U.S. District Court for the Northern District of Illinois Case #: 1:16-cv-08854 (Vasquez et al v. Alvarez et al)
This lawsuit originally filed in the U.S. District Court for the Northern District of Illinois and recently appealed to the U.S. Court of Appeals for the 7th Circuit challenges the practice of forcing individuals to move if a playground or daycare opens within 500 feet of their home. This has been a huge issue with Illinois Voices supporters, and we are very excited to see this challenge launched. The attorneys are making several claims in their lawsuit, including due process and Ex Post Facto violations, as well as a violation of the Fifth Amendment takings clause. This lawsuit comes on the heels of the recent Federal 6th Circuit Court decision that found restrictions in the State of Michigan to be punitive and therefore subject to constitutional protections.
The specific statute being challenged by this lawsuit is 720 ILCS 5/11-9.3(b-10) which makes it unlawful for an individual deemed a child sex offender under Illinois law to knowingly reside within 500 feet of a playground, child care institution, day care center, part day child care facility, day care home, group day care home, or a facility providing programs or services exclusively directed toward persons under 18 years of age.
Joshua Vasquez, et al v. Kimberly Foxx, et al
U.S. Court of Appeals for the 7th Circuit Circuit Docket #: 17-1061
U.S. District Court for the Northern District of Illinois Case #: 1:16-cv-08854 (Vasquez et al v. Alvarez et al)
This lawsuit originally filed in the U.S. District Court for the Northern District of Illinois and recently appealed to the U.S. Court of Appeals for the 7th Circuit challenges the practice of forcing individuals to move if a playground or daycare opens within 500 feet of their home. This has been a huge issue with Illinois Voices supporters, and we are very excited to see this challenge launched. The attorneys are making several claims in their lawsuit, including due process and Ex Post Facto violations, as well as a violation of the Fifth Amendment takings clause. This lawsuit comes on the heels of the recent Federal 6th Circuit Court decision that found restrictions in the State of Michigan to be punitive and therefore subject to constitutional protections.
The specific statute being challenged by this lawsuit is 720 ILCS 5/11-9.3(b-10) which makes it unlawful for an individual deemed a child sex offender under Illinois law to knowingly reside within 500 feet of a playground, child care institution, day care center, part day child care facility, day care home, group day care home, or a facility providing programs or services exclusively directed toward persons under 18 years of age.
Update 1/7/19: Petition for Writ of Certiorari was denied today by the Supreme Court of the United States. This means the federal appellate court decision from 7/11/18 stands and the State of Illinois can continue to enforce this unfair and cruel law. This case has been terminated.
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Legal Documents:
Brief in Opposition (filed 11/30/18) Brief of Eighteen Scholars as Amici Curiae in Support of Petitioners (filed 10/24/18) SCOTUS Petition for Writ of Certiorari (filed 9/21/18) 7th District Court of Appeals Decision (filed 7/11/18) Citation of Additional Authority Filed by Cook County State's Attorney (filed 5/8/18) Oral Argument to U.S. Court of Appeals for the 7th Circuit (11/28/17) Appellant Reply Brief (filed 10/6/17) Appellee Brief Cook County State's Attorney (filed 8/25/17) Appellee Brief City of Chicago (filed 8/21/17) Plaintiff/Appeal Brief (filed 4/6/17) District Court Grants Motion to Dismiss (filed 12/9/16) State's Attorney's Reply Brief (filed 12/5/16) Response to Motion to Dismiss (filed 10/13/16) City of Chicago's Motion to Dismiss (filed 9/29/16) Temporary Restraining Order (filed 9/13/16) Lawsuit challenging Residency Restrictions (filed 9/12/16) |
Media:
TBD |
Lawsuit #3: "3 to Life" Mandatory Supervised Release
Paul Murphy et al v. Kwame Raoul et al
U.S. District Court for the Northern District of Illinois Case #: 1:16-cv-11471
This lawsuit challenges the constitutionality of a legal scheme whereby individuals who have been convicted of certain sex-related crimes in Illinois end up serving life sentences in prison as the result of the interactions of various state laws and state agency regulations promulgated by three distinct entities—the Illinois legislature, the Prisoner Review Board (“PRB”) and the Illinois Department of Corrections (“IDOC”). In particular, individuals convicted of sex-related crimes who are sentenced to three years to life of mandatory supervised release (“MSR”) find themselves stuck in prison for life as a result of the imposition of unmeetable restrictions on where they can live that must be satisfied in order for such individuals to be released on MSR. The challenged scheme results in what amounts to a Kafkaesque nightmare whereby these individuals are denied any semblance of proportionality in their prison sentences and due process of law. The complaint is asking the court to certify this as a class action, declare the identified statutory schemes to be in violation in the Eighth Amendment of the U.S. Constitution and enter an injunction prohibiting the Defendants from continuing the unconstitutional policies and practices identified in the lawsuit.
Paul Murphy et al v. Kwame Raoul et al
U.S. District Court for the Northern District of Illinois Case #: 1:16-cv-11471
This lawsuit challenges the constitutionality of a legal scheme whereby individuals who have been convicted of certain sex-related crimes in Illinois end up serving life sentences in prison as the result of the interactions of various state laws and state agency regulations promulgated by three distinct entities—the Illinois legislature, the Prisoner Review Board (“PRB”) and the Illinois Department of Corrections (“IDOC”). In particular, individuals convicted of sex-related crimes who are sentenced to three years to life of mandatory supervised release (“MSR”) find themselves stuck in prison for life as a result of the imposition of unmeetable restrictions on where they can live that must be satisfied in order for such individuals to be released on MSR. The challenged scheme results in what amounts to a Kafkaesque nightmare whereby these individuals are denied any semblance of proportionality in their prison sentences and due process of law. The complaint is asking the court to certify this as a class action, declare the identified statutory schemes to be in violation in the Eighth Amendment of the U.S. Constitution and enter an injunction prohibiting the Defendants from continuing the unconstitutional policies and practices identified in the lawsuit.
On 2/17/17 the state filed a motion to dismiss the case citing that claims are not ripe for review, that the duration of confinement cannot be challenged in this sort of legal action and that the claims fail on the merits. On 3/14/17 our partner attorneys argued in the response that the plaintiffs in this case do have standing, that the case is properly challenged by this legal action and that the state has not put forth a sound basis for dismissal of the plaintiffs' claims.
On 8/18/17 the judge issued an order denying the State's Motion to dismiss the complaint. While the court agreed with the state that the claims from the two plaintiffs who are still incarcerated are not ripe for review, the court agreed to allow the lawsuit to proceed on the claims that the state is violating these constitutional rights--Substantive Due Process, Eighth Amendment (protection from disproportionate sentences), Equal Protection (indigent people should be free from bodily restraint just as much as wealthy people) and Procedural Due Process.
Update 3/31/19: Judge Kendall issued an opinion for the Federal District Court today, granting the Plaintiff's motion for summary judgement in part. In the opinion the judge said "At the very heart of liberty secured by the separation of powers is freedom from indefinite imprisonment by executive decree. The Attorney General and Director's current application of the host site requirement results in the continued deprivation of the plaintiffs' fundamental rights and therefore contravenes with the Eighth and Fourteenth Amendments to the Constitution of the United States." Page 56 of the order says that "the defendants' application of the host site requirement constitutes cruel and unusual punishment." The court granted the plaintiffs' motion for summary judgement on their equal protection and Eighth Amendment claims but denied the substantive and procedural due process claims.
Update 1/15/20: Today Judge Kendall entered a permanent injunction order (see below) which requires the Attorney General and the Illinois Department of Corrections to put forth a plan "setting forth the specific steps they will take to ensure that by no later than January 2, 2021, no member of the class will remain imprisoned due to an inability to comply with the host-site requirement." As Judge Kendall observed in her order, the state has a duty to consider all of its options to "fulfill its constitutional obligations... including but not limited to legislative changes, policy changes, and/or contacting with transitional housing providers."
Update 3/26/20: On February 27, 2020, Defendants’ filed their “Compliance Plan.” This was done pursuant to the Court’s Permanent Injunction Order to ensure that by January 21, 2021 no person who has completed his or her sentence remains in the custody of the Illinois Department of Corrections due to an inability to locate a place to live. Plaintiffs will be supplying comments to the court about the Compliance Plan in the coming weeks.
On 8/18/17 the judge issued an order denying the State's Motion to dismiss the complaint. While the court agreed with the state that the claims from the two plaintiffs who are still incarcerated are not ripe for review, the court agreed to allow the lawsuit to proceed on the claims that the state is violating these constitutional rights--Substantive Due Process, Eighth Amendment (protection from disproportionate sentences), Equal Protection (indigent people should be free from bodily restraint just as much as wealthy people) and Procedural Due Process.
Update 3/31/19: Judge Kendall issued an opinion for the Federal District Court today, granting the Plaintiff's motion for summary judgement in part. In the opinion the judge said "At the very heart of liberty secured by the separation of powers is freedom from indefinite imprisonment by executive decree. The Attorney General and Director's current application of the host site requirement results in the continued deprivation of the plaintiffs' fundamental rights and therefore contravenes with the Eighth and Fourteenth Amendments to the Constitution of the United States." Page 56 of the order says that "the defendants' application of the host site requirement constitutes cruel and unusual punishment." The court granted the plaintiffs' motion for summary judgement on their equal protection and Eighth Amendment claims but denied the substantive and procedural due process claims.
