Opinion · Illinois Supreme Court
In re M.A.
2015 IL 118049
- Type
- Opinion
- Court
- Illinois Supreme Court
- Jurisdiction
- Illinois
- Date
- 2015-12-10
- Topic
- general
Illinois Official Reports Supreme Court In re M.A., 2015 IL 118049 Caption in Supreme In re M.A., a Minor (The People of the State of Illinois, Appellant and Court: Cross-Appellee, v. M.A., Appellee and Cross-Appellant). Docket No. 118049 Filed November 4, 2015 Decision Under Appeal from the Appellate Court for the First District; heard in that Review court on appeal from the Circuit Court of Cook County, the Hon. Stuart P. Katz, Judge, presiding.
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Illinois Official Reports
Supreme Court
In re M.A., 2015 IL 118049
Caption in Supreme In re M.A., a Minor (The People of the State of Illinois, Appellant and
Court: Cross-Appellee, v. M.A., Appellee and Cross-Appellant).
Docket No. 118049
Filed November 4, 2015
Decision Under Appeal from the Appellate Court for the First District; heard in that
Review court on appeal from the Circuit Court of Cook County, the Hon.
Stuart P. Katz, Judge, presiding.
Judgment Appellate court affirmed in part and reversed in part.
Circuit court affirmed.
Counsel on Lisa Madigan, Attorney General, of Springfield, and Anita Alvarez,
Appeal State’s Attorney, of Chicago (Alan J. Spellberg, Annette Collins and
Mary L. Boland, Assistant State’s Attorneys, of counsel), for the
People.
Michael J. Pelletier, State Appellate Defender, Alan D. Goldberg,
Deputy Defender, and Rachel Moran, Assistant Appellate Defender,
of the Office of the State Appellate Defender, of Chicago, for
appellee.
Marsha Levick and Kacey Mordecai, of Philadelphia, Pennsylvania,
and Shobha L. Mahadev and Scott Main, of Northwestern University
School of Law, of Chicago, for amici curiae Juvenile Law Center
et al.
Justices JUSTICE THOMAS delivered the judgment of the court, with
opinion.
Chief Justice Garman and Justice Karmeier concurred in the judgment
and opinion.
Justice Burke specially concurred, with opinion, joined by Justices
Freeman, Kilbride, and Theis.
OPINION
¶1 Respondent, M.A., was adjudicated delinquent of several offenses. As a result of her
adjudication, M.A. was ordered to register under the Murderer and Violent Offender Against
Youth Registration Act (Violent Offender Act) (730 ILCS 154/1 et seq. (West 2012)). M.A.
appealed, contending that the registration provisions of the Violent Offender Act violated her
right to substantive and procedural due process, as well as equal protection.
¶2 The Appellate Court, First District, rejected M.A.’s claim that the statute violated her right
to substantive due process. 2014 IL App (1st) 132540
. The appellate court, however, with one
justice dissenting, agreed with M.A. that the registration provisions are unconstitutional
because the provisions violate procedural due process and equal protection. Id.
The appellate
court therefore reversed the trial court’s order requiring M.A. to register under the Act.
¶3 This appeal as of right followed. Ill. S. Ct. R. 317 (eff. July 1, 2006). We subsequently
allowed the Juvenile Law Center, the Children and Family Justice Center, the Civitas
ChildLaw Center, the Edwin F. Mandel Legal Aid Clinic of the University of Chicago Law
School, the James B. Moran Center for Youth Advocacy, the Juvenile Justice Initiative, and
the National Juvenile Defender Center, to file a joint amicus curiae brief on behalf of M.A. Ill.
S. Ct. R. 345 (eff. Sept. 20, 2010).
¶4 BACKGROUND
¶5 M.A., was charged in a juvenile petition with aggravated domestic battery (720 ILCS
5/12-3.3 (West 2012)), aggravated battery (720 ILCS 5/12-3.05(f)(1) (West 2012)), battery
(720 ILCS 5/12-3(a)(1) (West 2012)), and domestic battery (720 ILCS 5/12-3.2(a)(1) (West
2012)). The incident giving rise to the charges occurred on November 24, 2012. On that date,
M.A. was 13 years old. That morning, M.A. and her 14-year-old brother, Muhammad, were at
their aunt’s house. M.A. and Muhammad got into an argument over a missing shower cap.
Muhammad said that M.A. was the last person to have the shower cap. M.A. said she was not,
and swore on her grandfather that she did not have the shower cap. M.A.’s grandfather was
deceased, so Muhammad became angry and said, “Don’t be putting shit on my granddaddy.”
When M.A. responded, “You don’t tell me what to do,” Muhammad went over to the couch
where M.A. was sitting, and told her, “Do it again.” M.A. told Muhammad, “Get out of my
face.” Muhammad then punched M.A. in the face.
¶6 When the fight ended, M.A. ran to the kitchen and grabbed a knife. Muhammad went into a
bedroom and shut the door. M.A. managed to enter the bedroom and cut Muhammad on his
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face and his arm. Muhammad received 3 stitches for the cut on his face and 10 stitches for the
cut on his arm.
¶7 At trial, Muhammad testified that he punched M.A. two or three times on her arm.
Muhammad said the fight lasted about a minute, then he went into a back bedroom. After M.A.
went into the kitchen, she tried to force her way into the bedroom. Muhammad tried to keep
M.A. out because she was yelling something “like I want to kill you” and had a large kitchen
knife in her hand. M.A. forced her way into the bedroom and began swinging the knife at
Muhammad, trying to stab him. M.A. cut Muhammad with the knife on his face and his arm.
¶8 Johanne Saintsurin, M.A.’s aunt, testified that the fight started when Muhammad pushed
M.A. on the couch, got on top of her and started punching her everywhere. After Muhammad
stopped punching M.A., M.A. walked to the kitchen saying “she was going to kill him,
something like that.” Muhammad went into the bedroom and closed the door, and M.A. came
back with a knife from the kitchen. Saintsurin told M.A. to put the knife down. When M.A. did
not put the knife down, Saintsurin called M.A.’s father and went to check on the younger
children. Saintsurin then saw that Muhammad was bleeding from his arm and his nose.
Saintsurin called 911. M.A. was still in the living room holding the knife when the police
arrived. Saintsurin noticed several items in the living room, including a medicine ball and a
pillow, had been cut open.
¶9 M.A. testified on her own behalf that when she and Muhammad got into the argument,
Muhammad came over to the couch where she was sitting and punched her multiple times.
Muhammad also pulled her hair, was “hollering and cussing,” and was grabbing her. M.A.
testified that she ran to the kitchen and grabbed a knife, but claimed she was trying to scare
Muhammad and was not trying to cut him. M.A. testified that she followed Muhammad into
the bedroom. When Muhammad opened the door a little, she “slashed” the knife in the door to
scare him. M.A. admitted that she was talking about “killing” him.
