People v. Legoo , 2020 IL 124965 ( 2020 )

2020 IL 124965IN THE
SUPREME COURT
OF
THE STATE OF ILLINOIS
(Docket No. 124965)
THE PEOPLE OF THE STATE OF ILLINOIS, Appellee, v.
PATRICK A. LEGOO, Appellant.
Opinion filed June 18, 2020.
JUSTICE KILBRIDE delivered the judgment of the court, with opinion.
Justices Karmeier, Theis, Neville, and Michael J. Burke concurred in the
judgment and opinion.
Justice Garman dissented, with opinion, joined by Chief Justice Anne M.
Burke.
OPINION
¶1 Defendant, Patrick A. Legoo, was convicted of being a child sex offender in a
public park in violation of section 11-9.4-1(b) of the Criminal Code of 2012 (Code)
(720 ILCS 5/11-9.4-1(b) (West 2016)). On appeal, defendant contended his
conviction must be reversed because an exception to criminal liability contained in
section 11-9.3(a-10) of the Code (720 ILCS 5/11-9.3(a-10) (West 2016)), allowing
a child sex offender to be present in a public park when accompanied by his own
child, should be read into section 11-9.4-1(b). The appellate court rejected
defendant’s contention and affirmed his conviction. 2019 IL App (3d) 160667. For
the reasons that follow, we affirm the appellate court’s judgment.
¶2 BACKGROUND
¶3 Defendant was charged in the circuit court of La Salle County with the
misdemeanor offense of being a child sex offender in a public park (720 ILCS 5/11-
9.4-1(b) (West 2016)). At his bench trial, Mendota Police Department detective
sergeant David Lawson testified that he was attending his grandson’s T-ball game
at Strouss Park in Mendota when he saw defendant in the park. Lawson was familiar
with defendant from prior contacts and believed he was a registered sex offender.
After observing defendant ride his bicycle through an area between three baseball
diamonds, Lawson called the Mendota Police Department to report defendant’s
presence in the park.
¶4 Officer Kevin Corrigan testified that he went to defendant’s residence later that
night. When asked about his presence in the park, defendant stated he went there to
look for his son. The State also submitted a certified copy of defendant’s 2006
conviction of criminal sexual abuse.
¶5 After the State rested, defendant’s son, C.G., testified that he was watching a
baseball game in the park when defendant arrived and told him to go home. C.G.
testified that he refused to leave because he wanted to watch the rest of the baseball
game. Defendant then left the park.
¶6 Defendant testified that he rode his bicycle to the park looking for C.G.
Defendant found him sitting on the bleachers watching a baseball game with a girl.
Defendant told C.G. to come home because it was getting late. C.G. replied that he
would come home after the game. After telling C.G. that he would be in trouble if
he did not come home, defendant left the park. Defendant testified that his fiancée
was out of town and no one else was available to retrieve C.G. from the park that
night. Defendant testified that he spent less than five minutes in the park.
-2-
¶7 Following the close of evidence, defendant’s attorney argued that it was a
necessity for defendant to go into the park to get his son. Counsel argued no one
else was available to retrieve defendant’s son that night. Defense counsel also
claimed that the statutes prohibiting the presence of child sex offenders in public
parks were in conflict because section 11-9.4-1(b) did not include the exception to
criminal liability contained in section 11-9.3(a-10).
¶8 The trial court rejected defendant’s necessity defense, stating it was not
applicable to these facts. The court then observed that section 11-9.3(a-10) of the
Code (720 ILCS 5/11-9.3(a-10) (West 2016)), providing for a felony offense,
permits a child sex offender to be present in a public park and communicate with a
child under 18 years of age if the offender’s minor child is also present in the park.
The misdemeanor statutory provision at issue, however, strictly forbids child sex
offenders from being present in public parks. The trial court commented,
“[a]pparently, one, you just can’t be in the park. The second one, if you want to get
away from the felony, you can approach, but only if it’s a kid. That’s ridiculous,
but it’s the way it is.” The trial court, therefore, found defendant guilty of the
charged offense. Defendant was subsequently sentenced to 30 days in jail and 2
years’ conditional discharge. The trial court stayed execution of the sentence
pending appeal.
