Hadley v. Montes ( 2008 )

NO. 4-07-0506 Filed 2/26/08
IN THE APPELLATE COURT
OF ILLINOIS
FOURTH DISTRICT
WILLIE B. HADLEY, JR., ) Appeal from
Plaintiff-Appellant, ) Circuit Court of
v. ) Sangamon County
JORGE MONTES, Chairman of the Illinois ) No. 07MR60
Prisoner Review Board, and All )
Members, ) Honorable
Defendants-Appellees. ) Leslie J. Graves,
) Judge Presiding.
______________________________________________________________
JUSTICE TURNER delivered the opinion of the court:
In February 2007, plaintiff, Willie B. Hadley, Jr., an
inmate at Lawrence Correctional Center, filed a complaint for
injunctive, declaratory, and mandamus relief against defendants,
Jorge Montes, Chairman of the Illinois Prisoner Review Board
(Board), and all members, concerning the requirement that he
submit to electronic monitoring while on parole. In April 2007,
defendants filed a motion to dismiss, which the trial court
granted.
On appeal, plaintiff argues the trial court erred in
granting defendants' motion to dismiss. We affirm.
I. BACKGROUND
In February 2007, plaintiff filed a complaint for
injunctive, declaratory, and mandamus relief against defendants
based on the requirement that he submit to electronic monitoring
while on parole. Plaintiff was convicted of murder in 1976 and
sentenced to 24 to 74 years in prison. In January 2007, plain-
tiff was told his mandatory parole term would include two condi-
tions: (1) close supervision and (2) electronic home monitoring.
Plaintiff was released on parole in May 2007 with the condition
that he submit to electronic monitoring.
In his complaint, plaintiff noted the Electronic Home
Detention Law became effective in January 1991. See Ill. Rev.
Stat. 1991, ch. 38, pars. 1005-8A-1 through 1005-8A-5. As he was
convicted prior to the enactment of the law, he argued the
electronic-monitoring condition during his parole term violated
the ex post facto clauses of the United States and Illinois
Constitutions. Plaintiff claimed the condition could not be
legally applied retroactively to his crime and defendants were
prohibited from making his punishment more onerous through
application of the condition. Plaintiff asked the trial court to
find defendants' retroactive application of the electronic-
monitoring law violated the ex post facto clauses, direct defen-
dants not to impose the electronic-monitoring condition, and
order any other relief deemed appropriate. Plaintiff also filed
a motion for preliminary injunction.
In March 2007, plaintiff filed a motion for summary
judgment, alleging no genuine issues of material fact existed.
In April 2007, defendants filed a motion to dismiss pursuant to
section 2-619 of the Code of Civil Procedure (Procedure Code)
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(735 ILCS 5/2-619 (West 2006)). Defendants argued the imposition
of electronic home detention was not ex post facto because it was
merely a means to ensure that conditions of parole were being
followed. In May 2007, the trial court granted the motion to
dismiss. This appeal followed.
II. ANALYSIS
Plaintiff argues defendants violated the ex post facto
clauses of the United States and Illinois Constitutions when they
conditioned his parole on the requirement that he submit to
electronic monitoring. We disagree.
A. Standard of Review
"Mandamus is an extraordinary remedy traditionally used
to compel a public official to perform a ministerial duty."
People ex rel. Madigan v. Snyder, 208 Ill. 2d 457, 464, 804
N.E.2d 546, 552 (2004). A court will award a writ of mandamus
"only if a plaintiff establishes a clear, affirmative right to
relief, a clear duty of the public official to act, and a clear
authority in the public official to comply with the writ."
People ex rel. Ryan v. Roe, 201 Ill. 2d 552, 555, 778 N.E.2d 701,
703 (2002). "A plaintiff must set forth every material fact
necessary to show he or she is entitled to a writ of mandamus,
and the plaintiff bears the burden to establish a clear, legal
right to it." Lucas v. Taylor, 349 Ill. App. 3d 995, 998, 812
N.E.2d 72, 75 (2004), citing Chicago Ass'n of Commerce & Industry
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v. Regional Transportation Authority, 86 Ill. 2d 179, 185, 427
N.E.2d 153, 156 (1981).