Update 1/15/20: Today Judge Kendall entered a permanent injunction order (see below) which requires the Attorney General and the Illinois Department of Corrections to put forth a plan "setting forth the specific steps they will take to ensure that by no later than January 2, 2021, no member of the class will remain imprisoned due to an inability to comply with the host-site requirement." As Judge Kendall observed in her order, the state has a duty to consider all of its options to "fulfill its constitutional obligations... including but not limited to legislative changes, policy changes, and/or contacting with transitional housing providers."
Update 3/26/20: On February 27, 2020, Defendants’ filed their “Compliance Plan.” This was done pursuant to the Court’s Permanent Injunction Order to ensure that by January 21, 2021 no person who has completed his or her sentence remains in the custody of the Illinois Department of Corrections due to an inability to locate a place to live. Plaintiffs will be supplying comments to the court about the Compliance Plan in the coming weeks.
Lawsuit #4: IDOC Prevents Contact with Minor Children
Frazier, Edwards, Tyree, Montoya, Frazier, class action v. John Baldwin (Illinois DOC)
U.S. District Court for the Northern District of Illinois Case #: 1:18-cv-01991
This lawsuit is challenging policies of the IL Dept of Corrections concerning parents' ability to have contact with their children while on MSR (mandatory supervised release from prison). The named Plaintiffs are four women who are subject to this policy and the daughter of one of the Plaintiffs who is not allowed to see her mom.
These are the specific items being challenged:
• The Department of Corrections prohibits any person who is required to register as a sex offender from having contact with his or her own minor children while on Mandatory Supervised Release (“MSR”);
• The Department of Corrections prohibits anyone who is required to register as a sex offender from living in the same residence as his or her own minor children while on MSR.
Update 7/3/18: The court granted a temporary restraining order and a preliminary injunction order. A person released on MSR will be given an opportunity to have a visit with a therapist within 14 days of release and within 21 days of that visit the therapist and parole agent will be required to make a determination as to whether the parolee's child would be endangered by parent-child contact. Any restrictions must be reviewed every 28 days.
Update 7/3/19: On 1/23/19, an order was entered denying IDOC's motion to dismiss Plaintiffs' substantive due process claims. The next status hearing is on 9/10/19. Fact discovery is to be completed by 9/27/19.
Update 3/26/20: Class certification was denied on 2/20/20. A First Amended Class Action Complaint was filed on 2/27/20 and an Amended Motion for Class Certification was filed on 2/28/20. A Petition for Rule to Show Cause as to why the Illinois Department of Corrections should not be held in contempt of court for violating the 6/13/18 order on Plaintiff’s preliminary injunction by preventing allowed contact with minors was filed on March 3, 2020. A hearing on the Motion for Class Certification and Petition for Rule to Show Cause is set for April 21, 2020.
Frazier, Edwards, Tyree, Montoya, Frazier, class action v. John Baldwin (Illinois DOC)
U.S. District Court for the Northern District of Illinois Case #: 1:18-cv-01991
This lawsuit is challenging policies of the IL Dept of Corrections concerning parents' ability to have contact with their children while on MSR (mandatory supervised release from prison). The named Plaintiffs are four women who are subject to this policy and the daughter of one of the Plaintiffs who is not allowed to see her mom.
These are the specific items being challenged:
• The Department of Corrections prohibits any person who is required to register as a sex offender from having contact with his or her own minor children while on Mandatory Supervised Release (“MSR”);
• The Department of Corrections prohibits anyone who is required to register as a sex offender from living in the same residence as his or her own minor children while on MSR.
Update 7/3/18: The court granted a temporary restraining order and a preliminary injunction order. A person released on MSR will be given an opportunity to have a visit with a therapist within 14 days of release and within 21 days of that visit the therapist and parole agent will be required to make a determination as to whether the parolee's child would be endangered by parent-child contact. Any restrictions must be reviewed every 28 days.
Update 7/3/19: On 1/23/19, an order was entered denying IDOC's motion to dismiss Plaintiffs' substantive due process claims. The next status hearing is on 9/10/19. Fact discovery is to be completed by 9/27/19.
Update 3/26/20: Class certification was denied on 2/20/20. A First Amended Class Action Complaint was filed on 2/27/20 and an Amended Motion for Class Certification was filed on 2/28/20. A Petition for Rule to Show Cause as to why the Illinois Department of Corrections should not be held in contempt of court for violating the 6/13/18 order on Plaintiff’s preliminary injunction by preventing allowed contact with minors was filed on March 3, 2020. A hearing on the Motion for Class Certification and Petition for Rule to Show Cause is set for April 21, 2020.
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Legal Documents:
Plaintiffs' Petition to Show Why Defendant Should Not be Held in Contempt (filed 3/3/20) Amended Motion for Class Certification (filed 2/28/20) First Amended Class Action Complaint (filed 2/27/20) Motion for Rule to Show Cause as to Why Order Denying IDOC's Motion to Dismiss (filed 1/23/19) Preliminary Injunction Order (filed 6/13/18) Defendant's Response in Opposition to Plaintiffs' Supplemental Brief (filed 5/17/18) Plaintiffs' Supplemental Brief in Support of the Motion for Preliminary Injunctive Relief (filed 5/7/18) Plaintiffs' Reply in Support of Motion for Preliminary Injunction (filed 4/27/18) Motion for Temporary Restraining Order and Preliminary Injunction (filed 3/19/18) Class Action Complaint (filed 3/19/18) |
Lawsuit #5: IDOC MSR Internet Restrictions
Tucker, Barron, class action v. John Baldwin (Illinois DOC)
U.S. District Court for the Northern District of Illinois Case #: 1:18-cv-03154
This lawsuit is challenging the IL Dept of Corrections concerning their policies regarding internet usage by those who are on MSR (mandatory supervised release from prison). 730 ILCS 5/3-3-7 (b)(7.6)(i) provides that people required to register as sex offenders, if convicted for an offense committed on or after June 1, 2009, must “not access or use a computer or any other device with Internet capability without the prior written approval of the Department” while on parole or mandatory supervised release. This is a class action lawsuit representing all persons required to register as sex offenders who are denied access to the Internet and computers while on MSR without any individualized determination that public safety or rehabilitation requires such a prohibition.
These are the specific items being challenged:
Tucker, Barron, class action v. John Baldwin (Illinois DOC)
U.S. District Court for the Northern District of Illinois Case #: 1:18-cv-03154
This lawsuit is challenging the IL Dept of Corrections concerning their policies regarding internet usage by those who are on MSR (mandatory supervised release from prison). 730 ILCS 5/3-3-7 (b)(7.6)(i) provides that people required to register as sex offenders, if convicted for an offense committed on or after June 1, 2009, must “not access or use a computer or any other device with Internet capability without the prior written approval of the Department” while on parole or mandatory supervised release. This is a class action lawsuit representing all persons required to register as sex offenders who are denied access to the Internet and computers while on MSR without any individualized determination that public safety or rehabilitation requires such a prohibition.
These are the specific items being challenged:
- The Department's policy of severely restricting parolees' access to computers and the internet is overly broad on its face in violation of the First Amendment.
- The Department's policies, which automatically deprive people required to register as sex offenders from having access to the Internet while on MSR without any individualized determination and without any pre- or post-deprivation process violates the Fourteenth Amendment guarantee of procedural due process.
Update 7/3/19: Plaintiffs filed a Motion for a Preliminary Injunction on 6/22/19 which requests the Court to enter a preliminary injunction enjoining Defendant from enforcing the policies restricting Internet access.
Update 9/27/19: On 9/17/19 the judge denied an IDOC motion to dismiss the case.
Update 3/26/20: After several promulgated policies, on March 3, 2020, the Illinois Department of Corrections released its final policy regarding internet access for sex offenders on MSR. On March 12, 2020, the court struck the prior Motion for Preliminary Injunction. Plaintiffs are to file any revised lawsuit by April 10, 2020.
Update 9/27/19: On 9/17/19 the judge denied an IDOC motion to dismiss the case.
Update 3/26/20: After several promulgated policies, on March 3, 2020, the Illinois Department of Corrections released its final policy regarding internet access for sex offenders on MSR. On March 12, 2020, the court struck the prior Motion for Preliminary Injunction. Plaintiffs are to file any revised lawsuit by April 10, 2020.
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Legal Documents:
Defendant's Final Policy (filed 3/3/20) Judge Denies IDOC's Motion to Dismiss (filed 9/17/19) Motion for Preliminary Injunction (filed 6/22/19) Amended Complaint #2 (filed 3/1/19) Amended Complaint #1 (filed 8/28/18) IDOC Internet Policy (filed 08/28/18) IDOC Answer to Complaint (filed 7/10/18) Motion for Preliminary Injunction (filed 6/4/18) Class Action Complaint (filed 5/2/18) |
Media:
Former Sex Offenders Can Proceed With Lawsuit Challenging Restrictions on Internet Use (Freedom Forum Institute 10/4/19) |
Lawsuit #6: Automatic "Sexual Predator" Label
Winter v. Leo P. Schmitz (Illinois State Police)
U.S. District Court for the Northern District of Illinois Case #: 1:18-cv-03667
This lawsuit challenges the constitutionality of 730 ILCS 150-2 (E-2) (a portion of the Illinois Sex Offender Registration Act) which provides that anyone "required to register in another State due to a conviction, adjudication or other action of any court triggering an obligation to register as a sex offender, sexual predator, or substantially similar status under the laws of that State" is considered a "sexual predator" under Illinois law. This law categorizes the Plaintiff as a "sexual predator" based solely on the state in which he was convicted of an offense. Had the Plaintiff been convicted of an identical offense in Illinois, he would not be labelled a "sexual predator". The Plaintiff alleges that this statute violates his rights under the Equal Protection Clause in the Fourteenth Amendment of the U.S. Constitution. This label subjects the Plaintiff and others similarly situated to the park restriction law in 720 ILCS 5/11-9.4-1. Also, if not for the "sexual predator" designation, the Plaintiff would only be required to register for 10 years rather than for life. The Plaintiff also suffers a stigma of being labeled a "sexual predator" on the Illinois sex offender registry. This lawsuit seeks a preliminary and permanent injunction prohibiting enforcement of 730 ILCS 150-2 (E-10) and a declaratory judgement that the statute is unconstitutional both on its face and as applied to Plaintiff.