¶9 On appeal, defendant argued that his conviction should be reversed because the
exception contained in section 11-9.3(a-10) must be read into section 11-9.4-1(b).
2019 IL App (3d) 160667, ¶ 8. The appellate court acknowledged a certain amount
of “overlap” between the two statutes but maintained that they also have important
differences, including in the offenders they apply to, the conduct prohibited, and
the applicable penalties. 2019 IL App (3d) 160667, ¶ 13. The appellate court
concluded that, “[w]hile this statutory scheme may not be the cleanest means of
achieving its desired end, there is no reason to read the exception from section 11-
9.3(a-10) into section 11-9.4-1(b) as [defendant] requests.” 2019 IL App (3d)
160667, ¶ 13. The appellate court, therefore, affirmed defendant’s conviction. 2019
IL App (3d) 160667, ¶ 16.
¶ 10 We allowed defendant’s petition for leave to appeal (Ill. S. Ct. R. 315 (eff. July
1, 2018)).
-3-
¶ 11 II. ANALYSIS
¶ 12 On appeal to this court, defendant renews his claim that the exception to
criminal liability contained in section 11-9.3(a-10) must be read into section 11-
9.4-1(b). According to defendant, the statutory scheme and history evince a
legislative intent to include the exception from section 11-9.3(a-10) in section 11-
9.4-1(b), despite the legislature not explicitly providing for any exception to
liability in section 11-9.4-1(b). Defendant further argues that, if the exception is not
included in section 11-9.4-1(b), the provision is unconstitutional because it violates
the fundamental right of parents to raise and care for their children. Defendant,
therefore, concludes that this court should read the exception into section 11-9.4-
1(b) both as a matter of statutory construction and to avoid finding the statute
unconstitutional.
¶ 13 The State responds that the plain language of section 11-9.4-1(b) does not
contain any exception to criminal liability for offenders when their children are
present. Rather, the plain language of the statute reflects the legislature’s clear
intent to impose a flat ban on the presence of child sex offenders in public parks.
The legislature did not simply forget to include the exception in section 11-9.4-
1(b). The State also maintains that defendant has not cited any precedent holding
that the constitutional right of parents to raise and care for their children necessarily
includes taking their children to a public park.
¶ 14 The cardinal rule of statutory construction is to ascertain and give effect to the
intent of the legislature. People v. Pearse, 2017 IL 121072, ¶ 41. The best indicator
of legislative intent is the statutory language, given its plain and ordinary meaning.
In re Hernandez, 2020 IL 124661, ¶ 18. When the statutory language is clear and
unambiguous, we will apply it as written without resort to aids of statutory
construction. People v. Williams, 2016 IL 118375, ¶ 15. We may not depart from
the plain language and meaning of a statute by reading into the statute exceptions,
limitations, or conditions that the legislature did not express. People v. Dupree,
2018 IL 122307, ¶ 31. The construction of a statute is reviewed de novo. People v.
Manning, 2018 IL 122081, ¶ 16.
¶ 15 In this case, defendant was convicted of violating section 11-9.4-1(b) of the
Code. Section 11-9.4-1(b) states:
-4-
“It is unlawful for a sexual predator or a child sex offender to knowingly be
present in any public park building or on real property comprising any public
park.” 720 ILCS 5/11-9.4-1(b) (West 2016).
An initial violation of section 11-9.4-1 is a Class A misdemeanor, and a second or
subsequent violation is a Class 4 felony. 720 ILCS 5/11-9.4-1(d) (West 2016).
¶ 16 We recently construed section 11-9.4-1(b) in People v. Pepitone, 2018 IL
122034. In that case, the defendant was charged with violating section 11-9.4-1(b)
after he was found walking his dog in a public park. Pepitone, 2018 IL 122034, ¶ 4.
The defendant was convicted of the offense and contended on appeal that the statute
was facially unconstitutional on due process grounds. Pepitone, 2018 IL 122034,
¶ 13.
