2018 IL App (1st) 152522
FIFTH DIVISION
November 30, 2018
No. 1-15-2522
______________________________________________________________________________
IN THE
APPELLATE COURT OF ILLINOIS
FIRST JUDICIAL DISTRICT
______________________________________________________________________________
)
PEOPLE OF THE STATE OF ILLINOIS, ) Appeal from the
) Circuit Court of
Plaintiff-Appellee, ) Cook County.
)
v. ) No. 14 CR 16106
)
RODNEY LEE, ) The Honorable
) Clayton J. Crane,
Defendant-Appellant. ) Judge, Presiding.
JUSTICE HALL delivered the judgment of the court, with opinion.
Presiding Justice Rochford and Justice Lampkin concurred in the judgment and
opinion.
OPINION
¶1 Following a bench trial, defendant Rodney Lee was convicted of violating the Sex
Offender Registration Act (SORA) (730 ILCS 150/1 et seq. (West 2014)) for his failure to
register as a sex offender and was sentenced to four years' imprisonment. On appeal, defendant
contends that SORA's statutory scheme violates federal and Illinois constitutions' due process
rights by infringing on registrants' fundamental liberty interests where it places upon them severe
No. 15-2522
restrictions, intrusive monitoring and burdensome registration requirements without providing
substantive or procedural due process. For the following reasons, we affirm the judgment of the
trial court.
¶2 BACKGROUND
¶3 Defendant was convicted of aggravated criminal sexual abuse in 1998 and was
subsequently required to register as a sex offender. In 2014, defendant was indicted for his
failure to register as a sex offender and his trial commenced on May 20, 2015.
¶4 At trial, Chicago police detective Matthew Schenatski testified that on August 20, 2014,
he was assigned to investigate defendant for failure to register. As part of his investigation, he
went to 1108 N. Monticello Avenue, defendant's last known address. When he arrived, the front
door was unlocked and ajar. Schenatski walked inside and found the apartment vacant; however,
there was a cellular phone and a television with wires running outside to a neighbor's property.
On cross-examination, Schenatski agreed that he did not have a search warrant for the two-story
building at 1108 N. Monticello Avenue.
¶5 Chicago police detective Ruck testified that on September 3, 2014, as part of defendant's
failure to register investigation, he interviewed defendant, who had been taken into custody.
Detective Ruck administered Miranda warnings, and defendant said that he understood them.
Defendant told Ruck that he lived at 1108 N. Monticello Avenue since 2007 and that he was
supposed to register every 90 days. Ruck asked defendant why he had not registered since June
2013 and defendant responded that when he went to the police department in September 2013,
he was told that he needed $100 to register. Ruck told defendant that the registration fee could
be waived and that if he went to the police department, it would have been documented that he
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tried to register. Defendant then told Ruck that he did not go to the police station but called
instead. On cross-examination, Ruck indicated that defendant's statement was made orally.
¶6 The parties then stipulated that if called to testify, Chicago police officer Patrick Loftus
would identify defendant and testify that he registered him as a sex offender on June 24, 2013.
He would identify People's Exhibit Number 1 as a true and accurate copy of the registration form
that he completed with defendant, bearing his own signature and defendant's signature on each
page. He would further testify that as part of the registration process, he informed defendant of
his duty to register every 90 days and that he must register on or before September 22, 2013.
Loftus would finally testify that business records maintained by the Chicago Police Department
for sex offender registration contain no subsequent registrations or attempts to register by
defendant.
¶7 The parties further stipulated that if called to testify, Chicago police Officer Figus would
testify that he arrested defendant on September 3, 2014, at 9:40 am at 801 North Kedzie Avenue.
¶8 People's Exhibit Number 1 and People's Exhibit Number 2, a certified copy of
defendant's 1998 conviction, were admitted without objection.
¶9 After argument, defendant's motion for a directed finding was denied.