Update 4/13/19: A permanent injunction (see below) was issued by the judge on 1/22/19 and this case has been terminated.
Winter v. Leo P. Schmitz (Illinois State Police)
U.S. District Court for the Northern District of Illinois Case #: 1:18-cv-03667
This lawsuit challenges the constitutionality of 730 ILCS 150-2 (E-2) (a portion of the Illinois Sex Offender Registration Act) which provides that anyone "required to register in another State due to a conviction, adjudication or other action of any court triggering an obligation to register as a sex offender, sexual predator, or substantially similar status under the laws of that State" is considered a "sexual predator" under Illinois law. This law categorizes the Plaintiff as a "sexual predator" based solely on the state in which he was convicted of an offense. Had the Plaintiff been convicted of an identical offense in Illinois, he would not be labelled a "sexual predator". The Plaintiff alleges that this statute violates his rights under the Equal Protection Clause in the Fourteenth Amendment of the U.S. Constitution. This label subjects the Plaintiff and others similarly situated to the park restriction law in 720 ILCS 5/11-9.4-1. Also, if not for the "sexual predator" designation, the Plaintiff would only be required to register for 10 years rather than for life. The Plaintiff also suffers a stigma of being labeled a "sexual predator" on the Illinois sex offender registry. This lawsuit seeks a preliminary and permanent injunction prohibiting enforcement of 730 ILCS 150-2 (E-10) and a declaratory judgement that the statute is unconstitutional both on its face and as applied to Plaintiff.
Update 4/13/19: A permanent injunction (see below) was issued by the judge on 1/22/19 and this case has been terminated.
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Legal Documents:
Permanent Injunction (filed 1/22/99) Defendant's Memorandum in Opposition to Plaintiff's Motion for Summary Judgment and a Permanent Injunction (filed 8/16/18) State's Answer to Complaint (filed 7/12/18) Complaint (filed 5/24/18) |
Media:
TBD |
Lawsuit #7: Name Change
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Ortiz et al v. Foxx et al
U.S. District Court for the Northern District of Illinois Case #: 1:19-cv-02923 |
These are actually two separate lawsuits -- one filed in Federal District Court in Chicago (vs. Cook County, Illinois) and another filed in Federal District Count in Milwaukee (vs. Kenosha County, Wisconsin.) These lawsuits were filed by a group of transgender women with criminal records in Illinois and Wisconsin. The women say that they have suffered discrimination and abuse by being required to use names on government identification that out them as transgender. Illinois law prohibits those convicted of felonies and certain misdemeanors from legal name changes for 10 years after their sentences end and some crimes bar any name changes ever. The Wisconsin law has similar restrictions. Lark Mulligan, a lawyer with the Transformative Justice Law Project is representing eight Illinois women. Adele Nicholas and Mark Weinberg are the attorneys representing a woman in Wisconsin where she is prevented from legally changing her name because of a 1992 conviction that requires her to register as a sex offender. Wisconsin also law mandates that anyone on the registry must report all names with which they have been identified so the woman has to report both her chosen name and her birth name.
Update 3/30/20:
Illinois case: The judge was to rule on Defendants’ Motion to Dismiss, but on February 28, 2020, the case was assigned to another judge and the case appears to be temporarily stalled.
Wisconsin case: Today the judge rejected the complaint and granted the Defendant's motion for summary judgment. In rejecting the argument in this case, the judge found that a "name change" (even for a transgendered person) is not a fundamental right sufficient enough to invoke a First Amendment violation. Although this case is venued in Wisconsin, it is still within the federal 7th Circuit (Illinois, Indiana and Wisconsin). Although this Wisconsin case likely holds no precedential value in Illinois, it if were to be appealed to the 7th Circuit Court of Appeals, any decision from that Court would govern residents of Illinois.
Illinois case: The judge was to rule on Defendants’ Motion to Dismiss, but on February 28, 2020, the case was assigned to another judge and the case appears to be temporarily stalled.
Wisconsin case: Today the judge rejected the complaint and granted the Defendant's motion for summary judgment. In rejecting the argument in this case, the judge found that a "name change" (even for a transgendered person) is not a fundamental right sufficient enough to invoke a First Amendment violation. Although this case is venued in Wisconsin, it is still within the federal 7th Circuit (Illinois, Indiana and Wisconsin). Although this Wisconsin case likely holds no precedential value in Illinois, it if were to be appealed to the 7th Circuit Court of Appeals, any decision from that Court would govern residents of Illinois.
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Legal Documents:
Wisconsin - Krebs Decision (filed 3/26/20) Plaintiffs' Motion for Summary Judgment (Wisconsin Case) (filed 1/7/20) Illinois Complaint - Ortiz v. Foxx (filed 5/1/19) Wisconsin Complaint - Krebs v. Graveley (filed 5/1/19) |
Media:
Transgender women sue to fight state laws on name changes after convictions (Chicago Sun Times 5/1/2019) Wisconsin, Illinois sued over transgender name-change laws (Washington Post 5/1/2019) Transformative Justice Law Project of Illinois - Name Change Mobilization Webpage |
Lawsuit #8: Wayside Cross Ministries
Plaintiffs v. City of Aurora
U.S. District Court for the Northern District of Illinois Case #: 1:19-cv-04837
Mark and Adele have agreed to represent 19 individuals who have been told by the city of Aurora that they have to move out of their residence at Wayside Cross Ministries within 30 days or face prison time for violating the sex offender registration act. The city said they had been incorrectly measuring distance, and now that they have corrected their methods, Wayside falls within 500 feet of both a playground and a daycare. Wayside is contending that the distance from the building that is the residence hall is more than 500 feet away from both, but the city is measuring from the line of the property that also includes a chapel and a resale store located in a separate building but that is on the same parcel. The buildings have different addresses but are both owned by Wayside Cross.
Mark and Adele sent a letter to the Aurora police department (who issued the eviction letters) asking them to rescind the order. An attorney for the city responded saying that the letter was not an eviction letter, but simply notice that the men were in violation of the law by residing too close to a playground and daycare. The city maintains that it is not the city that will enforce the law, but rather the state's attorney.
Wayside Cross Ministries has retained an attorney to represent its interests, while Mark and Adele are representing the interests of the 19 individuals who have been told to move.
Update 10/31/19: The case was voluntarily dismissed.
Update 12/13/19: The residents again received eviction notices. Expecting another lawsuit to be filed.
Update 3/26/20: The lawsuit was refiled in state court on December 31, 2019 (Kane County Circuit Court # 19-CH-996). Petition for Temporary Restraining Order and Preliminary Injunction filed on January 9, 2020 and was denied on January 31, 2020. (See link below for news article) Interlocutory appeal of the denial of the temporary restraining order was rejected by the Appellate Court on February 7, 2020. Defendant’s Answer to the Complaint was filed on February 28, 2020. Defendants filed a Motion to Dismiss on March 5, 2020. The lawsuit now proceeds to decision in the circuit court on the merits without any temporary preventive order preventing the city of Aurora from enforcing eviction.
Plaintiffs v. City of Aurora
U.S. District Court for the Northern District of Illinois Case #: 1:19-cv-04837
Mark and Adele have agreed to represent 19 individuals who have been told by the city of Aurora that they have to move out of their residence at Wayside Cross Ministries within 30 days or face prison time for violating the sex offender registration act. The city said they had been incorrectly measuring distance, and now that they have corrected their methods, Wayside falls within 500 feet of both a playground and a daycare. Wayside is contending that the distance from the building that is the residence hall is more than 500 feet away from both, but the city is measuring from the line of the property that also includes a chapel and a resale store located in a separate building but that is on the same parcel. The buildings have different addresses but are both owned by Wayside Cross.
Mark and Adele sent a letter to the Aurora police department (who issued the eviction letters) asking them to rescind the order. An attorney for the city responded saying that the letter was not an eviction letter, but simply notice that the men were in violation of the law by residing too close to a playground and daycare. The city maintains that it is not the city that will enforce the law, but rather the state's attorney.
Wayside Cross Ministries has retained an attorney to represent its interests, while Mark and Adele are representing the interests of the 19 individuals who have been told to move.
Update 10/31/19: The case was voluntarily dismissed.
Update 12/13/19: The residents again received eviction notices. Expecting another lawsuit to be filed.
Update 3/26/20: The lawsuit was refiled in state court on December 31, 2019 (Kane County Circuit Court # 19-CH-996). Petition for Temporary Restraining Order and Preliminary Injunction filed on January 9, 2020 and was denied on January 31, 2020. (See link below for news article) Interlocutory appeal of the denial of the temporary restraining order was rejected by the Appellate Court on February 7, 2020. Defendant’s Answer to the Complaint was filed on February 28, 2020. Defendants filed a Motion to Dismiss on March 5, 2020. The lawsuit now proceeds to decision in the circuit court on the merits without any temporary preventive order preventing the city of Aurora from enforcing eviction.