In ruling on a motion to dismiss pursuant to section 2-
619 of the Procedure Code, "the trial court must interpret all
pleadings and supporting documents in the light most favorable to
the nonmoving party," and it should grant the motion "if the
plaintiff can prove no set of facts that would support a cause of
action." Rodriguez v. Sheriff's Merit Comm'n of Kane County, 218
Ill. 2d 342, 349, 843 N.E.2d 379, 382 (2006). On appeal, this
court reviews de novo the granting of a motion to dismiss a
petition for mandamus. Howell v. Snyder, 326 Ill. App. 3d 450,
453, 760 N.E.2d 1009, 1011 (2001).
When a trial court is confronted with a motion for
declaratory judgment, section 2-701 of the Procedure Code states,
in part, as follows:
"The court may, in cases of actual contro-
versy, make binding declarations of rights,
having the force of final judgments, whether
or not any consequential relief is or could
be claimed, including the determination, at
the instance of anyone interested in the
controversy, of the construction of any stat-
ute, municipal ordinance, or other governmen-
tal regulation, *** and a declaration of the
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rights of the parties interested." 735 ILCS
5/2-701(a) (West 2006).
"The essential requirements of a declaratory judgment action are:
(1) a plaintiff with a legal tangible interest; (2) a defendant
having an opposing interest; and (3) an actual controversy
between the parties concerning such interests." Beahringer v.
Page, 204 Ill. 2d 363, 372, 789 N.E.2d 1216, 1223 (2003). A
court's decision to dismiss a declaratory judgment action under
section 2-619 of the Procedure Code is subject to de novo review.
Northern Trust Co. v. County of Lake, 353 Ill. App. 3d 268, 275,
818 N.E.2d 389, 395 (2004).
B. The Electronic Home Detention Law
The Electronic Home Detention Law, which went into
effect on January 1, 1991, allows certain offenders to serve a
portion of the parole term in the community but subject to
electronic monitoring. 730 ILCS 5/5-8A-3 (West 2006). A parti-
cipant in electronic monitoring must maintain a working telephone
in his residence and keep a monitoring device on his person. 730
ILCS 5/5-8A-4(E) (West 2006). The participant is required to
remain within the interior premises or within the property
boundaries of the residence at all times except during approved
absences, including employment, medical appointments, educational
programs, religious services, or any other "compelling reason
consistent with the public interest." 730 ILCS 5/5-8A-4(A) (West
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2006).
C. The Ex Post Facto Prohibition
Under the United States Constitution, both Congress and
the states are prohibited from enacting ex post facto laws. U.S.
Const., art. I, §§9, 10. The ex post facto clause prohibits
retroactive application of a law that imposes greater punishment
than a law in effect when the crime was committed. Lynce v.
Mathis, 519 U.S. 433, 439-41, 137 L. Ed. 2d 63, 71-72, 117 S. Ct.
891, 895-96 (1997).
"'[A]ny statute which punishes as a crime an
act previously committed, which was innocent
when done; which makes more burdensome the
punishment for a crime, after its commission,
or which deprives one charged with crime of
any defense available according to law at the
time when the act was committed, is prohib-
ited as ex post facto.'" Collins v.
Youngblood, 497 U.S. 37, 42, 111 L. Ed. 2d
30, 39, 110 S. Ct. 2715, 2719 (1990), quoting
Beazell v. Ohio, 269 U.S. 167, 169-70, 70 L.
Ed. 216, 217, 46 S. Ct. 68, 68 (1925).