¶ 10 On May 2, 2013, M.A. was adjudicated delinquent on all counts. The circuit court of Cook
County found Muhammad’s account of the incident more credible and did not believe M.A.
had made just one pass of the knife through the door. The circuit court sentenced M.A. to 30
months’ probation, with certain conditions. One of the conditions was that M.A. was required
to register under the Violent Offender Act. M.A.’s motion to reconsider the finding of
delinquency was denied.
¶ 11 M.A. then filed an appeal, arguing that the automatic application of the Violent Offender
Act’s registration provisions to juvenile offenders violated substantive and procedural due
process. M.A. also argued that the Violent Offender Act’s registration provisions, as applied to
juvenile offenders, resulted in a denial of equal protection, because juvenile violent offenders
were treated more harshly than juvenile sex offenders. M.A. did not appeal her adjudication or
the sufficiency of the evidence to support her adjudication.
¶ 12 The appellate court first rejected M.A.’s claim that the Violent Offender Act violated her
right to substantive due process. 2014 IL App (1st) 132540, ¶ 48
. The appellate court,
however, agreed with M.A. that the Act denied her right to procedural due process. The
appellate court found unconstitutional the Violent Offender Act’s provision mandating
registration of juvenile violent offenders against youth as adults when they turned 17 years of
age. Id. ¶ 65. The appellate court also held that the failure of the Violent Offender Act to
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provide any means by which a juvenile offender can petition to be taken off the registry was
unconstitutional. Id.
¶ 13 In addition, the appellate court found that the Violent Offender Act denied juvenile
offenders equal protection and was unconstitutional on that basis as well. The appellate court
held that the appropriate class for purposes of its equal protection analysis was juvenile
offenders who, as a result of a juvenile adjudication, are required to register with law
enforcement authorities. Id. ¶ 69. Looking at the class, the appellate court concluded that
juvenile sex offenders are treated differently, and more leniently, than juveniles required to
register as violent offenders against youth. Id. The appellate court majority found there was no
rational basis for treating juvenile sex offenders more leniently than juvenile violent offenders.
Id. ¶ 73.
¶ 14 One justice dissented from the appellate court’s finding that the Violent Offender Act
violated procedural due process and equal protection. 2014 IL App (1st) 132540, ¶¶ 77-108
(Pucinski, J., concurring in part and dissenting in part). Justice Pucinski would find that M.A.
received all the process she was due during her delinquency adjudication, noting that it was the
delinquency adjudication that triggered the Act’s mandatory registration requirements. Id.
¶ 98. Justice Pucinski also disagreed that juvenile sex offenders and juvenile violent offenders
were similarly situated for purposes of equal protection. Id. ¶¶ 101-04.
¶ 15 ANALYSIS
¶ 16 On appeal, the State argues that the appellate court majority erred in finding that the
Violent Offender Act violated procedural due process and equal protection. M.A. seeks
cross-relief, arguing that the appellate court erred in finding that the Act did not violate
substantive due process.
¶ 17 With regard to juveniles, the Violent Offender Act states:
“(a) As used in this Act, ‘violent offender against youth’ means any person who is:
***
(2) adjudicated a juvenile delinquent as the result of committing or attempting
to commit an act which, if committed by an adult, would constitute any of the
offenses specified in subsection (b) or (c-5) of this Section ***, or found guilty
under Article V of the Juvenile Court Act of 1987 of committing or attempting to
commit an act which, if committed by an adult, would constitute any of the offenses
specified in subsection (b) or (c-5) of this Section ***.
***
For purposes of this Section, ‘convicted’ shall have the same meaning as
‘adjudicated’. For the purposes of this Act, a person who is defined as a violent
offender against youth as a result of being adjudicated a juvenile delinquent under
paragraph (2) of this subsection (a) upon attaining 17 years of age shall be considered
as having committed the violent offense against youth on or after the 17th birthday of
the violent offender against youth. Registration of juveniles upon attaining 17 years of
age shall not extend the original registration of 10 years from the date of conviction.”
730 ILCS 154/5(a)(2) (West 2012).
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¶ 18 The Violent Offender Act further provides:
“(b) As used in this Act, ‘violent offense against youth’ means:
***
(4.4) A violation or attempted violation of any of the following Sections or
clauses of the Criminal Code of 1961 or the Criminal Code of 2012 when the victim
was under 18 years of age and the offense was committed on or after *** (2) July
26, 2010 and the defendant was under the age of 18:
12-3.3 (aggravated domestic battery),
12-3.05(a)(1), 12-3.05(d)(2), 12-3.05(f)(1), 12-4(a), 12-4(b)(1), or
12-4(b)(14) (aggravated battery)[.]” 730 ILCS 154/5(b)(4.4) (West 2012).
¶ 19 Because M.A. was adjudicated delinquent for the offenses of aggravated domestic battery
and aggravated battery, M.A. fell within the definition of a violent offender against youth. The
Violent Offender Act provides that a violent offender against youth has a duty to register (730
ILCS 154/10 (West 2012)). With regard to a juvenile, the Act provides that:
“A person who has been adjudicated a juvenile delinquent for an act which, if
committed by an adult, would be a violent offense against youth shall register as an
adult violent offender against youth within 10 days after attaining 17 years of age.” 730
ILCS 154/10(a) (West 2012).
With certain exceptions not relevant in this case, a person required to register under the Violent
Offender Act is “required to register for a period of 10 years after conviction or adjudication if
not confined to a penal institution, hospital or any other institution or facility.” 730 ILCS
154/40 (West 2012).
¶ 20 The Violent Offender Act requires the Department of State Police to establish and maintain
a statewide Murderer and Violent Offender Against Youth database “for the purpose of
identifying violent offenders against youth and making that information available to the
persons specified in Section 95.” 730 ILCS 154/85(a) (West 2012). Section 95 of the Act
provides for the community notification of violent offenders against youth. 730 ILCS 154/95
(West 2012). However, with regard to juvenile offenders, the Violent Offender Act states:
“(a) The Department of State Police and any law enforcement agency having
jurisdiction may, in the Department’s or agency’s discretion, only provide the
information specified in subsection (b) of Section 95, with respect to an adjudicated
juvenile delinquent, to any person when that person’s safety may be compromised for
some reason related to the juvenile violent offender against youth.
(b) The local law enforcement agency having jurisdiction to register the juvenile
violent offender against youth shall ascertain from the juvenile violent offender against
youth whether the juvenile violent offender against youth is enrolled in school; and if
so, shall provide a copy of the violent offender against youth registration form only to
the principal or chief administrative officer of the school and any guidance counselor
designated by him or her. The registration form shall be kept separately from any and
all school records maintained on behalf of the juvenile violent offender against youth.”