Lawsuit #9: Challenge to One-per-address Statute
Barnes v. Jeffreys (IDOC)
U.S. District Court for the Northern District of Illinois Case #: 1:20-cv-02137
In the class action matter of Murphy v. Raoul (see above), the judge entered a Permanent Injunction Order requiring that by January 21, 2021 no person who has completed his or her sentence should remain in the custody of the Illinois Department of Corrections (IDOC) due to an inability to locate a place to live. In Murphy, the Court did not single out a particular statute or policy that is unconstitutional, but rather held that all of the overlapping restrictions imposed upon those seeking a place to live after having served their sentence are, as a whole, unconstitutional.
This lawsuit is filed on behalf of Plaintiff Marcus Barnes and all others similarly situated (seeking class action approval) to have the so-called “One-Per-Address Statute” (730 ILCS 5/3-3-7(a)(7.6)) specifically declared unconstitutional. The lawsuit alleges this particular statute is a major cause, if not the single largest cause, of the continued imprisonment of the Murphy class. The “One-Per-Address Statute” forbids individuals on Mandatory Supervised Release (MSR) for sex offenses from living “at the same address or in the same condominium unit or apartment unit or in the same condominium complex or apartment complex with another person he or she knows or reasonably should know is a convicted sex offender or has been placed on supervision for a sex offense.”
The impetus for filing this lawsuit now, as stated in the Complaint, is the COVID-19 pandemic and the resultant health dangers of holding a person, like Plaintiff Barnes, who has served his sentence past his or her release date and for which the only blockade to release is the “One-Per-Address Statute.”
Plaintiff Barnes filed a Motion for a Temporary Restraining Order and Preliminary Injunction seeking to bar the IDOC from enforcing the “One-Per-Address Statute” as to Barnes and all others being held past their release date while the merits of the complaint is adjudicated (i.e. class certification and ruling). The case was assigned to the same judge who ruled in Murphy due to the factual and legal similarities and because Barnes is a member of the Murphy class.
On April 8, 2020, the Court granted the Motion for Temporary Restraining Order and Preliminary Injunction as applied to Plaintiff Barnes, finding that as to Plaintiff Barnes, the “One-Per-Address Statute” is unconstitutional. The Court made no ruling, at this time, on behalf of any other individuals, and the order only applies to Barnes.
The Court did not appear to rely on the COVID-19 pandemic to justify its ruling, calling it “minor” and “speculative” that Barnes could be harmed. Instead, the Court relied on its prior ruling in Murphy and noted that at a hearing in the instant case, the IDOC was unable to provide any testimony, expert opinion, or evidence as to why it is in the public’s interest to only have one sex offender live at any particular residence.
Presumably the case will now continue in the normal course of events to seek class certification. Assuming class certification is granted, any ruling will not only apply permanently to Barnes, but to all others that find themselves in similar situations. A status hearing is set for July 16, 2020
Barnes v. Jeffreys (IDOC)
U.S. District Court for the Northern District of Illinois Case #: 1:20-cv-02137
In the class action matter of Murphy v. Raoul (see above), the judge entered a Permanent Injunction Order requiring that by January 21, 2021 no person who has completed his or her sentence should remain in the custody of the Illinois Department of Corrections (IDOC) due to an inability to locate a place to live. In Murphy, the Court did not single out a particular statute or policy that is unconstitutional, but rather held that all of the overlapping restrictions imposed upon those seeking a place to live after having served their sentence are, as a whole, unconstitutional.
This lawsuit is filed on behalf of Plaintiff Marcus Barnes and all others similarly situated (seeking class action approval) to have the so-called “One-Per-Address Statute” (730 ILCS 5/3-3-7(a)(7.6)) specifically declared unconstitutional. The lawsuit alleges this particular statute is a major cause, if not the single largest cause, of the continued imprisonment of the Murphy class. The “One-Per-Address Statute” forbids individuals on Mandatory Supervised Release (MSR) for sex offenses from living “at the same address or in the same condominium unit or apartment unit or in the same condominium complex or apartment complex with another person he or she knows or reasonably should know is a convicted sex offender or has been placed on supervision for a sex offense.”
The impetus for filing this lawsuit now, as stated in the Complaint, is the COVID-19 pandemic and the resultant health dangers of holding a person, like Plaintiff Barnes, who has served his sentence past his or her release date and for which the only blockade to release is the “One-Per-Address Statute.”
Plaintiff Barnes filed a Motion for a Temporary Restraining Order and Preliminary Injunction seeking to bar the IDOC from enforcing the “One-Per-Address Statute” as to Barnes and all others being held past their release date while the merits of the complaint is adjudicated (i.e. class certification and ruling). The case was assigned to the same judge who ruled in Murphy due to the factual and legal similarities and because Barnes is a member of the Murphy class.
On April 8, 2020, the Court granted the Motion for Temporary Restraining Order and Preliminary Injunction as applied to Plaintiff Barnes, finding that as to Plaintiff Barnes, the “One-Per-Address Statute” is unconstitutional. The Court made no ruling, at this time, on behalf of any other individuals, and the order only applies to Barnes.
The Court did not appear to rely on the COVID-19 pandemic to justify its ruling, calling it “minor” and “speculative” that Barnes could be harmed. Instead, the Court relied on its prior ruling in Murphy and noted that at a hearing in the instant case, the IDOC was unable to provide any testimony, expert opinion, or evidence as to why it is in the public’s interest to only have one sex offender live at any particular residence.
Presumably the case will now continue in the normal course of events to seek class certification. Assuming class certification is granted, any ruling will not only apply permanently to Barnes, but to all others that find themselves in similar situations. A status hearing is set for July 16, 2020
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Legal Documents:
Order on TRO and Preliminary Injunction (filed 4/8/2020) Motion for TRO and Preliminary Injunction (filed 4/5/2020) Complaint Barnes v. Jeffreys (4/5/2020) |
Media:
Lawsuit: Release Sex Offenders Who Have Served Their Time (WGLT NPR from IL State University 4/9/2020) |
Other Lawsuits of Interest...
Park Restriction "Right of a Parent" Challenge
124965 People of Illinois v. Legoo
This is a case regarding whether or not a "child sex offender" or "sexual predator" can be in a public park when in the presence of his or her minor child. There are two conflicting statutes on this point:
The defendant in this case entered a public park to look for his minor son who was attending a baseball game within the park. After finding his son and telling him to come home the defendant left the park. Defendant was in the park less than five minutes. The defendant was charged with violating 720 ILCS 5/11-9.4-1(b) which forbids presence in a public park by a "child sex offender" or "sexual predator". After being found guilty in a bench trial, the defendant argued at sentencing that the guilty verdict should be vacated due to conflicting language in the two statutes regarding presence of a child sex offender in a public park while in the company of his or her minor child. Despite lamenting the confusing nature of the two statutes, the trial judge sustained the guilty verdict which was subsequently upheld by the Appellate Court. The Illinois Supreme Court agreed to take the case to determine if the Illinois General Assembly intended that both Sections 11-9.3(a-10) and 11-9.4-1(b) should be read together to protect the right of a child sex offender - who is also a parent - to enter a public park to care for his or her minor child. In his brief, the defendant argues that the Illinois General Assembly intended that the two statutes be read together to protect parents' rights to care for their children.
Defendant contends that parents have a fundamental right to participate in the upbringing of their children. In response, the State argues that the legislature intended that the two statues be read independently from each other and there is no ambiguity in the intent. The State argues that each statute prohibits different conduct and applies different punishments (felony vs. misdemeanor). The State also argues that since there is no fundamental right of a sex offender to be in a park (see People v. Pepitone), there can be no fundamental right of a parent to take a child to a park. At oral argument, some of the justices concentrated on the "fundamental right" of a parent argument and seemed to question how a parent (who is also a "child sex offender") could look after his or her child in circumstances, such as in this case, where the child had entered a public park. At oral argument, the State's attorney replied that, in some circumstances, a parent charged with violating the statute might be able to raise an "affirmative defense" that he or she was protecting his or her own child.
Update 6/18/20: In a 5-2 decision, the Illinois Supreme Court rejected Legoo's challenges and upheld his conviction for violating 720 ILCS 5/11-9.4-1(b) even though he had entered a public park in search of his own child. Read more about the decision here.
124965 People of Illinois v. Legoo
This is a case regarding whether or not a "child sex offender" or "sexual predator" can be in a public park when in the presence of his or her minor child. There are two conflicting statutes on this point:
- 720 ILCS 5/11-9.3(a-10) prohibits child sex offenders from entering public parks and to approach, contact or communicate with a child under 18 but exempts prosecution of a parent who is in the park with his or her own child. Violation of this statute is a Class 4 felony.
- 720 ILCS 5/11-9.4-1(b) prohibits child sex offenders from entering a public park under any circumstance. Violation of this statute is a Class A misdemeanor.