The Illinois Constitution also forbids the enactment of
ex post facto laws. Ill. Const. 1970, art. I, §16. Our supreme
court has interpreted the ex post facto clause of the Illinois
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Constitution in accord with the pronouncements of the United
States Supreme Court. People v. Cornelius, 213 Ill. 2d 178, 207,
821 N.E.2d 288, 306 (2004); see also Barger v. Peters, 163 Ill.
2d 357, 360, 645 N.E.2d 175, 176 (1994) ("in construing this
State's constitutional provision, we are without a basis to
depart from the Supreme Court's construction of the Federal
ex post facto clause").
Plaintiff argues he suffered a "disadvantage" when the
Board restricted his liberty upon his release on parole through
the application of electronic monitoring under section 5-8A-3 of
the Electronic Home Detention Law. Ill. Rev. Stat. 1991, ch. 38,
par. 1005-8A-3. However, plaintiff's contention that electronic
monitoring disadvantages him does not necessarily mean the
application of the parole condition violates ex post facto
principles.
"The United States Supreme Court has 'retreated from
earlier opinions suggesting that changes affecting punishment
automatically fall within the ex post facto prohibition if they
operate to the "disadvantage" of covered offenders.'" People v.
Pena, 321 Ill. App. 3d 538, 541, 747 N.E.2d 1020, 1022 (2001),
quoting In re J.R., 302 Ill. App. 3d 87, 126, 704 N.E.2d 809, 815
(1998). The Supreme Court has stated that after the decision in
Collins "the focus of the ex post facto inquiry is not on whether
a legislative change produces some ambiguous sort of 'disadvan-
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tage,' *** but on whether any such change alters the definition
of criminal conduct or increases the penalty by which a crime is
punishable." California Department of Corrections v. Morales,
514 U.S. 499, 506-07 n.3, 131 L. Ed. 2d 588, 595 n.3, 115 S. Ct.
1597, 1602 n.3 (1995). To establish an ex post facto violation,
a "plaintiff must show the following: (1) a legislative change;
(2) the change imposed a punishment; and (3) the punishment is
greater than the punishment that existed at the time the crime
was committed." Neville v. Walker, 376 Ill. App. 3d 1115, 1118-
19, 878 N.E.2d 831, 834 (2007).
Changes in laws governing the parole of prisoners may
contravene the ex post facto prohibition. Garner v. Jones, 529
U.S. 244, 250, 146 L. Ed. 2d 236, 244, 120 S. Ct. 1362, 1367
(2000); Ganci v. Washington, 318 Ill. App. 3d 1174, 1185, 745
N.E.2d 42, 50 (2001). However, not all legislative changes that
may conceivably affect a prisoner's punishment are prohibited by
the ex post facto clauses. Morales, 514 U.S. at 508-09, 131 L.
Ed. 2d at 596-97, 115 S. Ct. at 1603. The change in the law must
affect substantial rights because a procedural change is not ex
post facto. Dobbert v. Florida, 432 U.S. 282, 292, 53 L. Ed. 2d
344, 355, 97 S. Ct. 2290, 2298 (1977).
States have the authority to place conditions on parole
release. Board of Pardons v. Allen, 482 U.S. 369, 377 n.8, 96 L.
Ed. 2d 303, 312 n.8, 107 S. Ct. 2415, 2420 n.8 (1987). Moreover,
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states have an "'overwhelming interest' in ensuring that a
parolee complies" with those conditions. Pennsylvania Board of
Probation & Parole v. Scott, 524 U.S. 357, 365, 141 L. Ed. 2d
344, 353, 118 S. Ct. 2014, 2020 (1998), quoting Morrissey v.
Brewer, 408 U.S. 471, 483, 33 L. Ed. 2d 484, 495, 92 S. Ct. 2593,
2601 (1972).
In 1976, the law applicable to parolees stated the
Board had the discretion to impose conditions it "deems necessary
to assist the [parolee] in leading a law-abiding life." Ill.
Rev. Stat. 1975, ch. 38, par. 1003-3-7(a). The statute provided
a nonexhaustive list of conditions that the Board "may in addi-
tion to other conditions require" of those released on parole.