¶ 10 Defendant testified that he lived at 1108 N. Monticello Avenue and during the last 10
years, he had two prior felony convictions: a 2009 failure to report a change in address and a
failure to register in 2006. On June 24, 2013, he registered at the police station with Officer
Loftus, who told him that the next time he came to register, he would have to pay a $100
registration fee. Defendant testified that Loftus said he would not register him if he did not pay
and that although the fee had been waived in the past, he would not waive it again. Defendant
called the police station on September 21 or September 22 and explained to the officer who
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answered the phone that he only had $80. He asked if it would be possible to pay the $80
towards the registration fee and pay the balance later, but the officer told him that he would have
to have the full amount in order to register. Defendant decided not to go to the police station
because he did not believe they would register him or give him a waiver and he did not want to
get arrested. Defendant identified Defense Exhibit Number 1 as a registration fee waiver he
received on September 25, 2012, Defense Exhibit Number 2 as a registration fee waiver he
received on May 10, 2002, Defense Exhibit Number 3 as a registration fee waiver he received on
July 14, 2000, and Defense Exhibit Number 4 as a registration fee waiver he received on July 20,
1999.
¶ 11 On cross-examination, defendant agreed that he received a fee waiver as shown on each
of the defense exhibits he previously identified, none of which were executed by Officer Loftus.
Defendant reviewed and identified People's Exhibit Number 5, his registration form from
December 26, 2012, which he signed with Officer Solomis Karadjias, and People's Exhibit
Number 6, his registration form from September 25, 2012, which he signed with Officer Ronald
Jenkins. While he conceded that when he called the station in September 2013 he did not ask
about a fee waiver or identify himself to the officer on the phone, defendant maintained that he
called and was told that if he did not have $100, there was no need to come in.
¶ 12 On redirect, defendant testified that there was no statement in People's Exhibits 4, 5, or 6
that he had to bring money, but he did see that on a registration form in June 2013.
¶ 13 Defense Exhibits 2, 3 and 4 were admitted without objection and the defense rested.
¶ 14 People's Exhibits 4, 5 and 6 were admitted and the State rested in rebuttal.
¶ 15 After argument, the trial court found that defendant had registered several times and was
provided several fee waivers. The court found that defendant did not report in person as
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required, found him guilty of failing to register and continued the matter for post-trial
proceedings.
¶ 16 On June 17, 2015, defense counsel filed a motion for new trial, a copy of which is not
included in the record. On July 9, 2015, defense counsel notified the court that defendant had
prepared a pro se motion to reconsider, dismiss and discharge, and the matter was continued to
determine whether counsel wished to incorporate any of defendant's arguments into his motion.
On July 28, 2015, defense counsel stated that he would not incorporate any of defendant's pro se
points into his motion for new trial. Defendant's pro se motion was filed that day and the trial
court allowed defendant to argue his motion in addition to counsel's argument on the motion for
new trial.
¶ 17 Defendant argued pro se that his registration period had expired so it was
unconstitutional for him to be convicted in 2011. 1 Further, defendant argued that he was not
notified that his registration period was extended and it was an unconstitutional extension.
Additionally, he argued that his requirement to register beyond the initial 10-year term without
any means to petition for removal was unconstitutional; he should be given an individual
assessment to determine whether he posed a continuing risk to the public; and the continued
registration requirement is a legislative loophole. These failures, as applied to defendant,
violated his due process rights and the proportionate penalties clause.
¶ 18 The State argued that defendant had sexually abused his 10-year-old daughter in 1998.
Defendant conceded that he failed to register during his first 10-year term and violated SORA,
which he was sentenced on in 2006. Defendant was then informed of his duty to continue to
register.
1
This is a reference to a prior conviction for failure to register.
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¶ 19 Defendant responded pro se before the court that police were supposed to present him
with a letter to sign if his registration term was extended. The trial court ultimately denied
defendant's pro se motion and noted that defendant did have acts of violence perpetrated since
the date of his original conviction in 1998. Defense counsel then addressed the motion for new
trial, which was also denied.
¶ 20 During sentencing, the State argued that defendant's failure to register was a Class 2
offense and it was extendable. The State recommended a six-year sentence. The defense
countered that defendant's only convictions were older and besides failure to register, he had no
convictions since 2011. In allocution, defendant argued that his failure to register should be a
Class 3 and not a Class 2.
¶ 21 The trial court sentenced defendant to four years' imprisonment. Defendant's motion to
reconsider sentence was denied and this timely appeal followed.
¶ 22 ANALYSIS
¶ 23 On appeal, defendant contends that SORA's statutory scheme violates federal and Illinois
due process rights by infringing on registrants' fundamental liberty interests where it places upon
them severe restrictions, intrusive monitoring and burdensome registration requirements without
providing substantive or procedural due process. In support of this assertion, defendant first
contends that the current version of SORA is punitive in nature. Defendant maintains that
because SORA is punitive and infringes on registrants' fundamental liberty interests without
providing procedural or substantive due process of law, this court should declare it
unconstitutional on its face, and reverse his conviction for failing to register under SORA.
