FIFTH DIVISION May 18, 2016

No. 1-15-3047

In re A.C., a Minor ) ) Appeal from the ) Circuit Court of (The People of the State of Illinois, ) Cook County. ) Petitioner-Appellee, ) ) No. 14 JD 1155 v. ) ) Honorable A.C., ) Cynthia Ramirez, ) Judge Presiding. Respondent-Appellant). ) )

JUSTICE BURKE delivered the judgment of the court, with opinion. Presiding Justice Reyes concurred in the judgment and opinion. Justice Gordon concurred in part and dissented in part, with opinion.

OPINION

¶1 Following a hearing in Juvenile Court, the circuit court adjudicated respondent, A.C.,

delinquent of aggravated criminal sexual abuse and he was ordered to register under the Sex

Offender Registration Act (SORA) (730 ILCS 150/1 et seq. (West 2014)). Respondent appeals,

contending that the provisions of SORA and the Sex Offender Community Notification Law

(Notification Law) (730 ILCS 152/101 et seq. (West 2014)) which are applicable to juveniles,

violate federal and state substantive due process and procedural due process. In addition,

respondent contends that both of these statutes violate the prohibition against cruel and unusual

punishment under the eighth amendment and the proportionate penalties clause of the federal 1-15-3047

constitution. This court subsequently allowed the Children & Family Justice Center of the Bluhm

Legal Clinic at Northwestern University School of Law 1 and the Juvenile Law Center to file a

joint amicus curiae brief on behalf of A.C. 2

¶2 I. BACKGROUND

¶3 On May 11, 2013, the date the incident occurred, respondent was 16 years of age and K.J.

was 8 years of age. The State filed a petition for adjudication of wardship on March 31, 2014,

against respondent for aggravated criminal sexual abuse (720 ILCS 5/11-1.60(c)(2)(i) (West

2014)) against K.J.

¶4 At the adjudicatory hearing, K.J. testified that on the evening of May 11, 2013, she was at

her home in Chicago with her two half-brothers and one of the half-brother's grandmother, D.W.

Respondent and a few friends of her half-brother's came over that evening to spend the night.

Respondent was best friends with one of K.J.'s half-brothers and K.J. had seen him before. The

friends went into the basement and K.J. went to her room upstairs and watched television for a

few hours. She fell asleep in her bed wearing shorts and a T-shirt. K.J. awoke at 1 or 2 a.m.; the

plastic on her mattress was moving. She was on her stomach and her shorts and underwear were

pulled down under her buttocks. K.J. testified that she felt respondent going up and down on her

from behind. After he stood up, he told K.J. that she had "white stuff" on her. He went to the

bathroom across the hall and obtained a tissue and used it to wipe the "clear stuff" or "clear

crust" off of her and then he threw it in the bathroom trash and returned downstairs. K.J. woke

up D.W. and told her what happened.

¶5 D. W. testified that around 2 a.m., K.J. asked if she could sleep with her and climbed into

1 The school of law has been renamed to Northwestern Pritzker School of Law. 2 The full list of amici includes Cabrini Green Legal Aid, Civitas ChildLaw Center, Illinois Juvenile Justice Commission, James B. Moran Center for Youth Advocacy, John Howard Association of Illinois, Juvenile Justice Initiative, and the Law Office of the Cook County Public Defender.

2 1-15-3047

bed. 3 K.J. then asked if she could tell D.W. something. K.J. stated, "that boy A*** was freaking

on me" and that "the bed was moving." K.J. stated that respondent used a tissue on "some white

stuff." D.W. testified that K.J. was crying and shaking.

¶6 K.J-H., K.J.'s mother, testified that D.W. was watching the three children while she was

away that weekend. When K.J-H. returned on May 13, 2013, she spoke with K.J. and then

retrieved a tissue from the garbage in the upstairs bathroom, which she placed in a paper bag.

She also retrieved K.J.'s pajamas, underwear, and the sheets from K.J.'s bed, and placed these

items in two paper bags. She took K.J. to the Lurie Children's Hospital, where a criminal sexual

assault kit examination was performed. Chicago police evidence technician Carla Rodriguez

subsequently retrieved the bagged items from K.J-H.'s home on May 14, 2013, and inventoried

and secured them for DNA testing.

¶7 Illinois State Police forensic biologist Jennifer Wagenmaker testified that she received

the inventoried items and identified semen on the toilet paper and two semen stains on the

underwear, of which she prepared cuttings and stored for later DNA testing. She did the same for

the blood samples collected from respondent and K.J.

¶8 Lisa Kell, Illinois State Police forensic biologist and DNA analyst, analyzed and

compared the DNA profiles from the various samples. She testified that the DNA profile on the

toilet paper matched respondent. Kell also identified respondent's DNA in a semen stain on the

back of the underwear. The stain from the crotch area of the underwear matched K.J.'s DNA

profile.

¶9 Chicago police sergeant Athena Mullen interviewed respondent with his mother present

on November 26, 2013, at the police station. Following his acknowledgement of his Miranda

3 The court admitted K.J.'s statements to D.W. pursuant to section 115-10 of the Code of Criminal Procedure of 1963 (725 ILCS 5/115-10 (West 2012)).

3 1-15-3047

warnings, respondent told Mullen that "he didn't penetrate that girl." When Mullen asked what

respondent meant, "[l]ike a hotdog in a bun?" Respondent stated, "[s]omething like that."

Respondent stated that the girl had been lying on her stomach. The interview was terminated at

that point and respondent told Mullen that he wanted to obtain some help.

¶10 Following closing arguments, the circuit court held that the State proved respondent

committed aggravated criminal sexual abuse and entered a finding of delinquency.

¶11 On August 10, 2015, respondent filed a motion to declare SORA and the Notification

Law unconstitutional as applied to him. Following a hearing, the circuit court denied

respondent's motion.

¶12 The record reflects that respondent underwent a forensic psychological evaluation by Dr.

