Judicial Rulings

Registration of child sex offenders

On October 17 the Illinois Supreme Court affirmed lower court findings that laws requiring registration of certain child sexual offenders is constitutional.

In 1986 the General Assembly passed the Habitual Child Sex Offender Registration Act (see Illinois Revised Statutes 1989, ch. 38, secs. 221-230). This was a response to the growing number of sexual crimes against children and attempted to facilitate the work of law enforcement agencies. It requires those convicted a second time of child sexual assault or abuse to register with local law enforcement authorities whenever they move and applies for 10 years after release from prison or completion of probation. Registration consists of a signed statement giving information to be determined by the Department of State Police and may include fingerprints and photographs. Law enforcement agencies are required to hold it in confidentiality.

In the present case the court rejected challenges on several constitutional grounds. It found that the registration is not cruel and unusual punishment because "the statutory duty is neither imprisonment nor a fine. It imposes no restraints on liberty or property. In short, by traditional definition, the duty to register is not punishment." Even if it were punishment it could not be termed cruel since the stigma claimed by the defendant, placed on him after his debt to society was paid, actually results from his own actions and is already a matter of public record.

The court also ruled that there was no denial of due process since "the means adopted are a reasonable method of accomplishing the desired objective," namely the protection of children by allowing law enforcement agencies to track habitual offenders.

Nor can the requirement be seen as violating equal protection by singling out such offenders from others, such as child pornographers or exploiters of child prostitutes. The court said, "When the legislature creates a statute, it is not required to solve all the evils of a particular wrong in one fell swoop. The legislature may tailor a statute to the particular problem it is seeking to solve." Justice Joseph H. Cunningham wrote the opinion in People v Adams (Docket No. 70462).

Attorney malpractice: matter of contract not tort

An October 31 decision of the Illinois Supreme Court may reflect current drives to limit" claims in tort. It places some claims of attorney malpractice under contract law rather than tort law.

The plaintiff's lawyer had drawn an installment sale contract for her business that inadequately protected her interest when the buyer pledged it for a loan and then defaulted. She brought malpractice action against the lawyer under both tort and contract law.

The precedent case here is 2314 Lincoln Park West Condominium Association v Mann, Gin, Ebel & Frazier. Ltd. (136 Ill.2d 302 (1990); see Illinois Issues, July 1990, p. 41). This held that claims for economic damages arising from professional malpractice are to be made exclusively under contract law except where there is intentional or negligent misrepresentation.

The court ruled that this plaintiff's losses "are clearly economic in nature" and said that "there is simply no basis under the facts of this case upon which to distinguish between architects ... as professionals, and attorneys." Extension of the principle to attorneys would have narrow exceptions where an attorney failed to protect interests of a third party that the client wished to benefit or where the normal fiduciary and ethical duties of lawyers to clients are involved.

Justice Thomas J. Moran wrote for the majority in Collins v Reynard (Docket No. 70325). Chief Justice Benjamin K. Miller, joined by Justice Charles E. Freeman, dissented. Miller argued for the traditional tort approach to such cases. He said: "The purpose of retaining counsel is to obtain a representative who will ... act profesionally, with reasonable skill and ability, to advance the client's interests. It would be rare for an attorney to guarantee or promise to achieve a particular result."

New standard for sex offenses: same as all crimes

An October 31 decision of the Illinois Supreme Court changed the standard of review in sex offense cases when sufficiency of evidence is challenged on appeal. It is now the same as the standard for all other criminal cases.

Previously, a victim's evidence had to be clear and convincing or substantially corroborated. This was originally seen as a safeguard for the accused in the light of a perceived ease of rape charges and difficulty of defense. It has traditionally applied to all charges of sex offense. Some recent appellate court decisions have refused to apply it, finding it sexist, arbitrary and inconsistent with the reasonable doubt standard applying to testimony of victims of other crimes. The court ruled that the test should be the standard given in People v Collins (106 Ill.2d 237 (1985)) that "criminal convictions are not to be overturned on review unless the evidence is so improbable or unsatisfactory that it creates a reasonable doubt of the defendant's guilt." This is to apply to all criminal cases.

Justice Thomas J. Moran wrote the opinion in People v Schott (Docket No. 70861).

'Gang-transfer' constitutional

Illinois law provides for transfer from juvenile court to criminal court of a juvenile overage 15 charged with forcible felonies if he or she has had a previous conviction for a forcible felony and if the act was committed by an organized gang (see Ill. Rev. Stat. 1989, ch. 37, sec. 805-4(3.1). On October 31 the Illinois Supreme Court declared the law constitutional.

Juvenile court is a division of the circuit court. Under transfer, the court said, "The circuit court ... retains the power to adjudicate, apply the law and render a final determination." Thus the act is not an unconstitutional infringement of the court's powers.

The hearing to determine whether there will be a transfer does not create the possibility of double jeopardy. The juvenile judge must determine "(1) whether the minor has had prior delinquency adjudications, and (2) whether the charged criminal offense was committed in furtherance of criminal gang activity." The state does not have to prove culpability and the hearing does not establish innocence or guilt.

The existence of other statutory provisions for transfer from juvenile to criminal court does not raise danger of unequal protection. The gang-transfer law serves a legitimate governmental interest: "Clearly, the provision, by increasing the likelihood of criminal prosecution and sentencing, is aimed at decreasing the level of gang violence in our society."

Justice Charles E. Freeman wrote the opinion in People v P.H. (Docket No. 70875). In a special concurrence. Chief Justice Benjamin K. Miller, joined by Justice Joseph H. Cunningham, urged that probable cause, the standard of proof in discretionary transfer hearings, also be applied to gang-transfer hearings to avoid future questions.

F. Mark Siebert

30/December 1991/Illinois Issues