¶ 24 A. Jurisdiction
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¶ 25 Although not raised by the parties, we find it important to note our supreme court's recent
holding with regard to an appellate court's jurisdiction to hear constitutional challenges to SORA
in People v. Bingham, 2018 IL 122008. A reviewing court has an independent duty to consider
issues of jurisdiction, regardless of whether either party has raised them. People v. Smith, 228
Ill. 2d 95, 104 (2008).
¶ 26 In Bingham, the defendant sought to challenge SORA on a direct appeal from a
conviction which triggered SORA obligations based on a prior conviction for attempted criminal
sexual assault that occurred in 1983. The defendant challenged SORA with an "as-applied"
constitutional challenge and an ex post facto challenge. Bingham, 2018 IL 122008, ¶¶ 11-12, 14.
The State challenged the power of a reviewing court "on direct appeal of a criminal conviction to
order that a defendant be relieved of his obligation to register as a sex offender when that
obligation was neither imposed by the trial court nor did it relate to the reasons for his conviction
and sentence in that court." Bingham, 2018 IL 122008, ¶ 15. The supreme court agreed and held
that "a reviewing court has no power on direct appeal of a criminal conviction to order that
defendant be relieved of the obligation to register as a sex offender when there is neither an
obligation to register imposed 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." Bingham, 2018 IL
122008, ¶ 18. The court further clarified that "[t]he two proper ways that the kinds of
constitutional issues involved in this case typically make their way to a reviewing court are (1)
through a direct appeal from a case finding a defendant guilty of violating the regulation he
attempts to challenge as unconstitutional, such as the sex offender registration law * * *, or (2)
by filing a civil suit seeking a declaration of unconstitutionality and relief from the classification
as well as the burdens of sex offender registration * * *." Bingham, 2018 IL 122008, ¶ 21.
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¶ 27 In the instant case, as defendant is on direct appeal from a conviction of violating SORA,
his constitutional challenges to SORA are properly before this court.
¶ 28 B. Standing
¶ 29 Initially the State contends that defendant's inclusion of a criminal offense, a licensing
regulation, and a prohibition on name changes in his argument should be summarily rejected.
The State argues that it cannot enforce a proximity restriction unless a violation of that statute
occurs and defendant has not been charged with a violation of that statute, and also that the
regulations are not criminal offenses. The State further contends that this court recently found
that a registrant under SORA does not have standing to attack even the penalty provision of
SORA where there is no allegation of noncompliance, citing In re A.C., 2016 IL App (1st)
153047, ¶ 24, distinguishing People v. Avila-Briones, 2015 IL App (1st) 132221, ¶¶ 17-20, 30
31.
¶ 30 The State misstates the lack of standing finding of In re A.C., 2016 IL App (1st) 153047.
In that case, this court found that the respondent lacked standing because he was not suffering or
in immediate danger of suffering a direct injury as a result of enforcement of section 10 of
SORA (730 ILCS 150/10 (West 2014)) because there was no allegation that respondent failed to
comply with the registration required under SORA and was being charged with a felony. In re
A.C., 2016 IL App (1st) 153047, ¶ 24. This court noted that unlike in Avila-Briones, application
of the "penalty" provision of section 10 was not automatically being applied as it first required
that respondent fail to abide by the registration requirements, and then he must be charged with a
violation and convicted after a trial. In re A.C., 2016 IL App (1st) 153047, ¶ 24.
¶ 31 The circumstances presented in the present case are more similar to those presented in
Avila-Briones, 2015 IL App (1st) 132221 and People v. Pollard, 2016 IL App (5th) 130514. In
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order to have standing to bring a constitutional challenge, a party must show that he is within the
class aggrieved by the alleged unconstitutionality. In re M.I., 2013 IL 113776, ¶ 32. 2 He must
have suffered or be in immediate danger of suffering a direct injury as a result of the
enforcement of the challenged statute, and the claimed injury must be: 1) distinct and palpable,
2) fairly traceable to defendant's actions, and 3) substantially likely to be prevented or redressed
by the grant of the requested relief. Pollard, 2016 IL App (5th) 130514, ¶ 26 (citing Avila-
Briones, 2015 IL App (1st) 132221, ¶ 27).
