People v. Pepitone, 2018 IL 122034 (April). Episode 497 (Duration 6:20)

State has a rational basis for keeping sex offenders from parks.

No Sex Offender At A Park

Section 11-9.4-1(b) of the Criminal Code of 2012 provides,

“It is unlawful for a sexual predator or a child sex offender to knowingly be present in any public park building or on real property comprising any public park.”

720 ILCS 5/11-9.4-1(b).

The statute, then, completely bars sex offenders who have targeted children from public parks.

A violation of section 11-9.4-1(b) is a Class A misdemeanor. See § 11-9.4-1(d).

Issue

The sole issue in this case is whether this statute is facially violative of substantive due process.

The defendant asserts that section 11-9.4-1(b) is facially violative of substantive due process. The fourteenth amendment to the United States Constitution (U.S. Const., amend. XIV) and article I, section 2, of the Illinois Constitution (Ill. Const. 1970, art. I, § 2) both provide that no person shall be deprived of life, liberty, or property without due process of law.

Facts

Village of Bolingbrook police officer was patrolling a municipal park around 4:30 p.m. when he observed a van improperly parked across three spaces. The officer checked the van’s plates and learned that it was registered to the defendant.

While Officer Alexander was standing near the van, the defendant approached with his dog.

The defendant related that he was a child sex offender but that his registration requirement had expired in 2010. Officer Alexander informed the defendant that, as a child sex offender, he was forbidden to be on park property.

Though the defendant was unaware of such a ban, he was arrested for violating section 11-9.4-1(b).

Appellate Court Said The Law Was Unconstitutional

For the reasons why the appellate court reversed the conviction.

The appellate court majority highlighted the “overly broad sweep” of section 11-9.4-1(b) and provided an “extensive” list of activities that occur on public park property, in which persons like the defendant cannot participate. The majority concluded that the statute violated due process because “it is not reasonably related to its goal of protecting the public, especially children,” from individuals fitting the definition of a child sex offender and because it is not “drafted in such a way as to effect that goal without arbitrarily stripping a wide swath of innocent conduct and rights” from such individuals who have already “paid the penalty” for their crimes.

See Also 

Episode 298 - Third District Declares The Crime Of Being a Sexual Offender In A Park Unconstitutional 

Constitutional 

There are two aspects to that guarantee—procedural and substantive.

Procedural due process bars governmental action that infringes upon a protected interest when such action is arbitrary because it was not preceded by procedural safeguards.

Substantive due process bars governmental action that infringes upon a protected interest when such action is itself arbitrary. See People v. Cardona, 2013 IL 114076, ¶ 17 (“a procedural due process claim asserts that the deprivation at issue is constitutionally invalid because the process leading up to it was deficient, whereas a substantive due process claim asserts that the deprivation at issue is constitutionality invalid in and of itself, irrespective of the process leading up to it”).

Rational Basis Test

Here, section 11-9.4-1(b) affects the freedom to visit public parks.

The defendant acknowledges that being present in a park is not a fundamental right. Thus, the proper gauge for his substantive due process claim is the so-called rational basis test. Under that test, our inquiry is twofold:

“We must determine whether there is a legitimate state interest behind the legislation, and if so, whether there is a reasonable relationship between that interest and the means the legislature has chosen to pursue it.”

While the rational basis test is not toothless it remains highly deferential to the findings of the legislature.

The legislature’s judgments in drafting a statute are not subject to judicial fact finding and may be based on rational speculation unsupported by evidence or empirical data.

If there is any conceivable set of facts to justify the statute, it must be upheld.

Court Is Not A Super Legislature

This court will not second-guess the wisdom of legislative enactments or dictate alternative means to achieve the desired result.

The only dispute between the parties is whether there is the requisite constitutional nexus—a rational relation—between the statute’s aim and its means. The problem for the defendant is that, regardless of how convincing that social science may be, the legislature is in a better position than the judiciary to gather and evaluate data bearing on complex problems. See Minnis, 2016 IL 119563, ¶ 41. Simply put, we are not a super legislature. See M.A., 2015 IL 118049, ¶ 70.

No Narrow Tailoring Required

More fundamentally, the rational basis test does not require narrow tailoring; it only requires rationality.

That is, the means chosen by the legislature need not be the best; they need only to be reasonable.

Whether there are better means to achieve this result *** is a matter better left to the legislature.

Holding

We conclude that there is a rational relation between protecting the public, particularly children, from sex offenders and prohibiting sex offenders who have been convicted of crimes against minors from being present in public parks across the state.

By keeping sex offenders who have committed offenses against children away from areas where children are present ***, the legislature could have rationally sought to avoid giving certain offenders the opportunity to reoffend. 

There is also a direct relationship between the *** presence restrictions of sex offenders and the protection of children. Because section 11-9.4-1(b) is rationally related to a legitimate government interest, the appellate court erred in holding that the statute is facially unconstitutional under substantive due process.

The appellate court’s decision in this case, is overruled.