Michael Fogel in October 2014 to assess respondent's risk for sexually reoffending. Based on

this assessment, Dr. Fogel opined that respondent was at a low risk of sexually reoffending. In

addition, probation officer Claire Johnson was assigned to perform a juvenile sex offender

evaluation. Johnson's letter to the court dated June 29, 2015, indicated that she reviewed Dr.

Fogel's evaluation and interviewed respondent and his mother, and opined that respondent was at

a low risk to sexually reoffend and that sex offender registration could have an aggravating effect

on his risk level as it could have consequences related to respondent's pursuit of higher

education. A social investigation and supplemental social investigation of respondent also

occurred.

¶13 At the dispositional hearing on October 9, 2015, the circuit court sentenced respondent to

three years' probation, 50 hours of community service, and juvenile sex offender counseling.

Respondent registered as a sex offender on October 9, 2015. This appeal followed.

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¶14 II. ANALYSIS

¶15 A. Statutory Provisions

¶16 On appeal, defendant challenges the constitutionality of the following provisions of

SORA and the Notification Law: 730 ILCS 150/2, 3, 3-5, 6, 8, and 10 (West 2014); 730 ILCS

152/121 (West 2014).

¶17 Respondent's adjudication for aggravated criminal sexual abuse qualifies him a "sexual

offender" under SORA. 730 ILCS 150/2(A)(5), (B)(1) (West 2014); 720 ILCS 5/11-1.60(c)(2)(i)

(West 2014). Respondent also falls within the more specific definition of a "sexual predator"

under SORA, which includes "any person who, after July 1, 1999, is: *** Convicted of a

violation or attempted violation of *** 11-1.60 or 12-16 (aggravated criminal sexual abuse)."

730 ILCS 150/2(E)(1) (West 2014).

¶18 Section 3 requires sexual offenders to register with the chief of police in the municipality

where he resides, providing appropriate identification and proof of residence, in addition to other

information such as telephone number, e-mail addresses, and Internet communications identities,

and he also must pay a registration fee. 730 ILCS 150/3(a)(1), (c)(5) (West 2014). If the sexual

offender also attends a university, he must also register with the chief of police or sheriff where

the school is located and the public safety or security director at the school. 730 ILCS

150/3(a)(i), (ii) (West 2014). Pursuant to section 7, a sexual offender must register for a period of

10 years after conviction or adjudication or, in the case of a sexual predator, for his or her natural

life. 730 ILCS 150/7 (West 2014).

¶19 Section 3-5 applies these registration requirements to adjudicated delinquent juveniles.

730 ILCS 150/3-5(a), (b) (West 2014). For felonies, the juvenile may petition for termination of

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registration after five years. 730 ILCS 150/3-5(c) (West 2014). At the hearing on the petition, the

juvenile is represented by counsel and may present a risk assessment evaluation by a licensed

evaluator. The court may terminate the registration requirement if it finds that the juvenile "poses

no risk to the community by a preponderance of the evidence" based on several enumerated

factors. 730 ILCS 150/3-5(d) (West 2014).

¶20 In addition, section 6 imposes a duty to report in person to the appropriate law

enforcement agency every year, up to four times per year, and also requires a sexual offender to

report in person and register within the time period specified in section 3 (three days) if there is a

change of address, employment, telephone number, or school. 730 ILCS 150/6 (West 2014).

Section 8 explains that registration entails providing a current photograph and a DNA specimen,

and the registering law enforcement agency must forward the registration information to the

Illinois State Police for entry into the Law Enforcement Agencies Data System (LEADS). 730

ILCS 150/8 (West 2014). Under the "penalty" provision in section 10, failure to comply with

SORA constitutes a Class 3 felony for a first offense, and a Class 2 felony for subsequent

violations. 730 ILCS 150/10 (West 2014).

¶21 Under the Notification Law, section 120 provides for liberal disclosure by law

enforcement of a registrant's name, address, date of birth, place of employment, school, e-mail

addresses, internet identities, and offense information to local schools, colleges, childcare

centers, libraries, other social service or volunteer organizations providing services to minors and

to sex offense victims. 730 ILCS 152/120 (West 2014). However, section 121 limits

dissemination of information regarding adjudicated juvenile delinquents to those individuals

whose "safety may be compromised for some reason" as determined by the local authority, and

to the principal or chief administrative officer of the juvenile's school, and requires that the

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registration information be kept separate from his other school records. 730 ILCS 152/121(a), (b)

(West 2014).

¶22 B. Standing

¶23 Initially, we note that respondent merges individual provisions of SORA and the

Notification Law together and refers to them as a single "2013 SORNA" statutory scheme for

purposes of his constitutional challenges. However, as the State contends, these are two separate

acts which work together to regulate sex offenders. The State argues that respondent lacks

standing to challenge the constitutionality of section 10 (730 ILCS 150/10 (West 2014)), the

penalty provision of SORA. 4

¶24 We agree that respondent lacks standing to challenge section 10 of SORA because he is

not suffering or in immediate danger of suffering a direct injury as a result of enforcement of this

provision. People v. Greco,

(2003). There is no allegation that respondent

has failed to comply with his SORA registration requirements and is being charged with a

felony. We distinguish our case from this court's recent decision in People v. Avila-Briones,

, where the court found that the defendant had standing to

challenge the constitutionality of the residency, employment, presence, driver's license and

name-change restrictions in SORA because he had "received punishment" in being convicted of

a sex offense that automatically triggered application of these restrictions. In contrast, application

of the "penalty" provision in section 10 is not automatically being applied here as it first requires

that respondent fail to abide by the registration requirements, and then he must be charged with a

violation and convicted after a trial.

¶25 However, even if we were to find that respondent had standing to challenge section 10,

4 We note that the State does not challenge respondent's standing to challenge the remainder of the SORA and Notification Law provisions he highlights, which are directly applicable to him by virtue of his adjudication for aggravated criminal sexual abuse.

7 1-15-3047

we would nevertheless conclude, as discussed further below, that his claims would fail on the

merits.

