People v. Molnar ( 2006 )

Docket No. 100054.
IN THE
SUPREME COURT
OF
THE STATE OF ILLINOIS
THE PEOPLE OF THE STATE OF ILLINOIS, Appellant, v.
DENNIS MOLNAR, Appellee.
Opinion filed October 5, 2006.
CHIEF JUSTICE THOMAS delivered the judgment of the
court, with opinion.
Justices Freeman, Fitzgerald, Kilbride, Garman, and
Karmeier concurred in the judgment and opinion.
Justice Burke took no part in the decision.
OPINION
At issue in this case is the constitutionality of section 7 of
the Sex Offender Registration Act (the Registration Act) (730
ILCS 150/7 (West 2002)) and section 1280.40 of the Illinois
Administrative Code (the Code) (20 Ill. Adm. Code '1280.40
(2002)). Those sections provide that the Department of State
Police shall extend a sex offender=s registration period by 10
years if the offender violates any provision of the Registration
Act (730 ILCS 150/1 et seq. (West 2002)). The circuit court of
Cook County held those sections facially unconstitutional and
unconstitutional as applied. The State has appealed directly to
this court (134 Ill. 2d R. 603; 188 Ill. 2d R. 604(a)).
BACKGROUND
The Registration Act was enacted in 1986 and originally
was titled the Habitual Child Sex Offender Registration Act (Ill.
Rev. Stat. 1987, ch. 38, par. 221 et seq.). The Registration Act
was passed Ain response to concern over the proliferation of
sex offenses against children.@ People v. Adams, 144 Ill. 2d
381, 386 (1991). By requiring sex offenders to register with
local law enforcement agencies, Athe legislature sought to
create an additional method of protection for children from the
increasing incidence of sexual assault and sexual abuse.@
Adams, 144 Ill. 2d at 387. The Registration Act was designed
to aid law enforcement agencies by allowing them to Amonitor
the movements of the perpetrators by allowing ready access to
crucial information.@ Adams, 144 Ill. 2d at 388.
In 1993, the title of the Registration Act was amended to the
Child Sex Offender Registration Act. 730 ILCS 150/1 et seq.
(West 1994). The Registration Act again was amended and
expanded in 1996 to include enumerated sex offenses against
adult victims, as well as certain sexual and nonsexual offenses
against child victims. At that time, the Registration Act was
renamed the Sex Offender Registration Act. 730 ILCS 150/1 et
seq. (West 1996).
Pursuant to the Registration Act, all persons who are sex
offenders as set forth in section 2 (730 ILCS 150/2 (West
2002)) are required to register in person with municipal or
county law enforcement officials within 10 days of establishing
a residence in that municipality or county. 730 ILCS 150/3
(West 2002). The Registration Act provides that the person
registering shall provide positive identification and
documentation that substantiates proof of residence at the
registering address. 730 ILCS 150/3(c)(5) (West 2002). In
addition, a sex offender who has not been adjudicated sexually
dangerous or sexually violent and is required to register under
the Registration Act Ashall report in person to the appropriate
law enforcement agency with whom he or she last registered
within one year from the date of last registration and every year
thereafter.@ 730 ILCS 150/6 (West 2002). Further, A[i]f any
person required to register under [the Registration Act]
changes his or her residence address, place of employment, or
school, he or she shall, in writing, within 10 days inform the law
enforcement agency with whom he or she last registered of his
or her new address, change in employment, or school and
register with the appropriate law enforcement agency within the
time period specified in Section 3@ of the Registration Act. 730
ILCS 150/6 (West 2002). Registration as required by the
Registration Act consists of a statement in writing signed by the
registrant providing the information required by the Department
of State Police. 730 ILCS 150/8 (West 2002). That information
includes a photograph of the registrant and may include his
fingerprints. 730 ILCS 150/8 (West 2002). The registering law
enforcement agency shall forward any required information to
the Department of State Police and shall enter the information
into the Law Enforcement Agencies Data System (LEADS).
730 ILCS 150/8 (West 2002).
The Department of State Police is the agency responsible
for implementing the Registration Act. See 730 ILCS 150/4
(West 2002); 20 ILCS 2605/2605B35(a)(8) (West 2002).
Accordingly, the Registration Act provides that the Department
of State Police must send a nonforwardable verification letter
annually to each re-registering sex offender Abeginning one
year from the date of his or her last registration.@ 730 ILCS
150/5B10 (West 2002). The re-registering sex offender must
complete, sign and return the verification letter, postmarked
within 10 days after the mailing of the letter, to the Department
of State Police. 730 ILCS 150/5B10 (West 2002).
Defendant became subject to the Registration Act on
November 12, 1992, when he was convicted of criminal sexual
assault of a family member where the victim was under the age
of 18. Ill. Rev. Stat. 1991, ch. 38, par. 12B13(3). Defendant was
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sentenced to four years= probation. Defendant was required to
register annually as a sex offender for a period of 10 years
from the date of his conviction, until November 12, 2002. 1
On July 1, 1999, within defendant=s original 10-year
registration period, modifications to the Registration Act
became effective that provided the ADirector of State Police,
consistent with administrative rules, shall extend for 10 years
the registration period of any sex offender *** who fails to
comply with the provisions of this Article.@ 730 ILCS 150/7
(West 2000). The Administrative Code also was amended to
provide that A[f]ailure to comply with any provision of the Act
shall extend the period of registration by ten years beyond the
period otherwise required.@ 20 Ill. Adm. Code '1280.40(a)
(2000). The Department of State Police sent an official notice
to every registered sex offender=s last known address
summarizing the 1999 changes to the Registration Act,
including the fact that the failure to comply with any provision of
the Registration Act would extend the time required to register
by an additional 10 years and that the Department of State
Police would administer extensions of the registration period.
The official notice also stated that failure to comply would result
in immediate enforcement action and prosecution. In addition,
the notice explained that it is a Class 4 felony to fail to comply
with the Registration Act, punishable by up to three years=
incarceration and a minimum $500 fine. The official notice
provided a telephone number so that the sex offender could
1
Sexual predators, sexually dangerous persons and sexually violent
persons, as defined by the Registration Act, are required to register for life.
730 ILCS 150/7 (West 2002). Any other person required to register under
the Registration Act is required to register for a period of 10 years. 730
ILCS 150/7 (West 2002). Defendant fell within the latter category for
purposes of the Registration Act.
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contact the Illinois State Police Sex Offender Registration Unit
if he had any questions concerning his responsibilities under
the Registration Act.
