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                                  Supreme Court                             Date: 2018.09.10
                                                                            10:17:46 -05'00'



                          People v. Pepitone, 2018 IL 122034




Caption in Supreme   THE PEOPLE OF THE STATE OF ILLINOIS, Appellant, v. MARC
Court:               A. PEPITONE, Appellee.



Docket No.           122034



Filed                April 5, 2018


Decision Under       Appeal from the Appellate Court for the Third District; heard in that
Review               court on appeal from the Circuit Court of Will County, the Hon.
                     Carmen Goodman, Judge, presiding.



Judgment             Appellate court judgment reversed and remanded.


Counsel on           Lisa Madigan, Attorney General, of Springfield (David L. Franklin,
Appeal               Solicitor General, and Michael M. Glick, Matthew P. Becker, and
                     Eldad Z. Malamuth, Assistant Attorneys General, of Chicago, of
                     counsel), for the People.

                     Katherine M. Strohl, of Ottawa, for appellee.

                     Adele D. Nicholas and Mark G. Weinberg, both of Chicago, for
                     amicus curiae Illinois Voices for Reform.

                     Paul M. Dubbeling, of P.M. Dubbeling, PLLC, of Chapel Hill, North
                     Carolina, for amicus curiae National Association for Rational Sexual
                     Offense Laws.
     Justices                   JUSTICE THEIS delivered the judgment of the court, with opinion.
                                Chief Justice Karmeier and Justices Freeman, Thomas, Kilbride,
                                Garman, and Burke concurred in the judgment and opinion.



                                                   OPINION

¶1         Section 11-9.4-1(b) of the Criminal Code of 2012 provides, “It is unlawful for a sexual
       predator or a child sex offender to knowingly be present in any public park building or on real
       property comprising any public park.” 720 ILCS 5/11-9.4-1(b) (West 2016). The sole issue in
       this case is whether that statute is facially violative of substantive due process. The Will
       County circuit court rejected defendant Marc Pepitone’s due process claim, but the appellate
       court majority accepted it and reversed his conviction. 2017 IL App (3d) 140627. For the
       reasons that follow, we reverse the judgment of the appellate court and affirm the defendant’s
       conviction and sentence.

¶2                                           BACKGROUND
¶3         In 1998, the defendant was charged with predatory criminal sexual assault of a child,
       criminal sexual assault, and aggravated criminal sexual abuse. He pleaded guilty to predatory
       criminal sexual assault of a child.1 The trial court sentenced him to six years’ imprisonment.
¶4         Fourteen years later, in 2013, Village of Bolingbrook police officer Steven Alexander was
       patrolling a municipal park around 4:30 p.m. when he observed a van improperly parked
       across three spaces. Officer Alexander checked the van’s plates and learned that it was
       registered to the defendant. While Officer Alexander was standing near the van, the defendant
       approached with his dog. The defendant asked Officer Alexander if there was a problem with
       the van. The defendant related that he was a child sex offender but that his registration
       requirement had expired in 2010. Officer Alexander informed the defendant that, as a child sex
       offender, he was forbidden to be on park property. Though the defendant was unaware of such
       a ban, he was arrested for violating section 11-9.4-1(b).
¶5         The defendant filed a motion to dismiss the charge, arguing that the statute is facially
       unconstitutional under the federal and state due process clauses (U.S. Const., amend. XIV; Ill.
       Const. 1970, art. I, § 2) and unconstitutional as applied under the federal and state ex post facto
       clauses (U.S. Const., art. I, § 10; Ill. Const. 1970, art. I, § 16). The trial court denied that
       motion, and the case proceeded to a one-day jury trial. The parties stipulated that the defendant

           1
            Section 11-1.40(a)(1) of the Criminal Code sets out the basic offense of predatory criminal sexual
       assault of a child:
                “(a) A person commits predatory criminal sexual assault of a child if that person is 17 years of
           age or older, and commits an act of contact, however slight, between the sex organ or anus of one
           person and the part of the body of another for the purpose of sexual gratification or arousal of the
           victim or the accused, or an act of sexual penetration, and:
                    (1) the victim is under 13 years of age[.]” 720 ILCS 5/11-1.40(a)(1) (West 2016).
       Predatory criminal sexual assault of a child is a Class X felony, and the sentencing range for that
       offense is 6 to 60 years. 720 ILCS 5/11-1.40(b)(1) (West 2016).