¶26 C. Standard of Review

¶27 Statutes enjoy a strong presumption of constitutionality. People v. Mosley,

; People v. Breedlove,

(2004). "To overcome this presumption,

the party challenging the statute must clearly establish its invalidity." Mosley,

. "A court will affirm the constitutionality of a statute or ordinance if it is 'reasonably capable

of such a determination' and 'will resolve any doubt as to the statute's construction in favor of its

validity.' " Jackson v. City of Chicago,

(quoting People v. One

1998 GMC,

). This court reviews the constitutionality of a statute de novo.

Mosley,

.

¶28 D. Facial and As-Applied Constitutional Challenges

¶29 On appeal, respondent raises both facial and as-applied challenges to various provisions

of SORA and the Notification Law.

¶30 A facial challenge " 'is the most difficult challenge to mount successfully because an

enactment is invalid on its face only if no set of circumstances exists under which it would be

valid.' " Jackson,

(quoting One 1998 GMC,

). "If a statute can be validly applied in any situation, a facial challenge must fail." In re

Maurice D.,

. In examining a facial challenge, the particular facts

of a party's case are irrelevant. Jackson,

.

¶31 In contrast, an as-applied challenge requires a party to demonstrate that the statute is

unconstitutional as applied in that party's particular circumstances, rending the party's factual

context relevant. Jackson,

(quoting Napleton v. Village of

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Hinsdale,

(2008). " '[I]f a plaintiff prevails in an as-applied claim, he may

enjoin the objectionable enforcement of a statute only against himself ***.' "

¶ 27 (quoting

Morr-Fitz, Inc. v. Blagojevich,

(2008)). If the court determines that a statute

is constitutional as applied to a party, "a facial challenge will also fail, since there is necessarily

at least one circumstance in which the statute or ordinance is constitutional."

¶32 As the State observes, however, although respondent advances both facial and as-applied

challenges on appeal, he presents essentially the same arguments in both challenges and relies

largely on his own circumstances in arguing that the provisions are unconstitutional. As such, he

fails to demonstrate that the challenged statutes are " 'unconstitutional under every circumstance.'

" Jackson,

(quoting One 1998 GMC,

).

Because a determination that the challenged statutes are "constitutional as applied to

[respondent] would necessarily compel a finding that the statute[s] [are] constitutional on [their]

face," we address respondent's as-applied claims. In re M.A.,

.

¶33 E. Substantive Due Process

¶34 i. Strict Scrutiny

¶35 Respondent seeks strict scrutiny review of the challenged statutes. He argues that they

violate his fundamental right to liberty, privacy, pursue happiness, and reputation because the

registration and notification provisions are complex and difficult to follow. They require

disclosure to his school and those "at risk," without restricting subsequent disclosure. He

contends that universities may rescind admission offers or financial aid, and other students or

future employers may find out.

¶36 Both the federal and state constitutions provide that no individual shall be deprived of

life, liberty, or property without the due process of law. U.S. Const., amend. XIV, § 1; Ill. Const.

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1970, art. I, § 2. "[W]here the right infringed upon is among those rights considered

'fundamental' constitutional rights, the challenged statute is subject to strict scrutiny analysis."

People v. Cornelius,

(2004). "To survive strict scrutiny, the means employed

by the legislature must be necessary to achieve a compelling state interest, and the statute must

be narrowly tailored to accomplish this goal, i.e., the legislature must employ the least restrictive

means consistent with the attainment of the intended goal."

5

¶37 Initially, we must determine whether respondent's claim involves a fundamental right

warranting strict scrutiny analysis. Cornelius,

. In so doing, we "exercise the

utmost care," as a fundamental right is one that is "deeply rooted" in our nation's history and

legal traditions. (Internal quotation marks omitted.) Avila-Briones,

(quoting Reno v. Flores,

(1993), and Washington v. Glucksberg,

(1997)).

¶38 We find respondent's contention that a fundamental interest is at stake here not to be

persuasive. Respondent cites no controlling case law establishing that a "deeply rooted"

fundamental right is violated by juveniles being subjected to the registration or notification

provisions at issue. Indeed, our supreme court and this court have repeatedly held that SORA and

the Notification Law do not implicate fundamental rights and have analyzed constitutional

challenges under the rational basis standard. For example, in Cornelius,

, the

defendant claimed that the Notification Law damaged his reputation and invaded his privacy, but

our supreme court held that strict scrutiny did not apply because no fundamental right was

implicated, and upheld the law under a rational basis review.

5 Respondent does not assert that our state's due process clause should be construed independently of the federal due process clause, and we therefore "find no compelling reason to construe the state due process clause independently of its federal counterpart." In re M.A.,

, ¶ 53.

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¶39 In the juvenile context, our supreme court in In re J.W.,

(2003),

observed with respect to a substantive due process challenge to SORA that the respondent "does

not argue, nor do we find, that" SORA violated the juvenile respondent's substantive due process

rights in requiring him to register as a sex offender, and it upheld the law under rational basis

review. See also People v. Adams,

(1991) (holding that SORA registration

was reasonable and rationally related to the interest of protecting children); People v. Malchow,

(2000) (finding that SORA and the Notification Law did not violate the

state or federal right to privacy).

¶40 This court followed In re J.W. in ruling that "the supreme court first noted that the

respondent did not argue, and it did not find, that the Registration Act affected a fundamental

right." In re J.R.,

(2003). Accordingly, the In re J.R. court did not

apply strict scrutiny analysis to the juvenile respondent's substantive due process challenge to

SORA and the Notification Law, and it upheld the laws under the rational basis standard.

.

¶41 Similarly, in In re T.C.,

(2008), the juvenile respondent argued

the SORA deprived him of a protected liberty interest, where he was a "sexual predator" required

to register for natural life. The court held that these provisions did not implicate a protected

liberty interest as the respondent failed to show "how such registration requirements deprived

him of his right to be free from physical restraints, to be free in the enjoyment of his faculties,

and to live and work where he will," and he was therefore not entitled to the procedural

safeguard of a jury trial on that issue.

.