On December 31, 2003, the Crestwood police arrested
defendant and charged him with failing to register a change of
address within 10 days of moving. Defendant also was charged
with knowingly giving a false address in his re-registration.
Defendant thereafter filed a AMotion for Judicial Determination
that there is No Probable Cause to Detain and to Dismiss
Complaints for Preliminary Examination.@ At the hearing on
defendant=s motion, the State and defendant stipulated to the
testimony of their witnesses, although the parties disputed the
facts culminating in defendant=s arrests.
The parties agreed that defendant registered with the
Crestwood Police Department as a sex offender living at 5419
W. 129th Street in Crestwood, Illinois, on September 10, 1999,
and signed and initialed the registration form provided by the
Department of State Police. 2 The registration form notified
defendant of his duties under the Registration Act. The
specified duties included: notifying the law enforcement agency
with whom defendant last registered, in writing, within 10 days
of changing his residence address; and renewing his
registration in person with the law enforcement agency having
jurisdiction, one year from the date of the initial registration and
every year thereafter for a period of 10 years. The registration
form also warned that failure to comply with the Registration
Act is a Class 4 felony and that giving false registration
information also is a Class 4 felony. Defendant=s signature
indicated that he had read the provisions of the registration
form and understood his duty to register, as well as the fact
that failure to register is a criminal offense.
Defendant also stipulated that he received the letter sent
out by the Department of State Police in 1999 explaining the
changes to the Registration Act, including the amendment
providing that failure to comply with any provision of the
2
The record is devoid of information concerning defendant=s registrations
for the years 1992 through September 10, 1999.
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Registration Act would extend the time required to register by
10 years. In addition, defendant stipulated that he was aware
of his reporting procedures under the Registration Act.
The parties stipulated that the Crestwood police
department=s sex offender registration forms are sent to the
Blue Island, Illinois, dispatch, where the forms are maintained.
Defendant claimed that he also properly registered with the
Crestwood police department in 2000 and 2001. The parties
stipulated that the Crestwood police officers sent, and the Blue
Island dispatch recorded, registration forms for defendant on
September 10, 1999, January 5, 2002, February 19, 2003,
December 31, 2003, and February 27, 2004. No other
registration forms were filed.
Defendant stipulated that he registered with Detective Carr
of the Crestwood police department on January 5, 2002, listing
a new address of 14021 South Kilpatrick in Crestwood. On that
date, defendant signed and initialed provisions in the
registration form indicating that he had read the provisions in
the form. Included within the form were provisions stating that
failure to comply with the provisions of the Registration Act or
willfully providing false information are Class 4 felonies, and
that failure to comply with any of the provisions of the
Registration Act would cause the Department of State Police to
administratively extend the term of registration by 10 years.
When defendant registered on January 5, 2002, the
Department of State Police extended defendant=s registration
by 10 years pursuant to section 7 of the Registration Act (730
ILCS 150/7 (West 2002)). The parties stipulated that Detective
Carr would testify that he did not personally inform defendant
on January 5, 2002, that he had been administratively
extended.
The parties stipulated that the Crestwood police officers
would testify that defendant did not register on his required
date in January 2003. The parties stipulated that defendant
next registered with the Crestwood police department on
February 19, 2003, again initialing provisions notifying him that
a violation of the Registration Act would result in a 10-year
administrative extension and that a violation of the Registration
Act was a Class 4 felony. On this date, the Department of State
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Police again extended defendant=s registration by 10 years
pursuant to section 7 of the Registration Act and section
1280.40 of the Code. 3 The parties stipulated that on February
19, 2003, defendant was not specifically told that his
registration had been extended.
Defendant next registered on December 31, 2003, listing a
new address of 5744 W. 128th Street in Crestwood. Defendant
had been living at the new address for more than five months.
The Crestwood police therefore charged defendant with failing
to register a change of address within 10 days of moving.
Defendant also was charged with knowingly providing a false
address when registering as a sex offender.
In his motion, defendant claimed that he had registered as
a sex offender pursuant to the Registration Act and continued
to do so until his 10-year registration period had expired in
November of 2002, including the years 1999, 2000, 2001 and
2002. Defendant claimed that, at the end of 2002, after his
registration period had expired, defendant and his fiancee
monitored the Cook County sheriff=s sex offender Web site and
discovered that defendant=s name and picture still appeared on
the Web site. Defendant and his fiancee went to the Crestwood
police department on February 19, 2003, to find out why
defendant=s picture was still on the sex offender Web site.
Defendant claimed that no explanation was given, so Aout of
caution@ defendant again registered as a sex offender with the
Crestwood police department. On that date, defendant was not
arrested by the Crestwood police department, nor was
defendant informed that his registration period had been
3
Effective August 20, 2004, section 7 was amended to clarify that, A[t]he
registration period for any sex offender who fails to comply with any
provision of the Act shall extend the period of registration by 10 years
beginning from the first date of registration after the violation.@ 730 ILCS
150/7 (West 2004).
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extended for 10 years by the Department of State Police.
According to defendant, he first learned his registration period
had been extended when he was arrested and charged with
violating the Registration Act.
Defendant argued that section 7 of the Registration Act and
section 1280.40 of the Illinois Administrative Code are
unconstitutional because those sections do not require the
Department of State Police to notify a registrant that he
allegedly has violated the Registration Act, do not provide for
notice of any proceeding where a registrant=s period for
reporting could be extended, do not provide a registrant with
notice of the alleged reasons for the extension or with an
opportunity to appear and contest the extension, and do not
provide the registrant with notification that his registration
period had been extended.
The State argued that the evidence clearly showed that
defendant was aware of his duties under the Registration Act
and was aware that he would be extended for failure to comply
with the Registration Act. The State asserted that the
Registration Act provides notice that is sufficient for purposes
of due process. In addition, the State clarified that if a sex
offender wants to contest his extension, he can contact the
Department of State Police and file a petition for relief pursuant
to the administrative rules. See 20 Ill. Adm. Code '1200.30
(2002). Those rules state that, upon receiving a petition for
relief, the Department of State Police will then investigate the
circumstances surrounding the extension and can grant relief if
warranted. 20 Ill. Adm. Code '1200.30(b) (2002). The Director
can also schedule a fact-finding conference, where the
offender could be represented by counsel. 20 Ill. Adm. Code
''1200.30(b), (c) (2002). If the offender does not obtain relief
following the investigation or fact finding conference, he can
then petition for a hearing before an administrative law judge.