Ill. Rev. Stat. 1975, ch. 38, par. 1003-3-7(b). In 1991, the
General Assembly passed the Electronic Home Detention Law, which
allowed the Board to impose, in its discretion, electronic
monitoring as a condition of release on parole. Ill. Rev. Stat.
1991, ch. 38, par. 1005-8A-1 through 1005-8A-5.
"Whether retroactive application of a particular change
in parole law respects the prohibition on ex post facto legisla-
tion is often a question of particular difficulty when the
discretion vested in a parole board is taken into account."
Garner, 529 U.S. at 250, 146 L. Ed. 2d at 244, 120 S. Ct. at
1367.
"[W]here parole is concerned[,] discretion,
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by its very definition, is subject to changes
in the manner in which it is informed and
then exercised. The idea of discretion is
that it has the capacity, and the obligation,
to change and adapt based on experience. New
insights into the accuracy of predictions
about the offense and the risk of recidivism
consequent upon the offender's release, along
with a complex of other factors, will inform
parole decisions." Garner, 529 U.S. at 253,
146 L. Ed. 2d at 246, 120 S. Ct. at 1369.
Because states must have "due flexibility in formulating parole
procedures and addressing problems associated with confinement
and release" (Garner, 529 U.S. at 252, 146 L. Ed. 2d at 245, 120
S. Ct. at 1368), the ex post facto clauses are not to be employed
for "the micromanagement of an endless array of legislative
adjustments to parole and sentencing procedures" (Morales, 514
U.S. at 508, 131 L. Ed. 2d at 596, 115 S. Ct. at 1603).
Although a parole board's discretion does not displace
the protections of the ex post facto clauses, the issue in this
case centers on the operation of the Electronic Home Detention
Law within the context of the Illinois parole system. See
Garner, 529 U.S. at 252-53, 146 L. Ed. 2d at 245-46, 120 S. Ct.
at 1368-69. In Illinois, the Board has complete discretion in
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making parole determinations. See Hanrahan v. Williams, 174 Ill.
2d 268, 276, 673 N.E.2d 251, 255 (1996). The Board decides the
conditions of parole, the time of discharge, the imposition of
sanctions for parole violations, and the revocation of parole.
730 ILCS 5/3-3-2(a)(2) (West 2006). The Board may impose condi-
tions on parole or mandatory supervised release as it "deems
necessary to assist the subject in leading a law-abiding life."
730 ILCS 5/3-3-7(a) (West 2006). Further, offenders are subject
to rules of conduct and "any special conditions deemed appropri-
ate by the Board in individual cases." 20 Ill. Adm. Code
§1610.80, as amended by 13 Ill. Reg. 3063 (effective February 28,
1989).
The Board's exercise of discretion necessarily cannot
be restricted to those parole conditions that were feasible and
regularly imposed at a particular point in time. As new ideas
are conceived and better technology discovered, changes will have
to be made by the Board to determine the most beneficial condi-
tions to impose on parolees. Those changes, however, do not
necessarily violate the ex post facto laws even when they apply
"more severe parole guidelines than those in force when the crime
was committed." Prater v. U.S. Parole Comm'n, 802 F.2d 948, 951
(7th Cir. 1986). Here, the Electronic Home Detention Law simply
offered the Board another possibility to use at its discretion in
setting the conditions for parole.
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Moreover, the passage of the Electronic Home Detention
Law did not impose punishment. The purpose of the parole and
mandatory supervised release programs is not to punish offenders
but to extend the Department of Correction's "control over the
conduct of persons who repeatedly are denied parole and who when
released have only minimal incentives to conform to society's
standards." Faheem-El v. Klincar, 123 Ill. 2d 291, 301, 527
N.E.2d 307, 311 (1988). Here, the purpose of electronic monitor-
ing was not to punish plaintiff but to foster his return to
society through a supervised transition from prison life.
Finally, plaintiff's sentence has not been increased.
