Hadley v. Montes

NO. 4-07-0506 Filed 2/26/08

IN THE APPELLATE COURT

OF ILLINOIS

FOURTH DISTRICT

WILLIE B. HADLEY, JR., ) Appeal from
Plaintiff-Appellant, ) Circuit Court of
v. ) Sangamon County
JORGE MONTES, Chairman of the Illinois ) No. 07MR60
Prisoner Review Board, and All )
Members, ) Honorable
Defendants-Appellees. ) Leslie J. Graves,
) Judge Presiding.
______________________________________________________________

JUSTICE TURNER delivered the opinion of the court:

In February 2007, plaintiff, Willie B. Hadley, Jr., an

inmate at Lawrence Correctional Center, filed a complaint for

injunctive, declaratory, and mandamus relief against defendants,

Jorge Montes, Chairman of the Illinois Prisoner Review Board

(Board), and all members, concerning the requirement that he

submit to electronic monitoring while on parole. In April 2007,

defendants filed a motion to dismiss, which the trial court

granted.

On appeal, plaintiff argues the trial court erred in

granting defendants' motion to dismiss. We affirm.

I. BACKGROUND

In February 2007, plaintiff filed a complaint for

injunctive, declaratory, and mandamus relief against defendants

based on the requirement that he submit to electronic monitoring

while on parole. Plaintiff was convicted of murder in 1976 and
sentenced to 24 to 74 years in prison. In January 2007, plain-

tiff was told his mandatory parole term would include two condi-

tions: (1) close supervision and (2) electronic home monitoring.

Plaintiff was released on parole in May 2007 with the condition

that he submit to electronic monitoring.

In his complaint, plaintiff noted the Electronic Home

Detention Law became effective in January 1991. See Ill. Rev.

Stat. 1991, ch. 38, pars. 1005-8A-1 through 1005-8A-5. As he was

convicted prior to the enactment of the law, he argued the

electronic-monitoring condition during his parole term violated

the ex post facto clauses of the United States and Illinois

Constitutions. Plaintiff claimed the condition could not be

legally applied retroactively to his crime and defendants were

prohibited from making his punishment more onerous through

application of the condition. Plaintiff asked the trial court to

find defendants' retroactive application of the electronic-

monitoring law violated the ex post facto clauses, direct defen-

dants not to impose the electronic-monitoring condition, and

order any other relief deemed appropriate. Plaintiff also filed

a motion for preliminary injunction.

In March 2007, plaintiff filed a motion for summary

judgment, alleging no genuine issues of material fact existed.

In April 2007, defendants filed a motion to dismiss pursuant to

section 2-619 of the Code of Civil Procedure (Procedure Code)

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(735 ILCS 5/2-619 (West 2006)). Defendants argued the imposition

of electronic home detention was not ex post facto because it was

merely a means to ensure that conditions of parole were being

followed. In May 2007, the trial court granted the motion to

dismiss. This appeal followed.

II. ANALYSIS

Plaintiff argues defendants violated the ex post facto

clauses of the United States and Illinois Constitutions when they

conditioned his parole on the requirement that he submit to

electronic monitoring. We disagree.

A. Standard of Review

"Mandamus is an extraordinary remedy traditionally used

to compel a public official to perform a ministerial duty."

People ex rel. Madigan v. Snyder, 208 Ill. 2d 457, 464, 804

N.E.2d 546, 552 (2004). A court will award a writ of mandamus

"only if a plaintiff establishes a clear, affirmative right to

relief, a clear duty of the public official to act, and a clear

authority in the public official to comply with the writ."

People ex rel. Ryan v. Roe, 201 Ill. 2d 552, 555, 778 N.E.2d 701,

703 (2002). "A plaintiff must set forth every material fact

necessary to show he or she is entitled to a writ of mandamus,

and the plaintiff bears the burden to establish a clear, legal

right to it." Lucas v. Taylor, 349 Ill. App. 3d 995, 998, 812

N.E.2d 72, 75 (2004), citing Chicago Ass'n of Commerce & Industry

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v. Regional Transportation Authority, 86 Ill. 2d 179, 185, 427

N.E.2d 153, 156 (1981).

In ruling on a motion to dismiss pursuant to section 2-

619 of the Procedure Code, "the trial court must interpret all

pleadings and supporting documents in the light most favorable to

the nonmoving party," and it should grant the motion "if the

plaintiff can prove no set of facts that would support a cause of

action." Rodriguez v. Sheriff's Merit Comm'n of Kane County, 218

Ill. 2d 342, 349, 843 N.E.2d 379, 382 (2006). On appeal, this

court reviews de novo the granting of a motion to dismiss a

petition for mandamus. Howell v. Snyder, 326 Ill. App. 3d 450,

453, 760 N.E.2d 1009, 1011 (2001).