20 Ill. Adm. Code '1200.30(e) (2002).
Following argument, the circuit court granted defendant=s
motion to dismiss. The circuit court noted that defendant=s
registration had been extended, without notice to defendant, on
January 5, 2002, and on February 19, 2003. Defendant
thereafter was arrested and charged with felonies arising from
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the extensions. The circuit court rejected the State=s argument
that defendant had received at least implied notice when he
registered with the Crestwood police and signed the
registration form. The circuit court held that defendant had
neither express nor implied notice of the fact of the extensions
until after he was arrested, and had no actual notice of his
felony liability. In addition, defendant=s arrests and one of his
extensions occurred only after defendant=s original registration
term had expired. The circuit court further noted that
extensions and arrests did not follow every incident of
noncompliance with the Registration Act.
In finding the Registration Act and the Code
unconstitutional, the circuit court found this case
indistinguishable from the United States Supreme Court=s
decision in Lambert v. California, 355 U.S. 225, 2 L. Ed. 2d
228, 78 S. Ct. 240 (1957), where the Supreme Court held that
a California municipal ordinance imposing a registration
requirement on convicted felons was unconstitutional as
applied. The circuit court rejected the State=s argument that the
general information provided to sex offenders warning that they
would be extended if they failed to register in compliance with
the Registration Act was sufficient to provide actual notice
under Lambert. The circuit court concluded that general
warnings spoke only to potential extensions, but did not provide
notice of the fact of the extension. Here, defendant was not told
that he had been judged noncompliant with the Registration
Act and was responsible for extended reporting. The circuit
court found that defendant was not given actual notice, and the
provisions of the Registration Act and the Code did not provide
sufficient actual notice. Therefore, those provisions are facially
unconstitutional and unconstitutional as applied.
In addition, the circuit court found the provisions of the
Registration Act and the Code unconstitutional because the
provisions are unconstitutionally vague in violation of the due
process clause. The circuit court held that the discretion of the
police to arrest or to extend a sex offender=s registration is
overly broad and lacks any guidance. The circuit court
therefore granted defendant=s motion. The circuit court
thereafter denied the State=s motion to reconsider.
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ANALYSIS
As a preliminary matter, we note that although defendant
claims that he did register as a sex offender in 2000 and 2001,
defendant=s motion to dismiss argued only that the complaints
against him should be dismissed because section 7 of the
Registration Act and section 1280.40 of the Code were facially
unconstitutional and unconstitutional as applied. Accordingly,
for purposes of our review, we will presume that the complaints
filed against defendant properly charged defendant with
violations of the Registration Act based upon his failure to
register for the years 2000 and 2001. We turn, then, to the
issue in this case, which is the constitutionality of section 7 of
the Registration Act and section 1280.40 of the Code.
A statute=s constitutionality presents a question of law. In re
Parentage of John M., 212 Ill. 2d 253, 265 (2004). Accordingly,
we review the circuit court=s decision declaring a statute
unconstitutional de novo. Parentage of John M., 212 Ill. 2d at
265. When analyzing the constitutionality of a statute on
review, this court begins with the assumption that the statute is
constitutional. Parentage of John M., 212 Ill. 2d at 265.
Similarly, administrative rules and regulations have the force
and effect of law and, like statutes, are presumed valid. Union
Electric Co. v. Department of Revenue, 136 Ill. 2d 385, 391
(1990). If reasonably possible, this court has an obligation to
construe a statute in a manner that would uphold its
constitutionality. Parentage of John M., 212 Ill. 2d at 266.
Likewise, this court has a duty to affirm the constitutionality of a
rule or regulation, if reasonably possible, with any doubts
resolved in favor of the validity of the challenged regulations.
Granite City Division of National Steel Co. v. Illinois Pollution
Control Board, 155 Ill. 2d 149, 164-65 (1993). The party
challenging the validity of a statute has the burden of
establishing the statute=s constitutional infirmity. Parentage of
John M., 212 Ill. 2d at 266. Section 7 of the Registration Act,
which is at issue in this appeal, provides, in pertinent part:
AAny other person who is required to register under this
Article shall be required to register for a period of 10
years after conviction or adjudication if not confined to a
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penal institution, hospital or any other institution or
facility, and if confined, for a period of 10 years after
parole, discharge or release from any such facility. ***
Liability for registration terminates at the expiration of 10
years from the date of conviction or adjudication if not
confined to a penal institution, hospital or any other
institution or facility *** providing such person does not,
during that period, again become liable to register under
the provisions of this Article. The Director of State
Police, consistent with administrative rules, shall extend
for 10 years the registration period of any sex offender,
as defined in Section 2 of this Act, who fails to comply
with the provisions of this Article.@ (Emphasis added.)
730 ILCS 150/7 (West 2002).
Section 1280.40 of the Code provides, in pertinent part,
that:
AA sex offender shall register in person annually within
one year after his or her last registration. Failure to
comply with any provision of the Act shall extend the
period of registration by ten years beyond the period
otherwise required.@ 20 Ill. Adm. Code '1280.40(a)
(2002).
Finally, with regard to a penalty, the Registration Act
provides that:
AAny person who is required to register under this
Article who violates any of the provisions of this Article
and any person who is required to register under this
Article who seeks to change his or her name under
Article 21 of the Code of Civil Procedure [735 ILCS
5/21B101 et seq.] is guilty of a Class 4 felony. Any
person who is required to register under this Article who
knowingly and willfully gives material information
required by this Article that is false is guilty of a Class 3
felony. Any person convicted of a violation of any
provision of this Article shall, in addition to any other
penalty required by law, be required to serve a minimum
period of 7 days confinement in the local county jail. The
court shall impose a mandatory minimum fine of $500
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for failure to comply with any provision of this Article.@
730 ILCS 150/10 (West 2002).
As noted, the circuit court found the Registration Act and
the Code unconstitutional facially and as applied under the
Illinois and the federal due process clauses (Ill. Const. 1970,
art. I, '2; U.S. Const., amend. XIV), because the provisions at
issue do not provide sufficient actual notice to the defendant
that he had been judged noncompliant and therefore was
responsible for extended reporting. The circuit court did not
distinguish the state due process clause and the federal due
process clause in its order, and in fact relied upon federal case
law in finding the due process violation in this case. Moreover,
in the appeal to this court, neither party has argued that the
state due process clause provides greater protection than that
provided by the federal constitution. Thus, while it is true that
this court may construe the Illinois due process clause
independently of its federal counterpart, and in appropriate
cases will interpret the state due process clause to provide
greater protections (Arangold Corp. v. Zehnder, 204 Ill. 2d 142,
152 (2003)), we find no compelling reason to do so in this
case. Accordingly, we will consider the circuit court=s order in
light of federal due process jurisprudence.