730 ILCS 154/100 (West 2012).
¶ 21 In reviewing the Violent Offender Act’s registration provisions, we observe that statutes
are presumed constitutional, and this court will construe a statute in a manner that affirms the
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constitutionality of the statute, if reasonably possible. People v. Hollins, 2012 IL 112754, ¶ 13
.
The party challenging the constitutionality of a statute has the burden of proving that the statute
is unconstitutional. Id.
The constitutionality of a statute presents a question of law, which is
reviewed de novo. Id.
¶ 22 As noted, the appellate court majority held that the Violent Offender Act violated
procedural due process and equal protection. Article I, section 2, of our state constitution
guarantees its citizens equal protection and due process of law. Article I, section 2, provides:
“No person shall be deprived of life, liberty or property without due process of law
nor be denied the equal protection of the laws.” Ill. Const. 1970, art. I, § 2.
Likewise, the fourteenth amendment of the United States Constitution provides:
“[N]or shall any State deprive any person of life, liberty, or property, without due
process of law; nor deny to any person within its jurisdiction the equal protection of the
laws.” U.S. Const., amend. XIV, § 1.
¶ 23 We first address the appellate court’s finding that the Violent Offender Act denies juvenile
violent offenders equal protection. It appears from the appellate court’s opinion that M.A.
argued that the Act violated the equal protection clause of both the Illinois Constitution and the
federal constitution. See 2014 IL App (1st) 132540, ¶ 67
. The appellate court did not expressly
state whether its finding of an equal protection violation was under the state constitution, the
federal constitution, or both. This omission does not change our review, as this court applies
the same standard under both the Illinois Constitution and the United States Constitution when
conducting an equal protection analysis. People v. Richardson, 2015 IL 118255, ¶ 9
.
¶ 24 The equal protection clause guarantees that similarly situated individuals will be treated in
a similar manner, unless the government can demonstrate an appropriate reason to treat those
individuals differently. Id.
The equal protection clause does not forbid the legislature from
drawing proper distinctions in legislation among different categories of people, but the equal
protection clause does prohibit the legislature from doing so based on criteria wholly unrelated
to the legislation’s purpose. Id.
¶ 25 A threshold matter in addressing an equal protection claim is determining whether the
individual claiming an equal protection violation is similarly situated to the comparison group.
People v. Masterson, 2011 IL 110072, ¶ 25
.
“As the Supreme Court has noted, equal protection ‘does not forbid all
classifications’ (Nordlinger v. Hahn, 505 U.S. 1, 10
(1992)), ‘[i]t simply keeps
governmental decisionmakers from treating differently persons who are in all relevant
respects alike.’ (Emphasis added.) Id.
Evidence of different treatment of unlike groups
does not support an equal protection claim. Fournier v. Sebelius, 718 F.3d 1110, 1124
(9th Cir. 2013).” (Emphasis in original.) In re Derrico G.,2014 IL 114463, ¶ 92
.
¶ 26 When a party bringing an equal protection claim fails to show that he is similarly situated
to the comparison group, his equal protection challenge fails. Masterson, 2011 IL 110072, ¶ 25
. Generally, in the context of equal protection claims, a determination of whether
individuals are similarly situated requires an analysis of the purpose of the legislation at issue.
Id.
¶ 27 In the appellate court, the State argued that M.A. could not meet the threshold requirement
of similarly situated groups because juvenile violent offenders are not similarly situated to
juvenile sex offenders. The appellate court acknowledged that the offenses with which both
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groups of juveniles were charged were different and required proof of different elements, so
“in that sense, the two groups are not similarly situated.” 2014 IL App (1st) 132540, ¶ 69
.
Nonetheless, the appellate court held that for purposes of its equal protection analysis, “the
appropriate class of persons is juvenile offenders who, as a result of a juvenile adjudication, are
required to register with law enforcement authorities.” Id.
In that context, the appellate court
concluded that juveniles required to register as sex offenders were treated differently, and
much more leniently, than juveniles required to register as violent offenders against youth. Id.
¶ 28 The appellate court observed that juveniles required to register as sex offenders under the
Sex Offender Registration Act (Registration Act) were relieved of the obligation to register as
adults upon turning 17 years old and were allowed an opportunity, after five years, to
demonstrate that their obligation to register should be terminated. 2014 IL App (1st) 132540, ¶ 69
. In contrast, juveniles required to register under the Violent Offender Act are required to
register as adults upon turning 17 years old and do not have the opportunity to seek termination
of their registration after five years. The appellate court held that the disparity in treatment
between these “similarly situated” groups had no rational basis, so that the Violent Offender
Act’s registration requirement for juveniles violated equal protection.
¶ 29 Upon review, we disagree with the appellate court’s threshold determination that juvenile
sexual offenders are similarly situated to juvenile violent offenders. While juveniles
adjudicated delinquent under the Registration Act and under the Violent Offender Act may
appear to be similarly situated because both statutes require the juveniles to register, a
determination that individuals are similarly situated for equal protection purposes cannot be
made in the abstract. People v. Warren, 173 Ill. 2d 348, 363
(1996). The determination whether
individuals are similarly situated generally can only be made by considering the purpose of the
particular legislation. Id.
¶ 30 The Registration Act was enacted in 1986 and was originally titled the Habitual Child Sex
Offender Registration Act (1986 Act) (Ill. Rev. Stat. 1987, ch. 38, ¶ 221 et seq.). The 1986 Act
was passed “in response to concern over the proliferation of sex offenses against children.”
People v. Adams, 144 Ill. 2d 381, 386
(1991). In enacting the 1986 Act, “the legislature sought
to create an additional method of protection for children from the increasing incidence of
sexual assault and sexual abuse” by requiring sex offenders to register with local law
enforcement agencies. Id. at 387
. The title of the 1986 Act was amended in 1993 to the Child
Sex Offender Registration Act (730 ILCS 150/1 et seq. (West 1994)). The title was again
amended in 1996 to the Registration Act (730 ILCS 150/1 et seq. (West 1996)).
¶ 31 In addition to renaming the statute, the 1996 amendments to the Registration Act also
expanded the statute to include enumerated sex offenses against adult victims, as well as
certain sexual and nonsexual offenses against child victims (730 ILCS 150/1 et seq. (West
1996)). Ten years later, the legislature enacted the Violent Offender Act. In introducing the bill
which would become the Violent Offender Act, Representative Fritchey stated:
“ ‘Ladies and Gentlemen, this is actually a very serious issue. Last week we had a
number of Bills come up and I’m sure we will this week and next week again, with
continual crackdowns on individuals that are on the sex offender registry. What a lot of
you may not recognize is that there are a number of individuals that are on that registry
whose crimes have nothing to do with the sexual offense. They may have to do with a
murder if the victim was a minor. It may have to do with aggravated kidnapping with
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certain offenses along those lines. What this piece of legislation does is clean up, 10
years too late, the sex offender registry to make sure that only those individuals that’ve
[sic] committed sex offenses remain on that registry. What is [sic] does not do is take
these people out of the purview of law enforcement. It simply shifts them over into a
new registry which will be called the Violent Offender Against Youth Registry. We
would still be able to monitor them, we’d still be able to track them, but we will not
further stigmatize individuals who have already committed a crime and come out and
paid their time by calling them sex offenders when they’re actually not.’ ” (Emphases
added.) 94th Ill. Gen. Assem., House Proceedings, Feb. 22, 2006, at 13 (statements of
Representative Fritchey).