When a trial court is confronted with a motion for

declaratory judgment, section 2-701 of the Procedure Code states,

in part, as follows:

"The court may, in cases of actual contro-

versy, make binding declarations of rights,

having the force of final judgments, whether

or not any consequential relief is or could

be claimed, including the determination, at

the instance of anyone interested in the

controversy, of the construction of any stat-

ute, municipal ordinance, or other governmen-

tal regulation, *** and a declaration of the

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 rights of the parties interested." 735 ILCS

5/2-701(a) (West 2006).

"The essential requirements of a declaratory judgment action are:

(1) a plaintiff with a legal tangible interest; (2) a defendant

having an opposing interest; and (3) an actual controversy

between the parties concerning such interests." Beahringer v.

Page, 204 Ill. 2d 363, 372, 789 N.E.2d 1216, 1223 (2003). A

court's decision to dismiss a declaratory judgment action under

section 2-619 of the Procedure Code is subject to de novo review.

Northern Trust Co. v. County of Lake, 353 Ill. App. 3d 268, 275,

818 N.E.2d 389, 395 (2004).

B. The Electronic Home Detention Law

The Electronic Home Detention Law, which went into

effect on January 1, 1991, allows certain offenders to serve a

portion of the parole term in the community but subject to

electronic monitoring. 730 ILCS 5/5-8A-3 (West 2006). A parti-

cipant in electronic monitoring must maintain a working telephone

in his residence and keep a monitoring device on his person. 730

ILCS 5/5-8A-4(E) (West 2006). The participant is required to

remain within the interior premises or within the property

boundaries of the residence at all times except during approved

absences, including employment, medical appointments, educational

programs, religious services, or any other "compelling reason

consistent with the public interest." 730 ILCS 5/5-8A-4(A) (West

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2006).

C. The Ex Post Facto Prohibition

Under the United States Constitution, both Congress and

the states are prohibited from enacting ex post facto laws. U.S.

Const., art. I, §§9, 10. The ex post facto clause prohibits

retroactive application of a law that imposes greater punishment

than a law in effect when the crime was committed. Lynce v.

Mathis, 519 U.S. 433, 439-41, 137 L. Ed. 2d 63, 71-72, 117 S. Ct.

891, 895-96 (1997).

"'[A]ny statute which punishes as a crime an

act previously committed, which was innocent

when done; which makes more burdensome the

punishment for a crime, after its commission,

or which deprives one charged with crime of

any defense available according to law at the

time when the act was committed, is prohib-

ited as ex post facto.'" Collins v.

Youngblood, 497 U.S. 37, 42, 111 L. Ed. 2d

30, 39, 110 S. Ct. 2715, 2719 (1990), quoting

Beazell v. Ohio, 269 U.S. 167, 169-70, 70 L.

Ed. 216, 217, 46 S. Ct. 68, 68 (1925).

The Illinois Constitution also forbids the enactment of

ex post facto laws. Ill. Const. 1970, art. I, §16. Our supreme

court has interpreted the ex post facto clause of the Illinois

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Constitution in accord with the pronouncements of the United

States Supreme Court. People v. Cornelius, 213 Ill. 2d 178, 207,

821 N.E.2d 288, 306 (2004); see also Barger v. Peters, 163 Ill.

2d 357, 360, 645 N.E.2d 175, 176 (1994) ("in construing this

State's constitutional provision, we are without a basis to

depart from the Supreme Court's construction of the Federal

ex post facto clause").

Plaintiff argues he suffered a "disadvantage" when the

Board restricted his liberty upon his release on parole through

the application of electronic monitoring under section 5-8A-3 of

the Electronic Home Detention Law. Ill. Rev. Stat. 1991, ch. 38,

par. 1005-8A-3. However, plaintiff's contention that electronic

monitoring disadvantages him does not necessarily mean the

application of the parole condition violates ex post facto

principles.

"The United States Supreme Court has 'retreated from

earlier opinions suggesting that changes affecting punishment

automatically fall within the ex post facto prohibition if they

operate to the "disadvantage" of covered offenders.'" People v.