In finding a due process violation in this case, the circuit
court found the facts of this case indistinguishable from those
in Lambert v. California, 355 U.S. 225, 2 L. Ed. 2d 228, 78 S.
Ct. 240 (1957). As a threshold matter, we note that, although
the circuit court relied on Lambert in declaring the Registration
Act and the Code both facially unconstitutional and
unconstitutional as applied, Lambert was an as-applied case
and did not address whether the ordinance at issue was
unconstitutional on its face. However, because a finding that a
statute is constitutional as applied will necessarily compel a
finding that the statute is constitutional on its face, we will first
address whether the circuit court correctly found that the
Registration Act and the Code were unconstitutional as applied
to defendant. See People v. Huddleston, 212 Ill. 2d 107, 145
(2004) (given determination that sentencing statute was
constitutional as applied, it followed that the statute was
constitutional on its face).
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At issue in Lambert was a provision in the City of Los
Angeles Municipal Code stating that Ait shall be unlawful for
>any convicted person= to be or remain in Los Angeles for a
period of more than five days without registering@ with the chief
of police. Lambert, 355 U.S. at 226, 2 L. Ed. 2d at 230, 78 S.
Ct. at 242. A Aconvicted person@ was defined as any person
convicted of a felony, whether that conviction occurred in
California or another state, if the offense would have been
punishable as a felony if committed in California. Lambert, 355
U.S. at 226, 2 L. Ed. 2d at 230, 78 S. Ct. at 241-42. When the
defendant, Virginia Lambert, was arrested on Asuspicion of
another offense,@ the police discovered that Lambert had been
a resident of Los Angeles for more than seven years and,
within that period, had been convicted of a felony offense, but
had not registered with the chief of police, as required under
the municipal code. Lambert, 355 U.S. at 226, 2 L. Ed. 2d at
230, 78 S. Ct. at 242. Lambert was convicted of failing to
register in violation of the municipal ordinance. Lambert, 355
U.S. at 227, 2 L. Ed. 2d at 230, 78 S. Ct. at 242.
After the state courts rejected Lambert=s claim that the
municipal code denied her due process of law, the case was
argued to the United States Supreme Court. The Supreme
Court held that the registration provisions of the municipal code
violated the due process requirement of the fourteenth
amendment. Lambert, 355 U.S. at 227, 2 L. Ed. 2d at 231, 78
S. Ct. at 242. The Supreme Court acknowledged that it is well
settled that A >ignorance of the law will not excuse,= @ but noted
that the conduct at issue in the case was Awholly passive.@
Lambert, 355 U.S. at 228, 2 L. Ed. 2d at 231, 78 S. Ct. at 243.
Violation of the ordinance was Aunaccompanied by any activity
whatever, mere presence in the city being the test.@ Lambert,
355 U.S. at 229, 2 L. Ed. 2d at 232, 78 S. Ct. at 243. The
Supreme Court explained that:
AEngrained in our concept of due process is the
requirement of notice. Notice is sometimes essential so
that the citizen has the chance to defend charges.
Notice is required before property interests are
disturbed, before assessments are made, before
penalties are assessed. Notice is required in a myriad of
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situations where a penalty or forfeiture might be
suffered for mere failure to act.@ Lambert, 355 U.S. at
228, 2 L. Ed. 2d at 231, 78 S. Ct. at 243.
The Supreme Court noted that, in the case before it,
circumstances that might move a person to inquire as to the
necessity of registration were completely lacking. Lambert, 355
U.S. at 229, 2 L. Ed. 2d at 232, 78 S. Ct. at 243. In addition,
the ordinance at most was a law enforcement technique
designed for the convenience of law enforcement agencies
through which a list of the names and addresses of felons
residing in a given community could be compiled. Lambert, 355
U.S. at 229, 2 L. Ed. 2d at 232, 78 S. Ct. at 243. The Supreme
Court held that Aactual knowledge of the duty to register or
proof of the probability of such knowledge and subsequent
failure to comply are necessary before a conviction under the
ordinance can stand.@ Lambert, 355 U.S. at 229, 2 L. Ed. 2d at
232, 78 S. Ct. at 243. Thus, where a person did not know of
the duty to register and there was no proof of the probability of
such knowledge, that person could not be convicted
consistently with due process. Lambert, 355 U.S. at 229-30, 2
L. Ed. 2d at 232, 78 S. Ct. at 243-44. Because Lambert had no
actual knowledge of the registration requirement and there was
no probability of such knowledge, Lambert=s conviction for
violating the ordinance was reversed.
In the instant case, in response to the State=s appeal,
defendant argues that the circuit court=s finding must be
affirmed because the facts of this case are identical to
Lambert. Defendant maintains that his conduct in this case was
wholly passive, as there was no overt act or commission of an
act that created liability. In addition, circumstances which might
have moved defendant to inquire as to the necessity of
registration were completely lacking.
We disagree with defendant and the circuit court that the
facts of this case are indistinguishable from the facts in
Lambert. Critical to the decision in Lambert was the Supreme
Court=s finding that circumstances that might move a person to
inquire as to the necessity of registration were completely
lacking. In Lambert, there was no evidence the defendant was
ever informed in any manner that she had a duty to register.
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Here, there was ample evidence that defendant had actual
knowledge of the registration requirements. Defendant
stipulated that he had actual knowledge of his duty to register
annually as a sex offender for a period of 10 years from the
date of his conviction. In addition, when registering, defendant
signed and initialed the registration form that again notified him
of his duties under the Registration Act, including the duty to
register annually and to notify law enforcement within 10 days
of changing his residence address. The registration form also
notified defendant that a violation of any provision of the
Registration Act would result in a 10-year extension of the
registration period and would constitute a Class 4 felony. This
was not a case where circumstances that might move
defendant to inquire as to the necessity of registration were
completely lacking.
The circuit court, however, found that the Registration Act
and the Code do not provide sufficient notice because
defendant was not given actual notice that his registration had
been extended for 10 years for failing to comply with the
Registration Act. The circuit court held that the statutory
warning to sex offenders concerning extensions does not
provide actual notice of the fact of extension, as required by
due process. The circuit court found that, because defendant
was not told he had been judged to be noncompliant pursuant
to the Registration Act, and thus was responsible for
registering for an additional 10 years, the Registration Act and
the Code violate due process.
