Tag Archives: Statutory Interpretation

People v. Minnis, 730 ILCS 150/3(a), and the Facially Unconstitutional Challenge

I attended the oral arguments for the criminal law case of People v. Minnis, number 119563, today before the Illinois Supreme Court.  The oral arguments were held at Benedictine University, in Lisle, Illinois.

The issue raised in Minnis was “[W]hether the First Amendment is violated by 730 ILCS 150/3(a), which requires that a registered sex offender report all “Internet communications identities” and URL’s which he or she uses or plans to use and all blogs or other sites which the registrant maintains or to which he or she has uploaded any content or posted information, because the statute chills expressive activity that is protected by the First Amendment and is not limited to communications which concern the legitimate State interest of protecting the public and minors.”  In Minnis, a juvenile who was originally adjudicated delinquent for a class A misdemeanor offense and required to register under the criminal sex offender registration law subsequently failed to register his Facebook account several days after uploading a new profile picture.  The juvenile had provided the information in previous registrations but forgot to list Facebook in his most recent registration.  The Defendant was later charged with a class 3 felony in McLean County, Illinois.  The trial court found the statute unconstitutional. The challenge to the statute was two-fold, unconstitutional as applied and facially unconstitutional.  For the purposes of this article, I am going to disregard the unconstitutional as applied argument and focus on the facial challenge.

A facial challenge is a challenge to a statute in which the plaintiff alleges that the legislation is always unconstitutional.  The best argument which immediately struck me upon listening to oral arguments was not raised before the Court in oral arguments.  I have not had a chance to go through the briefs to determine whether it was raised in any brief.  However, it is a relatively clear challenge.

Under 730 ILCS 150/3(a),

             “A sex offender […] shall […] register in person and provide accurate information as required by the Department of State Police.  Such information shall include […] all e-mail addresses, instant messaging identities, chat room identities, and other Internet communications identities that the sex offender uses or plans to use, all Uniform Resource Locators (URLs) registered or used by the sex offender, all blogs and other internet sites maintained by the sex offender or to which the sex offender has uploaded any content or posted any messages or information.

In oral arguments today, there was a brief mention about jurisdiction and whether the Court lacked jurisdiction to address the section regarding e-mail addresses, instant messaging identities, chat room identities, and other Internet communications identities that the sex offender uses or plans to use, or the URL’s section.  The sole argued challenge referencing unconstitutionality as applied was with respect to the requirement that the Defendant register all blogs or other internet sites to which the sex offender has uploaded any content.  Setting aside jurisdictional issues, the first step in the analysis is to determine whether the First Amendment is implicated.

Under prior case law, anonymity and posts are considered protected speech.  Therefore, the statute, at the very least, does implicate protected speech rights.  The next step in the analysis is to determine whether the statute is content neutral.  The statute does appear to be content neutral, because it does not control what speech was made, it merely requires notification of where the speech was made.  Because the statute implicates the First Amendment, the most favorable potential standard of review for the State in this case is probably intermediate scrutiny, which would require the statute to further an important governmental interest, and the means used to regulate the speech must be substantially related to the interest. Under the Defendant’s claim of strict scrutiny, the State would be required to show a compelling governmental interest, the law is narrowly tailored to achieve the goal or interest, and that the means used is the least restrictive means available.

However, It is my belief that the sex offender registration requirement law fails even under rational basis review, which merely requires a law to be rationally related to a legitimate governmental interest.  In this case, the oral argument appeared to mix the facial challenge via the “overbreadth doctrine” of First Amendment jurisprudence, as described in People v. Clark, and the “as applied” challenge of future chilling of free speech by this Defendant.  Under the overbreadth doctrine, a law may be invalidated as unconstitutional if a substantial number of its applications are unconstitutional.

In the facially unconstitutional challenge that I raise, all first time registrants must provide the following information:

“All Uniform Resource Locators (URLs) registered or used by the sex offender, all blogs and other internet sites maintained by the sex offender or to which the sex offender has uploaded any content or posted any messages or information.”