¶ 32 The purpose of the Violent Offender Act, then, was to remove nonsexual offenders from
the Registration Act, as the legislature concluded that it was a greater stigma to be categorized
as a sex offender than a violent offender. The legislature also recognized that the crimes of the
nonsexual offenders had nothing to do with sexual offenses. In other words, the Violent
Offender Act was enacted because the legislature determined that violent offenders were not
similarly situated to sex offenders. The Registration Act and the Violent Offender Act address
qualitatively different types of offenders and qualitatively different types of offenses.
Consequently, although both juvenile sexual offenders and juvenile violent offenders are
required to register under the applicable statutes, the statutes address separate groups of
offenders in a manner unique to each group.
¶ 33 The appellate court majority essentially conceded as much when it admitted that “[c]learly,
the offenses with which the two groups of juveniles are charged are different and require proof
of different elements and in that sense, the two groups are not similarly situated.” 2014 IL App (1st) 132540, ¶ 69
. Nonetheless, in order to reach the merits of M.A.’s equal protection
argument, the majority simply concluded that, “for purposes of M.A.’s equal protection
argument, we believe the appropriate class of persons is juvenile offenders who, as a result of a
juvenile adjudication, are required to register with law enforcement authorities.” Id.
Aside
from this conclusory statement, the majority does not otherwise support its finding that the two
groups of juveniles are similarly situated. Simply declaring a group similarly situated does not
make it so absent some evidence that the individuals are in all respects alike.
¶ 34 M.A., a juvenile violent offender, was not similarly situated to a juvenile adjudicated
delinquent under the Registration Act. Therefore, it is of no consequence that the registration
provisions for juveniles adjudicated delinquent under the Registration Act differ from the
registration provisions for juveniles adjudicated delinquent under the Violent Offender Act.
Evidence of different treatment of unlike groups does not support an equal protection claim.
In re Derrico G., 2014 IL 114463, ¶ 92
. Because M.A. cannot meet the threshold requirement
for bringing an equal protection claim, her equal protection claim necessarily fails. The
appellate court erred in finding otherwise and in holding that the Violent Offender Act was
unconstitutional because it violated equal protection.
¶ 35 Having found that the Violent Offender Act does not violate equal protection, we next
consider the appellate court’s finding that the Violent Offender Act also violated procedural
due process. A procedural due process claim challenges the constitutionality of specific
procedures used to deny a person’s life, liberty or property. People v. Cardona, 2013 IL 114076, ¶ 15
. The fundamental requirements of due process are notice of the proceeding and
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an opportunity to present any objections. Id.
Due process is a flexible concept and “not all
situations calling for procedural safeguards call for the same kind of procedure.” Morrissey v.
Brewer, 408 U.S. 471, 481
(1972).
¶ 36 When a fundamental right or suspect classification based upon race or national origin is
involved, strict scrutiny analysis applies. People v. Masterson, 2011 IL 110072, ¶ 24
. Strict
scrutiny requires a showing that the statute is narrowly tailored to serve a compelling state
interest. Id.
When a fundamental right or suspect classification is not involved, the rational
basis standard applies. Id.
The rational basis test requires a determination of whether the statute
bears a rational relationship to a legitimate government purpose. Id.
¶ 37 In addressing M.A.’s constitutional claims, the appellate court found that the Violent
Offender Act did not violate any of M.A.’s fundamental rights. Accordingly, the appellate
court applied the rational basis test in addressing those constitutional challenges. M.A. does
not contest the appellate court’s finding that the rational basis test applies to her constitutional
claims.
¶ 38 As with its equal protection analysis, the appellate court majority does not indicate whether
the finding that the Violent Offender Act violates a juvenile’s right to procedural due process is
under the federal constitution, the Illinois Constitution, or both. In her argument in support of
the appellate court’s decision, M.A. references both the state constitution and the federal
constitution. Although the due process clause of our state constitution may be construed
independently of the federal due process clause (People v. Molnar, 222 Ill. 2d 495, 510
(2006)), M.A. does not argue, nor did the appellate court majority find, that the due process
clause of our state constitution should be construed independently of the due process clause of
the federal constitution. We find no compelling reason to interpret the Illinois due process
clause to provide greater protection than its federal counterpart.
¶ 39 M.A.’s challenge to the statute claimed both facial and “as applied” procedural due process
violations. A statute is facially invalid only if there is no set of circumstances under which the
statute would be valid. Napleton v. Village of Hinsdale, 229 Ill. 2d 296, 305-06
(2008). The
fact that a statute could be found unconstitutional under some circumstances does not establish
its facial invalidity. Id. at 306
. Consequently, a facial challenge to the constitutionality of a
legislative enactment is the most difficult challenge to mount successfully. Id. at 305
.
¶ 40 An “as applied” challenge, in contrast, challenges how a statute was applied in the
particular context in which the plaintiff acted or proposed to act. Id. at 306
. In an “as applied”
challenge, the facts surrounding the plaintiff’s particular circumstances become relevant. Id.
If
a plaintiff prevails in an “as applied” challenge, enforcement of the statute is enjoined only
against the plaintiff, while a finding that a statute is facially unconstitutional voids the statute
in its entirety and in all applications. Id.
¶ 41 The appellate court majority appears to have found the Violent Offender Act to be both
facially unconstitutional and unconstitutional as applied to M.A. The appellate court found that
“the Act, with its mandated registry for 10 years and its requirement that juvenile offenders
automatically register as adults upon turning 17, denies minors procedural due process.” 2014 IL App (1st) 132540, ¶ 53
. The appellate court, however, also addressed the procedural due
process violation in terms of M.A.’s specific circumstances. Because a finding that the statute
is constitutional as applied to M.A. would necessarily compel a finding that the statute is
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constitutional on its face, we will first consider whether the Violent Offender Act is
unconstitutional as applied.
¶ 42 As noted, with regard to juvenile offenders, the Violent Offender Act provides that until
the juvenile turns 17, dissemination of registry information is limited. See 730 ILCS 154/100
(West 2012). However, upon turning 17, a juvenile is required to register as an adult, meaning
that he or she is subject to community notification on the Violent Offender Against Youth
Registry’s public website for the remainder of the 10-year period of registration. See 730 ILCS
154/5(a) (West 2012); 20 Ill. Adm. Code 1283.50(j) (2010) (“A person who has been
adjudicated a juvenile delinquent for an act that, if committed by an adult, would be a violent
offense against youth shall register as an adult violent offender against youth within 10 days
after attaining 17 years of age. Upon registering as an adult, the juvenile offender will be
placed on the Illinois State Police Violent Offender Against Youth Registry website after an
authorization letter is signed by the offender and received by the Illinois State Police.”).