¶42 More recently, in Avila-Briones, the defendant challenged several provisions in SORA

and the Notification Law on substantive due process grounds, and this court observed that "the

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weight of authority shows that laws similar to the Statutory Scheme do not affect fundamental

rights. Our supreme court has stated that SORA does not affect fundamental rights." Avila-

Briones,

(citing In re J.W.,

). With respect to the

Notification Law, this court observed that "our supreme court has held that Internet

dissemination of sex offenders' personal information does not impact fundamental rights because

the right to be free from the shame, stigma and embarrassment resulting from a conviction for

sexually abusing a child is not the kind of fundamental right contemplated by our constitution."

(Internal quotation marks omitted.)

(quoting Cornelius,

, and citing Paul v.

Davis,

(1976) (holding that damage to reputation alone does not deprive

individual of protected liberty or property interest). The court additionally concluded that

"Illinois courts have rejected the notion that employment or residency restrictions on sex

offenders violate their fundamental rights," and found the statutory provisions relating to driver's

licenses, name changes, and "presence" restrictions on sex offenders did not implicate

fundamental rights. Id. ¶ 75. 6

¶43 Accordingly, in keeping with the binding precedential decisions of our supreme court,

and in light of persuasive and on-point decisions from our appellate court, we reject respondent's

argument that a fundamental right is at stake here. Strict scrutiny analysis is not appropriate. "It

is well-settled that when our supreme court has declared law on any point, only [the supreme

6 See also People v. Logan,

(1998) (where the defendant argued that the registration and notification provisions violated his right to travel and that he suffered injury to his reputation because no preregistration hearing was required, the court held that the statutes did not violate a protected liberty, privacy, or property interest, that "[a]ny injury to the defendant's reputation is a result of his underlying conviction of a sex offense," and that the information disclosed was not within the constitutionally protected "zone of privacy" as it was already publicly available); People v. Grochocki,

(2003) (damage to reputation via inclusion on the registry did not constitute deprivation of a liberty or property interest under the state or federal due process clause and "any stigma suffered by a sex offender stems from his own criminal acts, not from truthful and accurate compilation of public information"); People v. Stork,

(1999) (SORA's restrictions on presence of sex offenders in school zones did not implicate a protected liberty interest); People v. Stanley,

(2006) (lifetime registration, designation as a "sexual predator," and public dissemination of offender information on the Internet did not affect a liberty or property interest in procedural due process claim).

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court] can modify or overrule its previous decisions, and all lower courts are bound to follow

supreme court precedent until such precedent is changed by the supreme court." Rosewood Care

Center, Inc. v. Caterpillar, Inc.,

(2006), aff'd on other grounds,

(2007).

¶44 We also reject respondent's claim that there is a heightened right of privacy for juvenile

offenders embodied in the Juvenile Court Act of 1987 (705 ILCS 405/5-101 (West 2014)) which

is violated by SORA and the Notification Law. The protection against "unreasonable" invasions

of privacy does not include the right of a juvenile offender to remain completely anonymous. See

In re Lakisha M.,

(2008) (Illinois's mandatory DNA collection and

indexing laws did not violate adjudicated delinquent juvenile's right to privacy even though the

Juvenile Court Act contained provisions intended to protect a juvenile's identity); In re J.R., 341

Ill. App. 2d at 793-94. Although one purpose of the Juvenile Court Act is to rehabilitate minors,

we note that, with recent amendments, its purposes now also include protection of the

community from juvenile crime and holding juvenile offenders accountable for their conduct. In

re T.C.,

(citing In re J.W.,

). "[O]ur supreme court has

affirmatively found that SORA is appropriately applicable to juveniles as well as adults because

the policy interests behind SORA are designed to protect the public, which is not at odds with the

recently amended policy concerns of the Juvenile Court Act."

Moreover, regardless of any

statutory privacy protections set forth in the Juvenile Court Act, "[s]tatutes do not confer

constitutional rights." In re M.A.,

. The cases cited by respondent do not

establish a heightened constitutional right of privacy for juveniles.

¶45 Along the same lines, we also disagree with respondent's contention that the challenged

provisions violate a right to happiness or reputation. His citation to Wisconsin v. Constantineau,

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(1971), does not apply, as that case involved a procedural due process

claim and the statute at issue, which permitted posting a sign prohibiting liquor stores from

selling to individuals the sheriff deemed excessive drinkers, was unconstitutional as it provided

for no notice or a hearing.

¶46 Respondent also attempts to establish that injury to reputation coupled with the loss of

future or present employment may establish a due process violation, citing Lyon v. Department

of Children & Family Services,

(2004). However, respondent's claim of

impairment to his educational interests and employment opportunities is speculative, unlike in

Lyon, where the issue was whether listing an indicated report about a teacher on the Department

of Children and Family Services central register violated due process where he lost two teaching

positions after the report was posted.

. Moreover, this court has determined that

subjecting juveniles to registration does not impair the right to reputation, as it compiles truthful,

accurate information, and any stigma suffered "is a result of the offender's status as being

adjudicated as a delinquent sex offender and not as a direct result of the notification." In re J.R.,

; see also Paul,

(no deprivation of a protectable liberty

or property interest occurs by damage to reputation alone, without some accompanying alteration

to "a right or status previous recognized by state law").

¶47 Respondent also relies on numerous cases from foreign jurisdictions in support of his

argument. However, we decline to follow them. See In re J.B.,

(Pa. 2014)

(involving a specific "right to reputation" as recognized in Pennsylvania's constitution). Clearly,

cases from foreign jurisdictions are not precedential or binding on this court. Kostal v. Pinkus

Dermatopathology Laboratory, P.C.,

(2005). Although comparable

decisions from other jurisdictions may be considered for their persuasive value, "[w]hen there is

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Illinois case law directly on point, we need not look to case law from other states for guidance,"

when we have our own precedent to follow.

¶48 ii. Rational Basis

¶49 To satisfy the rational basis test, " 'a statute need only bear a rational relationship to the

purpose the legislature sought to accomplish in enacting the statute.' " In re J.R.,

-92 (quoting In re J.W.,

). Accordingly, a statute will be upheld where it

bears a reasonable relationship to the public interest intended to be served and the methods

adopted are reasonable means of accomplishing this purpose.