                                                       -2-
     is a child sex offender under section 11-9.4-1(b). At the close of the State’s evidence, the
     defendant made a motion for a directed verdict, again arguing that the statute was
     unconstitutional. The trial court denied that motion, and the jury found the defendant guilty of
     violating the statute. The trial court entered judgment on the jury’s verdict and later sentenced
     the defendant to 24 months’ conditional discharge and 100 hours of community service and
     fined him $400. The defendant filed a motion for a new trial, asserting that the trial court erred
     in denying his motion to dismiss. The court denied the defendant’s motion for a new trial, and
     he appealed.
¶6        A divided appellate court panel reversed, holding that section 11-9.4-1(b) is facially
     violative of substantive due process. 2017 IL App (3d) 140627. The appellate court majority
     noted that People v. Avila-Briones, 2015 IL App (1st) 132221, and People v. Pollard, 2016 IL
     App (5th) 130514, both had rejected substantive due process challenges to the Sex Offender
     Registration Act (730 ILCS 150/1 et seq. (West 2012)), the Sex Offender Community
     Notification Law (730 ILCS 152/101 et seq. (West 2012)), and several other sex offender
     statutes, including section 11-9.4-1(b). 2017 IL App (3d) 140627, ¶¶ 12-13. The appellate
     court majority was not persuaded by the analyses in those cases, which it termed “incomplete
     and truncated.” Id. ¶ 14. Instead, the majority chose to follow cases from this court in which
     statutes were invalidated under due process for criminalizing innocent conduct. Id. ¶ 15.
     According to the majority, those cases, “while very different in their facts, are significant ***
     because the statutes at issue, like section 11-9.4-1(b), contain no culpable mental state” and
     “reach countless types of innocent conduct.” Id. ¶ 20. The appellate court majority insisted,
     “Mere presence in a public park building or public park, without more, is not unlawful
     conduct.” Id.
¶7        Further, the majority noted that, unlike its repealed predecessor (see 720 ILCS 5/11-9.4(a)
     (West 2010)), which “actually attempted to tie the child sex offender’s presence to times when
     children were also present” (2017 IL App (3d) 140627, ¶ 21), section 11-9.4-1(b) “cannot be
     reasonably construed as aimed at preventing a substantial step toward the commission of a sex
     offense against a child or any offense that would result in an individual qualifying as a sexual
     predator” (emphasis in original) (id. ¶ 20). The current statute was “premised on a vague
     notion that a child or other ‘target’ may be present in a public park building or on public park
     property,” and it “makes no attempt to assess the dangerousness of a particular individual.” Id.
     ¶ 22.
¶8        The appellate court majority highlighted the “overly broad sweep” of section 11-9.4-1(b)
     and provided an “extensive” list of activities that occur on public park property, in which
     persons like the defendant cannot participate. Id. ¶ 23. The majority concluded that the statute
     violated due process because “it is not reasonably related to its goal of protecting the public,
     especially children,” from individuals fitting the definition of a child sex offender and because
     it is not “drafted in such a way as to effect that goal without arbitrarily stripping a wide swath
     of innocent conduct and rights” from such individuals who have already “paid the penalty” for
     their crimes. Id. ¶ 24.
¶9        Justice Carter dissented. He would have followed Avila-Briones and Pollard and held that
     “the means adopted in *** section 11-9.4-1(b) are a reasonable method of accomplishing the
     legislature’s desired objective of protecting the public from sex offenders.” Id. ¶ 31 (Carter, J.,
     dissenting). Justice Carter surmised that “[b]y keeping sex offenders who have committed sex


                                                  -3-
       offenses against children away from areas where children are present, the legislature could
       have rationally sought to avoid giving those sex offenders an opportunity to reoffend.” Id. ¶ 32.
¶ 10       This court allowed the State’s petition for leave to appeal. Ill. S. Ct. R. 315(a) (eff. Mar. 15,
       2016). We also allowed both Illinois Voices for Reform and the National Association for
       Rational Sexual Offense Laws to file amicus curiae briefs in support of the defendant. Ill. S.
       Ct. R. 345 (eff. Sept. 20, 2010).