The defendant in this case entered a public park to look for his minor son who was attending a baseball game within the park. After finding his son and telling him to come home the defendant left the park. Defendant was in the park less than five minutes. The defendant was charged with violating 720 ILCS 5/11-9.4-1(b) which forbids presence in a public park by a "child sex offender" or "sexual predator". After being found guilty in a bench trial, the defendant argued at sentencing that the guilty verdict should be vacated due to conflicting language in the two statutes regarding presence of a child sex offender in a public park while in the company of his or her minor child. Despite lamenting the confusing nature of the two statutes, the trial judge sustained the guilty verdict which was subsequently upheld by the Appellate Court. The Illinois Supreme Court agreed to take the case to determine if the Illinois General Assembly intended that both Sections 11-9.3(a-10) and 11-9.4-1(b) should be read together to protect the right of a child sex offender - who is also a parent - to enter a public park to care for his or her minor child. In his brief, the defendant argues that the Illinois General Assembly intended that the two statutes be read together to protect parents' rights to care for their children.
Defendant contends that parents have a fundamental right to participate in the upbringing of their children. In response, the State argues that the legislature intended that the two statues be read independently from each other and there is no ambiguity in the intent. The State argues that each statute prohibits different conduct and applies different punishments (felony vs. misdemeanor). The State also argues that since there is no fundamental right of a sex offender to be in a park (see People v. Pepitone), there can be no fundamental right of a parent to take a child to a park. At oral argument, some of the justices concentrated on the "fundamental right" of a parent argument and seemed to question how a parent (who is also a "child sex offender") could look after his or her child in circumstances, such as in this case, where the child had entered a public park. At oral argument, the State's attorney replied that, in some circumstances, a parent charged with violating the statute might be able to raise an "affirmative defense" that he or she was protecting his or her own child.
Update 6/18/20: In a 5-2 decision, the Illinois Supreme Court rejected Legoo's challenges and upheld his conviction for violating 720 ILCS 5/11-9.4-1(b) even though he had entered a public park in search of his own child. Read more about the decision here.
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Legal Documents:
IL Supreme Court Decision (6/18/20) IL Supreme Court Oral Argument (3/10/20) IL Supreme Court Reply Brief (2/14/20) IL Supreme Court Appellee's Brief (1/31/20) IL Supreme Court Appellant's Brief (10/30/19) Third District Appellate Court Decision People v. Legoo, 2019 IL App (3d) 160667 (5/20/19) |
Media:
TBD |
MSR is Unconstitutional
4-17-0841 People of Illinois v Parker
The first two arguments are as-applied to the defendant's specific case. These are the remaining arguments:
1. 730 ILCS 5/5-8-l(d)(4) creates a punishment that is grossly disproportionate to the severity of the crime for anyone convicted of one count of criminal sexual assault. This statute creates a possible natural life "custody" period for anyone convicted of certain crimes including criminal sexual assault. The sentencing court can only impose a maximum of 17 years in "custody" for any other class one felony.
2. 730 ILCS 5/5-8-l(d) violates the Article II, Section 1, (Illinois Constitution) Separation of
Powers Doctrine. Essentially the Illinois Legislature has unconstitutionally delegated the power to impose a new sentence of imprisonment to the executive branch of government. The power to impose a sentence is exclusively a function of the judicial branch.
3. 730 ILCS 5/3-6-3(a)(2),(2.3),(2.4),(2.5) and (2.6) deny anyone they are applied to Equal Protection of the law in violation of the 14th U.S.C.A. as long as anyone sentenced on the same day has their sentence calculated pursuant to 730 ILCS 5/3-6-3(a)(2.1). Any offender sentenced to the same class felony should receive the same day for day credit as another offender sentenced to the same class felony.
4. 730 ILCS 5/3-6-3(a)(4.6) is facially VOID for vagueness in violation of the 14th U.S.C.A. This statute prohibits "sex offenders" from earning sentence credit for classes or programming they take while in prison unless they "successfully complete" sex offender treatment or have the Director's sole approval. The statute as written encourages arbitrary and discriminatory enforcement.
Update 3/26/20: This case was affirmed in an unpublished Rule 23 appellate order on 9/17/19. Since the decision was unpublished it holds no precedential value.
4-17-0841 People of Illinois v Parker
The first two arguments are as-applied to the defendant's specific case. These are the remaining arguments:
1. 730 ILCS 5/5-8-l(d)(4) creates a punishment that is grossly disproportionate to the severity of the crime for anyone convicted of one count of criminal sexual assault. This statute creates a possible natural life "custody" period for anyone convicted of certain crimes including criminal sexual assault. The sentencing court can only impose a maximum of 17 years in "custody" for any other class one felony.
2. 730 ILCS 5/5-8-l(d) violates the Article II, Section 1, (Illinois Constitution) Separation of
Powers Doctrine. Essentially the Illinois Legislature has unconstitutionally delegated the power to impose a new sentence of imprisonment to the executive branch of government. The power to impose a sentence is exclusively a function of the judicial branch.
3. 730 ILCS 5/3-6-3(a)(2),(2.3),(2.4),(2.5) and (2.6) deny anyone they are applied to Equal Protection of the law in violation of the 14th U.S.C.A. as long as anyone sentenced on the same day has their sentence calculated pursuant to 730 ILCS 5/3-6-3(a)(2.1). Any offender sentenced to the same class felony should receive the same day for day credit as another offender sentenced to the same class felony.
4. 730 ILCS 5/3-6-3(a)(4.6) is facially VOID for vagueness in violation of the 14th U.S.C.A. This statute prohibits "sex offenders" from earning sentence credit for classes or programming they take while in prison unless they "successfully complete" sex offender treatment or have the Director's sole approval. The statute as written encourages arbitrary and discriminatory enforcement.
Update 3/26/20: This case was affirmed in an unpublished Rule 23 appellate order on 9/17/19. Since the decision was unpublished it holds no precedential value.
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Legal Documents:
People v. Parker Appeal Order (filed 9/17/19) Brief and Argument for Defendant-Appellant (filed 5/21/19) |
Media:
TBD |
Ex Post Facto Registration Challenge
122008 People of Illinois v. Bingham
This case was heard by the IL Supreme Court following an unfavorable decision by the 1st District Appellate Court. In that case the defendant contended that applying the Mendoza-Martinez factors, the court should find that the registration requirement is punishment and that the Act violates the Ex Post Facto clauses by retroactively imposing the registration requirement for a crime committed more than 30 years ago. The appellate court found that they are bound by the decisions of the Illinois Supreme Court that has held that the registration requirement is not a punishment and thus the Act does not violate the Ex Post Facto clauses. This is both an as-applied challenge and a facial challenge. A win on the as-applied challenge would mean the end of registration for Mr. Bingham. A win on the facial challenge could mean the end of registration for all individuals who have been forced to register as a sex offender due to a felony conviction (re-triggering the requirement to register) and possibly the end of registration for those whose terms have been extended due to changes in the laws.
The IL Supreme Court was asked to decide the following:
1. Whether the 2011 amendment to the Sex Offender Registration Act (SORA), which requires lifetime registration for a defendant who is convicted of any felony after having been previously convicted of a sex offense, violates due process as applied to defendant since there is no rational relationship between SORA’s purpose of protecting the public from sex offenders and defendant’s current conviction for theft coupled with a conviction for a sex offense that occurred 30 years earlier.
2. Whether the current version of the Sex Offender Registration Act (SORA) has become punitive in nature and thus its imposition in this case for a sex offense that occurred 30 years earlier violates the prohibition against Ex Post Facto legislation by increasing the punishment for an offense that had already been committed.
122008 People of Illinois v. Bingham
This case was heard by the IL Supreme Court following an unfavorable decision by the 1st District Appellate Court. In that case the defendant contended that applying the Mendoza-Martinez factors, the court should find that the registration requirement is punishment and that the Act violates the Ex Post Facto clauses by retroactively imposing the registration requirement for a crime committed more than 30 years ago. The appellate court found that they are bound by the decisions of the Illinois Supreme Court that has held that the registration requirement is not a punishment and thus the Act does not violate the Ex Post Facto clauses. This is both an as-applied challenge and a facial challenge. A win on the as-applied challenge would mean the end of registration for Mr. Bingham. A win on the facial challenge could mean the end of registration for all individuals who have been forced to register as a sex offender due to a felony conviction (re-triggering the requirement to register) and possibly the end of registration for those whose terms have been extended due to changes in the laws.
The IL Supreme Court was asked to decide the following:
1. Whether the 2011 amendment to the Sex Offender Registration Act (SORA), which requires lifetime registration for a defendant who is convicted of any felony after having been previously convicted of a sex offense, violates due process as applied to defendant since there is no rational relationship between SORA’s purpose of protecting the public from sex offenders and defendant’s current conviction for theft coupled with a conviction for a sex offense that occurred 30 years earlier.
2. Whether the current version of the Sex Offender Registration Act (SORA) has become punitive in nature and thus its imposition in this case for a sex offense that occurred 30 years earlier violates the prohibition against Ex Post Facto legislation by increasing the punishment for an offense that had already been committed.
There are three (3) recent cases that have ruled registration is punishment which will likely be cited to the IL Supreme Court:
1. Michigan
On 8/25/16, the U.S. Circuit Court of Appeals for the 6th Circuit ruled in Doe v. Snyder that the Michigan Sex Offender Registration Act (SORA) imposes retroactive punishment on previously convicted sex offenders in violation of the constitutional prohibition against Ex Post Facto laws. On 12/14/16 the State of Michigan petitioned the U.S. Supreme Court for a Writ of Certiorari. On 2/16/17 the opposition brief was filed. On 3/27/17 the U.S. Supreme Court asked the Acting U.S. Solicitor General to file a brief in the case expressing the views of the United States. On 7/7/17 the Acting U.S. Solicitor General's brief (direct link) agrees with the appellate court decision and concludes that the petition should be denied. On 7/25/17 State of Michigan filed a supplemental brief asking for the U.S. Supreme Court to grant the petition - see analysis here. The petition is scheduled for a conference 9/25/17 and sometime after that the U.S. Supreme Court will announce whether or not it will grant the petition.