  The phrase, “All blogs and other internet sites which the sex offender has uploaded any content or posted any messages or information” is almost completely a subset of the phrase, “All Uniform Resource Locators used by the sex offender”, with the exception certain specialized internet applications such as FTP. Most importantly, there is no limitation on how far back in time a registrant must provide information.  As compared to the phrase “uses or plans to use” as written earlier in the law, the phrase “used” is in the past tense.  “Used” requires the registrant to provide all websites the registrant has historically used.

In legal terms, the statute strips the anonymity of speech which was protected and made prior to conviction, and also requires a registrant to provide every website that they have ever visited prior to being legally required to keep track of their internet browsing history.  The failure to do so subjects every single registrant to a class 3 felony.

Phrased in plain English, all sex offenders must remember and register every single website they have ever visited since they were born.  Every webpage that they have ever typed a single word into must be revealed.  The failure to register any website means they could go to the Illinois Department of Corrections for up to five years.

Under such a reading of the statute, it seems a stretch for the State to even satisfy a rational basis standard of review. The information sought, being an entire lifetime’s worth of internet surfing, is so minimally related to the harm sought to be protected against, being the dual prongs of community safety and assisting officers in their investigations.  If we look at recent Supreme Court holdings, the Court has been slowly recognizing that a tremendous portion of a person’s life can be accessed through their electronic data.  See: Riley v. California.  It is hard to see how registration of every website a Defendant visited twenty years ago is rationally related to a legitimate government interest.   

The statute has problems even if we  only look specifically at the section of the statute which Minnis challenged – All blogs and other internet sites which the sex offender has uploaded any content or posted any messages or information.  Under this requirement, the State argued that “content” meant only other images or other files.  However, “content” is not defined in the statute.  “Content”, in fact, is every bit of information entered.  For example, if I visit Google.com and I type in “Baseball”, I have uploaded the search string, “Baseball”, as content to a search engine, which will then return my results.  Thus, I must list Google as a website I have uploaded content to.  That applies to every website I have input information to.  For example, if a Defendant were to personally donate to the NRA, under the “Money is speech” analysis, the entering of any credit card information is also speech which requires reporting.

To cast this matter in a different light, if the statute is designed to safeguard over the “internet community” a defendant frequents, then the statute fails as overbroad because it watches over every single location a defendant has ever visited in their entire lifetime.  The real world equivalent to that would be for the Defendant to be required to remember and report each and every single word they have ever spoken or place they have gone to, including instances which occurred prior to them being placed on the Sex Offender Registry.

We can examine this case at the limits of prosecutorial discretion by considering a hypothetical.  The offense is committed at the time of the failure to register, not the time of the internet usage.  In other words, suppose a Defendant used two webpages in their past and has never visited them again.  It does not matter which two.  The Defendant fails to register either webpage.  The State later obtains a copy of the computer the Defendant used pursuant to the terms of probation and discovers the failure to register.  The State duly charges the Defendant with a class 3 felony for failing to register the first webpage, and the Defendant is later convicted of the same.  At the next registration period, the Defendant fails to register the second webpage.  The failure to register the second webpage constitutes a new offense which was committed subsequent to the first offense, subjecting the Defendant to an extended term eligible ten years in the Illinois Department of Corrections.  I believe it was brought up in oral arguments that the Defendant could be required to register up to four times in one year.  Therefore, the Defendant can be convicted of up to four felonies per year for the rest of their life.

I sincerely hope this argument was raised in the briefs presented to the Court.

10/21/2016 Update:

The arguments presented above were not contained within the briefs.  The Illinois Supreme Court issued their opinion today.  People v. Minnis Opinion.  The basic analysis follows my analysis exactly, up to the decision that content neutral intermediate scrutiny was appropriate.  From there, it diverges because the argument presented to the Court was only that the previous years information required reporting, instead of the argument that all information without limitation to time was subjected to reporting.  It is unfortunate that none of the arguments above were presented to the Illinois Supreme Court, because they would have substantially broadened the “class” of innocent conduct which was required instead of being limited to only one year.  However, that is one of the basic aspects of the legal system – The Court only issues an opinion based on the arguments before them, not what the arguments could have been.