¶ 11                                              ANALYSIS
¶ 12       The analysis in this case is guided by familiar principles. All statutes carry a strong
       presumption of constitutionality. People v. Hollins, 2012 IL 112754, ¶ 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 the presumption, a party
       challenging a statute must establish clearly that it violates the constitution. People v. Rizzo,
       2016 IL 118599, ¶ 23. That burden is particularly heavy where, as here, the party raises a facial
       challenge, asserting that there is no circumstance in which the statute is valid. Bartlow v.
       Costigan, 2014 IL 115152, ¶ 18. On the constitutional issue before us, our review is de novo.
       People v. Gray, 2017 IL 120958, ¶ 57.
¶ 13       The defendant continues to assert that section 11-9.4-1(b) is facially violative of
       substantive due process. The fourteenth amendment to the United States Constitution (U.S.
       Const., amend. XIV) and article I, section 2, of the Illinois Constitution (Ill. Const. 1970, art. I,
       § 2) both provide that no person shall be deprived of life, liberty, or property without due
       process of law. There are two aspects to that guarantee—procedural and substantive.
       Procedural due process bars governmental action that infringes upon a protected interest when
       such action is arbitrary because it was not preceded by procedural safeguards. Substantive due
       process bars governmental action that infringes upon a protected interest when such action is
       itself arbitrary. See People v. Cardona, 2013 IL 114076, ¶ 17 (“a procedural due process claim
       asserts that the deprivation at issue is constitutionally invalid because the process leading up to
       it was deficient, whereas a substantive due process claim asserts that the deprivation at issue is
       constitutionality invalid in and of itself, irrespective of the process leading up to it”); see also
       Collins v. City of Harker Heights, 503 U.S. 115, 125 (1992).
¶ 14       Where a statute is challenged on due process grounds, the initial step of our analysis is to
       determine whether the statute restricts or regulates a liberty interest and whether that liberty
       interest is a fundamental right. In re J.W., 204 Ill. 2d 50, 66-67 (2003). Here, section
       11-9.4-1(b) affects the freedom to visit public parks. The defendant acknowledges that being
       present in a park is not a fundamental right. Thus, the proper gauge for his substantive due
       process claim is the so-called rational basis test. Rizzo, 2016 IL 118599, ¶ 45 (“When
       legislation does not affect a fundamental constitutional right, this court, in a due process
       analysis, applies the rational basis test to determine the legislation’s constitutionality.”). Under
       that test, our inquiry is twofold: “[W]e must determine whether there is a legitimate state
       interest behind the legislation, and if so, whether there is a reasonable relationship between that
       interest and the means the legislature has chosen to pursue it.” People v. Johnson, 225 Ill. 2d
       573, 584 (2007).
¶ 15       Johnson states the most common version of the rational basis test, but there is another
       version of it in our case law. The defendant refers to that alternative version and insists that it