¶ 43 The appellate court majority found that the Violent Offender Act violated a juvenile’s right
to due process because the statute mandates that juveniles automatically register as adults upon
turning 17, regardless of the circumstances of the offense. 2014 IL App (1st) 132540, ¶ 53
.
Further, the statute requires juveniles to register as adults with the attendant inclusion of their
information on the statewide public registry, without any individualized assessment of whether
the juvenile poses any continuing risk to the public. Id.
Moreover, adult registration may occur
several years after the delinquency adjudication and is required without any opportunity for
further hearing. Id.
The appellate court majority held:
“While the rational basis test might support an initial registration requirement for
all juvenile offenders classified as ‘violent offenders against youth’ under the Act
without an individualized assessment as to whether those minors, in fact, pose a danger
to the public (particularly in light of the limited dissemination of registration
information), it does not likewise justify the requirement that all such offenders
automatically register as adults, with the ensuing disclosure of registration information
to the public at large. This is particularly true given that no hearing is conducted prior
to mandated adult registration.” Id. ¶ 54.
¶ 44 In addressing this issue, we find the United States Supreme Court’s decision in
Connecticut Department of Public Safety v. Doe, 538 U.S. 1, 8
(2003), to be controlling. There,
the Court held that a party who asserts a right to a hearing under the due process clause must
show that the facts they seek to establish in that hearing are relevant under the statutory
scheme. At issue in that case was a due process challenge to the provisions of Connecticut’s
sex offender registry law which required the Department of Public Safety to post sex offender
registry information on the internet and to make the registry available to the public.
¶ 45 A convicted sex offender argued that the registration law violated his right to due process
because he was “not a ‘ “dangerous sexual offender” ’ and that the Connecticut law ‘deprives
him of a liberty interest—his reputation combined with the alteration of his status under state
law—without notice or a meaningful opportunity to be heard.’ ” Id.
at 6 (quoting Doe v. Dep’t
of Public Safety ex rel. Lee, 271 F.3d 38, 45-46
(2d Cir. 2001)). The district court and the court
of appeals agreed that the due process clause entitled class members “to a hearing ‘to
determine whether or not they are particularly likely to be currently dangerous before being
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labeled as such by their inclusion in a publicly disseminated registry.’ ” Id.
(quoting Doe v.
Dep’t of Public Safety ex rel. Lee, 271 F.3d at 62
.
¶ 46 The United States Supreme Court reversed the lower courts, holding that even if the
respondent had been deprived of a liberty interest, due process did not entitle the respondent to
a hearing to establish a fact that was not material under the Connecticut statute. Id. at 7. That
was because the law’s requirements for registration turned on the fact of the offender’s
conviction alone, a fact that the convicted offender had already had a procedurally safeguarded
opportunity to contest. Id. No other fact was relevant to the disclosure of the registrants’
information, and the website contained a disclaimer explicitly stating that no determination
had been made that any individual included in the registry was currently dangerous. Id. The
Court held:
“In short, even if respondent could prove that he is not likely to be currently
dangerous, Connecticut has decided that the registry information of all sex
offenders—currently dangerous or not—must be publicly disclosed. Unless respondent
can show that that substantive rule of law is defective (by conflicting with a provision
of the Constitution), any hearing on current dangerousness is a bootless exercise.”
(Emphases in original.) Id. at 7-8.
¶ 47 Like the Connecticut statute, the Violent Offender Act requires violent offenders against
youth, including juvenile offenders, to register based upon the fact that the offender was
adjudicated delinquent or convicted of an offense included within the definition of a violent
offender against youth, not based on the offender’s dangerousness. The only material fact,
then, is the offender’s conviction or adjudication of a violent offense against youth. Moreover,
the Illinois State Police Murderer and Violent Offender Against Youth Registry, like the
registry at issue in Connecticut Department of Public Safety, contains a disclaimer explicitly
stating that:
“[The Illinois State Police] has not considered or assessed the specific risk of re-offense
with regard to any individual prior to his or her inclusion on this Registry and has made
no determination that any individual included in this Registry is currently dangerous.
Individuals included on the Registry are included solely by virtue of their conviction
record, Illinois state law and proof the offense was not sexually motivated. The primary
purpose of providing this information is to make the information easily available and
accessible, not to warn about any specific individuals.” Illinois State Police Murderer
and Violent Offender Against Youth Registry, http://www.isp.state.il.us/cmvo (last
visited Aug. 31, 2015).
¶ 48 Given that current dangerousness is not relevant or material to the duty to register under the
Violent Offender Act, M.A. does not have a due process right to a hearing to establish a fact
that is not relevant or material under Illinois law. Again, the Act requires registration solely
based upon the fact of conviction or adjudication, a fact that M.A. had a procedurally
safeguarded opportunity to contest during her juvenile adjudication proceedings. M.A. did not
challenge her adjudication as a juvenile delinquent on appeal. Like the offender in Connecticut
Department of Public Safety, then, M.A. received all the process to which she was due when
she was adjudicated delinquent of aggravated domestic battery and aggravated battery,
offenses included within the definition of a violent offender against youth. See 730 ILCS
154/5(b)(4.4) (West 2012).
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¶ 49 M.A.’s adjudication for aggravated domestic battery and aggravated battery were
sufficient to require her to register as a violent offender against youth. The Violent Offender
Act, therefore, does not violate procedural due process as applied to M.A. Because the Violent
Offender Act does not violate procedural due process as applied to M.A., it follows that the Act
also is not facially unconstitutional.
¶ 50 Finally, we turn to M.A.’s arguments in support of her request for cross-relief. M.A. argues
that the appellate court erred in finding that the Violent Offender Act did not violate
substantive due process.
¶ 51 The appellate court held that the decision in In re J.W., 204 Ill. 2d 50
(2003), compelled the
conclusion that the Violent Offender Act’s requirements passed the rational basis test,
defeating M.A.’s substantive due process challenge. The court stated:
“Just as our supreme court [in In re J.W.] concluded that there is a rational relationship
between the registration requirements for sex offenders, regardless of age, and the
protection of the public from those offenders [citation], the same reasoning compels the
finding that a rational relationship exists in the context of this case. The public requires
protection from violent offenders against youth; this is true whether the offender is an
adult or a juvenile. The degree of protection required may vary given, among other
things, the age of the offender at the time the offense is committed. In recognition of
this fact and consistent with the Juvenile Court Act’s statutory confidentiality
provisions (705 ILCS 405/1-7, 1-8 (West 2012)), the legislature has deemed it
appropriate to limit those who have access to a juvenile offender’s information
contained on the registry, while making the same information for adult offenders
widely available. Given our conclusion that under the rationale of In re J.W., the Act’s
registration requirements are rationally related to public safety, we reject M.A.’s
substantive due process challenge.” 2014 IL App (1st) 132540, ¶ 48
.