6/19/17 Update:

The U.S. Supreme Court has come down with its decision of a similar issue in Packingham v. North Carolina. The issue in Packingham was based upon the same type of challenge. The distinguishing factor between Packingham and Minnis is that Packingham was prohibited from even visiting social media websites, whereas Minnis requires registration from each website visited. At first, that would appear to be quite the distinguishing factor. However, I think it makes the Minnis case a much closer decision because Packingham essentially states there is not enough purpose to ban people from social media websites. If that is the case, and the speech is neutral and permitted in value, what is the purpose of making each Defendant, especially a juvenile, register their internet usage? At the very least, it seems to provide a small leg for those challenging Minnis to stand on.

Illinois Tobacco Products Tax Act and Micjo

This is an article which examines the Illinois Tobacco Products Tax Act of 1995 and Micjo v. Department of Business and Regulation, 78 So. 3d 124 (FL. 2nd Dist. 2012).  This is a situation where the Illinois Tobacco Products Tax Act and the Illinois Administrative Code interpretation conflict with each other as to the proper definition of “Wholesale Price”.

Applicable Rules

            35 ILCS 143/10-10 dictates that 36% of the “wholesale price of tobacco products sold” is the proper taxation rate.  “Wholesale Price” is defined according to 35 ILCS 143/10-5 as “[T]he established list price for which a manufacturer sells tobacco products to a distributor, before the allowance of any discount, trade allowance, rebate, or other reduction. In the absence of such an established list price, the manufacturer’s invoice price at which the manufacturer sells the tobacco product to unaffiliated distributors, before any discounts, trade allowances, rebates, or other reductions, shall be presumed to be the wholesale price.”  However, such tax “[I]s not imposed upon any activity in that business in interstate commerce or otherwise, to the extent to which the activity may not, under the Constitution and the Statutes of the United States, be made the subject of taxation by this State.”  35 ILCS 143/10-5 (2014).  (Emphasis added)

            86 Il. Admin. Code 660.5 (a) states that “[T]he Tobacco Products Tax is imposed upon the last distributor [. . . ] at a rate of 18% of the wholesale price of Tobacco products sold or otherwise disposed of in this state. (eff. 2010).  18% is the previous statutory tax rate prior to the amount increasing in July of 2012 to 36%, and the reference represents a non-updated administrative code provision.

            86 Il. Admin. Code 660.5 (d)(1) states that “[T]he Wholesale price for purposes of imposing the Tobacco Products Tax on the last distributor is the invoice price at which products are sold by the last distributor, before the allowance of any discounts, trade allowances, rebates, or other reductions.  Surcharges added by distributors are considered part of the wholesale price subject to tax. (Emphasis added)

Analysis

Under 86 Il. Admin. Code 660.5 (d)(1), the “Wholesale Price” is the invoice price, including any surcharges added by the distributor.  However, under 35 ILCS 143/10-10, the “Wholesale Price” is the list price, and does not make reference to any surcharges added by distributors.

            Although the Illinois Tobacco Products Tax act does not make any reference to any “surcharges” being included as part of the “Wholesale Price”, the Illinois Administrative Code purports to include all “surcharges added by the distributors.” A “surcharge” is defined as “to charge an extra fee.” (Webster 2014).  The Federal Tax appears to be a “surcharge” that has been added by a distributor on behalf of the Federal government.

            “List Price” is defined by Webster as “The basic price of an item as published in a catalog, price list, or advertisement before any discounts are taken.”

            Therefore, under the definition of “wholesale price” as provided for under the Illinois Administrative Code, the Wholesale Price is the total invoice price which includes the surcharge of Federal taxation.  Under the definition of “wholesale price” as provided for under the Illinois Tobacco Products Tax Act, the wholesale price is the established list price, prior to the addition of any surcharges.

            There do not appear to be any decisions or rulings from the Illinois Department of Revenue that explicitly answer what the proper calculation of “wholesale price” should be.  Although not directly on point, a supportive previous Illinois Department of Revenue private letter ruling on March 11, 2009  indicates that the proper tax base for the Tobacco Products Tax  should be the “established list price” equal to the actual invoice price.