We disagree with the circuit court that due process
requires a sex offender to receive actual notice that his
registration has been extended for failing to comply with the
Registration Act. A sex offender is on notice that his
registration period shall be extended for failing to comply with
the Registration Act. A sex offender in compliance with the
Registration Act will never be subject to an extended
registration term. We find that defendant had sufficient notice
under the Registration Act that his failure to comply would
result in a 10-year extension of his registration period.
As the State observes, it would jeopardize the entire
purpose of the Registration Act if a defendant, having been
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notified that he is under a continuing duty to register, can
simply fail to register and can change his address without
notifying authorities, then claim ignorance of the law in order to
escape the consequences of his failure to register. The
success of the Registration Act depends upon the compliance
of sex offenders to timely register and to notify law
enforcement authorities when they move. Given the state=s
interest in protecting the public against sex offenders, and the
fact that a sex offender has notice that the failure to comply
with the Registration Act will result in a 10-year extension of his
registration, we find the Registration Act and the Code provide
actual notice of a duty to register, or proof of the probability of
such knowledge, sufficient to provide notice under Lambert.
Those provisions, then, comply with due process as applied to
defendant. Moreover, because we find the Registration Act and
the Code to be constitutional as applied to defendant, it follows
that those provisions also are facially constitutional.
Defendant, however, claims recent amendments to section
7 of the Registration Act demonstrate that the prior version of
section 7 was unconstitutional as applied to defendant.
Effective January 1, 2006, the extension portion of section 7
was amended to provide:
AThe Director of State Police, consistent with
administrative rules, shall extend for 10 years the
registration period of any sex offender, as defined in
Section 2 of this Act, who fails to comply with the
provisions of this Article. The registration period for any
sex offender who fails to comply with any provision of
the Act shall extend the period of registration by 10
years beginning from the first date of registration after
the violation. If the registration period is extended, the
Department of State Police shall send a registered letter
to the law enforcement agency where the sex offender
resides within 3 days after the extension of the
registration period. The sex offender shall report to that
law enforcement agency and sign for that letter. One
copy of that letter shall be kept on file with the law
enforcement agency of the jurisdiction where the sex
offender resides and one copy shall be returned to the
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Department of State Police.@ 730 ILCS 150/7 (West
Supp. 2005).
Defendant contends the legislature amended section 7 in
response to the circuit court=s order in this case, and that the
amendments to section 7 now satisfy due process by providing
a sex offender with notice of an extension.
Although defendant claims that the legislative action in
amending section 7 demonstrates that the prior version of
section 7 is unconstitutional as applied to defendant, defendant
has cited no support for this argument other than the mere fact
of the amendment. In fact, a review of the legislative history of
Public Act 94B166, which amended section 7, refutes
defendant=s claim. The legislative debate with respect to House
Bill 4030 (which became Public Act 94B166), reveals the
purpose of the amendments to the Registration Act was to
Arequire more extensive reporting requirements for persons
convicted of certain sex offenses.@ 94th Ill. Gen. Assem.,
House Proceedings, April 13, 2005, at 88 (statements of
Representative Brosnahan). Specifically, Representative
Brosnahan explained that:
AToday, when a sex offender is released from custody,
they=re required to sign a notification form stating that
they will register with local law enforcement and abide
by their conditions. Under House Bill 4030, we=re gonna
add the employer=s contact information to this form,
saving valuable time when verification is conducted. The
legislation will also highlight any extensions in the
offender=s registration period and it will include the
reasons for any extension. Some of the reasons would
be ... pick ... the offender picking up a new offense or
violating a previous registration requirement. The
registration form=s [sic] also gonna be changed to
require a statement from the child sex offender that they
will lot [sic] ... they will not live in areas excluded by the
original Registration Act which would be including
locations within 500 feet of a school, park, or a day care
facility. House Bill 4030 also provides that a sex
offender who changes his or her address, place of
employment, or school that they attend must report in
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person rather than by mail to the local law enforcement
agency where they are registered.@ 94th Ill. Gen.
Assem., House Proceedings, April 13, 2005, at 88-89
(statements of Representative Brosnahan).
Nothing in the legislative history of Public Act 94B166
supports defendant=s claim that the amendment to section 7
was in response to the circuit court=s order in this case. The
provision that the Director of State Police shall extend for 10
years the registration period of any sex offender who violates
the Registration Act remains unchanged. In addition, we note
that although the amendment to section 7 requires the
Department of State Police to send a registered letter to the
law enforcement agency where the sex offender resides within
three days after the extension of the offender=s registration
period, the amendment does not provide that the local law
enforcement agency must then ensure that the extension letter
is delivered to the offender. Rather, the amendment provides
that the sex offender shall report to the law enforcement
agency and sign for that letter. As the State has argued, Public
Act 94B166 was intended to increase the opportunity for in-
person contact between local law enforcement and sex
offenders. Consequently, we reject defendant=s claim that the
amendments to section 7 demonstrate that the prior version of
section 7 was unconstitutional as applied to defendant.
The circuit court also found the Registration Act and the
Code were unconstitutional because section 10 of the
Registration Act authorizes a felony penalty for violating the
Registration Act, an offense that requires no mens rea, or
mental state. In support of its holding, the circuit court noted
that, in People v. Nunn, 77 Ill. 2d 243, 249 (1979), this court
held, AIt would certainly be unreasonable to conclude that the
legislature intended to subject a person to a severe penalty for
an offense that he might unknowingly commit.@
With regard to a penalty for violation, the Registration Act
originally provided that A[a]ny person who is required to register
under this Article who violates any of the provisions thereof is
guilty of a Class A misdemeanor.@ Ill. Rev. Stat. 1987, ch. 38,
par. 230. In 1996, the legislature increased the penalty for a
first-time offender to a Class 4 felony. See Pub. Act 89B8, eff.
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January 1, 1996 (amending 730 ILCS 150/10 (West 1996)). Six
months later, the penalty provision of the Registration Act was
again amended to provide that a violation of any provision of
the Registration Act is a Class 4 felony. 730 ILCS 150/10
(West 1996). In 1998, section 10 was amended to also provide
that Aany person who knowingly or willfully gives material
information required by this Article that is false@ is guilty of a
Class 4 felony. In addition, the 1998 amendment added a
provision stating that, A[t]he court shall impose a mandatory
minimum fine of $500 for failure to comply with any provision of
this Article.@ 730 ILCS 150/10 (West 1998).