(quoting In re J.W.,

(quoting Adams,

)).

¶50 Relying on a 2014 report by the Illinois Juvenile Justice Commission, 7 respondent and

amici contend that SORA and the Notification Law provisions no longer bear a rational

relationship to the purposes they are intended to serve, i.e., protecting the public, because the

offense-based, categorical registration requirements are over-inclusive and counterproductive to

rehabilitation of juvenile delinquents. They argue instead for an individualized determination of

risk before subjecting a juvenile to registration and notification requirements.

¶51 The commission's report found that adjudicated juvenile sexual offenders have a low risk

of reoffending. The report concluded that subjecting juvenile sexual offenders to Illinois’s

registration laws without regard to risk did not enhance public safety and could undermine

juveniles' efforts toward rehabilitation. Illinois Juvenile Justice Commission, Improving Illinois'

Response to Sexual Offenses Committed by Youth, at 4. The report indicates that Illinois and 19

other states use a categorical (offense-classification based) system of registration, and Illinois's

registry laws do not consider the juvenile's age at the time of the offense or other individual

7 Illinois Juvenile Justice Commission, Improving Illinois' Response to Sexual Offenses Committed by Youth (2014), available at http://ijjc.illinois.gov/youthsexualoffenses.

15 1-15-3047

characteristics. Id. at 52.

¶52 Regardless of the conclusions outlined in the Commission's report, it is, of course, not

binding precedent on this court. We are bound to follow our supreme court's decision in In re

J.W., which determined that SORA and the Notification Law did not violate substantive due

process as they are rationally related to the legitimate government interest of protecting the

public and they constitute a reasonable means of accomplishing this goal. Rosewood Care

Center,

. " '[W]hether the legislature will act on the Commission's

recommendations remains to be seen. Unless and until that happens, In re J.W. guides the

analysis of the issue of whether the Act's provisions bear a rational relationship to the protection

of the public.' " In re Maurice D.,

(quoting In re M.A.,

, aff'd in part & rev'd in part,

). Respondent's policy

arguments more properly belong to the province of the legislature. "It is best left to the

legislature and not the courts to determine whether a statute is wise or whether it is the best

means to achieve the desired result." In re J.W.,

.

¶53 Accordingly, our analysis is directed by In re J.W., in which our supreme court found that

requiring a 12-year-old juvenile to register as a sex offender for his natural life did not violate

substantive due process. In re J.W.,

. Similar to respondent in the case at bar,

the juvenile respondent in In re J.W. argued that registration was unreasonable because juveniles

were less culpable and more amenable to treatment and rehabilitation than adults.

. The

Illinois Supreme Court reiterated that SORA was rationally related to the public interest of

protecting children and there was "nothing unreasonable in the statute's method of serving its

purpose."

at 67-68 (citing Adams,

). Despite the respondent's youth, the

court held that "the public interest to be served by the Registration Act remains unchanged. The

16 1-15-3047

public interest is to assist law enforcement in the protection of the public from juvenile sex

offenders. The Registration Act as applied to a 12-year-old child serves that public interest by

providing police officers ready access to information on known juvenile sex offenders." Id. at 68.

The court noted that the Notification Law "strictly limits the availability of information with

regard to juvenile sex offenders," as the information may be disseminated to someone only if that

person's safety may be compromised, and the information was not available on the Internet. Id. at

71. The court held that requiring a 12-year-old offender to register for life was "reasonable in

light of the strict limits placed upon access to that information." Id. at 72.

¶54 We are also guided by this court's decision in In re J.R., where this court followed the

principles set forth in In re J.W. in holding that SORA and the Notification Law did not violate

substantive due process. In re J.R.,

. The juvenile respondent in In re J.R.,

like respondent here, challenged the mandatory registration and disclosure of offender

information without an assessment of whether the offender was a continuing danger.

This

court held that a rational relationship existed between registration of juvenile sex offenders and

disclosure of their information and protection of the public.

. The court noted that

whether "there are better means to achieve this purpose, such as further limiting the time frame

during which disclosure may occur, is a matter better left to the legislature."

¶55 Respondent argues that SORA and the Notification Law have been amended since these

cases were decided and the "2013" versions contain additional provisions, the constitutionality of

which has not yet been scrutinized by the courts. However, the amendments to SORA and the

Notification Law generally extend even more protection to juvenile offenders. The Illinois

Supreme Court found that the 2007 amendments to SORA:

"significantly reduce[d] the impact of the minor's registration requirement. Public Act

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95-658 eliminated the provisions that would have required the minor to register as an

adult when he reached 17 years of age. See Pub. Act 95-658, § 5, eff. October 11, 2007

(amending 730 ILCS 150/2(A)(5), 3(a)). The minor's registration information will,

therefore, be available only to a very limited group of people, including individuals

whose 'safety may be compromised for some reason' by him, and the principal, chief

administrative officer, or guidance counselor of a school he attends. 730 ILCS 152/121

(West Supp. 2007). In contrast, the adult registry provides for wide dissemination of

registration information to the public. See 730 ILCS 152/120(c), (d) (West Supp. 2007).

The minor may also petition for termination of his registration after five years.

Pub. Act 95-658, § 5, eff. October 11, 2007 (adding 730 ILCS 150/3-5(c)). The right to

petition for termination is not available to adults." People ex rel. Birkett v. Konetski,

(2009).

¶56 As our supreme court observed in In re M.A., the termination provision in section 3-5

demonstrates the legislature's recognition " 'that, in many instances, juveniles who engage in

sexually inappropriate behavior do so because of immaturity rather than predatory inclinations.

The purpose 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.' " In re M.A.,

(quoting In re S.B.,

).

¶57 Contrary to respondent's contention, these amendments demonstrate that our legislature

already accounted for in the act that juveniles are different from adults. Their information is not

made publicly available on the Internet, they are not required to register as adults once reaching

17 years of age, and they may petition for termination of registration after five years. The fact

that their information is provided to their school and anyone else whose safety may be

18 1-15-3047

compromised constitutes a reasonable method of protecting the public. Accordingly, we find

respondent has not shown that SORA and the Notification Law violate substantive due process

under the rational basis test. They are rationally related to the purpose of protection of the public

from sexual offenders and constitute a reasonable means of accomplishing this goal.