¶ 32 Like the defendants in Avila-Briones and Pollard, the SORA statutory scheme provisions
that defendant challenges automatically applied to him on his release from prison. As a result of
his conviction, defendant was subject to the SORA statutory scheme, including registration
restrictions, residency restrictions, employment restrictions, restrictions on where he may be
present, and restrictions on his privileges to drive or change his name for the rest of his life, and
no contingency occurred before those laws applied to him. See Pollard, 2016 IL App (5th)
130514, ¶ 27. In light of what happened to defendant due to his violation of SORA, the threat of
prosecution can hardly be speculative, but is real and immediate. See People v. Minnis, 2016 IL
119563, ¶ 16. Additionally, defendant, like other registrants, will be subjected to a lifetime of
government surveillance and restraint and "must alter his behavior in a way that the vast majority
of the public never will." Pollard, 2016 IL App (5th) 130514, ¶ 27. A favorable ruling from this
court invalidating these restrictions would redress these injuries. Pollard, 2016 IL App (5th)
130514, ¶ 27. Accordingly, we find that defendant has standing to raise his due process
challenges to SORA.
2
We note that this sentence was originally cited by Avila-Briones and subsequently in Pollard,
however, it was cited incorrectly, with the last word as "constitutionality" instead of "unconstitutionality."
See Pollard, 2016 IL App (5th) 130514, ¶ 26; Avila-Briones, 2015 IL App (1st) 132221, ¶ 27. But cf. In
re M.I., 2013 IL 113776, ¶ 32.
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¶ 33 C. Defendant's Facial Due Process Challenges
¶ 34 On appeal, defendant contends that SORA's statutory scheme violates federal and Illinois
due process rights by infringing on registrants' fundamental liberty interests where it places upon
them severe restrictions, intrusive monitoring and burdensome registration requirements without
providing substantive or procedural due process. In support of this assertion, defendant first
contends that the current version of SORA is punitive in nature. Defendant maintains that
because SORA is punitive and infringes on registrants' fundamental liberty interests without
providing procedural or substantive due process of law, this court should declare it
unconstitutional on its face, and reverse his conviction for failing to register under SORA.
¶ 35 Specifically, defendant contends that recent amendments to SORA call for a re
examination of prior decisions on this issue. He acknowledges that both the United States and
Illinois Supreme Courts have previously upheld the constitutionality of earlier versions of sex
offender registration and notification statutes against similar challenges in Smith v. Doe, 538
U.S. 84 (2003) and People v. Malchow, 193 Ill. 2d 413 (2000). He asserts, however, that SORA
should be analyzed as it currently exists and notes that a facial constitutional due process
challenge to SORA has not yet been addressed by our supreme court in its current form. 3
¶ 36 Defendant further contends that the affirmative disabilities and restraints of SORA are
imposed in violation of his procedural and substantive due process rights under both the United
States and Illinois Constitutions. In reasserting his contention that SORA is punitive in nature,
defendant claims that the regulations imposed will continue to regulate nearly all aspects of his
life to a degree more extreme than probation or mandatory supervised release (MSR) for the rest
of his life, thus impinging on his fundamental right to liberty. Moreover, defendant contends that
3
People v. Bingham, 2018 IL 122008 addressed as-applied and ex post facto challenges to
SORA; People v. Minnis, 2016 IL 119563 addressed a first amendment overbreadth challenge.
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SORA violates registrants' procedural due process rights because there are no procedural
safeguards to winnow registrants who pose little danger to society from the sex offender registry
nor any appeal procedures from the registration requirements. As stated earlier, defendant
contends that because SORA is punitive and infringes on registrants' fundamental liberty
interests without providing procedural or substantive due process of law, this court should
declare it unconstitutional on its face, and reverse his conviction for failing to register under
SORA.