The penalty provision underwent additional revisions in
1999. The 1999 revisions increased the penalty for knowingly
and willfully giving material information that is false from a
Class 4 felony to a Class 3 felony. 730 ILCS 150/10 (West
2000). In 2004, the penalty for a violation of any of the
provisions of the Registration Act also was increased from a
Class 4 felony to a Class 3 felony. 730 ILCS 150/10 (West
2004). Finally, in 2006, section 10 was amended to provide
that A[a]ny person who is convicted for a violation of this Act for
a second or subsequent time is guilty of a Class 2 felony.@ 730
ILCS 150/10 (West Supp. 2005).
As noted, the circuit court held section 10 of the
Registration Act, the penalty provision, created an absolute
liability offense that was improperly subject to a felony penalty.
Accordingly, we first must address whether the circuit court
was correct that section 10 created an absolute liability
offense.
When construing a statute, this court=s primary objective is
to ascertain and give effect to the intent of the legislature.
People v. O=Brien, 197 Ill. 2d 88, 90 (2001). This court will
begin with the language of the statute, which must be given its
plain and ordinary meaning. O=Brien, 197 Ill. 2d at 90. Where
the language of the statute is clear and unambiguous, this
court will apply the statute without resort to further aids of
statutory construction. O=Brien, 197 Ill. 2d at 90-91. All the
provisions of an enactment should be viewed as a whole.
O=Brien, 197 Ill. 2d at 91. Words and phrases should not be
construed in isolation, but must be interpreted in light of other
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relevant statutory provisions. O=Brien, 197 Ill. 2d at 91. This
court reviews questions of statutory interpretation de novo.
O=Brien, 197 Ill. 2d at 91.
In determining whether section 10 of the Registration Act
creates an absolute liability offense for a violation of the
Registration Act, we consider the guidelines set forth by the
legislature in section 4B9 of the Criminal Code of 1961 (720
ILCS 5/4B9 (West 2002)). Section 4B9 states:
AA person may be guilty of an offense without
having, as to each element thereof, one of the mental
states described in Sections 4B4 through 4B7 if the
offense is a misdemeanor which is not punishable by
incarceration or by a fine exceeding $500, or the statute
defining the offense clearly indicates a legislative
purpose to impose absolute liability for the conduct
described.@ 720 ILCS 5/4B9 (West 2002).
Section 4B9 applies to all criminal penalty provisions, including
those outside the Criminal Code of 1961. People v. Gean, 143
Ill. 2d 281, 285 (1991).
In People v. Gean, this court noted that the committee
comments to section 4B9 reveal that the legislature intended to
limit the scope of absolute liability, so absent a clear indication
that the legislature intended to impose absolute liability, or an
important public policy favoring absolute liability, this court has
been unwilling to interpret a statute as creating an absolute
liability offense. Gean, 143 Ill. 2d at 285-86, quoting People v.
Sevilla, 132 Ill. 2d 113, 120 (1989). Consequently, the mere
absence of language expressly describing a mental state does
not per se lead to the conclusion that none is required. Gean,
143 Ill. 2d at 286, quoting People v. Valley Steel Products Co.,
71 Ill. 2d 408, 424 (1978).
In this case, defendant was charged with violating the
Registration Act when he failed to notify law enforcement of a
change in address, which was a Class 4 felony at the time. A
Class 4 felony carries with it a sentence of not less than one
year and not more than three years. 730 ILCS 5/5B8B1(a)(7)
(West 2002). Defendant also was charged with knowingly and
willfully giving false information for entry on his Sex Offender
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Registration Form, which was a Class 3 felony. Because the
charge of knowingly and willfully giving false information
contains a mental state, we will limit our analysis to the charge
of failing to notify law enforcement of a change in address. This
charge alleged a violation of the first provision of section 10,
which states that any person required to register under the
Registration Act who violates any provision of the Registration
Act is guilty of a Class 4 felony.
On its face, the portion of section 10 at issue does not
require a culpable mental state. In addition, the offense is a
felony punishable by incarceration and a minimum fine of $500.
Consequently, in order to constitute an absolute liability
offense, the Registration Act must indicate a legislative
purpose to impose absolute liability for a violation of the
Registration Act.
The legislative intent to impose absolute liability can be
discerned from several sources. First, the plain language of
section 10 provides for absolute liability. Second, a clear
legislative purpose to impose absolute liability is evident upon
reading section 10 in its entirety. While the first sentence of
section 10 provides that A[a]ny person who is required to
register under this Article who violates any of the provisions of
this Article *** is guilty of a Class 4 felony,@ the next sentence
states that A[a]ny person who is required to register under this
Article who knowingly or wilfully gives material information
required by this Article that is false is guilty of a Class 3 felony.@
Emphasis added. 730 ILCS 150/10 (West 2002). This court
has noted that, Aby employing certain language in one instance
and wholly different language in another, the legislature
indicates that different results were intended.@ In re K.C., 186
Ill. 2d 542, 549-50 (1999). Thus, in K.C., this court held that the
fact that the legislature specifically included a mental state in
one section, and specifically deleted the mental state from
another section, supported a conclusion that the legislature
intended to impose absolute liability in the provision where the
mental state was absent. K.C., 186 Ill. 2d at 550. To hold
otherwise would render the Aknowingly@ language Ameaningless
surplusage.@ K.C., 186 Ill. 2d at 550.
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In accordance with K.C., we must presume that, by
specifically including a culpable mental state within the same
statutory section, the legislature=s omission of a culpable
mental state in the first sentence of section 10 indicates that
different results were intended. Were we to hold otherwise, the
Aknowingly and willfully@ language in the second sentence of
section 10 would be rendered Ameaningless surplusage.@
Moreover, we observe that, since the enactment of the
Registration Act, section 10 has been amended six times, yet
the legislature has never added the word Aknowingly@ to the
provision at issue. As discussed, this omission is particularly
significant because the legislature did include the mental state
of Aknowingly or willfully@ in the 1998 amendment to the statute
which broadened the offense to include the act of Aknowingly
and willfully providing false information.@ Consequently, it
appears that the legislature chose to require proof of culpability
for certain acts and to dispense with this requirement for other
violations, such as the violation at issue.
In so holding, we recognize that this court has held the
possible punishment which can be imposed for the violation of
a statute is an important factor in determining whether the
statute is an absolute liability offense, so A >where the
punishment is great, it is less likely that the legislature intended
to create an absolute liability offense.= @ Gean, 143 Ill. 2d at
287, quoting Sevilla, 132 Ill. 2d at 122. Thus, in Gean we found
a potential prison sentence of three years and a fine up to
$10,000 was a substantial penalty that, given the lack of clear
legislative intent, indicated the statutes at issue were not
absolute liability offenses. Gean, 143 Ill. 2d at 288. Likewise, in
People v. Farmer, 165 Ill. 2d 194 (1995), this court held that,
given the substantial penalty for possessing contraband in a
penal institution, ranging from a Class 4 felony to a Class X
felony, and the lack of a clear legislative purpose, the statute at
issue did not impose absolute liability. Nonetheless, despite the
fact that the penalty in this case is a Class 4 felony, we find the
legislature intended to create an absolute liability offense for
violating the Registration Act.