Pena, 321 Ill. App. 3d 538, 541, 747 N.E.2d 1020, 1022 (2001),

quoting In re J.R., 302 Ill. App. 3d 87, 126, 704 N.E.2d 809, 815

(1998). The Supreme Court has stated that after the decision in

Collins "the focus of the ex post facto inquiry is not on whether

a legislative change produces some ambiguous sort of 'disadvan-

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tage,' *** but on whether any such change alters the definition

of criminal conduct or increases the penalty by which a crime is

punishable." California Department of Corrections v. Morales,

514 U.S. 499, 506-07 n.3, 131 L. Ed. 2d 588, 595 n.3, 115 S. Ct.

1597, 1602 n.3 (1995). To establish an ex post facto violation,

a "plaintiff must show the following: (1) a legislative change;

(2) the change imposed a punishment; and (3) the punishment is

greater than the punishment that existed at the time the crime

was committed." Neville v. Walker, 376 Ill. App. 3d 1115, 1118-

19, 878 N.E.2d 831, 834 (2007).

Changes in laws governing the parole of prisoners may

contravene the ex post facto prohibition. Garner v. Jones, 529

U.S. 244, 250, 146 L. Ed. 2d 236, 244, 120 S. Ct. 1362, 1367

(2000); Ganci v. Washington, 318 Ill. App. 3d 1174, 1185, 745

N.E.2d 42, 50 (2001). However, not all legislative changes that

may conceivably affect a prisoner's punishment are prohibited by

the ex post facto clauses. Morales, 514 U.S. at 508-09, 131 L.

Ed. 2d at 596-97, 115 S. Ct. at 1603. The change in the law must

affect substantial rights because a procedural change is not ex

post facto. Dobbert v. Florida, 432 U.S. 282, 292, 53 L. Ed. 2d

344, 355, 97 S. Ct. 2290, 2298 (1977).

States have the authority to place conditions on parole

release. Board of Pardons v. Allen, 482 U.S. 369, 377 n.8, 96 L.

Ed. 2d 303, 312 n.8, 107 S. Ct. 2415, 2420 n.8 (1987). Moreover,

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states have an "'overwhelming interest' in ensuring that a

parolee complies" with those conditions. Pennsylvania Board of

Probation & Parole v. Scott, 524 U.S. 357, 365, 141 L. Ed. 2d

344, 353, 118 S. Ct. 2014, 2020 (1998), quoting Morrissey v.

Brewer, 408 U.S. 471, 483, 33 L. Ed. 2d 484, 495, 92 S. Ct. 2593,

2601 (1972).

In 1976, the law applicable to parolees stated the

Board had the discretion to impose conditions it "deems necessary

to assist the [parolee] in leading a law-abiding life." Ill.

Rev. Stat. 1975, ch. 38, par. 1003-3-7(a). The statute provided

a nonexhaustive list of conditions that the Board "may in addi-

tion to other conditions require" of those released on parole.

Ill. Rev. Stat. 1975, ch. 38, par. 1003-3-7(b). In 1991, the

General Assembly passed the Electronic Home Detention Law, which

allowed the Board to impose, in its discretion, electronic

monitoring as a condition of release on parole. Ill. Rev. Stat.

1991, ch. 38, par. 1005-8A-1 through 1005-8A-5.

"Whether retroactive application of a particular change

in parole law respects the prohibition on ex post facto legisla-

tion is often a question of particular difficulty when the

discretion vested in a parole board is taken into account."

Garner, 529 U.S. at 250, 146 L. Ed. 2d at 244, 120 S. Ct. at

1367.

"[W]here parole is concerned[,] discretion,

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 by its very definition, is subject to changes

in the manner in which it is informed and

then exercised. The idea of discretion is

that it has the capacity, and the obligation,

to change and adapt based on experience. New

insights into the accuracy of predictions

about the offense and the risk of recidivism

consequent upon the offender's release, along

with a complex of other factors, will inform

parole decisions." Garner, 529 U.S. at 253,

146 L. Ed. 2d at 246, 120 S. Ct. at 1369.

Because states must have "due flexibility in formulating parole

procedures and addressing problems associated with confinement

and release" (Garner, 529 U.S. at 252, 146 L. Ed. 2d at 245, 120

S. Ct. at 1368), the ex post facto clauses are not to be employed

for "the micromanagement of an endless array of legislative

adjustments to parole and sentencing procedures" (Morales, 514

U.S. at 508, 131 L. Ed. 2d at 596, 115 S. Ct. at 1603).

Although a parole board's discretion does not displace

the protections of the ex post facto clauses, the issue in this

case centers on the operation of the Electronic Home Detention

Law within the context of the Illinois parole system. See

Garner, 529 U.S. at 252-53, 146 L. Ed. 2d at 245-46, 120 S. Ct.

at 1368-69. In Illinois, the Board has complete discretion in

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making parole determinations. See Hanrahan v. Williams, 174 Ill.