¶ 37 D. The Current SORA Scheme
¶ 38 Defendant summarizes the differences between the 2014 SORA and the 1998 version
which was upheld by Malchow as follows:
(1) Applies to more individuals (730 ILCS 150/3(c)(2.1) (West 2014)) (now requires
every sex offender to register if convicted of any subsequent felony);
(2) Expands the number of agencies with which a registrant must register in person (730
ILCS 150/3(a) (West 2014)) (requires registrants to register if residing or temporarily
domiciled in a place for three or more days rather than 10 days); 730 ILCS 150/6
(West 2014) (requires registrant to notify authorities in place he resides and
authorities at his travel destination if he travels for three or more days); 730 ILCS
150/3(d) (West 2014) (requires personal registration with authorities having
jurisdiction over registrant's workplace within three days of starting or changing
employment); and 730 ILCS 150/3(a) (West 2014) (requires personal reporting to
public safety or security director of any higher education institution at which
registrant works or attends);
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(3) Greatly expands the quantity of information a registrant must provide when
registering (730 ILCS 150/3(a) (West 2014)) (requires registrant to provide not just
positive identification and proof of residence, but a current photograph, place of
employment, telephone numbers, employer's telephone number, school attended, all
email addresses, instant messaging identities, chat room identities and other internet
communications identities that registrant uses or plans to use, all Uniform Resource
Locaters (URLs) registered or used by registrant, a copy of terms and conditions of
parole or release, county of conviction, license plate numbers for every vehicle, age
of registrant and victim at the time of the offense, and any distinguishing marks
located on the body of the registrant);
(4) Increases the number of times a registrant must report in person (730 ILCS 150/6
(West 2014)) (requires registration of individuals without fixed residences every
week, individuals who change residences and any additional times law enforcement
so requests);
(5) Increases the length of time most registrants are required to register (730 ILCS 150/7
(West 2014)) (requires former registrants to register for a period of registration based
on the period currently required for the offense for which the registrant was
previously registered and imposes lifetime registration on those adjudicated sexually
dangerous, as well as sexually violent persons, those defined by 730 ILCS 150/2(E)
(West 2014) as sexual predators and individuals previously required to register under
the Child Murderer and Violent Offender Against Youth Sex Offender Registration
Act);
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(6) An expansion of the categories of offenders classified as "sexually dangerous,"
"sexually violent," or "sexual predators" (730 ILCS 150/2 (West 2014));
(7) Shortens the period within which a registrant must appear in person to register from
10 days to three days (730 ILCS 150/3(b), (c)(3), (c)(4) (West 2014));
(8) Increases the initial and annual registration fees from $10 and $5, respectively, to
$100 each year (730 ILCS 150/3(c)(6) (West 2014));
(9) Punishes noncompliance more severely (730 ILCS 150/10 (West 2014)) (punishes
initial violations as Class 3 felonies and subsequent violations as Class 2 felonies
rather than Class 4 felonies); 730 ILCS 150/7 (West 2014) (imposes mandatory 10
year extension of registration period on registrants who fail to comply);
(10) Imposes greater restrictions on where sexual predators may be present (720 ILCS
5/11-9.4-1 (West 2014) (renders it a crime for sexual predators to be present in a park
or to loiter within 500 feet of a park);
(11) Requires all sex offenders to renew their driver's license annually (730 ILCS 5/5
5-3(o) (West 2014)); and
(12) Prohibits sex offenders from petitioning to change their names (735 ILCS 5/21
101 (West 2014)).
¶ 39 Defendant contends that the 2014 SORA is far more onerous than the 1998 version which
was found non-punitive and it imposes significant disabilities and restraints on registrants'
fundamental liberty interests without consideration of rehabilitative potential or restoration to
useful citizenship.
¶ 40 E. Due Process
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¶ 41 The analysis is guided by familiar principles. All statutes carry a strong presumption of
constitutionality. People v. Hollins, 2012 IL 11254, ¶ 13. Accordingly, this court will uphold
statutes whenever reasonably possible, resolving all doubts in favor of their validity. People v.
Boeckmann, 238 Ill. 2d 1, 6-7 (2010). To rebut this presumption, a party challenging a statute
must establish clearly that it violates the constitution. People v. Mosley, 2015 IL 115872, ¶ 22.
On the constitutional issues before us, our review is de novo. Mosley, 2015 IL 115872, ¶ 22.
¶ 42 At the outset, we note that defendant's challenge to the 2014 SORA is framed solely as a
facial challenge to the constitutional validity of the changes made by the legislature since our
supreme court's consideration of the 1998 SORA and does not challenge the validity of the 2014
SORA as applied specifically to him.