In so holding, we find the analysis of the court in People v.
Patterson, 185 Misc. 2d 519, 708 N.Y.S.2d 815 (2000), to be
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well taken. In finding that the failure to register as a sex
offender under New York=s Sex Offender Registration Act
(SORA) was a strict liability crime, the court stated as follows:
ASORA deals with convicted Sex Offenders and is
therefore obviously closely related to the administration
of the criminal law. But SORA is not a traditional
criminal statute aimed primarily at punishing
wrongdoing. Rather, *** [citation] SORA is in essence a
regulatory statute. It proceeds from a legislative finding
that convicted sex offenders exhibit heightened rates of
recidivism and that sex offenders therefore present a
special danger to the public and, in particular, to
vulnerable women and children. SORA is thus primarily
intended as a measure to foster public safety.
[Citations.]
Viewed in the light of the important public safety
concerns that are at the heart of SORA, the
Legislature=s decision to impose strict liability for
Failure-to-Register was altogether appropriate and
consistent with precedent. The power of a legislature to
enact a criminal statute imposing strict liability for an
essentially regulatory offense involving the public safety,
health or welfare has long been recognized. [Citations.]
In dealing with such offenses, the urgent public interest
in protecting the community=s welfare >may require that
in the prohibition or punishment of particular acts it may
be provided that he who shall do them shall do them at
his peril and will not be heard to plead in defense good
faith or ignorance.= [Citation.].@ (Emphasis in original.)
Patterson, 185 Misc. 2d at 530-31, 708 N.Y.S.2d at 824.
We find that the analysis set forth in Patterson is equally
applicable in this case. As the court in Patterson observed, the
imposition of strict liability for failing to register was not as
harsh as it first appeared, given that SORA required an
offender to be given notice of his obligation to register.
Patterson, 185 Misc. 2d at 532, 708 N.Y.S.2d at 825. Likewise,
in this case, the Registration Act expressly requires an offender
to be given notice of his obligation to register, to be reminded
annually of his obligation to register, and to be given notice that
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failure to comply with the Registration Act will result in a 10-
year extension of the offender=s registration and will constitute
a Class 4 felony. As in Patterson, the notice requirements are
Abuilt into@ the Registration Act=s definition of the crime of
failure to register. Consequently, the concern that a person
might be subject to a severe penalty for an offense that he
might unknowingly commit is not present in this case. Under
the circumstances, then, we find that the circuit court erred in
holding that, because the strict liability offense of violating the
Registration Act was subject to a felony penalty, the statute
was unconstitutional on its face and as applied.
Finally, we must address the circuit court=s finding that the
Registration Act and the Code violate the due process clause
because those provisions are unconstitutionally vague. The
circuit court held those provisions are unconstitutionally vague
because the discretion of the police as to whether to arrest or
to extend is overly broad and lacks any guidance.
A defendant can challenge a statue as unconstitutionally
vague on its face or as applied to the defendant=s actions.
People v. Einoder, 209 Ill. 2d 443, 448 (2004). However, if a
statute does not implicate the first amendment, a defendant
must demonstrate that the statute was vague as applied to the
conduct for which the party was being prosecuted. People v.
Bailey, 167 Ill. 2d 210, 228 (1995). In its order, the circuit court
did not clarify whether it found the Registration Act and the
Code to be facially unconstitutional or unconstitutional as
applied. In his brief, defendant maintains that the Registration
Act and the Code are facially unconstitutional. However,
because this case does not involve the first amendment, we
will consider whether the circuit court correctly found that the
Registration Act and the Code were unconstitutional as applied
to this defendant.
In its order, the circuit court also did not clarify whether it
had found the Registration Act and the Code unconstitutional in
violation of the due process clauses of both the state
constitution and the federal constitution. However, under either
the United States Constitution or the Illinois Constitution, a
statute is said to violate due process on the basis of vagueness
only if the terms of the statute are so ill-defined Athat the
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ultimate decision as to its meaning rests on the opinions and
whims of the trier of fact rather than any objective criteria or
facts.@ People v. Burpo, 164 Ill. 2d 261, 265-66 (1995).
With regard to vagueness, then, due process is satisfied if:
(1) the statute=s prohibitions are sufficiently definite, when
measured by common understanding and practices, to give a
person of ordinary intelligence fair warning as to what conduct
is prohibited; and (2) the statute provides sufficiently definite
standards for law enforcement and triers of fact that its
applications do not depend merely on their private conceptions.
People v. Warren, 173 Ill. 2d 348, 356 (1996).
Based upon the foregoing, it is clear that, as applied to
defendant, the Registration Act and the Code satisfy due
process. The Registration Act and the Code are sufficiently
definite, when measured by common understanding and
practices, to give a person of ordinary intelligence fair warning
as to what conduct is prohibited. The Registration Act and the
Code clearly set forth defendant=s duty to register, as well as
his responsibilities in the event he changes his residence
address. The Registration Act and the Code also clearly
provide that if a sex offender violates any provision of the
Registration Act, his registration term will be extended for 10
years and he will be subject to a Class 4 felony. Moreover,
defendant stipulated that: he was aware of his reporting
procedures under the Registration Act; he had read and signed
the registration form which also set forth his duties under the
Registration Act, as well as the penalties for failure to comply
with the Registration Act; and he had received the letter sent
out by the Department of State Police in 1999 explaining the
changes to the Registration Act, including the fact that failure to
comply with any provision of the Registration Act would extend
the time required to register by 10 years. Defendant cannot
claim that the statute=s prohibitions did not give fair warning as
to what conduct was prohibited.
The Registration Act and the Code also provide sufficiently
definite standards for law enforcement and triers of fact so that
its applications do not depend merely on their private
conceptions. Section 7 of the Registration Act provides that
A[t]he Director of State Police, consistent with administrative
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rules, shall extend for 10 years the registration period of any
sex offender@ who fails to comply with the Registration Act.