¶ 52 In this court, M.A. argues that the Violent Offender Act violates substantive due process
both on its face and as applied. Again, because a facial challenge to a statute must fail if any
situation exists where the statute could be validly applied (People v. Davis, 2014 IL 115595, ¶ 25
), we first address M.A.’ s claim that the Act violates substantive due process as applied to
her.
¶ 53 As a preliminary matter, we note that here too, although M.A. cited both the federal and the
state due process clauses, the appellate court did not indicate whether its holding was based on
the state due process clause, the federal due process clause, or both. In this court, M.A. does
not argue that the state due process clause provides greater protection than that provided by the
federal constitution. Absent any argument to the contrary, we again find no compelling reason
to construe the state due process clause independently of its federal counterpart with regard to
M.A.’s substantive due process claim.
¶ 54 M.A. claims that the Violent Offender Act violates substantive due process as applied to
her because she was only 13 years and 3 months old when the offense took place, it was her
first contact with the juvenile justice system, no one ever found her to be a threat to society, and
the details of her offense strongly suggest that her offense was an act of desperation and not an
accurate reflection of her threat to society as a whole. In addition, even if M.A. was a serious
threat to society, by the time M.A. is required to register as an adult, 3 years and 9 months after
the offense giving rise to her adjudication, there is no basis to conclude that M.A. will remain
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such a threat. M.A. claims that the Violent Offender Act’s stated goal of protecting the public
is not served by automatically requiring a child such as M.A. to begin registering as an adult
violent offender at the same time she is reaching the age where she will be trying to secure
employment and go to college.
¶ 55 As the appellate court found, the rational basis test applies to M.A.’s substantive due
process challenge. A statute will be upheld under the rational basis test as long as it bears a
rational relationship to a legitimate legislative purpose and is neither arbitrary nor
unreasonable. People v. Hollins, 2012 IL 112754, ¶ 15
. In applying the rational basis test, a
court must first ascertain the statute’s public purpose in order to determine whether the
statute’s provisions reasonably implement that purpose. Id. ¶ 18. A statute will be upheld
where the statute bears a reasonable relationship to the public interest to be served and the
means adopted are a reasonable method of accomplishing the desired objective. In re J.W., 204 Ill. 2d at 67
. A statute need not be the best means of accomplishing the stated objective.Id. at 72
. Courts will not second guess the wisdom of legislative enactments or dictate alternative
means to achieve the desired result. Id.
If there is any conceivable set of facts that show a
rational basis for the statute, the statute will be upheld. People v. Johnson, 225 Ill. 2d 573, 585
(2007).
¶ 56 The purpose of the Violent Offender Act is to protect the public from violent offenders
against youth. Requiring registration of individuals convicted or adjudicated of an offense
constituting a violent offense against youth is a reasonable method of accomplishing the Act’s
objective to protect the public. To that end, the legislature has deemed it appropriate to impose
a 10-year registration requirement on most violent offenders against youth. However, with
regard to juvenile offenders, the legislature deemed it appropriate to limit those who have
access to a juvenile violent offender’s information contained on the registry until the juvenile
turns 17 years old. Limiting access to a juvenile offender’s information until the juvenile is 17
years old is a reasonable means of accomplishing the purpose the legislature sought to
accomplish in enacting the statute—protecting the public from violent offenders against
youth—while maintaining the Juvenile Court Act’s statutory confidentiality provisions (see
705 ILCS 405/1-7, 1-8 (West 2012)).
¶ 57 As applied to M.A., we note that in arguing that the Violent Offender Act violates her right
to substantive due process, M.A. downplays her offenses as “an act of desperation,” pointing to
her difficult upbringing as motivating her actions. However, we are not called upon to reweigh
the evidence supporting M.A.’s adjudication or the validity of the adjudication. What is
relevant for purposes of the instant analysis is that M.A. was ordered to register under the Act
based upon her adjudications for aggravated battery and aggravated domestic battery.
¶ 58 Aggravated battery is defined as:
“(a) Offense based injury. A person commits aggravated battery when, in
committing a battery, other than by the discharge of a firearm, he or she knowingly
does any of the following:
(1) Causes great bodily harm or permanent disability or disfigurement.” 720
ILCS 5/12-3.05(a)(1) (West 2012).
This offense is a Class 3 felony when committed by an adult. See 720 ILCS 5/12-3.05(h) (West
2012).
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¶ 59 Aggravated domestic battery is defined as:
“(a) A person who, in committing a domestic battery, knowingly causes great
bodily harm, or permanent disability or disfigurement commits aggravated domestic
battery.” 720 ILCS 5/12-3.3(a) (West 2012).
Aggravated domestic battery is a Class 2 felony when committed by an adult. See 720 ILCS
5/12-3.3(b) (West 2012).
¶ 60 Given that the charges for which M.A. is required to register would be felonies if M.A.
committed those acts as an adult, along with the fact that those charges require a finding that
the offender caused “great bodily harm, permanent disability, or disfigurement,” we agree with
the appellate court that there is a rational relationship between M.A.’s registration and the
protection of the public. Consequently, we find that the Violent Offender Act does not violate
M.A.’s right to substantive due process as applied. For that reason, the Violent Offender Act
also is not facially unconstitutional. We affirm the appellate court’s finding that the Act does
not violate substantive due process.
¶ 61 As a final matter, we note that the appellate court majority, M.A., and the amicus, spend a
significant amount of time pointing out M.A.’s difficult upbringing, as well as the facts
surrounding the incident giving rise to M.A.’s adjudication as a delinquent minor and
subsequent thereto. The parties and the appellate court majority point to those facts in support
of a finding that the Violent Offender Act’s registration requirements are unconstitutional as
applied to M.A.
¶ 62 While we do not minimize the environment in which M.A. was raised, which likely did
play a role in her adjudication as a delinquent minor, the considerations raised by the parties
and the appellate court majority are not relevant to our constitutional analysis. The facts giving
rise to M.A.’s adjudication are relevant to a determination of guilt or innocence. M.A. has not
challenged on appeal the sufficiency of the evidence leading to her adjudication as a delinquent
minor; therefore, there is no need for this court to reweigh the evidence against M.A. The
legislature deliberately chose to make an individual’s conviction or adjudication the basis for
requiring a violent offender against youth to register under the Violent Offender Act.
Registration under the Act is offense based, rather than offender based.