¶ 43 A facial challenge to the constitutionality of a legislative enactment is the most difficult
challenge to successfully raise because an enactment is facially invalid only if no set of
circumstances exist under which it would be valid. U.S. v. Salerno, 481 U.S. 739, 745 (1987);
Washington State Grange v. Washington State Republican Party, 552 U.S. 442, 449 (2008);
Napleton v. Village of Hinsdale, 229 Ill. 2d 296, 305-06 (2008). The fact that the enactment
could be found unconstitutional under some set of circumstances does not establish its facial
invalidity. Napleton, 229 Ill. 2d at 306; People v. Johnson, 2015 IL App (1st) 1333663, ¶ 27.
¶ 44 Facial challenges are disfavored for several reasons. Grange, 552 U.S. at 450. Claims of
facial invalidity often rest on speculation that raise the risk of "premature interpretation of
statutes on the basis of factually barebones records" (Sabri v. United States, 541 U.S. 600, 609
(2004)); they run contrary to the fundamental principle of judicial restraint that courts should not
anticipate a question of constitutional law before the necessity of deciding it or create a rule of
constitutional law broader than necessary to decide the precise question before it (Ashwander v.
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TVA, 297 U.S. 288, 346-47 (1936)); and they threaten to short-circuit the democratic process by
preventing laws embodying the will of the people from being implemented in a manner
consistent with the Constitution (Grange, 552 U.S. at 450-51).
¶ 45 The Due Process Clauses of the Fifth and Fourteenth Amendments provide that “No
person shall ... be deprived of life, liberty, or property, without due process of law...” U.S.
Const., amends. V, XIV. The United States Supreme Court has held that the Due Process
Clauses protect individuals against two types of government action. Salerno, 481 U.S. at 746.
So-called “substantive due process” prevents the government from engaging in conduct that
“shocks the conscience” (Rochin v. California, 342 U.S. 165, 172 (1952)), or interferes with
rights "implicit in the concept of ordered liberty" (Palko v. Connecticut, 302 U.S. 319, 325-26
(1937)). When government action depriving a person of life, liberty, or property survives
substantive due process scrutiny, it must still be implemented in a fair manner. Salerno,481 U.S.
at 746 (citing Mathews v. Eldridge, 424 U.S. 319, 335 (1976)). This requirement has
traditionally been referred to as "procedural" due process. Salerno,481 U.S. at 746. Likewise,
the Illinois Constitution contains its own separate guarantee of due process to all persons. Ill.
Const. 1970, art. I, § 2.
¶ 46 When determining whether a statute violates constitutional guarantees of due process, a
reviewing court must first determine the nature of the right upon which the statute allegedly
infringes. People v. Beard, 366 Ill. App. 3d 197, 200 (2006). Classification of the right affected
dictates the level of scrutiny to be applied by a reviewing court in determining whether the
statute in question is in accordance with the constitution. Napleton, 229 Ill. 2d at 307. Where
the right infringed upon is a fundamental right, the statute is subject to strict scrutiny analysis.
Beard, 366 Ill. App. 3d at 200. In order to survive strict scrutiny, the measures employed by the
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government body must be necessary to serve a compelling state interest, and must be narrowly
tailored to it. Napleton, 229 Ill. 2d at 307.
¶ 47 Where a statute does not affect a fundamental constitutional right, the test for determining
whether the provision comports with due process is the rational basis test. People v. Cornelius,
213 Ill. 2d 178, 204 (2004). To satisfy the rational basis test, a statute must only bear a rational
relationship to the purpose the legislature sought to accomplish in enacting the statute and the
means adopted must be a reasonable method of accomplishing the desired objective. In re J.W.,
204 Ill. 2d 50, 67 (2003), quoting People v. Adams, 144 Ill. 2d 381, 390 (1991).
¶ 48 Thus we must determine whether defendant's due process challenges involve a
fundamental right. Defendant asserts that he has a fundament right to live without burdensome
and intrusive monitoring of the minutiae of his life and without government interference in his
right to live or be present in certain locations. He concedes that Illinois courts have generally not
recognized the right to be free from registration as a fundamental right, but maintains that the
"calculus" changes when a registrant is faced with the punishment and burdens enumerated in the
current version of SORA. He likens the effects of lifetime registration to the effects of the
lifetime surveillance by government authorities noted in Weems v. United States, 217 U.S. 349,
366 (1910), and concludes that SORA goes beyond mere reporting. Instead, it impinges on
almost every aspect of a registrant's life, implicating the fundamental right to be free from
government dictates as to where one might live and what occupations one might choose to make
a living.