¶ 17 In rejecting the defendant’s argument on that issue, this court construed the
plain language of section 11-9-4.1(b), concluding “[t]he statute, then, completely
bars sex offenders who have targeted children from public parks.” Pepitone, 2018
IL 122034, ¶ 18. We explained that the statute “makes the status of the defendant
an element of the offense” and prohibits a convicted child sex offender’s knowing
presence in a public park. Pepitone, 2018 IL 122034, ¶ 26.
¶ 18 The plain language of section 11-9.4-1(b) does not contain any express
exception. Rather, as we held in Pepitone, the statutory language imposes a flat ban
on certain sex offenders being present in public parks.
¶ 19 Defendant, nonetheless, contends that we should read the exception to criminal
liability found in section 11-9.3(a-10) into section 11-9.4-1(b). Section 11-9.3(a-
10) provides that
“[i]t is unlawful for a child sex offender to knowingly be present in any public
park building, a playground or recreation area within any publicly accessible
privately owned building, or on real property comprising any public park when
persons under the age of 18 are present in the building or on the grounds and to
approach, contact, or communicate with a child under 18 years of age, unless
the offender is a parent or guardian of a person under 18 years of age present
in the building or on the grounds.” (Emphasis added.) 720 ILCS 5/11-9.3(a-10)
(West 2016).
-5-
A violation of section 11-9.3 is a Class 4 felony. 720 ILCS 5/11-9.3(f) (West 2016).
¶ 20 Defendant argues that the legislature intended for sections 11-9.3(a-10) and 11-
9.4-1(b) to be read together to protect children from convicted sex offenders while
also preserving sex offenders’ parental rights. According to defendant, sections 11-
9.3(a-10) and 11-9.4-1(b) are “inextricably intertwined,” and the legislature
intended to include in section 11-9.4-1(b) the exception to criminal liability
applicable when a child sex offender is present in a park with his or her minor child.
Defendant maintains that, as written, the two statutes conflict because section 11-
9.4-1(b) completely bars certain sex offenders from parks while section 11-9.3(a-
10) provides an exception to criminal liability if the offender’s minor child is
present.
¶ 21 We agree with the appellate court that, while the statutes may overlap, they also
differ in important respects. First, the statutory provisions apply to different people.
Section 11-9.4-1 begins by incorporating the definition of “child sex offender” from
section 11-9.3(d) but then carves out specific exceptions to that definition. See 720
ILCS 5/11-9.4-1(a) (West 2016) (stating “ ‘[c]hild sex offender’ has the meaning
ascribed to it in subsection (d) of Section 11-9.3 of this Code, but does not include
as a sex offense under paragraph (2) of subsection (d) of Section 11-9.3, the
offenses under subsections (b) and (c) of Section 11-1.50 or subsections (b) and (c)
of Section 12-15 of this Code”). As we observed in Pepitone:
“Section 11-9.4-1(b) does not include in its definition of ‘child sex offender’
persons convicted of ‘Romeo and Juliet’ criminal sexual abuse under sections
11-1.50(b) and (c). See 720 ILCS 5/11-9.4-1(a) (West 2016); 96th Ill. Gen.
Assem., Senate Proceedings, Mar. 16, 2010, at 55 (statements of Senator
Althoff) (stating that the bill that became section 11-9.4-1 ‘excludes those
convicted of criminal sexual abuse involving consensual sex when the accused
is under seventeen and the victim is between nine and sixteen years of age and
when the victim is thirteen to sixteen years of age and [the] accused is less than
five years older’).” Pepitone, 2018 IL 122034, ¶ 29.
Thus, in enacting section 11-9.4-1(b), the legislature considered section 11-9.3 and
determined that certain individuals falling within the prohibition of that section
would not also be subject to section 11-9.4-1(b).