¶ 63 We find Justice Pucinski’s discussion on this point to be well taken. In dissenting in part to
the majority’s finding of unconstitutionality, Justice Pucinski stated:
“I also do not agree with reweighing the evidence in M.A.’s case to find the Act
unconstitutional. While I do have sympathy for M.A.’s background, the fact remains
that the trial court heard all the testimony and observed her and was in the best position
to determine her guilt or innocence and any mitigating factors. For us to reweigh the
evidence before the trial judge and the trial judge’s determination that M.A. in fact was
guilty of stabbing her brother is improper. While the majority finds it understandable
that M.A. stabbed her brother due to her toxic environment and abuse at the hands of
her brother, there are many abused children who do not resort to violence. The
legislature is well within its authority in determining that juveniles who commit
violence against other children should register as adults when they turn 17, if they
indeed committed the violent offense. Protecting other innocent children is a legitimate
state interest, and requiring that juvenile violent offenders register as adults when they
turn 17 to complete the 10-year mandated registration period is rationally related to that
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state interest.” (Emphasis in original.) 2014 IL App (1st) 132540, ¶ 105
(Pucinski, J.,
concurring in part and dissenting in part).
¶ 64 The appellate court majority, M.A. and the amicus also rely heavily on amendments to the
Registration Act in support of a finding that the Violent Offender Act’s registration
requirements are unconstitutional. We did not address those amendments in our analysis
because they were not relevant to that analysis. Given the significance placed upon those
amendments by the appellate court, M.A. and the amicus, however, we will briefly address the
amendments.
¶ 65 At the same time that the legislature was considering House Bill 4193, which became the
Violent Offender Act, the legislature also was considering House Bill 2067, which would
amend the Registration Act. Senator Raoul explained that House Bill 2067:
“answers the invitation of the Illinois Supreme Court in the case of In re J.W., where in
dicta, Justice McMorrow, while upholding that juvenile sex offenders—juveniles
classified as sex offenders should—can be required to register as adults, indicated that
the Legislature should address the situation of different types of offenses. And this is
really targeted towards the type of the kind of Romeo and Juliet cases
where—and—and there’s no such thing as consensual sex for teenagers. And so in—in
cases where a sixteen-year-old and a fifteen-year-old engage in consensual sex, one of
those two, or perhaps both of them, could be required to register as a sex offender once
they reach the age of majority. What House Bill 2067 proposes to do is to remove the
current state of a law of one case fits all and—and require—and require that the court
address cases on a case-by-case basis, so we don’t have the situation where teenagers
engaged in consensual sex are thereafter required to register as sex offenders.” 94th Ill.
Gen. Assem., Senate Proceedings, Mar. 30, 2006, at 48 (statements of Senator Raoul).
Of note is the fact that at the same time the legislature was passing the Violent Offender Act,
with no provisions for a court to address registration for juveniles on a case-by-case basis, it
was considering such a provision for juveniles required to register under the Registration Act.
This at least suggests that the legislature deliberately chose not to include the proposed
Registration Act amendments concerning juveniles in the text of the Violent Offender Act.
¶ 66 House Bill 2067 was passed by the legislature, but was vetoed by the Governor.
Subsequently, proposed amendments to the Registration Act were raised again in Senate Bill
121. The amendments to the Registration Act proposed in Senate Bill 121: eliminated the
provision that a juvenile delinquent be required to register as an adult within 10 days of turning
17 years old; added that a minor adjudicated delinquent of a sex offense which would be a
felony if the minor was an adult can petition for the termination of the term of registration after
five years of registration; and added that a minor adjudicated delinquent of a sex offense which
would be a misdemeanor if the minor was an adult can petition for the termination of the term
of registration after two years of registration. Senate Bill 121 overrode the Governor’s veto,
and the amendments to the Registration Act were codified in section 3-5 of the statute (730
ILCS 150/3-5 (West 2008)).
¶ 67 Recently, the court in In re S.B., 2012 IL 112204, ¶ 29
, addressed the amendments, stating:
“In enacting the termination provisions of section 3-5, the General Assembly
recognized that, in many instances, juveniles who engage in sexually inappropriate
behavior do so because of immaturity rather than predatory inclinations. The purpose
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of the termination provisions of section 3-5 is to afford juveniles the opportunity to
demonstrate this is true in an individual case, and to prove that they do not pose a safety
risk to the community.”
¶ 68 The appellate court, M.A. and the amicus point to the amendments to the Registration Act
as proof that the registration provisions of the Violent Offender Act, which contain no similar
provisions, are unconstitutional. What is overlooked in this claim is that a version of the
Registration Act without the amendments was held not to violate a 12-year-old sexual
offender’s right to substantive due process even when that 12-year-old sexual offender was
required to register for life as a result of his adjudication as a sexual predator. See In re J.W.,
204 Ill. 2d 50
(2003). The fact that the legislature later decided to amend the Registration Act
to provide additional protections to juvenile offenders does not thereby render the prior version
of the Act unconstitutional. Statutes do not confer constitutional rights. People v. Mitchell, 189 Ill. 2d 312, 329
(2000).
¶ 69 Moreover, we cannot assume that the considerations animating the amendments to the
Registration Act are also present in the case of juvenile violent offenders. In amending the
Registration Act, the legislature was concerned that the statute had included consensual and
immature conduct, as well as more serious sexual offenses, in its definition of a sexual
offender. The Violent Offender Act, in contrast, encompasses offenses targeting children that
the legislature has deemed violent offenses. The fact that the legislature expressly defined the
enumerated offenses to be violent offenses against children weighs against a claim that the
statute targets behaviors similar to the consensual and immature behaviors motivating the
amendments to the Registration Act.
¶ 70 In any event, “the judiciary may not sit as a superlegislature to judge the wisdom or
desirability of legislative policy determinations made in areas that neither affect fundamental
rights nor proceed along suspect lines ***.” City of New Orleans v. Dukes, 427 U.S. 297, 303
(1976) (per curiam). “A statute is not invalid under the Constitution because it might have
gone farther than it did.” Roschen v. Ward, 279 U.S. 337, 339
(1929). It is for the legislature,
then, and not this court, to decide whether the Violent Offender Act’s registration provisions
should be amended with regard to juveniles in a manner similar to the Registration Act’s
registration provisions.
¶ 71 For all the foregoing reasons, we affirm the appellate court’s finding that the Violent
Offender Act does not violate substantive due process. We reverse the appellate court’s finding
that the Violent Offender Act violates equal protection and procedural due process. We also
find that the trial court properly required M.A. to register under the Act and therefore reverse
the appellate court’s order vacating the trial court’s order.
¶ 72 Appellate court affirmed in part and reversed in part.
¶ 73 Circuit court affirmed.
¶ 74 JUSTICE BURKE, specially concurring:
¶ 75 In the case at bar, M.A., a 13-year-old girl, was adjudicated delinquent of several offenses
arising out of an altercation with her older brother. It was M.A.’s first referral to juvenile court.