¶ 49 As noted by defendant, Illinois courts have previously held that SORA does not implicate
a fundamental right and thus is subject only to the rational basis test. Beard, 366 Ill. App. 3d at
201 (citing In re J.W., 204 Ill. 2d 50, 67 (2003)). While defendant has cited numerous cases
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from other jurisdictions finding that the respective sex offender registration acts implicated a
fundamental right, he does not cite, nor have we found, any Illinois case on point. This court has
previously addressed whether SORA implicates a fundamental right to be free from a lifetime of
burdensome, intrusive monitoring and restrictions in Avila-Briones, 2015 IL App (1st) 132221,
¶¶ 69-71, as noted in People v. Parker, 2016 IL App (1st) 141597, ¶ 78. After analyzing the
"prohibitions, obligations, and mandatory dissemination of information" required by the SORA
statutory scheme, the court determined that the provisions did not infringe on any fundamental
right. Avila-Briones, 2015 IL App (1st) 132221, ¶¶ 72-76. See also Cornelius, 213 Ill. 2d at
203-04; J.W., 204 Ill. 2d at 67. The court then determined that SORA passed rational basis
review because it serves the legitimate state interest of protecting the public from sex offenders
and is rationally related to that interest despite the possibility that it may be over-inclusive.
Avila-Briones, 2015 IL App (1st) 132221, ¶¶ 82-84; Parker, 2016 IL App (1st) 141597, ¶ 78.
The court further analyzed the additional restrictions on where a registered sex offender may
work, live, or be present, the license renewal requirement, and the prohibition on a registered sex
offender changing his or her name, and declined to recognized any of them as implicating what
would clearly be a new fundamental right. Avila-Briones, 2015 IL App (1st) 132221, ¶¶ 75-76;
Parker, 2016 IL App (1st) 141597, ¶ 79. Based on binding Illinois precedent, we must find that
the SORA restrictions do not rise to the level of implicating a fundamental right, although we do
agree that SORA's burdens and restrictions significantly impact a registered sex offender's life.
¶ 50 This is not the end of the analysis, however. Defendant's failure to identify a
fundamental right means that we apply the rational basis review to the SORA statutory scheme.
People v. Rodriguez, 2018 IL App (1st) 151938, ¶ 23.
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¶ 51 Rational basis review is highly deferential to the legislature; it does not focus on the
wisdom of the statute or whether it is the best means to achieve the desired outcome. Rodriguez,
2018 IL App (1st) 151938, ¶ 24. Rather, as long as there is a conceivable basis for finding the
statute rationally related to a legitimate state interest, the law must be upheld. Rodriguez, 2018
IL App (1st) 151938, ¶ 24. Most importantly, under rational basis review, a statute is not
unconstitutional because it may be under-inclusive or over-inclusive. Rodriguez, 2018 IL App
(1st) 151938, ¶ 25.
¶ 52 Turning our attention to defendant's facial constitutional challenge of the SORA statutory
scheme, we find it constitutional under the rational basis test. While not every offender is
necessarily inclined to commit another sex offense, subjecting the group as a whole to certain
restrictions serves a legitimate state purpose which SORA is rationally related to achieve, even
though it may not be perfect in its execution. See Parker, 2016 IL App (1st) 141597, ¶ 80.
Thus, we find that SORA does not violate substantive due process.
¶ 53 As was found by the court in Avila-Briones¸ we further find that additional procedures
are not necessary to satisfy due process because the civil registration requirements of SORA are
based entirely on the convicted offense, which provides a defendant with a "procedurally
safeguarded opportunity to contest," and the offender's likelihood of recidivism is not relevant to
determining whether he committed the charged offense. Parker, 2016 IL App (1st) 141597, ¶
81, quoting Avila-Briones, 2015 IL App (1st) 132221, ¶¶ 88-92. Because SORA is not
unconstitutional, there is no constitutional mandate for procedures that would allow a sex
offender to demonstrate that he or she is not likely to reoffend. Parker, 2016 IL App (1st)
141597, ¶ 81 (citing Avila-Briones, 2015 IL App (1st) 132221, ¶¶ 88-92). Thus there is no basis
for finding that SORA violates procedural due process under rational basis analysis.
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No. 15-2522
¶ 54 CONCLUSION
¶ 55 For the foregoing reasons, the judgment of the circuit court of Cook County is affirmed.
¶ 56 Affirmed.
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