2. Pennsylvania
On 7/19/17, the Pennsylvania Supreme Court ruled in Commonwealth of PA v. Muniz that SORNA's registration provisions constitute punishment and retroactive application of it violates the U.S. Constitution and the Pennsylvania state constitution. See more information on this case here. Pennsylvania plans to appeal the ruling to the U.S. Supreme Court. On 9/5/17 the Pennsylvania Supreme Court stayed its ruling while the state of Pennsylvania petitions the U.S. Supreme Court for a Writ of Certiorari.
3. Colorado
On 8/31/17, the U.S. District Court for the District of Colorado ruled in Millard, Knight, Vega v. Colorado Bureau of Investigation that the entire Colorado Sex Offender Registration Act is unconstitutional as applied to three plaintiffs who sued the director of Colorado's Bureau of Investigation (the state agency responsible for maintaining the state's sex offender registry.) The judge ruled that the Colorado registry exposes offenders to punishment from the public and inhibits their ability to find work or housing long after they have completed their sentences. Using the seven factors set forth in Kennedy v. Mendoza-Martinez, the court held that six of the seven factors weighed in favor of finding the state's SORA requirements punitive in their effects and, therefore, in violation of the Eighth Amendment's prohibition against cruel and unusual punishment. The Colorado Attorney General has announced that she will appeal the ruling to the Federal 10th Circuit Court of Appeals. See this 9/15/17 article entitled "The Politics of Defending the Sex-Offender Registry" for some further analysis and commentary.
Update 7/3/19: The IL Supreme Court issued an unfavorable opinion on 9/20/18 but did not actually address the merits raised by Bingham. The Court simply said that the forum of a direct appeal of a criminal conviction was an improper mechanism to rule on the presented issues when the sentencing court did not impose the sex offender registration obligation on the Defendant and it was not related to the reasons for the conviction and sentence. The Court ruled that a reviewing court has no power on direct appeal of a criminal conviction to order that the defendant be relieved of the obligation to register as a sex offender when there is neither an obligation to register imposed directly by the trial court nor an order or conviction that the defendant is appealing that is directly related to the obligation or the failure to register. The Court went on to say that registration is a collateral consequence of conviction that should be raised in a separate civil action where a factual record can be developed. Furthermore, with regard to ripeness, without an evidentiary record, any finding that a statute is unconstitutional "as applied" would be premature. In other words, the Court did not rule either for or against the merits raised by Bingham and BIngham (or someone else) could bring this challenge again in the proper forum.
1. Michigan
On 8/25/16, the U.S. Circuit Court of Appeals for the 6th Circuit ruled in Doe v. Snyder that the Michigan Sex Offender Registration Act (SORA) imposes retroactive punishment on previously convicted sex offenders in violation of the constitutional prohibition against Ex Post Facto laws. On 12/14/16 the State of Michigan petitioned the U.S. Supreme Court for a Writ of Certiorari. On 2/16/17 the opposition brief was filed. On 3/27/17 the U.S. Supreme Court asked the Acting U.S. Solicitor General to file a brief in the case expressing the views of the United States. On 7/7/17 the Acting U.S. Solicitor General's brief (direct link) agrees with the appellate court decision and concludes that the petition should be denied. On 7/25/17 State of Michigan filed a supplemental brief asking for the U.S. Supreme Court to grant the petition - see analysis here. The petition is scheduled for a conference 9/25/17 and sometime after that the U.S. Supreme Court will announce whether or not it will grant the petition.
2. Pennsylvania
On 7/19/17, the Pennsylvania Supreme Court ruled in Commonwealth of PA v. Muniz that SORNA's registration provisions constitute punishment and retroactive application of it violates the U.S. Constitution and the Pennsylvania state constitution. See more information on this case here. Pennsylvania plans to appeal the ruling to the U.S. Supreme Court. On 9/5/17 the Pennsylvania Supreme Court stayed its ruling while the state of Pennsylvania petitions the U.S. Supreme Court for a Writ of Certiorari.
3. Colorado
On 8/31/17, the U.S. District Court for the District of Colorado ruled in Millard, Knight, Vega v. Colorado Bureau of Investigation that the entire Colorado Sex Offender Registration Act is unconstitutional as applied to three plaintiffs who sued the director of Colorado's Bureau of Investigation (the state agency responsible for maintaining the state's sex offender registry.) The judge ruled that the Colorado registry exposes offenders to punishment from the public and inhibits their ability to find work or housing long after they have completed their sentences. Using the seven factors set forth in Kennedy v. Mendoza-Martinez, the court held that six of the seven factors weighed in favor of finding the state's SORA requirements punitive in their effects and, therefore, in violation of the Eighth Amendment's prohibition against cruel and unusual punishment. The Colorado Attorney General has announced that she will appeal the ruling to the Federal 10th Circuit Court of Appeals. See this 9/15/17 article entitled "The Politics of Defending the Sex-Offender Registry" for some further analysis and commentary.
Update 7/3/19: The IL Supreme Court issued an unfavorable opinion on 9/20/18 but did not actually address the merits raised by Bingham. The Court simply said that the forum of a direct appeal of a criminal conviction was an improper mechanism to rule on the presented issues when the sentencing court did not impose the sex offender registration obligation on the Defendant and it was not related to the reasons for the conviction and sentence. The Court ruled that a reviewing court has no power on direct appeal of a criminal conviction to order that the defendant be relieved of the obligation to register as a sex offender when there is neither an obligation to register imposed directly by the trial court nor an order or conviction that the defendant is appealing that is directly related to the obligation or the failure to register. The Court went on to say that registration is a collateral consequence of conviction that should be raised in a separate civil action where a factual record can be developed. Furthermore, with regard to ripeness, without an evidentiary record, any finding that a statute is unconstitutional "as applied" would be premature. In other words, the Court did not rule either for or against the merits raised by Bingham and BIngham (or someone else) could bring this challenge again in the proper forum.
Park Restriction "Innocent Conduct" Challenge
122034 People of Illinois v. Pepitone
This case was on appeal to the Illinois Supreme Court following a favorable decision by the 3rd District Appellate Court which found the park restriction law to be facially unconstitutional. If the Illinois Supreme Court agrees with the Appellate Court then the law as currently written will no longer be enforceable. If you are affected by the park restrictions then it is advisable that you stay out of the public parks until the IL Supreme Court affirms the Appellate Court ruling since you could still be arrested and prosecuted.
The court was asked to decide the following:
Whether the park presence restriction law in 720 ILCS 5/11-9.4-1, which provides that it is unlawful for a child sex offender or sexual predator to be knowingly present in any public park building or on real property comprising any public park, violates due process because a total ban of persons convicted of a sex offense from all public park buildings and all public parks at all times is an unreasonable method of protecting the public and encompasses substantial amounts of "innocent conduct". The current law impacts anyone ever convicted of a sex offense against a minor and anyone classified by the state to be a "sexual predator" which includes people who have been convicted of any sex offense (not just offenses against a minor) in another state. Read the Transcript of the House Debate on SB2824 (below) and especially pay attention to the comments by Rep. Fritchey -- at the bottom of page 69 he said this law "may be so overly broad it would not withstand court scrutiny..."
122034 People of Illinois v. Pepitone
This case was on appeal to the Illinois Supreme Court following a favorable decision by the 3rd District Appellate Court which found the park restriction law to be facially unconstitutional. If the Illinois Supreme Court agrees with the Appellate Court then the law as currently written will no longer be enforceable. If you are affected by the park restrictions then it is advisable that you stay out of the public parks until the IL Supreme Court affirms the Appellate Court ruling since you could still be arrested and prosecuted.
The court was asked to decide the following:
Whether the park presence restriction law in 720 ILCS 5/11-9.4-1, which provides that it is unlawful for a child sex offender or sexual predator to be knowingly present in any public park building or on real property comprising any public park, violates due process because a total ban of persons convicted of a sex offense from all public park buildings and all public parks at all times is an unreasonable method of protecting the public and encompasses substantial amounts of "innocent conduct". The current law impacts anyone ever convicted of a sex offense against a minor and anyone classified by the state to be a "sexual predator" which includes people who have been convicted of any sex offense (not just offenses against a minor) in another state. Read the Transcript of the House Debate on SB2824 (below) and especially pay attention to the comments by Rep. Fritchey -- at the bottom of page 69 he said this law "may be so overly broad it would not withstand court scrutiny..."
On 4/15/18 the IL Supreme Court issued a unanimous opinion that reversed the judgment of the appellate court and affirmed the defendant's conviction and sentence. The case was remanded" to the appellate court for a decision on the claim that the law is punitive and violates the "ex post facto" clause.
Update 7/3/19: On 5/15/19 the 2nd District Appellate Court issued a decision that the law DOES NOT violate the ex post facto clauses.
Update 7/3/19: On 5/15/19 the 2nd District Appellate Court issued a decision that the law DOES NOT violate the ex post facto clauses.