The trial court sentenced M.A. to 30 months’ probation with certain conditions, one of which
was to register under the Illinois Murderer and Violent Offender Against Youth Registration
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Act (730 ILCS 154/1 et seq. (West 2012)). M.A. contends that the Act’s mandatory
registration requirements violate substantive and procedural due process and result in a denial
of equal protection. This court rejects M.A.’s contentions and upholds the constitutionality of
the Act as applied to juvenile violent offenders. While I am compelled to agree with the court’s
determination as to the Act’s constitutionality, I write separately to express my concern that the
Act fails to take into account the unique characteristics of juveniles and to urge the legislature
to reevaluate the Act’s requirements as applied to juvenile offenders.
¶ 76 The Act requires juveniles adjudicated delinquent for certain enumerated offenses to
register as violent offenders against youth for 10 years following adjudication. 730 ILCS
154/5(a), 10 (West 2012). Upon registration with the local law enforcement agency, the
agency must disclose the juvenile’s identifying information to the local school board; the
principal and guidance counselor at the offender’s school; and all child care facilities,
institutions of higher education, and libraries in the county in which she is required to register
or is employed. 730 ILCS 154/95(a-2), (a-3), 100(b) (West 2012). Any law enforcement
agency also has the discretion to disclose the offender’s name, address, date of birth, offense,
photograph, employment information, and any “other such information that will help identify
the violent offender” to “any person likely to encounter a violent offender.” 730 ILCS
154/95(b)(3) (West 2012). Upon turning age 17, a juvenile violent offender is required to
register as an adult, and her identifying information is made accessible to the public via a
website. 730 ILCS 154/85(a), (b) (West 2012). The Act does not provide an opportunity for a
hearing to assess a juvenile’s risk of violence to the general public, nor does it provide a
juvenile offender an opportunity to seek removal from the registry prior to the expiration of the
10-year registration period.
¶ 77 In contrast to the Murderer and Violent Offender Against Youth Registration Act, the Sex
Offender Registration Act (730 ILCS 150/1 et seq. (West 2012)) does not require juveniles to
register as adults upon reaching age 17. Rather, juvenile sex offenders are allowed to remain
registered as juveniles for the entirety of their registration term. See People ex rel. Birkett v.
Konetski, 233 Ill. 2d 185, 203
(2009) (citing Pub. Act 95-658, § 5 (eff. Oct. 11, 2007)
(amending 730 ILCS 150/2(A), 3(a))). Thus, information about a juvenile offender’s identity
and offense, even after she reaches the age of majority, is provided only to a limited number of
people and will never appear on the adult registry. 730 ILCS 152/121 (West 2012). Another
procedural protection afforded to juvenile sex offenders is the right to petition for termination
from the registry after five years for a felony or two years for a misdemeanor. 730 ILCS
150/3-5(c) (West 2012). Juveniles have the right to be represented by counsel at the hearing on
a petition for termination. Following the hearing, the court may terminate the juvenile’s
registry requirement if it finds by a preponderance of the evidence that the juvenile poses no
risk to the community. 730 ILCS 150/3-5(d) to (f) (West 2012). In making this determination,
the court may consider the juvenile’s age; past offenses; risk assessment; evidence of
rehabilitation; and mental, physical, educational and social history, as well as any victim
impact statements. 730 ILCS 150/3-5(e) (West 2012).
¶ 78 Significantly, the opportunity to petition for termination from the sex offender registry is
not limited to nonviolent offenses or to juveniles who engage in sexually inappropriate
behavior which would otherwise be consensual. Section 3-5, which sets forth the procedure for
juvenile sex offenders to petition for early termination, explicitly applies to “all cases” where
juveniles are adjudicated delinquent of qualifying offenses, even violent sexual offenses. 730
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ILCS 150/3-5(a), 2(B) (West 2012) (qualifying offenses include criminal sexual assault,
aggravated criminal sexual assault, criminal sexual abuse, aggravated criminal sexual abuse,
and aggravated kidnapping).
¶ 79 I recognize that the disparate treatment of juvenile offenders under the registration statutes
does not rise to the level of an equal protection violation because the two groups of juvenile
offenders are not similarly situated in all relevant respects. Nevertheless, in my view, it is
illogical to allow juveniles adjudicated delinquent of violent sexual offenses to petition for
removal from the sex offender registry while disallowing the same procedure for juveniles
adjudicated delinquent of violent offenses which do not involve a sexual component. No other
state has separate registration laws which treat juvenile violent offenders more harshly than
juvenile sex offenders.
¶ 80 The 2007 amendments to the Sex Offender Registration Act “significantly reduce[d] the
impact of the minor’s registration requirement” by eliminating the requirement of mandatory
registration on the adult registry upon turning age 17 and allowing a minor to petition for
termination of his registration after five years. Konetski, 233 Ill. 2d at 203
. In making these
changes, the General Assembly recognized that juveniles who commit sexual offenses may do
so “because of immaturity rather than predatory inclinations.” In re S.B., 2012 IL 112204, ¶ 29
.
This court has found that minors often make poor decisions based on a lack of experience,
maturity, and judgment, all of which can change for the better as the minor ages and matures.
See Hope Clinic for Women, Ltd. v. Flores, 2013 IL 112673, ¶¶ 64, 86
. Our history is “replete
with laws and judicial recognition that minors, especially in their earlier years, generally are
less mature and responsible than adults.” (Internal quotation marks omitted.) Id. ¶ 64. Minors’
“lack of maturity and an underdeveloped sense of responsibility” may lead to “recklessness,
impulsivity, and heedless risk-taking.” (Internal quotation marks omitted.) Miller v. Alabama,
567 U.S. ___
, ___,132 S. Ct. 2455, 2464
(2012). Moreover, children are more vulnerable to
negative influences, particularly from their families and peers. Id.
at ___,132 S. Ct. at 2464
.
“[A] child’s character is not as well formed as an adult’s; his traits are less fixed and his actions
less likely to be evidence of irretrievabl[e] deprav[ity].” Id.
at ___,132 S. Ct. at 2464
.
¶ 81 In light of the foregoing character traits of juvenile offenders, I invite the legislature to
reexamine the Murderer and Violent Offender Against Youth Registration Act with the same
level of scrutiny that it applied to the Sex Offender Registration Act when it amended that act
in 2007. Ameliorating the Act’s requirements for juvenile offenders would better harmonize
“[t]he public safety concerns which animate the registration and notification laws” with “our
traditional understanding of the need to protect and rehabilitate the young citizens of this
state.” In re J.W., 204 Ill. 2d 50, 84
(2003) (McMorrow, J., specially concurring, joined by
Freeman, J.).
¶ 82 JUSTICES FREEMAN, KILBRIDE, and THEIS join in this special concurrence.
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