¶58 F. Procedural Due Process

¶59 Respondent next argues that requiring juveniles to register upon adjudication of specified

sex offenses without first providing an individualized determination regarding risk level violates

procedural due process. Respondent cites recent cases from the United States Supreme Court

which have emphasized the unique characteristics of juvenile offenders. See Miller v. Alabama,

,

(2012) (finding that mandatory life imprisonment without parole

where the offense was committed as a juvenile violates eighth amendment); Graham v. Florida,

(2010) (holding that sentence of life without parole for non-homicide crimes

committed as a juvenile violated eighth amendment); Roper v. Simmons,

(2005)

(finding that the imposition of the death penalty on individuals who commit offenses as juveniles

violated eighth and fourteenth amendments).

¶60 However, the eighth amendment analyses in these Supreme Court cases cannot support a

due process challenge here. "A ruling on a specific flavor of constitutional claim may not justify

a similar ruling brought pursuant to another constitutional provision." People v. Patterson,

(reh'g denied Jan. 26, 2015), cert. denied, __ U.S.__,

(2015)

(where the defendant cited the eighth amendment analyses in Roper, Graham, and Miller in

challenging the Illinois automatic transfer statute, the court found that due process and eighth

amendment standards "differ considerably"). "[A] constitutional challenge raised under one

theory cannot be supported by decisional law based purely on another provision." Id. The

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reasoning in Patterson applies here, and we find respondent's reliance on these cases unavailing.

¶61 "A procedural due process claim challenges the constitutionality of specific procedures

used to deny a person's life, liberty or property." In re M.A.,

. "The

fundamental requirements of due process are notice of the proceeding and an opportunity to

present any objections."

We examine (1) whether a life, liberty or property interest has been

interfered with by the State; (2) the risk of erroneous deprivation of this interest under the current

procedures and the value of additional safeguards; and (3) the administrative and financial

burden additional procedures would have on the state's interest. In re J.R.,

(citing Segers v. Industrial Comm'n,

(2000)).

¶62 Respondent refers to the liberty interests at stake as those he previously identified in his

substantive due process challenge, discussed supra, and he argues that the opportunity to petition

for termination of registration after five years fails to protect these interests because this time

period is essential for juvenile development and, as in this case, he posed no threat to society at

the time of disposition. He contends that additional procedural safeguards would ensure efficient

use of state resources and would not place a financial or administrative burden on the State.

¶63 As previously stated, however, SORA and the Notification Law do not implicate

protected liberty or property interests. See Cornelius,

; In re J.W.,

; Malchow,

; In re J.R.,

; In re T.C.,

; Avila-Briones,

. Moreover, our supreme court in

Konetski,

, rejected the argument that requiring all juvenile offenders to

register, without an initial and individualized determination of risk, violates procedural due

process.

¶64 In Konetski, the juvenile respondent contended that the various registration obligations of

20 1-15-3047

SORA constrained his liberty interests and he was entitled to the additional procedural safeguard

of a jury trial. Konetski,

. Despite respondent's contention that his liberty

interests are infringed, the Konetski court found that the ability to petition for termination of

registration after five years and the limited dissemination of registration information (that is, a

minor is not required to register as an adult upon reaching the age of 17, he is not placed on the

publicly available registry online, and his information is only available to his school and those

whose safety may be at risk) "significantly reduce the impact" of the registration requirements on

juveniles and did not violate any liberty interests. Konetski,

. In fact, the ability

to petition for termination of registration after five years constituted an additional procedural

safeguard not available to adult offenders.

As such, the Konetski court held that the provisions

were "not sufficiently burdensome to mandate the additional procedural protection of a jury

trial."

The court observed that minors were afforded several key procedural safeguards in

juvenile proceedings, such as the right to notice, to counsel, to confront witnesses, to avoid self-

incrimination, and to be proven guilty beyond a reasonable doubt.

. The court held

the requirements were reasonable and the additional safeguards were "sufficient to satisfy the

minor's constitutional right to procedural due process."

. 8

¶65 We are also guided by this court's decision in In re J.R., which similarly rejected the

contention that the juvenile respondent's procedural due process rights were violated by

imposing registration without first requiring a separate determination of current dangerousness.

8 Analogously, in the context of juvenile delinquents and the Murderer and Violent Offender Against Youth Registration Act (730 ILCS 154/1 et seq. (West 2012)), our supreme court recently rejected the argument that the minor had a due process right to a hearing to establish current dangerousness before being required to register on the violent offender registry, which similarly mandates registration based solely upon conviction or adjudication of a qualifying offense. In re M.A.,

. The court held that "current dangerousness is not relevant or material to the duty to register" under the Violent Offender Act and the minor therefore did "not have a due process right to a hearing to establish a fact that is not relevant or material under Illinois law." Id. ¶ 48. The minor was provided all process due in being adjudicated delinquent of the offenses. Id. Moreover, because the Violent Offender Act did not violate procedural due process as applied to the minor respondent, it also was not facially unconstitutional. Id. ¶ 49.

21 1-15-3047

In re J.R.,

. Because the registration requirement was triggered upon

adjudication for a specified offense, a juvenile was not entitled to "a hearing to demonstrate that

he was not currently dangerous, when current dangerousness is not relevant or material to the

duty to register as required by the Registration Act."

. The court rejected the juvenile's

procedural due process challenge to the Notification Law on the same grounds because the

disclosure provisions were triggered upon adjudication, rendering whether the juvenile was

"currently dangerous" irrelevant.

. Further, the juvenile offender had already

enjoyed a "procedurally safeguarded" opportunity to challenge the adjudication of delinquency.