            I believe the Florida Micjo decision is the correct structural analysis framework for interpreting the different definition of “wholesale price”.  In addition to the administrative code contravening the express statement of the statute, the administrative code interpretation includes as part of the “cost of pipe tobacco” federal taxation, resulting in a state tax levied upon a federal tax which bears no actual relation to the actual cost of the good sold.

The proper interpretation of “wholesale price” by the Illinois Department of Revenue should be as provided for by statute: “The established list price.”  The Administrative Code provision defaulting “wholesale price” to the “invoice price” should be overruled.

*Note – Article written in 2014.  This is the response from the Illinois Department of Revenue.

The interaction between 725 ILCS 5/112A-11.1, 725 ILCS 5/112A-11.2, and 18 U.S.C. 922 (g) (9)

This is an article which examines the interaction between 725 ILCS 5/112A-11.1, 725 ILCS 5/112A-11.2, and 18 U.S.C.  922 (g) (9).  It also highlights potential areas of concern in the interaction between the statutes.

725 ILCS 5/112A-11.1 states that,

  • “When a defendant has been charged with a violation of Section 12-1, 12-2, 12-3, 12-3.2, 12-3.4, or 12-3.5 of the Criminal Code of 1961 or the Criminal Code of 2012, the State may, at arraignment or no later than 45 days after arraignment, for the purpose of notification to the Department of State Police Firearm Owner’s Identification Card Office, serve on the defendant and file with the court a notice alleging that conviction of the offense would subject the defendant to the prohibitions of 18 U.S.C. 922(g)(9) because of the relationship between the defendant and the alleged victim and the nature of the alleged offense.” 725 ILCS 5/112A-11.1(a) (Emphasis Added)

  • “The notice shall include the name of the person alleged to be the victim of the crime and shall specify the nature of the alleged relationship as set forth in 18 U.S.C. 921(a)(33)(A)(ii). It shall also specify the element of the charged offense which requires the use or attempted use of physical force, or the threatened use of a deadly weapon, as set forth 18 U.S.C. 921(a)(33)(A)(ii). It shall also include notice that the defendant is entitled to a hearing on the allegation contained in the notice and that if the allegation is sustained, that determination and conviction shall be reported to the Department of State Police Firearm Owner’s Identification Card Office.” 725 ILCS 5/112A-11.1(b). (Emphasis Added)

  • After having been notified as provided in subsection (b) of this Section, the defendant may stipulate or admit, orally on the record or in writing, that conviction of the offense would subject the defendant to the prohibitions of 18 U.S.C. 922(g)(9). In that case, the applicability of 18 U.S.C. 922(g)(9) shall be deemed established for purposes of Section 112A-11.2. If the defendant denies the applicability of 18 U.S.C. 922(g)(9) as alleged in the notice served by the State, or stands mute with respect to that allegation, then the State shall bear the burden to prove beyond a reasonable doubt that the offense is one to which the prohibitions of 18 U.S.C. 922(g)(9) apply. The court may consider reliable hearsay evidence submitted by either party provided that it is relevant to the determination of the allegation. Facts previously proven at trial or elicited at the time of entry of a plea of guilty shall be deemed established beyond a reasonable doubt and shall not be relitigated. At the conclusion of the hearing, or upon a stipulation or admission, as applicable, the court shall make a specific written determination with respect to the allegation. 725 ILCS 5/112A-11.1 (Emphasis Added)

18 U.S.C. 922 (g) (9) states that,

“[It shall be unlawful for any person] who has been convicted in any court of a misdemeanor crime of domestic violence, to ship or transport in interstate or foreign commerce, or possess in or affecting commerce, any firearm or ammunition; or to receive any firearm or ammunition which has been shipped or transported in interstate or foreign commerce.”  18 U.S.C. 922 (g) (9)

Misdemeanor crime of domestic violence is defined in 18 U.S.C. 921 (a)(33)(A) as,