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       presents a three-part test where the court must determine whether there is a legitimate state
       interest, whether there is a reasonable relationship between that interest and the statute, and
       whether “the means adopted are a reasonable method of accomplishing the desired objective.”
       People v. Adams, 144 Ill. 2d 381, 390 (1991); accord Rizzo, 2016 IL 118599, ¶ 45; Boeckmann,
       238 Ill. 2d at 7 (citing People v. Lindner, 127 Ill. 2d 174, 180 (1989)); People v. Carpenter, 228
       Ill. 2d 250, 267-68 (2008) (citing People v. Wright, 194 Ill. 2d 1, 24 (2000)); J.W., 204 Ill. 2d at
       67; see also People v. Wick, 107 Ill. 2d 62, 66 (1985) (“[T]he question of whether a legislative
       exercise of the police power meets the constitutional requirement of due process involves
       identifying the public interest that the statute is intended to protect, examining whether the
       statute bears a reasonable relationship to that interest, and determining whether the method
       used to protect or further that interest is ‘reasonable.’ ” (Internal quotation marks omitted.)).
¶ 16        Both versions of the rational basis test are essentially the same. If a statute is reasonably
       related to a legitimate state interest, the means or method that the legislature has chosen to
       serve that interest will also be reasonable. See Jacobson v. Department of Public Aid, 171 Ill.
       2d 314, 323 (1996) (stating that the rational basis test asks “whether the method or means
       employed in the statute to achieve the stated goal or purpose of the legislation is rationally
       related to that goal”); DeGrazio v. Civil Service Comm’n of the City of Chicago, 31 Ill. 2d 482,
       485 (1964) (“A further test of the validity of a law or regulation is whether it is a reasonable
       method to accomplish a certain objective.”); Schuringa v. City of Chicago, 30 Ill. 2d 504, 509
       (1964) (“Equally settled and certain is the concept that a police [power] measure, to be beyond
       the pale of constitutional infirmity, must bear a reasonable relation to public health or other
       purpose sought to be served, the means being reasonably necessary and suitable to the
       accomplishment of such purpose ***.”); see also People v. Reed, 148 Ill. 2d 1, 11 (1992)
       (stating that due process analysis examines “ ‘whether the statute is reasonably designed to
       remedy the evils which the legislature has determined to be a threat to the public health, safety
       and general welfare’ ” (internal quotation marks omitted) (quoting People v. Bradley, 79 Ill. 2d
       410, 417 (1980))).2
¶ 17        While the rational basis test is not “ ‘toothless’ ” (People v. Jones, 223 Ill. 2d 569, 596
       (2006) (quoting Mathews v. De Castro, 429 U.S. 181, 185 (1976))), it remains highly
       deferential to the findings of the legislature (Rizzo, 2016 IL 118599, ¶ 45 (citing Johnson, 225
       Ill. 2d at 585)). “The legislature’s judgments in drafting a statute are not subject to judicial fact
       finding and ‘may be based on rational speculation unsupported by evidence or empirical
       data.’ ” Boeckmann, 238 Ill. 2d at 7 (quoting Arangold v. Zehnder, 204 Ill. 2d 142, 147
       (2003)). If there is any conceivable set of facts to justify the statute, it must be upheld. Rizzo,
       2016 IL 118599, ¶ 45; J.W., 204 Ill. 2d at 72 (“If there is any conceivable basis for finding a

           2
            The State in its opening brief offers yet another formulation of the rational basis test. According to
       the State, a statute will be upheld “as long as it bears a rational relationship to a legitimate legislative
       purpose and is neither arbitrary nor unreasonable.” In re M.A., 2015 IL 118049, ¶ 55; accord Hollins,
       2012 IL 112754, ¶ 15 (citing People v. Dabbs, 239 Ill. 2d 277, 292 (2010)); see also Hayashi v. Illinois
       Department of Financial & Professional Regulation, 2014 IL 116023, ¶ 28 (stating that the rational
       basis test “requires a court to uphold a statute if it bears a rational relationship to a legitimate legislative
       purpose and is neither arbitrary nor discriminatory”). The State’s formulation contains two phrasings of
       the same standard. See Doe v. City of Lafayette, 377 F.3d 757, 773 (7th Cir. 2004). If a statute is
       arbitrary, it would obviously bear no rational relation to any government interest, except by chance.