. 9

¶66 Additionally, as the State contends, whether the State's interest in public safety is served

by inclusion of juveniles such as respondent on the registry is a matter more appropriately left to

the legislature. " '[T]he 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 ***.' [Citation.] 'A statute is not invalid under the

Constitution because it might have gone farther than it did.' [Citaiton.] " In re M.A.,

. We also conclude that the registration and notification provisions accord with the

purposes of the Juvenile Court Act, which include rehabilitation of minors, protecting the public

from juvenile crime, and holding juvenile offenders accountable. It is appropriate to apply SORA

and the Notification Law to juveniles given their intent to protect the public. In re T.C.,

(citing In re J.W.,

). Accordingly, we are bound by our supreme

court's decisions finding that SORA and the Notification law do not interfere with a protected

9 See also Avila-Briones,

(procedural due process did not require a hearing to assess the defendant's risk of reoffending before being burdened by the registration requirements as it was "based entirely on the offense for which a sex offender has been convicted" and his "likelihood to reoffend is not relevant to that assessment"); Logan,

(absence of a hearing before being required to register did not violate procedural due process).

22 1-15-3047

liberty interest and afford respondent sufficient procedural safeguards. Rosewood Care Center,

.

¶67 G. Eighth Amendment and Proportionate Penalties Clause

¶68 In his final claim, respondent raises eighth amendment and proportionate penalties

challenges on appeal, arguing that the "2013 SORNA" laws are more onerous and punitive than

the versions previously considered by our supreme court.

¶69 "The cruel and unusual punishment clause of the United States Constitution, which is

made applicable to the states through the fourteenth amendment, provides that '[e]xcessive bail

shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.'

" Maurice,

(quoting U.S. Const., amends. VIII, XIV). "The

proportionate penalties clause of the Illinois Constitution states that '[a]ll penalties shall be

determined both according to the seriousness of the offense and with the objective of restoring

the offender to useful citizenship.' " Avila-Briones,

(quoting Ill.

Const. 1970, art. I, § 11). The proportionate penalties clause "prohibits criminal penalties that are

'cruel, degrading, or so wholly disproportionate to the offense as to shock the moral sense of the

community.' " Id. (quoting People v. Sharpe,

(2005)). The proportionate

penalties clause "is coextensive with the federal constitution's prohibition against cruel and

unusual punishment." Konetski,

-07 (citing In re Rodney H.,

(2006)).

¶70 The Illinois Supreme Court has repeatedly held that SORA and the Notification Law do

not constitute punishment. See Adams,

(the duty to register under SORA

did not constitute punishment as the law had the non-penal purpose of protecting children from

sexual crimes and aiding law enforcement in monitoring sexual offenders); Malchow,

1-15-3047

at 419-24 (rejecting the defendant's ex post facto challenge to SORA and the Notification Law

and finding that their intent was protection of the public, not punishment); Cornelius,

(holding that the amendment to the Notification Law providing for dissemination of

sex offender information on the Internet did not violate ex post facto protections as it was

nonpunitive); People v. Cardona,

(noting that sex offender registration is

not punishment). 10

¶71 In the juvenile context, our supreme court in In re J.W. held that SORA and the

Notification Law did not violate the eighth amendment because the information was not

generally available on the Internet and public access to the information was limited. In re J.W.,

. The court also held that the registration and notification provisions did not

constitute cruel and unusual punishment and were not analogous to imposition of the death

penalty on a juvenile.

. More recently, the supreme court in Konetski found that SORA's

registration requirements did not impose a disproportionately harsh penalty on juveniles.

Konetski,

. Observing that "our precedent is clear that imposition of the Act's

requirements on juveniles does not constitute punishment," the court rejected the minor's

proportionate penalties clause and eighth amendment challenges.

.

¶72 Accordingly, the precedent from the Illinois Supreme Court clearly holds that SORA and

the Notification Law are not punitive. Rosewood Care Center,

. However,

respondent invites this court to analyze the current provisions under the test set forth in Kennedy

10 See also Grochocki,

(finding the proportionate penalties clause inapplicable because dissemination of sex offender information did not constitute "punishment" or a "penalty"); Avila-Briones,

(finding that SORA and the Notification Law did not violate the eighth amendment or proportionate penalties clause as they did not impose a grossly disproportionate punishment analogous to parole or probation; rather, they served "legitimate penological goals" even though the restrictions were over-inclusive in the defendant's case, and the proportionality analysis must simply focus on whether a statute serves legitimate penological goals and not whether it best serves those goals, as "[t]hat delicate balancing should be reserved for the legislative process").

24 1-15-3047

v. Mendoza-Martinez,

(1963), arguing that recent amendments have a punitive

effect because they expand who must register (730 ILCS 150/3(c)(2.1) (West 2014)); expand the

number of agencies to which an offender must register (730 ILCS 150/3(a), (d) (West 2014));

increase the times a registrant must appear to register and shorten the time for doing so (730

ILCS 150/3(c), 6 (West 2014)); increase the amount of information provided (730 ILCS 150/6

(West 2014)); increase the fees (730 ILCS 150/3(c)(6) (West 2014)); and punish noncompliance

more severely (730 ILCS 150/10 (West 2014)).

¶73 Under the Mendoza-Martinez test, the court examines seven factors in determining

whether a civil statue has a punitive effect:

"(1) whether the sanction involves an affirmative disability or restraint; (2) whether the

sanction has been historically regarded as punishment; (3) whether the sanction comes

into play only on a finding of scienter; (4) whether operation of the sanction will promote

retribution and deterrence; (5) whether the behavior to which the sanction applies is

already a crime; (6) whether an alternative purpose to which the sanction may rationally

be connected is assignable to it; and (7) whether the sanction appears excessive in

relation to the alternative purpose assigned." People v Fredericks,

(citing Malchow,

(citing Mendoza-Martinez,

)).

Respondent must demonstrate the punitive effect of the challenged provisions by "the clearest

proof." (Internal quotation marks omitted.) Malchow,

.