2d 268, 276, 673 N.E.2d 251, 255 (1996). The Board decides the

conditions of parole, the time of discharge, the imposition of

sanctions for parole violations, and the revocation of parole.

730 ILCS 5/3-3-2(a)(2) (West 2006). The Board may impose condi-

tions on parole or mandatory supervised release as it "deems

necessary to assist the subject in leading a law-abiding life."

730 ILCS 5/3-3-7(a) (West 2006). Further, offenders are subject

to rules of conduct and "any special conditions deemed appropri-

ate by the Board in individual cases." 20 Ill. Adm. Code

§1610.80, as amended by 13 Ill. Reg. 3063 (effective February 28,

1989).

The Board's exercise of discretion necessarily cannot

be restricted to those parole conditions that were feasible and

regularly imposed at a particular point in time. As new ideas

are conceived and better technology discovered, changes will have

to be made by the Board to determine the most beneficial condi-

tions to impose on parolees. Those changes, however, do not

necessarily violate the ex post facto laws even when they apply

"more severe parole guidelines than those in force when the crime

was committed." Prater v. U.S. Parole Comm'n, 802 F.2d 948, 951

(7th Cir. 1986). Here, the Electronic Home Detention Law simply

offered the Board another possibility to use at its discretion in

setting the conditions for parole.

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 Moreover, the passage of the Electronic Home Detention

Law did not impose punishment. The purpose of the parole and

mandatory supervised release programs is not to punish offenders

but to extend the Department of Correction's "control over the

conduct of persons who repeatedly are denied parole and who when

released have only minimal incentives to conform to society's

standards." Faheem-El v. Klincar, 123 Ill. 2d 291, 301, 527

N.E.2d 307, 311 (1988). Here, the purpose of electronic monitor-

ing was not to punish plaintiff but to foster his return to

society through a supervised transition from prison life.

Finally, plaintiff's sentence has not been increased.

In the case sub judice, plaintiff's sentence for his 1976 murder

conviction was not increased upon the passage of the 1991 Elec-

tronic Home Detention Law and he will not be required to serve

more time on parole than he would have under the prior law.

Instead, a new parole condition was imposed that was not avail-

able when he was initially sentenced.

In 1976, when defendant committed his crime, as well as

today, the Board had the discretion to impose conditions it

deemed "necessary to assist the subject in leading a law-abiding

life." Ill. Rev. Stat. 1975, ch. 38, par. 1003-3-7(a); 730 ILCS

5/3-3-7(a) (West 2006). A change in the law that "'simply

explicitly articulate[s] the Parole Board's broad range of

discretion which had always existed'" is procedural in nature and

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does not affect the substantive rights of the parolee. Dewey v.

Prisoner Review Board, 162 Ill. App. 3d 751, 753, 516 N.E.2d 621,

623 (1987), quoting Heirens v. Mizell, 729 F.2d 449, 463 (7th

Cir. 1984). Here, the Electronic Home Detention Law simply

articulated the Board's broad range of discretion in imposing

conditions for parolees and allowed for electronic monitoring.

The statutory change did not increase the severity of plaintiff's

punishment after the commission of the crime or lengthen his term

of imprisonment.

Recently, this court considered a pro se mandamus

action wherein the plaintiff, an inmate at Lawrence Correctional

Center, claimed the Board's conditioning his transition to

mandatory supervised release on his submitting to electronic

detention violated the ex post facto clauses because the condi-

tion was added after he committed his crime and was sentenced to

prison. Neville, 376 Ill. App. 3d at 1117, 878 N.E.2d at 833.

This court affirmed the trial court's dismissal of his complaint.

In doing so, this court found the statute in question,

section 3-3-7(b-1)(6) of the Unified Code of Corrections (730

ILCS 5/3-3-7(b-1)(6) (West 2006)), provided the Board could

impose electronic monitoring on sex offenders as a condition of

release. Neville, 376 Ill. App. 3d at 1119, 878 N.E.2d at 834.

We noted the condition was not listed in the statute when the

plaintiff committed his crime but found the Board was authorized

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at all relevant times to set conditions it deemed "'necessary to

assist the subject in leading a law-abiding life.'" Neville, 376

Ill. App. 3d at 1119, 878 N.E.2d at 834, quoting 730 ILCS 5/3-3-

7(a) (West 1998).

In analyzing the plaintiff's ex post facto claims, this

court found the change in the law was "merely another possibility

added" to the Board's discretionary authority, and the "ex post

facto clauses do not apply to laws and regulations that merely

advise." Neville, 376 Ill. App. 3d at 1119, 878 N.E.2d at 834.