                                                          -5-
       rational relationship, the statute will be upheld.”). This court will not second-guess the wisdom
       of legislative enactments or dictate alternative means to achieve the desired result. M.A., 2015
       IL 118049, ¶ 55. We turn to the statute at issue.
¶ 18        To review, section 11-9.4-1(b) provides, “It is unlawful for a sexual predator or a child sex
       offender to knowingly be present in any public park building or on real property comprising
       any public park.” 720 ILCS 5/11-9.4-1(b) (West 2016). Section 11-9.4-1(a) adopts the
       definition of “child sex offender” in section 11-9.3(d) of the Criminal Code (id. § 11-9.4-1(a)),
       which includes a person charged and convicted under Illinois law with predatory criminal
       sexual assault of a child and various other sex offenses against minors (id. § 11-9.3(d)(1),
       (d)(2)(i)). The statute further adopts the definition of “sexual predator” in the Sex Offender
       Registration Act (730 ILCS 150/2(E) (West 2016)), which includes a person convicted of
       various sex offenses against minors. A “public park” is “a park, forest preserve, bikeway, trail,
       or conservation area under the jurisdiction of the State or a unit of local government.” 720
       ILCS 5/11-9.4-1(a) (West 2016). The statute, then, completely bars sex offenders who have
       targeted children from public parks. A violation of section 11-9.4-1(b) is a Class A
       misdemeanor. Id. § 11-9.4-1(d).
¶ 19        The defendant concedes that the legislature has a legitimate interest in protecting patrons of
       public parks from child sex offenders and sexual predators. See People v. Minnis, 2016 IL
       119563, ¶ 37 (“ ‘The prevention of sexual exploitation and abuse of children constitutes a
       government objective of surpassing importance.’ ” (quoting New York v. Ferber, 458 U.S. 747,
       757 (1982))). Thus, the only dispute between the parties is whether there is the requisite
       constitutional nexus—a rational relation—between the statute’s aim and its means.
¶ 20        The State argues that there is a rational relation between protecting the public and barring
       certain sex offenders from public parks. The State offers two links. First, the State asserts that
       “it is not mere conjecture that child sex offenders might seek victims in public parks” and
       quotes a federal appeals court opinion that noted “children, some of the most vulnerable
       members of society, are susceptible to abuse in parks.” Doe, 377 F.3d at 773. In support, the
       State refers to cases where parks in Illinois have previously been locations for sexual assaults
       against minors (see, e.g., People v. Garner, 347 Ill. App. 3d 578 (2004); People v. Westbrook,
       262 Ill. App. 3d 836 (1992); People v. Israel, 181 Ill. App. 3d 851 (1989); People v. Maxwell,
       89 Ill. App. 3d 1101 (1980)) and adults (see, e.g., People v. Foggy, 121 Ill. 2d 337 (1988);
       People v. Rodriguez, 364 Ill. App. 3d 304 (2006); People v. Kinney, 294 Ill. App. 3d 903
       (1998); People v. Westfield, 207 Ill. App. 3d 772 (1990); People v. Cox, 197 Ill. App. 3d 1028
       (1990); People v. Leonhardt, 173 Ill. App. 3d 314 (1988); People v. Bell, 132 Ill. App. 3d 354
       (1985); People v. Buckner, 121 Ill. App. 3d 391 (1984)).
¶ 21        The State also refers to statements by Senator Althoff, one of the sponsors of the bill that
       became section 11-9.4-1(b), who declared, “This legislation is necessary to protect users of
       public parks from child sex offenders and sexual predators who use the attributes of a park to
       their advantage to have access to potential victims.” 96th Ill. Gen. Assem., Senate Proceedings,
       Mar. 16, 2010, at 55 (statements of Senator Althoff). Senator Althoff explained:
               “Public parks offer many opportunities for sexual predators and child sex offenders to
               have easy access to potential victims. Children and lone adults frequently use parks for
               recreational activities. By their nature, parks have many obscured views and other