-6-
¶ 22 Second, the statutory provisions prohibit different conduct. Section 11-9.4-1(b)
prohibits certain sex offenders from entering or being present in public parks. 720
ILCS 5/11-9.4-1(b) (West 2016). In contrast, section 11-9.3(a-10) criminalizes the
act of approaching, contacting, or communicating with a minor while in a public
park unless the offender’s minor child or ward is also present. 720 ILCS 5/11-9.3(a-
10) (West 2016). Indeed, after observing that section 11-9.3(a-10) is almost
identical to the former section 11-9.4(a), this court held “[s]ection 11-9.4(a) did not
criminalize sex offenders’ mere presence in public parks but rather specific conduct
by sex offenders—approaching, contacting, or communicating with minors.”
Pepitone, 2018 IL 122034, ¶¶ 27-28. Sections 11-9.3(a-10) and 11-9.4-1(b) are,
therefore, aimed at different conduct.
¶ 23 And third, the provisions impose different punishments. Section 11-9.4-1
provides that an initial violation is a Class A misdemeanor (720 ILCS 5/11-9.4-1(d)
(West 2016)), while a violation of section 11-9.3 is a Class 4 felony. 720 ILCS
5/11-9.3(f) (West 2016). Thus, as we held in Pepitone, the legislature “clearly
attempted to limit the application of section 11-9.4-1(b) and its penalty.” Pepitone,
2018 IL 122034, ¶ 29.
¶ 24 The harsher punishment for a violation of section 11-9.3(a-10) is justified by
the greater threat to public safety posed by the conduct prohibited in that section,
involving a child sex offender actively approaching, contacting, or communicating
with a minor in a public park. Given the harsher punishment, the legislature may
have determined that an exception to criminal liability is appropriate for that
offense when an offender’s minor child is present. The exception may account for
an innocent explanation for a defendant’s conduct. In contrast, the prohibition on
simply being present in a public park under section 11-9.4-1(b) is essentially a
preventative measure. See Pepitone, 2018 IL 122034, ¶ 31 (holding that section 11-
9.4-1(b) is rationally related to the goal of denying certain offenders the opportunity
to reoffend). When viewed as a preventative measure, it makes sense that section
11-9.4-1(b) is drafted broadly without the exception contained in section 11-9.3(a-
10).
¶ 25 In any case, while reasonable justifications exist for including the exception to
criminal liability in section 11-9.3 and excluding it from section 11-9.4-1(b), we
need not determine the legislature’s precise reasoning for taking that action. A
-7-
comparison of section 11-9.4-1(b) and section 11-9.3 establishes several important
differences in those statutes. Our review of the statutes does not reveal any
legislative intent to include the exception to criminal liability from section 11-9.3(a-
10) in section 11-9.4-1(b).
¶ 26 Ultimately, as the State maintains, defendant’s argument reduces to an assertion
that the legislature intended to include the exception to criminal liability from
section 11-9.3(a-10) but forgot to include that language in section 11-9.4-1(b). We
cannot add the language to section 11-9.4-1(b) on that basis, however. “No rule of
construction authorizes this court to declare that the legislature did not mean what
the plain language of the statute imports, nor may we rewrite a statute to add
provisions or limitations the legislature did not include.” People v. Smith, 2016 IL
119659, ¶ 28.
¶ 27 The legislature included the exception to criminal liability or similar language
in several subsections of section 11-9.3. See 720 ILCS 5/11-9.3(a), (a-10), (b),
(b)(2) (West 2016). The legislature also considered section 11-9.3 in enacting
section 11-9.4-1(b), as shown by its incorporation of the definition of “child sex
offender” from section 11-9.3(d) into section 11-9.4-1(a). Yet the legislature did
not include any exception to criminal liability in section 11-9.4-1(b). Given these
circumstances, we believe the absence of the exception from section 11-9.4-1(b) is
a result of the legislature’s considered judgment, not an oversight. We cannot
conclude that the legislature simply forgot to include the exception in section 11-
9.4-1(b), particularly when the legislature included that language where it intended
in section 11-9.3.
¶ 28 Defendant also contends that we must add the exception to section 11-9.4-1(b)
to avoid finding the statute unconstitutional. We note that the argument on this point
is not particularly well developed. The argument was not raised in either the trial
court or the appellate court. Before this court, defendant nonetheless contends that
section 11-9.4-1(b) “deprives parents who have been convicted of child sex
offenses of their constitutional right to the society of their children,” if the exception
to criminal liability contained in section 11-9.3(a-10) is not read into the statute.