Further, the change in the law was not intended as punishment and

it had not worked to increase the plaintiff's sentence. Neville,

376 Ill. App. 3d at 1120, 878 N.E.2d at 835. Thus, the plaintiff

could not show an ex post facto violation.

Although this court is not bound by federal district

court decisions, "such decisions can provide guidance and act as

persuasive authority." Lucas, 349 Ill. App. 3d at 1002, 812

N.E.2d at 78. In Taylor v. Remmers, No. 01-C-5134 (N.D. Ill.

April 12, 2002) (2002 WL 554520, at *1), the plaintiff was

convicted of aggravated criminal sexual assault in 1987 and

sentenced under a 1978 law to 25 years in the Illinois Department

of Corrections, along with a mandatory supervised release term of

3 years. In January 1999, the plaintiff was released and placed

under the electronic home-detention program. Taylor, slip op. at

(2002 WL 554520, at *2). The plaintiff brought a pro se

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civil-rights action against the defendant parole officials,

alleging, inter alia, the Electronic Home Detention Law amounted

to an ex post facto law. Taylor, slip op. at (2002 WL

554520, at *2).

In an unpublished memorandum opinion and order, the

district court disagreed, stating the 1991 Electronic Home

Detention Law "did not so affect the terms and conditions of his

sentence as to violate his constitutional rights." Taylor, slip

op. at (2002 WL 554520, at *3). The court found as follows:

"The Electronic Home Detention Law simply

allows for a person on parole or mandatory

supervised release to be placed on electronic

home detention. The revision of existing

parole procedures *** did not alter a sub-

stantial, personal right. The plaintiff was

statutorily required to serve three years of

mandatory supervised release; supervised

release easily encompasses the concept of

electronic home detention, even if the tech-

nology to support that form of monitoring did

not widely exist at the time the plaintiff

committed the crime for which he was sen-

tenced.

The statute governing parole and manda-

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 tory supervised release provides, 'The condi-

tions of parole or mandatory supervised re-

lease shall be such as the Prisoner Review

Board deems necessary to assist the subject

in leading a law-abiding life.' 730 ILCS

5/3-3-7(a). Electronic home detention serves

that end. The increased limitation on the

plaintiff's freedom engendered by electronic

home detention did not violate the Ex Post

Facto Clause. Such placement did not in-

crease the quantum of punishment for the

crime of which the plaintiff was convicted.

*** It is not the case that the plaintiff

was required to serve more time in prison or

on supervised release than he would under the

old law. An essentially procedural condition

of release was simply added." Taylor, slip

op. at (2002 WL 554520, at *4).

We also note other courts have found the parole condition of

electronic monitoring does not amount to an ex post facto viola-

tion. See Vineyard v. Keese, 70 F.3d 1266 (5th Cir. 1995) (1995

WL 696732, at *1-2) (electronic monitoring was neither "so

onerous" that it was effectively impossible to meet nor a mone-

tary payment and thus did not amount to an ex post facto viola-

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tion); Rollins v. Quarterman, No. 3-06-CV-1055-K, slip op. at ___

(N.D. Texas February 12, 2007) (2007 WL 465304, at *3) (manda-

tory supervision conditions of electronic monitoring and home

confinement did not constitute punishment, thus defeating the

petitioner's ex post facto claim); Randall v. Cockrell, No. 3-02-

CV-0648-G, slip op. at ___ (N.D. Texas September 25, 2002) (2002

WL 31156704, at *2) (mandatory supervision conditions requiring

the petitioner to wear an electronic monitor and reside in a

halfway house did not constitute punishment and did not violate

the ex post facto clause); see also Martin v. Walker, No. 04-C-

6098, slip op. at ___ (N.D. Ill. December 1, 2004) (2004 WL

2966930, at *1) (electronic home detention was "only a condition

of [the plaintiff's] release and did not affect the duration of

his time on mandatory supervised release").

In this case, the electronic monitoring condition was

another tool the Board could utilize in its discretion to assist

the plaintiff in leading a law-abiding life as he stepped outside

the confines of the penitentiary and ventured back into a free

society. The condition was neither punitive in nature nor an

increase in his sentence. Thus, as in Neville and the federal

court decisions, plaintiff cannot establish an ex post facto

violation, thereby rendering his complaint for mandamus relief

and a declaratory judgment without merit.

III. CONCLUSION

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 For the reasons stated, we affirm the trial court's

judgment.

Affirmed.

MYERSCOUGH and KNECHT, JJ., concur.

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