                                                    -6-
               distractions *** that offer opportunities for sex offenders to access potential victims.”
               Id.
¶ 22       Second, the State asserts that sex offenders have high rates of recidivism. Those rates have
       been widely accepted by courts across the country, including the United States Supreme Court,
       which has mentioned “a frightening and high risk of recidivism” for convicted sex offenders.
       McKune v. Lile, 536 U.S. 24, 34 (2002) (plurality opinion); see also Smith v. Doe, 538 U.S. 84,
       103 (2003) (highlighting a state legislature’s “grave concerns over the high rate of recidivism
       among convicted sex offenders and their dangerousness as a class”). This court has made
       similar statements. See Minnis, 2016 IL 119563, ¶ 41 (“the legislature is entitled to ‘conclude
       that a conviction for a sex offense provides evidence of substantial risk of recidivism’ ”
       (quoting Smith, 538 U.S. at 103)); People v. Huddleston, 212 Ill. 2d 107, 138 (2004) (“our
       legislature has responded again and again to the propensity of sex offenders to repeat their
       crimes”); see also People v. Diestelhorst, 344 Ill. App. 3d 1172, 1184 (2003) (stating that sex
       offenders have “a notoriously high recidivism rate”); People v. Stork, 305 Ill. App. 3d 714, 721
       (1999) (quoting a legislative declaration regarding the high recidivism rate of child sex
       offenders). Thus, according to the State, the legislature reasonably could have concluded that
       barring certain sex offenders from public parks would protect the public.
¶ 23       The defendant responds that “empirical studies” rebut the State’s argument on both counts.
       Regarding recidivism rates, the defendant insists that the McKune plurality’s “frightening and
       high” comment has been debunked. See Does v. Snyder, 834 F.3d 696, 704 (6th Cir. 2016)
       (mentioning “the significant doubt cast by recent empirical studies” on statements in Smith and
       McKune that the risk of recidivism is frightening and high); Ira M. Ellman & Tara Ellman,
       “Frightening and High”: The Supreme Court’s Crucial Mistake About Sex Crime Statistics,
       30 Const. Comment. 495 (2015). The defendant points to a Human Rights Watch article,
       finding that only 25% of former sex offenders reoffend (see No Easy Answers: Sex Offender
       Laws in the US, Human Rights Watch, https://www.hrw.org/report/2007/09/11/no-easy-
       answers/sex-offender-laws-us (last visited Feb. 26, 2018)) and to a federal Bureau of Justice
       Statistics publication that puts the recidivism rate much lower at 5.3% (see Patrick A. Langan,
       Erica L. Schmitt, & Matthew R. Durose, Bureau of Justice Statistics, Recidivism of Sex
       Offenders Released From Prison in 1994, at 1 (Nov. 2003), https://www.bjs.gov/
       content/pub/pdf/rsorp94.pdf). Regarding parks as locations for sexual assaults, the defendant
       refers to another Bureau of Justice Statistics publication that indicates only a small percentage
       of sexual assaults occur in parks. See Lawrence A. Greenfeld, Bureau of Justice Statistics, Sex
       Offenses and Offenders: An Analysis of Data on Rape and Sexual Assault (Feb. 1997),
       https://perma.cc/ZG4B-D9ZP.
¶ 24       The problem for the defendant is that, regardless of how convincing that social science may
          3
       be, “the legislature is in a better position than the judiciary to gather and evaluate data bearing


           3
            One of the amicus briefs reminds us that it is “perhaps subjective” whether recidivism rates are
       low or high. Further, as the State observes, “[n]obody knows the true re-offense rate for child sex
       offenders” because only a small percentage of sex offenses are reported and only a small percentage of
       reported offenses result in arrests. However, “researchers widely agree that observed recidivism rates
       are underestimates of the true reoffense rates of sex offenders.” (Emphasis omitted.) Sex Offender
       Management Assessment and Planning Initiative, Chris Lobanov-Rostovsky & Roger Przybylski, eds.,