Defendant concludes that section 11-9.4-1(b), as written, violates his fundamental
right to be present with his child.
-8-
¶ 29 Statutes are presumed to be constitutional. People v. Webb, 2019 IL 122951,
¶ 7. A party challenging the constitutionality of a statute has the burden of clearly
establishing its invalidity. Webb, 2019 IL 122951, ¶ 7. We will construe a statute
to uphold its constitutionality when reasonably possible. People v. Minnis, 2016 IL
119563, ¶ 21.
¶ 30 In this case, defendant’s argument presents an as-applied challenge to section
11-9.4-1(b). An as-applied challenge requires a showing that the statute is
unconstitutional as it applies to the specific facts and circumstances of the
challenging party. People v. Thompson, 2015 IL 118151, ¶ 36.
¶ 31 Defendant correctly observes that parents have a fundamental liberty interest,
protected by the due process clause, in raising and caring for their children. In re
N.G., 2018 IL 121939, ¶¶ 24-25. A parent’s interest in the care, custody, and control
of his or her children “is perhaps the oldest of the fundamental liberty interests
recognized by [the United States Supreme Court].” Troxel v. Granville, 530 U.S.
57, 65 (2000). The liberty interest includes the right of parents to direct the
upbringing and education of their children and to make decisions involving the care,
custody, and control of their children. Troxel, 530 U.S. at 65-66.
¶ 32 We observe, however, that there is no fundamental right for any person to be
present in a public park. Pepitone, 2018 IL 122034, ¶ 14; Doe v. City of Lafayette,
377 F.3d 757, 772-73 (7th Cir. 2004) (holding that the right to enter public parks is
not fundamental). Defendant does not cite any authority holding that he is entitled
to take his child to a public park as part of his liberty interest in raising and caring
for his child. If defendant does not have a fundamental liberty interest to be present
in a park, it follows that he does not have a fundamental right to take his child to a
park either.
¶ 33 Here, defendant argued at trial that it was necessary for him to enter the park to
get his son because no one else was available to retrieve him that night. A necessity
defense may be raised when the defendant’s conduct is justifiable because he or she
“was without blame in occasioning or developing the situation and reasonably
believed such conduct was necessary to avoid a public or private injury greater than
the injury which might reasonably result from his own conduct.” 720 ILCS 5/7-13
(West 2016). Under appropriate circumstances, defendant could raise a viable
necessity defense to justify his act of entering the park in violation of section 11-
-9-
9.4-1(b). In this case, however, the trial court rejected that defense at trial. The trial
court stated a necessity defense could not be applied to these facts. On appeal,
defendant has not challenged the trial court’s decision rejecting his necessity
defense.
¶ 34 Defendant, therefore, failed to establish that it was necessary for him to enter
the park to retrieve his son. Further, we note that, even if defendant did not have
anyone else available to help retrieve his son from the park, he could have called
the police department for assistance rather than entering the park himself in
violation of section 11-9.4-1(b).
¶ 35 In sum, the facts here simply do not establish that section 11-9.4-1(b), as
written, interfered with defendant’s fundamental liberty interest in raising and
caring for his child. Accordingly, defendant has not established that we must read
the exception from section 11-9.3(a-10) into section 11-9.4-1(b) to avoid finding
the statute unconstitutional as applied in this case.
¶ 36 In conclusion, we note that the trial court expressed concern about the confusion
that arises in applying sections 11-9.3 and 11-9.4-1. The trial court explained that,
“[w]hen it’s sex offenders in the park, I get this conflicting statute argument all the
time and nobody bothers to straighten it out for us.” The appellate court also
observed that the statutes may overlap to some extent and commented that the
“statutory scheme may not be the cleanest means of achieving its desired end.”
2019 IL App (3d) 160667, ¶ 13. We agree that the statutes, when read together,
may appear to overlap in some situations. The offenders governed by the statutes
and those responsible for their enforcement both certainly benefit from clear
statutory provisions on this subject. Accordingly, we urge the legislature to review
this matter and consider clarifying the statutory provisions.
