                                    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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¶ 54                                    CONCLUSION


¶ 55   For the foregoing reasons, the judgment of the circuit court of Cook County is affirmed.


¶ 56   Affirmed.





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