(Emphasis added.) 730 ILCS 150/7 (West 2002). As the State
observes, this provision leaves no discretion to law
enforcement. In addition, the Code specifically directs law
enforcement on the administration of the Registration Act,
including: ensuring that the offender reads and signs the Sex
Offender Registration Form (20 Ill. Adm. Code '1280.30(c)(1)
(2002)); specifying what information should be on the Sex
Offender Notification Form (20 Ill. Adm. Code '1280.40(d)
(2002)); specifying that the agencies of jurisdiction shall verify
the address of the sex offender annually (20 Ill. Adm. Code
'1280.30(c)(5) (2002)); specifying how to record a change of
address (20 Ill. Adm. Code '1280.30(d) (2002)); specifying
how to update LEADS to maintain accuracy in reporting
contacts with a registrant (20 Ill. Adm. Code ''1280.30(c)(1),
(c)(3), (d) (2002)); and specifying how long law enforcement
must enforce the terms of the Registration Act (20 Ill. Adm.
Code '1280.40(a) (2002)). As the State has argued, the
Registration Act and the Code leave virtually no discretion to
law enforcement and triers of fact concerning application of the
Registration Act.
The circuit court, however, citing Kolender v. Lawson, 461
U.S. 352, 75 L. Ed. 2d 903, 103 S. Ct. 1855 (1983), found the
Registration Act and the Code unconstitutionally vague in light
of the lack of notice to citizens and arbitrary enforcement. In his
brief, defendant also argues that Kolender is dispositive, so
that the circuit court=s ruling must be affirmed. Defendant
contends this case is similar to Kolender because: defendant
was not told he had been judged noncompliant and thus was
responsible for extended reporting; there was no actual notice
of the fact of the extension until after defendant=s arrest; there
was no actual notice to defendant of his felony liability; and
extensions and arrests did not follow every incident of
noncompliance. Accordingly, defendant claims the extensions
and arrests in this case were done solely at the discretion of
the police officers.
We disagree with the circuit court and defendant that this
case is similar to Kolender. At issue in Kolender was a criminal
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statute requiring persons who loiter or wander on the streets to
provide a Acredible and reliable@ identification and to account
for their presence when requested by a peace officer under
circumstances that would justify a stop under the standards of
Terry v. Ohio, 392 U.S. 1, 20 L. Ed. 2d 889, 88 S. Ct. 1868
(1968). Kolender, 461 U.S. at 353, 75 L. Ed. 2d at 906, 103 S.
Ct. at 1856. The Supreme Court held the statute violated the
due process clause of the fourteenth amendment because the
statute contained no standard for determining what a suspect
had to do to satisfy the requirement that he provide a Acredible
and reliable@ identification. Kolender, 461 U.S. at 358, 75 L. Ed.
2d at 909, 103 S. Ct. at 1858. The Supreme Court observed
that the statute vested Avirtually complete discretion in the
hands of the police to determine whether the suspect has
satisfied the statute and must be permitted to go on his way in
the absence of probable cause to arrest.@ Kolender, 461 U.S.
at 358, 75 L. Ed. 2d at 909, 103 S. Ct. at 1858. The full
discretion afforded to the police to determine whether a
suspect had provided a Acredible and reliable@ identification
entrusted lawmaking to the judgment of the policeman,
moment to moment, and conferred upon police a A >virtually
unrestrained power to arrest and charge persons with a
violation.= @ Kolender, 461 U.S. at 360, 75 L. Ed. 2d at 911, 103
S. Ct. at 1860, quoting Lewis v. City of New Orleans, 415 U.S.
130, 135, 39 L. Ed. 2d 214, 220, 94 S. Ct. 970, 973 (1974)
(Powell, J., concurring in result). The Supreme Court noted that
although the initial detention was justified, the statute was
unconstitutionally vague because the statute failed to establish
standards by which the officers could determine whether the
suspect had complied with the subsequent identification
requirement. Kolender, 461 U.S. at 361, 75 L. Ed. 2d at 911,
103 S. Ct. at 1860.
In this case, there is no corresponding constitutional
problem with regard to the Registration Act and the Code. As
discussed, those provisions clearly state what an offender must
do in order to violate the Registration Act and in order to
become subject to the 10-year registration extension and the
Class 4 felony penalty. In contrast to the statute at issue in
Kolender, the Registration Act and the Code give no discretion
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to law enforcement officers and triers of fact to determine
whether an offender has violated the Registration Act and the
Code.
We also disagree with the circuit court and defendant that
the Registration Act and the Code vest complete discretion in
the hands of law enforcement officers because extensions and
arrests did not follow every incidence of noncompliance. In this
case, defendant failed to register for the years 2000 and 2001,
in violation of the Registration Act. The 10-year extension for
violating the Registration Act first was imposed when
defendant resumed registering in 2002. As the State observes,
tolling the application of the extension period reflected a
commonsense reading of the statute. If an extension began to
run at the time of the violation, a sex offender could simply Alie
low@ until the extension expired, thereby rendering the
registration scheme a nullity. In fact, the 2002 amendment to
section 7 confirms the State=s interpretation of the statute.
Effective August 2, 2002, section 7 was amended to provide
that A[t]he registration period for any sex offender who fails to
comply with any provision of the Act shall extend the period of
registration by 10 years beginning from the first date of
registration after the violation.@ (Emphasis added.) 730 ILCS
150/7 (West 2004). Consequently, we accord no significance to
the fact that extensions were not imposed upon the first
instance of defendant=s noncompliance with registration
requirements.
Likewise, the fact that defendant was not arrested when he
registered in 2002, following two years of noncompliance with
the Registration Act, does not establish that the statute vests
complete discretion in the hands of police officers. As the State
has argued, under the Criminal Code, a police officer may
arrest when he has reasonable ground to believe that an
offense has been committed (725 ILCS 5/107B2(c) (West
2002)), but he is not required to do so. A[T]here is no right to be
arrested once an alleged violation has occurred.@ People v.
Lawson, 67 Ill. 2d 449, 457 (1977).
Accordingly, we find that the Registration Act and the Code
do not promote arbitrary enforcement and are not
unconstitutionally vague as applied to defendant under the due
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process clauses of the Illinois and the United States
Constitutions. It follows, then, that those provisions are not
unconstitutionally vague on their face. We therefore reverse
the circuit court=s finding that the Registration Act and the Code
are unconstitutionally vague in violation of the due process
clause.
For the foregoing reasons, we reverse the circuit court=s
order declaring the Registration Act and the Code
unconstitutional. We therefore remand this cause for further
proceedings consistent with this opinion.
Circuit court judgment reversed;
cause remanded.
JUSTICE BURKE took no part in the consideration or
decision of this case.
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