¶ 37 III. CONCLUSION
¶ 38 For the above reasons, we conclude that the appellate court did not err in
construing section 11-9.4-1(b) in accordance with its plain language. Section 11-
9.4-1(b) completely bars certain sex offenders from being present in public parks.
We, therefore, affirm the appellate court’s judgment affirming defendant’s
- 10 -
conviction for violating section 11-9.4-1(b) of the Code.
¶ 39 Affirmed.
¶ 40 JUSTICE GARMAN, dissenting:
¶ 41 Defendant was convicted of violating section 11-9.4-1(b) of the Criminal Code
of 2012, which makes it “unlawful for a sexual predator or a child sex offender to
knowingly be present in any public park building or on real property comprising
any public park.” 720 ILCS 5/11-9.4-1(b) (West 2016). That subsection contains
no exceptions; it is a complete bar on child sex offenders being present in a park.
Section 11-9.3(a-10) provides that it is unlawful for a child sex offender to
knowingly be present in a park “when persons under the age of 18 are present in
the building or on the grounds and to approach, contact, or communicate with a
child under 18 years of age, unless the offender is a parent or guardian of a person
under 18 years of age present in the building or on the grounds.” Id. § 11-9.3(a-10).
¶ 42 Section 11-9.3(d) defines a “child sex offender” as any person who has been
charged under Illinois law or a substantially similar federal or state law of a listed
sex offense or an attempt to commit a listed offense with a victim under 18 years
of age and is convicted, found not guilty by reason of insanity, or subject to a
finding not resulting in an acquittal. Id. § 11-9.3(d). Section 11-9.4-1 defines “child
sex offender” by expressly adopting that definition but excluding Romeo and Juliet
offenders. See supra ¶ 21 (citing Pepitone, 2018 IL 122034, ¶ 29).
¶ 43 We see from section 11-9.3(a-10) that a “child sex offender” cannot enter a park
when children are present and talk with them unless his own child is also present.
If his own child is present with him, he can not only be present at the park but can
be present when other children are present and even talk to those other children.
Section 11-9.4-1(b), however, says that he cannot knowingly be present in a park—
whether children are there or not—unless his conviction is for one of the
exceptions. The appellate court noted that “this statutory scheme may not be the
cleanest means of achieving its desired end.” 2019 IL App (3d) 160667, ¶ 13. I
think the circuit court better described the statutory interplay: “That’s ridiculous
***.”
- 11 -
¶ 44 “When interpreting a statute, a court may always consider the consequences of
construing the law one way or another and may always consider whether a
particular interpretation of the statute will lead to absurd, inconvenient, or unjust
results.” People v. Brown, 2020 IL 124100, ¶ 30. The court “presumes that the
legislature did not intend to create absurd, inconvenient, or unjust results.” People
v. Gutman, 2011 IL 110338, ¶ 12. “We view the statute as a whole, construing
words and phrases in light of other relevant statutory provisions and not in
isolation.” Id.; see also People v. Botruff, 212 Ill. 2d 166, 174-75 (2004) (“Because
all provisions of a statutory enactment are viewed as a whole [citation], words and
phrases should not be construed in isolation, but must be interpreted in light of other
relevant provisions of the statute [citations].”); People v. Davis, 199 Ill. 2d 130, 137
(2002) (“ ‘ “It is assumed that whenever the legislature enacts a provision it has in
mind previous statutes relating to the same subject matter. *** Thus, they should
all be construed together.” ’ ” (quoting Harvel v. City of Johnston City, 146 Ill. 2d
277, 287 (1992), quoting 2A Norman J. Singer, Sutherland on Statutory
Construction § 51.02, at 453 (Sands 4th ed. 1984))). “Each word, clause, and
sentence of a statute must be given a reasonable meaning, if possible, and should
not be rendered superfluous.” Gutman, 2011 IL 110338 ¶ 12.
¶ 45 Consider the following: a child sex offender’s son asks to go to a nearby park.