¶74 Our supreme court analyzed the 1998 version of SORA and the Notification Law under

the Mendoza-Martinez test in Malchow and concluded that the first four factors and the final two

factors weighed in favor of finding the Notification Law nonpunitive, while only the fifth factor

25 1-15-3047

weighed in favor of the defendant. Malchow,

. The court held that the laws

did not constitute an affirmative disability or restraint as they placed no restrictions on an

offender's movements or activities; the limited dissemination of information was not analogous

to branding or banishment and was done in furtherance of a governmental interest; there was no

scienter required; they did not significantly promote deterrence or retribution; the primary

purpose was protection of the public and not punishment; and they were not an excessive means

to achieving that purpose.

¶75 In Cornelius, the court upheld the Internet dissemination provision in the Notification

Law, basing its analysis on Smith v. Doe,

(2003), which concerned similar

registration and notification laws in Alaska. Cornelius, 213 Ill. 2d at 207-09. In Smith, the United

States Supreme Court held that, under the Mendoza-Martinez factors, Alaska's laws were

nonpunitive as the laws did not create an affirmative disability or restraint because offenders

were free to change jobs or residences, the laws did not promote the traditional aims of

punishment, they bore a rational relationship to the nonpunitive purpose of public safety, and

they were not excessive in relation to this purpose. Smith,

.

¶76 More recently, in Fredericks,

, our court undertook a

Mendoza-Martinez analysis of a recent amendment to SORA which provided that a sex offender

convicted of any subsequent felony was required to register for life and concluded that the sex

offender registration scheme has not transformed into a punishment since Malchow. Id. ¶ 58. The

court noted that retroactive application of lifetime sex offender registration to the defendant

"appears more punitive" because his sex offense conviction occurred in 1999 and he had already

completed a 10-year registration period without reoffending, but he was now required to register

for life because of a recent drug offense conviction. Id. ¶ 59. Nevertheless, the court held that it

26 1-15-3047

was still bound by Malchow and concluded that SORA had not become punitive because it

served the purpose of protecting the public from sex offenders while limiting application to those

who commit a new felony. Id. ¶¶ 60-61.

¶77 In the case at bar, we conclude that we are bound by our supreme court's decisions in

Malchow and Cornelius and we do not find a punitive intent behind the challenged provisions in

SORA and the Notification Law. As noted in Malchow, defendant's speculation "about the

collateral consequences of community notification" is not relevant to whether the laws place "an

affirmative disability or restraint on sex offenders." (Emphasis in original.) Malchow,

. Although he contends that SORA and the Notification Law have evolved to become more

punitive, these changes reflect social changes and do not manifest a punitive bent. We

acknowledge that the scope of who must register has expanded to include those who commit

certain "precursor" crimes and the time period for registration was shortened. However, these

changes reflect an awareness that such crimes demonstrate a heightened danger of future harm

and the shortened time period reflects an individual's increased mobility, both of which are

rationally related to protecting the public by closely monitoring convicted sex offenders.

¶78 Respondent also complains that a sex offender must provide more information, such as

social media information, but this simply demonstrates the legislature's recognition that society

has become increasingly digital since 1998. We also find no punitive purpose behind the

registration fees, as a waiver is available in case of indigence and the fees are for administrative

purposes. 730 ILCS 150/3(c)(6) (West 2014).

¶79 As we find no punitive intent behind the challenged provisions, we also reject

respondent's contentions that he was subjected to cruel and unusual and grossly disproportionate

punishment. "Only governmental action that inflicts 'punishment' may be restricted by the eighth

27 1-15-3047

amendment and the proportionate penalties clause." Avila-Briones,

. We are not persuaded that the challenged provisions here are similar to subjecting a juvenile

to mandatory life-without-parole imprisonment like the juvenile in Miller,

,

. Our supreme court has rejected the argument that, considering the unique

characteristics of juveniles as recognized by United States Supreme Court cases such as Roper,

, registration requirements transform into punishment when applied to minors.

Konetski,

. The record does not support that respondent was subjected to grossly

disproportionate punishment. His registration and notification requirements are not the same as

the punishment of lifetime incarceration.

¶80 III. CONCLUSION

¶81 For the reasons stated above, we affirm respondent's finding of delinquency and sentence

requiring his registration as a sex offender and his continued compliance with the notification

laws.

¶82 Affirmed.

¶83 JUSTICE GORDON, concurring in part and dissenting in part.

¶84 The majority concludes that respondent lacks standing to challenge the penalty provision

of the registration acts and then proceeds to consider the constitutionality of these same acts.

This makes no sense to me, and I must respectfully dissent from the majority's section on

standing. I concur in the majority's ultimate holding, but I dissent from the majority's conclusion

that respondent lacks standing to challenge the penalty provision.

¶85 What respondent did, he did under threat of the penalty provision. But for the penalty

provision, he would have lacked any incentive to register. Thus, if he has standing to challenge

the other provisions, he must have standing to challenge this provision as well.

28 1-15-3047

¶86 The State argues that respondent does not have standing because no penalty has yet been

imposed. The purpose of standing is to ensure that courts are deciding actual, specific

controversies and not abstract or moot issues. Borsellino v. Putnam,

. "To have standing to challenge the constitutionality of a statute, a person must have suffered

or be in immediate danger of suffering a direct injury as a result of [the] enforcement of the

challenged statute." (Emphasis added.) People v. Greco,

(2003). Thus, one

cannot separate a statute from its enforcement mechanism.

¶87 For a person to have standing, his or her claimed injury: (1) must be fairly traceable to a

respondent's actions; (2) must be substantially likely to be prevented or redressed by the grant of

the requested relief; and (3) must consist of a distinct and palpable injury. Burnette v. Stroger,

(2009). In the case at bar, (1) respondent registered only due to the

threat of the penalty provision; (2) the requested relief, which is the striking of this provision,

would redress the problem because then there would be no consequence and, hence, no reason to

register; and (3) the distinct and palpable injury is the ramification of being identified as a

juvenile sex offender. Thus, respondent has satisfied the requirements for standing.

¶88 In sum, I would conclude that respondent does, in fact, have standing to challenge the

penalty provision and that this is what permits us to proceed to consider the constitutional issue.

Thus, I must respectfully dissent from the majority's discussion of standing, although I concur

with the majority's ultimate holding.

29