Illinois Sex Offender Laws - Disproportionate Penalty
People v. Tetter, 2018 IL App (3d) 150243
A sexual relationship between the 21 year old male defendant and a 16 year old female (who indicated to defendant that she was 18 years old) resulted in a conviction and subjected the defendant to a lifetime on the IL Sex Offender Registry with all of the restrictions that come with a such a conviction. On appeal, the 3rd District Appellate Court ruled that the sex offender statutes constitute punishment as contemplated by the eighth amendment and the Illinois Constitution’s disproportionate penalties clause. The court also ruled that as applied to the defendant the laws constitute disproportionate punishment since the facts underlying the defendant’s conviction do not suggest that he is a dangerous sexual predator who must be banned from areas near schools or public parks, or who must be monitored by law enforcement authorities and presented to the public as a dangerous sexual predator.
People v. Tetter, 2018 IL App (3d) 150243
A sexual relationship between the 21 year old male defendant and a 16 year old female (who indicated to defendant that she was 18 years old) resulted in a conviction and subjected the defendant to a lifetime on the IL Sex Offender Registry with all of the restrictions that come with a such a conviction. On appeal, the 3rd District Appellate Court ruled that the sex offender statutes constitute punishment as contemplated by the eighth amendment and the Illinois Constitution’s disproportionate penalties clause. The court also ruled that as applied to the defendant the laws constitute disproportionate punishment since the facts underlying the defendant’s conviction do not suggest that he is a dangerous sexual predator who must be banned from areas near schools or public parks, or who must be monitored by law enforcement authorities and presented to the public as a dangerous sexual predator.
Update 7/3/19: The Illinois Supreme Court vacated this ruling on 1/31/19 pursuant to its supervisory authority and directed the 3rd district to consider the effect of its opinion in Bingham. Thus, this opinion is no longer good case law.
Update 3/26/20: After remand from the Illinois Supreme Court in light of the Bingham decision, the Third District Appellate Court found in a November 26, 2019 decision that it had no jurisdiction to address the as-applied challenge to Tetter's sex offender registration on direct appeal from a criminal conviction since it was not a punishment imposed by the trial court. Such a challenge would need to be made in a separate civil action.
Update 3/26/20: After remand from the Illinois Supreme Court in light of the Bingham decision, the Third District Appellate Court found in a November 26, 2019 decision that it had no jurisdiction to address the as-applied challenge to Tetter's sex offender registration on direct appeal from a criminal conviction since it was not a punishment imposed by the trial court. Such a challenge would need to be made in a separate civil action.
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Legal Documents:
Appellate Court Opinion After Remand (filed 11/26/2019) Favorable 3rd District Appellate Court Ruling (filed 1/31/2018) |
Media:
TBD |
Illinois Sex Offender Laws - Disproportionate Penalty
People v. Kochevar, 2018 IL App (3d) 140660
Kochevar and his alleged victim were both on the track team at Prophetstown High School in Whiteside County and had known each other for several years. When Kochevar turned 18 the relationship became sexual. The alleged victim's parents called the police once they found out about the relationship. In a 30-page unanimous decision issued on 8/20/18 the 3rd District Appellate Court found that Illinois' SORA as applied to Mr. Kochevar violated both the Eighth Amendment and the proportionate penalties clause of the Illinois Constitution. In the ruling, Judge McDade wrote "This system that the legislature has devised affirmatively obstructs the [s]tate’s constitutional objective of restoring this particular offender to useful citizenship in violation of the proportionate penalties clause of the Illinois Constitution.” In its decision the court vacated Kochevar's requirement to register as a sex offender or to comply with any restrictions that Illinois imposes on sex offenders who have been convicted of an offense against a minor.
People v. Kochevar, 2018 IL App (3d) 140660
Kochevar and his alleged victim were both on the track team at Prophetstown High School in Whiteside County and had known each other for several years. When Kochevar turned 18 the relationship became sexual. The alleged victim's parents called the police once they found out about the relationship. In a 30-page unanimous decision issued on 8/20/18 the 3rd District Appellate Court found that Illinois' SORA as applied to Mr. Kochevar violated both the Eighth Amendment and the proportionate penalties clause of the Illinois Constitution. In the ruling, Judge McDade wrote "This system that the legislature has devised affirmatively obstructs the [s]tate’s constitutional objective of restoring this particular offender to useful citizenship in violation of the proportionate penalties clause of the Illinois Constitution.” In its decision the court vacated Kochevar's requirement to register as a sex offender or to comply with any restrictions that Illinois imposes on sex offenders who have been convicted of an offense against a minor.
Update 7/3/19: The Illinois Supreme Court vacated this ruling on 1/31/19 pursuant to its supervisory authority and directed the 3rd district to consider the effect of its opinion in Bingham. Thus, this opinion is no longer good case law.
Update 3/26/20: After remand from the Illinois Supreme Court in light of the Bingham decision, the Third District Appellate Court found in a February 4, 2020 decision that because registration is a collateral consequence of a conviction and not part of the trial court’s judgment, the appellate court was without jurisdiction to consider the challenge on direct appeal in light of Bingham. Such a challenge could only be make on direct appeal finding a defendant guilty of violating the sex offender registration statue or by pursuing a constitutional claim in civil court. The appeal was thus dismissed. The decision was not unanimous. One justice issued a dissent, finding that the facts were different from Bingham to not preclude the Appellate Court from issuing its ruling. However, the dissent holds no precedential value.
Update 3/26/20: After remand from the Illinois Supreme Court in light of the Bingham decision, the Third District Appellate Court found in a February 4, 2020 decision that because registration is a collateral consequence of a conviction and not part of the trial court’s judgment, the appellate court was without jurisdiction to consider the challenge on direct appeal in light of Bingham. Such a challenge could only be make on direct appeal finding a defendant guilty of violating the sex offender registration statue or by pursuing a constitutional claim in civil court. The appeal was thus dismissed. The decision was not unanimous. One justice issued a dissent, finding that the facts were different from Bingham to not preclude the Appellate Court from issuing its ruling. However, the dissent holds no precedential value.
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Legal Documents:
People v. Kochevar Opinion (filed 2/4/2020) Favorable 3rd District Appellate Court Ruling (filed 8/20/2018) Oral Argument for People v. Kochevar (11/29/2016) |
Media:
TBD |
Internet Identifier Challenge
2016 IL 119563 People of Illinois v. Minnis
In July 2015, a McLean County (IL) judge ruled that the requirement that Illinois sex offenders report all Internet sites they use to police is unconstitutional because it violates free speech rights. On 10/20/16 the IL Supreme Court reversed the decision and ruled that the law is constitutional.
2016 IL 119563 People of Illinois v. Minnis
In July 2015, a McLean County (IL) judge ruled that the requirement that Illinois sex offenders report all Internet sites they use to police is unconstitutional because it violates free speech rights. On 10/20/16 the IL Supreme Court reversed the decision and ruled that the law is constitutional.
An appeal was filed with the U.S. Supreme Court but on 6/26/17 they denied "cert" which means they won't hear the case. In light of the recent Packingham decision by the U.S. Supreme Court it appears that a re-hearing by the IL Supreme Court or the original trial court in McLean County may be requested in this case so stay tuned. There are pending legal challenges to the registration of internet identifiers going on in other states so this is an issue that may eventually make its way to the U.S. Supreme Court if there are differing rulings in the federal district courts.
This case came to an end May 2019. Minnis accepted a plea offer that dismissed the 2018 felony case and he instead plead guilty to filing a false police report that omitted the social media information. He was placed on Second Chance probation, a program that allows defendants to have a conviction removed from their record if they complete two years of probation.
Update 3/26/20: Case is complete.
This case came to an end May 2019. Minnis accepted a plea offer that dismissed the 2018 felony case and he instead plead guilty to filing a false police report that omitted the social media information. He was placed on Second Chance probation, a program that allows defendants to have a conviction removed from their record if they complete two years of probation.
Update 3/26/20: Case is complete.
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Legal Documents:
U.S. Supreme Court Order Denying Certiorari (filed 6/26/17) Cato Institute Brief to U.S. Supreme Court (filed 3/24/17) Illinois Supreme Court Ruling (filed 10/20/16) |
Media:
Plea deal ends McLean County sex offender case (5/25/19 Pantagraph) Sex offender from Normal back in court on internet access issue (11/27/17 Herald & Review News Service) High court won't hear sex offender case (6/26/17 Herald & Review News Service) Blog Comparing Minnis to Packingham (6/19/17 kenwanglaw.com) Supreme Court reverses ruling on sex offender's internet use (10/21/16 The Pantagraph) Sex offender internet law constitutional (10/20/16 Chicago Daily Law Bulletin) Judge: Sex offender rule unconstitutional (7/10/15 The Pantagraph) |
Other Recent Decisions of Interest..
Probation Social Media Restriction is Unconstitutional
2019 IL 123643 People of Illinois v. Morger
In a unanimous opinion filed on 11/21/19 by the Illinois Supreme Court, the probationary internet restriction outlined in section 730 ILCS 5/5-6-3(a)(8.9) of the Illinois Unified Code of Corrections has been declared overbroad and facially unconstitutional. The statute bans the use of social media for all probationers who are convicted of a sex offense, whether or not a minor was involved and whether or not the use of social media was a factor in the commission of the offense.
The court applied what's called "intermediate scrutiny". In order to survive intermediate scrutiny, a law must be narrowly tailored to serve a significant government interest and it must not burden substantially more speech than is necessary to further the government's legitimate interests.