When the offender tells him he cannot, the child takes off running for the park. The
offender gives chase and catches him two steps into the park. Because of this
innocent conduct, the offender has violated section 11-9.4-1(b) and, if this is the
first time, is guilty of a misdemeanor. If he brings the child into the park, however,
and talks with another child while his child is on a swing several hundred feet
away—a situation that the majority acknowledges poses a “greater threat to public
safety” (supra ¶ 24)—the offender is excepted from criminal prosecution under
section 11-9.3(a-10).
¶ 46 This analogy, as well as the facts of the case at bar, reveals the absurdity of the
majority’s interpretation. The General Assembly could not have intended to prevent
all child sex offenders except Romeo and Juliet offenders from going to the park
while creating an exclusion from the prohibition against talking with other children
for child sex offenders who bring their children. Yes, the penalties are different, but
only for the first offense. Under the majority’s interpretation, a child sex offender
who goes to a park while children are present and talks to a child, as long as his
- 12 -
own child is present, is only guilty of being present in the park and subject to a
Class A misdemeanor the first time. Thereafter he is guilty of a Class 4 felony, the
same as if he went to the park while children were present and talked to them
without his own child present. The majority reasons that that “[t]he exception [in
section 11-9.3(a-10)] may account for an innocent explanation for a defendant’s
conduct.” Supra ¶ 24. It defies logic, however, to hold that the exception does not
also apply to the less serious offense that the offender must necessarily commit to
fall within the exception, especially considering that the punishment for a second
or subsequent offense is the same Class 4 felony as the more serious offense from
which he is excepted. I do not believe the General Assembly, in its “considered
judgment” (see supra ¶ 27) intended this “ridiculous” result.
¶ 47 The more harmonious reading of the two statutes is this: a child sex offender,
except a Romeo and Juliet offender, cannot go to the park. If he does, he commits
a misdemeanor the first time and a felony thereafter. If a child sex offender,
including a Romeo and Juliet offender, goes to a park where children are present
and talks to a child, he gets no misdemeanor warning; the first offense is a felony.
If, however, a child sex offender is a parent or guardian of a child under the age of
18, he may bring that child to the park and, while he is there with his child, talk
with other children who are there. That means that he may enter and may knowingly
be present at the park, because one cannot bring his child to the park without going
himself. In order to effectuate the exception in section 11-9.3(a-10), it must be read
into section 11-9.4-1(b)). If not, the exception becomes meaningless and
superfluous, a result we are compelled to avoid. Gutman, 2011 IL 110338, ¶ 12.
¶ 48 Defendant also makes a constitutional argument. Of course, the court could
avoid this question by reading section 11-9.3(a-10)’s exception into section 11-9.4-
1(b). Instead, the majority interprets the statute in a way that potentially infringes
on defendant’s fundamental right to parent his child.
¶ 49 The majority relies on People v. Pepitone, 2018 IL 122034, ¶ 14, which held
that one has no constitutional right to enter a park. From that decision, the majority
infers that one has no right to bring one’s child to the park. Without expressing an
opinion as to whether that conclusion is correct, I note that that is not what happened
here. Defendant did not bring his child to the park; he went to the park to retrieve
his child, who was already present there. Finding one’s child at play and telling the
- 13 -
child “it’s time to come home” is one of the most basic exercises of parental control.
The majority finds that there is no violation of defendant’s constitutional right to
parent his child by answering a question this case did not present. Moreover, the
majority’s suggestion that its interpretation does not interfere with defendant’s right
to parent because he could ask the police to retrieve his son for him is unrealistic;
certainly the Mendota Police Department will not always have the time or
manpower to send an officer to the park to tell defendant’s son that it is time to go
home.
¶ 50 For the reasons stated, I would read section 11-9.3(a-10)’s exception for parents
present with their children into section 11-9.4-1(b)’s blanket prohibition on child
sex offenders’ presence in public parks to avoid the absurd result described above
and to avoid reaching the constitutional question. Accordingly, I respectfully
dissent.
¶ 51 CHIEF JUSTICE ANNE M. BURKE joins in this dissent.
- 14 -