                                                     -7-
       on complex problems.” Minnis, 2016 IL 119563, ¶ 41. Simply put, we are not a
       superlegislature. M.A., 2015 IL 118049, ¶ 70.
¶ 25        The defendant then shifts his argument to overbreadth. Typically, overbreadth is an issue
       that appears in a first amendment context. See Minnis, 2016 IL 119563, ¶ 14. The defendant,
       however, raises a due process claim, not a free speech claim. Nevertheless, borrowing from the
       appellate court majority, the defendant asserts that section 11-9.4-1(b) is overbroad and, thus,
       irrational because it reaches “an amazingly vast array of innocent activities.” The defendant
       relies upon People v. Madrigal, 241 Ill. 2d 463 (2011). There, this court addressed the
       constitutionality of an identity theft statute that criminalized the knowing use of another
       person’s identification information without permission to gain access to any of that person’s
       actions, communications, or transactions. In invalidating the statute, we held that punishing a
       significant amount of “wholly innocent conduct not related to the statute’s purpose” is not “a
       rational way of addressing” a problem identified by the legislature. Id. at 473. The defendant
       cites other cases consistent with Madrigal. See Carpenter, 228 Ill. 2d at 269 (holding that a
       statute that “potentially criminalizes innocent conduct” is not “a reasonable means of
       preventing the targeted conduct,” in violation of due process); Wright, 194 Ill. 2d at 25
       (“criminal statutes that potentially punish innocent conduct violate due process principles
       because they are not reasonably designed to achieve their purposes”); People v. Zaremba, 158
       Ill. 2d 36, 42 (1994) (invalidating a statute that “potentially subjects wholly innocent conduct
       to punishment”); Wick, 107 Ill. 2d at 66 (invalidating a statute that “does not require an
       unlawful purpose”). According to the defendant, section 11-9.4-1(b) punishes innocent
       conduct—not only dog walking in Bolingbrook but also visiting museums in Chicago,
       attending a sporting event at Soldier Field or a cultural event at Grant Park in Chicago, visiting
       Lincoln Park Zoo in Chicago, playing in adult sports leagues or taking adult classes sponsored
       by the Chicago Park District, going to public beaches in Chicago, or visiting any Illinois State
       Park.
¶ 26        The defendant misapprehends the statute. Section 11-9.4-1(b) does not criminalize dog
       walking or punish any other innocent conduct. It punishes conduct by sex offenders. As the
       State cogently observes, “the conduct being criminalized is a convicted child sex offender’s
       knowing presence in a public park—that defendant was walking a dog was merely incidental
       to that conduct.” Like the statute outlawing possession of any firearm or any firearm
       ammunition by a convicted felon (720 ILCS 5/24-1.1(a) (West 2016)), the statute here makes
       the status of the defendant an element of the offense. Consequently, conduct that is innocent
       for most people is not innocent for those who have been convicted of certain offenses.
       Madrigal and its “innocent conduct” predecessors are inapposite.
¶ 27        The defendant also relies upon the repealed predecessor statute to section 11-9.4-1(b) as
       support for his constitutional claim. That statute, formerly section 11-9.4(a) of the Criminal
       Code, provided:
                “It is unlawful for a child sex offender to knowingly be present in any public park
                building or on real property comprising any public park when persons under the age of
                18 are present in the building or on the grounds and to approach, contact, or


       Office of Sex Offender Sentencing, Monitoring, Apprehending, Registering, & Tracking 91 (2014),
       https://smart.gov/SOMAPI/pdfs/SOMAPI_Full%20Report.pdf.