The court concluded that the absolute social media ban admits no exceptions for legitimate use which could be supervised and overseen by a defendant's probation officer. The court found that the statute unnecessarily sweeps within its purview those who never used the Internet--much less social media--to commit their offense and who show no propensity to do so, as well as those whose Internet activities can be supervised and monitored by less restrictive means.
Q: I am on supervised release. What does this ruling mean to me?
A: Conditions of supervised release are covered in a different statute 730 ILCS 5/3-3-7(7.12) with the same wording as the statute challenged in this ruling. Presumably that statute is also unconstitutional but may need to be challenged separately since it was not called out in this decision.
Q: If I am on probation does this mean I can immediately start accessing social media?
A: Talk to your probation officer. The court did not strike down other subsections of 730 ILCS 5/5-6-3 including (a)(18) so you still must get permission from your probation officer before using any devices with internet capability.
Update 3/26/20: Case is complete.
2019 IL 123643 People of Illinois v. Morger
In a unanimous opinion filed on 11/21/19 by the Illinois Supreme Court, the probationary internet restriction outlined in section 730 ILCS 5/5-6-3(a)(8.9) of the Illinois Unified Code of Corrections has been declared overbroad and facially unconstitutional. The statute bans the use of social media for all probationers who are convicted of a sex offense, whether or not a minor was involved and whether or not the use of social media was a factor in the commission of the offense.
The court applied what's called "intermediate scrutiny". In order to survive intermediate scrutiny, a law must be narrowly tailored to serve a significant government interest and it must not burden substantially more speech than is necessary to further the government's legitimate interests.
The court concluded that the absolute social media ban admits no exceptions for legitimate use which could be supervised and overseen by a defendant's probation officer. The court found that the statute unnecessarily sweeps within its purview those who never used the Internet--much less social media--to commit their offense and who show no propensity to do so, as well as those whose Internet activities can be supervised and monitored by less restrictive means.
Q: I am on supervised release. What does this ruling mean to me?
A: Conditions of supervised release are covered in a different statute 730 ILCS 5/3-3-7(7.12) with the same wording as the statute challenged in this ruling. Presumably that statute is also unconstitutional but may need to be challenged separately since it was not called out in this decision.
Q: If I am on probation does this mean I can immediately start accessing social media?
A: Talk to your probation officer. The court did not strike down other subsections of 730 ILCS 5/5-6-3 including (a)(18) so you still must get permission from your probation officer before using any devices with internet capability.
Update 3/26/20: Case is complete.
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Legal Documents:
IL Supreme Court Decision (filed 11/21/19) 2018 IL App (4th) 170285 Appellate Court Decision (filed 4/25/18) |
Media:
Illinois Supreme Court strikes down social media ban for sex offenders (Peoria Journal Star 11/24/19) High court says sex offenders' right to free speech outweighs social media prohibition (Jacksonville Journal Courier 11/23/19) Blanket ban on sex offenders accessing social media struck down (CapitalFax.com 11/22/19) |
As-Applied Challenge of 720 ILCS 5/11-9.3(c)
2018 IL App 3d 160599 People of Illinois v. Haberkorn
This case challenged the statute that makes it unlawful for a child sex offender to be present at a facility providing services exclusively directed toward children. The defendant accompanied his cousin and her three children onto a bus chartered by Easter Seals. A parent on the bus recognized the defendant as a sex offender and an Easter Seals employee asked him to exit the bus. The Will County State's Attorney charged the defendant with a violation of 720 ILCS 5/11-9.3(c). The trial court found the defendant guilty and sentenced him to 24 months probation. The appellate court focused on the definition of the word "exclusively" and evidence presented at trial established that Easter Seals is not a facility that provides programs or services exclusively directed toward persons under the age of 18. In ¶ 35 of the opinion (see page 15) the court issued a scathing opinion of the state's sex offender laws. The court indicated in the opinion that "a one-size-fits-all approach to dealing with those who have sexual contact with minors is oppressive and contrary to accepted notions of crime and punishment." The court reversed the defendant's conviction and sentence.
Update 3/26/20: Case is complete.
2018 IL App 3d 160599 People of Illinois v. Haberkorn
This case challenged the statute that makes it unlawful for a child sex offender to be present at a facility providing services exclusively directed toward children. The defendant accompanied his cousin and her three children onto a bus chartered by Easter Seals. A parent on the bus recognized the defendant as a sex offender and an Easter Seals employee asked him to exit the bus. The Will County State's Attorney charged the defendant with a violation of 720 ILCS 5/11-9.3(c). The trial court found the defendant guilty and sentenced him to 24 months probation. The appellate court focused on the definition of the word "exclusively" and evidence presented at trial established that Easter Seals is not a facility that provides programs or services exclusively directed toward persons under the age of 18. In ¶ 35 of the opinion (see page 15) the court issued a scathing opinion of the state's sex offender laws. The court indicated in the opinion that "a one-size-fits-all approach to dealing with those who have sexual contact with minors is oppressive and contrary to accepted notions of crime and punishment." The court reversed the defendant's conviction and sentence.
Update 3/26/20: Case is complete.
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Legal Documents:
Favorable 3rd District Appellate Court Ruling (filed 4/3/18) Appellate Court Oral Argument (1/24/18) |
Media:
TBD |
Re-Registering an Already Registered Address After Returning to that Address After a Temporary Absence
2017 IL 121072 People of Illinois v. Pearse
This case was decided by the IL Supreme Court on 3/23/2017. Following a jury trial in the circuit court of Boone County, defendant, Brian Pearse, was convicted of failing to register his address. The appellate court affirmed his conviction. The IL Supreme court reversed the decision of the appellate court.
Mr. Pearse was in the hospital where he was properly registered but after returning home he did not register again upon returning home from the hospital. The IL Supreme Court found no statutory duty to "re-register" a home address which is already registered upon returning to that address after a temporary absence. The IL Supreme Court said in its ruling "In light of the confusion exhibited by the parties, the circuit court, and the appellate panel in this case, we believe it appropriate to encourage the legislature to review this statutory scheme and revise it for purposes of clarity if our construction is not what is intended. There is no doubt that the Act (Sex Offender Registration Act) performs a vital function in assisting law enforcement agencies in keeping their communities safe. However, persons subject to the Act's provisions must also have fair notice of what is required."
Since the registration law is rather vague on this point, you should still report to the police department in person to inform them you have returned to your registered address after an absence of 3 or more days.
Update 3/26/20: Case is complete.
2017 IL 121072 People of Illinois v. Pearse
This case was decided by the IL Supreme Court on 3/23/2017. Following a jury trial in the circuit court of Boone County, defendant, Brian Pearse, was convicted of failing to register his address. The appellate court affirmed his conviction. The IL Supreme court reversed the decision of the appellate court.
Mr. Pearse was in the hospital where he was properly registered but after returning home he did not register again upon returning home from the hospital. The IL Supreme Court found no statutory duty to "re-register" a home address which is already registered upon returning to that address after a temporary absence. The IL Supreme Court said in its ruling "In light of the confusion exhibited by the parties, the circuit court, and the appellate panel in this case, we believe it appropriate to encourage the legislature to review this statutory scheme and revise it for purposes of clarity if our construction is not what is intended. There is no doubt that the Act (Sex Offender Registration Act) performs a vital function in assisting law enforcement agencies in keeping their communities safe. However, persons subject to the Act's provisions must also have fair notice of what is required."
Since the registration law is rather vague on this point, you should still report to the police department in person to inform them you have returned to your registered address after an absence of 3 or more days.
Update 3/26/20: Case is complete.
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Legal Documents:
Favorable IL Supreme Court Decision (filed 3/23/17) Unfavorable 2nd District Appellate Court Ruling (filed 6/22/16) |
Media:
TBD |
Loss of Employment is not Change in "Place of Employment"
People v. Kayer, 2013 IL App (4th) 120028
This case was decided by the IL Fourth District Appellate Court on 5/6/2013. In July 2011, the State charged the defendant, Brian M. Kayer, with unlawful failure to register employment change as a sex offender (730 ILCS 150/6). In September 2011, defendant pleaded guilty to that offense. In October 2011, the trial court sentenced him to three years' imprisonment. Defendant appeals, arguing his conviction is void because the loss of his job did not constitute a "change" in his "place of employment" such that he was required to report under section 6 of the Sex Offender Registration Act. The appellate court agreed and vacated the defendant's conviction.
Since the registration law is rather vague on this point, you should still report to the police department in person to inform them you have lost your job within 3 days of loss of employment.
Update 3/26/20: Case is complete.
People v. Kayer, 2013 IL App (4th) 120028
This case was decided by the IL Fourth District Appellate Court on 5/6/2013. In July 2011, the State charged the defendant, Brian M. Kayer, with unlawful failure to register employment change as a sex offender (730 ILCS 150/6). In September 2011, defendant pleaded guilty to that offense. In October 2011, the trial court sentenced him to three years' imprisonment. Defendant appeals, arguing his conviction is void because the loss of his job did not constitute a "change" in his "place of employment" such that he was required to report under section 6 of the Sex Offender Registration Act. The appellate court agreed and vacated the defendant's conviction.
Since the registration law is rather vague on this point, you should still report to the police department in person to inform them you have lost your job within 3 days of loss of employment.
Update 3/26/20: Case is complete.
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Legal Documents:
Favorable 4th District Appellate Court Opinion (filed 5/6/13) |
Media:
Illinois tries to tighten sex-offender law, but will it make people safer? (IllinoisWatchdog.org 2/13/14) |
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