“Except as provided in subparagraph (C), the term “misdemeanor crime of domestic violence” means an offense that—

(i) is a misdemeanor under Federal, State, or Tribal law; and

(ii) has, as an element, the use or attempted use of physical force, or the threatened use of a deadly weapon, committed by a current or former spouse, parent, or guardian of the victim, by a person with whom the victim shares a child in common, by a person who is cohabiting with or has cohabited with the victim as a spouse, parent, or guardian, or by a person similarly situated to a spouse, parent, or guardian of the victim. “ 18 U.S.C. 921 (a) (33)  (Emphasis Added) [Note, there was no subparagraph (c) ever enacted]

I was doing a little bit more research on the interaction between 922 (g) (9) and 725 ILCS 5/112A-11.1 when I ran across U.S. v. Hayes, 555 U.S. 415 (2009).  Hayes held that the existence of a domestic relationship, although it must be established beyond a reasonable doubt, need not be a defining element of the predicate offense to support a conviction for possession of a firearm by a person convicted of a misdemeanor crime of domestic violence.  Hayes instead held that the word “element” applied only to the phrase,  “use or attempted use of physical force”.  The entire U.S. v. Hayes opinion from the U.S. Supreme Court should be read, including Justice Robert’s dissent.  It actually surprised me that only Justices Roberts and Scalia dissented.

However, 725 ILCS 5/112-11.1 purports to apply when a defendant has been charged with a violation of Section 12-1, 12-2, 12-3, 12-3.2, 12-3.4, or 12-3.5 of the Criminal Code of 1961 or the Criminal Code of 2012, and that conviction of those offenses would subject the Defendant to the prohibitions of 18 U.S.C. 922 (g) (9).

720 ILCS 5/12-1 is the Illinois statutory citation for assault. 720 ILCS 5/12-2 is the Illinois statutory citation for aggravated assault. 720 ILCS 5/12-3 is the Illinois statutory citation for battery.  720 ILCS 5/12-3.2 is the Illinois statutory citation for domestic battery.  720 ILCS 5/12-3.4 is the Illinois statutory citation for violation of an order of protection.  720 ILCS 5/12-3.5 is the Illinois statutory citation for interference with the reporting of domestic violence.

An important factor to note is that no domestic relationship is an element to 720 ILCS 5/12-1, 12-2, or 12-3.  Indeed, the existence of a domestic relationship need not even be alleged.  Further, Sections 3.4 and 3.5 do not require as an element the use or threatened use of force.  By a narrow reading, even section 3.2 does not have as an element that the offense be committed by a current or former spouse, parent, or guardian of the victim, by a person with whom the victim shares a child in common, by a person who is cohabiting with or has cohabited with the victim as a spouse, parent, or guardian, or by a person similarly situated to a spouse, parent, or guardian of the victim. Instead, section 3.2 only requires that the victim be a family or household member, which also includes relationships such as siblings, and dating and formerly dating relationships.  Although designated relationships of 18 U.S.C. 922 are a subset of the Illinois definition of family or household relationships, the Illinois family or household relationships are not a subset of 18 U.S.C. 922, and the burdens of complying with 18 U.S.C. 922 are higher than the burdens of complying with the Illinois statutes.

Therefore, 725 ILCS 5/112A-11 permits the State to file a notice with the Court an allegation that the provisions of 18 U.S.C. 922 would apply when the Defendant is charged with a variety of offenses, when only some situations contain sufficient elements such that 18 U.S.C. 922 is truly applicable.

In an attempt to harmonize the statutes, the Court may construe the statutes as permitting the State to file with the Court a notice that 18 U.S.C. 922 is applicable to a wide range of cases, but the State would be unable to prove that 18 U.S.C. 922 is applicable to any charge at the secondary hearing.  Alternatively, if the Court finds that the federal domestic relationship definition requires as an element a more narrow classification than the Illinois domestic relationship definition, and because only some Illinois domestic relationships satisfy the higher Federal burden instead of all Illinois domestic relationships, the statute is unsalvageable.

*Note – Article written in 2013.