                                                   -8-
               communicate with a child under 18 years of age, unless the offender is a parent or
               guardian of a person under 18 years of age present in the building or on the grounds.”
               720 ILCS 5/11-9.4(a) (2010) (repealed by Pub. Act 96-1551 (eff. July 1, 2011)).
       Section 11-9.3(a-10) of the Criminal Code now contains an almost identical prohibition. See
       720 ILCS 5/11-9.3(a-10) (West 2016). A violation of the former section 11-9.4(a) was a Class
       4 felony. 720 ILCS 5/11-9.4(e) (West 2010). Similarly, a violation of the current section
       11-9.3(a-10) is a Class 4 felony. 720 ILCS 5/11-9.3(f) (West 2016).
¶ 28       Section 11-9.4(a) did not criminalize sex offenders’ mere presence in public parks but
       rather specific conduct by sex offenders—approaching, contacting, or communicating with
       minors. The defendant insists that those “narrowing parameters” led the appellate court to
       uphold that statute against a substantive due process challenge. See Diestelhorst, 344 Ill. App.
       3d at 1185 (“prohibiting known child sex offenders from approaching, contacting, or
       communicating with a child within a public park zone bears a reasonable relationship to
       protecting children from known sex offenders”). The former section 11-9.4(a) and the current
       section 11-9.3(a-10), thus, purportedly reflect reasonable attempts by the legislature to tailor a
       prohibition regarding sex offenders in public parks to the goal of protecting the public by
       preventing sexual assaults.
¶ 29       Contrary to the defendant’s contention, the legislature clearly attempted to limit the
       application of section 11-9.4-1(b) and its penalty. Section 11-9.4-1(b) does not include in its
       definition of “child sex offender” persons convicted of “Romeo and Juliet” criminal sexual
       abuse under sections 11-1.50(b) and (c). See 720 ILCS 5/11-9.4-1(a) (West 2016); 96th Ill.
       Gen. Assem., Senate Proceedings, Mar. 16, 2010, at 55 (statements of Senator Althoff) (stating
       that the bill that became section 11-9.4-1 “excludes those convicted of criminal sexual abuse
       involving consensual sex when the accused is under seventeen and the victim is between nine
       and sixteen years of age and when the victim is thirteen to sixteen years of age and [the]
       accused is less than five years older”). And a violation of section 11-9.4-1(b) is a Class A
       misdemeanor, while a violation of section 11-9.3(a-10) is a Class 4 felony.
¶ 30       More fundamentally, the rational basis test does not require narrow tailoring; it only
       requires rationality. That is, the means chosen by the legislature need not be the best; they need
       only to be reasonable. See J.W., 204 Ill. 2d at 72 (“Whether there are better means to achieve
       this result *** is a matter better left to the legislature.”); Moline School District No. 40 Board
       of Education v. Quinn, 2016 IL 119704, ¶ 28 (“the fact that a law might be ill-conceived does
       not, in itself, create a constitutional problem for us to fix, for whether a statute is wise and
       whether it is the best means to achieve the desired result are matters for the legislature, not the
       courts”).
¶ 31       We conclude that there is a rational relation between protecting the public, particularly
       children, from sex offenders and prohibiting sex offenders who have been convicted of crimes
       against minors from being present in public parks across the state. Avila-Briones and Pollard
       correctly identified a constitutional nexus. In Avila-Briones, 2015 IL App (1st) 132221, ¶ 84,
       the appellate court stated: “[B]y keeping sex offenders who have committed offenses against
       children away from areas where children are present ***, the legislature could have rationally
       sought to avoid giving certain offenders the opportunity to reoffend.” The Avila-Briones court
       added that whether the statutory scheme covering sex offenders is “a finely tuned response to
       the threat of sex offender recidivism is not a question for rational-basis review; that is a


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       question for the legislature.” Id. And in Pollard, 2016 IL App (5th) 130514, ¶ 41, the appellate
       court concluded, “There is also a direct relationship between the *** presence restrictions of
       sex offenders and the protection of children.” See Standley v. Town of Woodfin, 661 S.E.2d
       728, 731 (N.C. 2008) (upholding a municipal ordinance barring registered sex offenders from
       entering town parks and stating that the town “has a legitimate government interest in desiring
       to decrease and eliminate sexual crimes in its parks, and prohibiting those most likely to
       commit criminal sexual acts—persons previously convicted of such conduct—from entering
       the town’s parks is a rational method of furthering that goal”). Because section 11-9.4-1(b) is
       rationally related to a legitimate government interest, the appellate court erred in holding that
       the statute is facially unconstitutional under substantive due process. People v. Jackson, 2017
       IL App (3d) 150154, which followed the appellate court’s decision in this case, is overruled to
       the extent that it also found section 11-9.4-1(b) unconstitutional.
¶ 32        In the conclusion of his response brief, the defendant requests that, if this court rejects his
       facial substantive due process claim, we remand to the appellate court for consideration of his
       as-applied ex post facto clause claim, which that court declined to address. See 2015 IL App
       (3d) 140627, ¶ 25 (declining to address defendant’s contention brought under U.S. Const., art.
       I, § 10, and Ill. Const. 1970, art. I, § 16). We agree with the defendant and so remand.

¶ 33                                        CONCLUSION
¶ 34      For the reasons that we have stated, the judgment of the appellate court is reversed, and the
       cause is remanded for consideration of defendant’s claim under the ex post facto clause.

¶ 35      Appellate court judgment reversed and remanded.




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