In the case sub judice, plaintiff's sentence for his 1976 murder
conviction was not increased upon the passage of the 1991 Elec-
tronic Home Detention Law and he will not be required to serve
more time on parole than he would have under the prior law.
Instead, a new parole condition was imposed that was not avail-
able when he was initially sentenced.
In 1976, when defendant committed his crime, as well as
today, the Board had the discretion to impose conditions it
deemed "necessary to assist the subject in leading a law-abiding
life." Ill. Rev. Stat. 1975, ch. 38, par. 1003-3-7(a); 730 ILCS
5/3-3-7(a) (West 2006). A change in the law that "'simply
explicitly articulate[s] the Parole Board's broad range of
discretion which had always existed'" is procedural in nature and
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does not affect the substantive rights of the parolee. Dewey v.
Prisoner Review Board, 162 Ill. App. 3d 751, 753, 516 N.E.2d 621,
623 (1987), quoting Heirens v. Mizell, 729 F.2d 449, 463 (7th
Cir. 1984). Here, the Electronic Home Detention Law simply
articulated the Board's broad range of discretion in imposing
conditions for parolees and allowed for electronic monitoring.
The statutory change did not increase the severity of plaintiff's
punishment after the commission of the crime or lengthen his term
of imprisonment.
Recently, this court considered a pro se mandamus
action wherein the plaintiff, an inmate at Lawrence Correctional
Center, claimed the Board's conditioning his transition to
mandatory supervised release on his submitting to electronic
detention violated the ex post facto clauses because the condi-
tion was added after he committed his crime and was sentenced to
prison. Neville, 376 Ill. App. 3d at 1117, 878 N.E.2d at 833.
This court affirmed the trial court's dismissal of his complaint.
In doing so, this court found the statute in question,
section 3-3-7(b-1)(6) of the Unified Code of Corrections (730
ILCS 5/3-3-7(b-1)(6) (West 2006)), provided the Board could
impose electronic monitoring on sex offenders as a condition of
release. Neville, 376 Ill. App. 3d at 1119, 878 N.E.2d at 834.
We noted the condition was not listed in the statute when the
plaintiff committed his crime but found the Board was authorized
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at all relevant times to set conditions it deemed "'necessary to
assist the subject in leading a law-abiding life.'" Neville, 376
Ill. App. 3d at 1119, 878 N.E.2d at 834, quoting 730 ILCS 5/3-3-
7(a) (West 1998).
In analyzing the plaintiff's ex post facto claims, this
court found the change in the law was "merely another possibility
added" to the Board's discretionary authority, and the "ex post
facto clauses do not apply to laws and regulations that merely
advise." Neville, 376 Ill. App. 3d at 1119, 878 N.E.2d at 834.
Further, the change in the law was not intended as punishment and
it had not worked to increase the plaintiff's sentence. Neville,
376 Ill. App. 3d at 1120, 878 N.E.2d at 835. Thus, the plaintiff
could not show an ex post facto violation.
Although this court is not bound by federal district
court decisions, "such decisions can provide guidance and act as
persuasive authority." Lucas, 349 Ill. App. 3d at 1002, 812
N.E.2d at 78. In Taylor v. Remmers, No. 01-C-5134 (N.D. Ill.
April 12, 2002) (2002 WL 554520, at *1), the plaintiff was
convicted of aggravated criminal sexual assault in 1987 and
sentenced under a 1978 law to 25 years in the Illinois Department
of Corrections, along with a mandatory supervised release term of
3 years. In January 1999, the plaintiff was released and placed
under the electronic home-detention program. Taylor, slip op. at
(2002 WL 554520, at *2). The plaintiff brought a pro se
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civil-rights action against the defendant parole officials,
alleging, inter alia, the Electronic Home Detention Law amounted
to an ex post facto law. Taylor, slip op. at (2002 WL
554520, at *2).
In an unpublished memorandum opinion and order, the
district court disagreed, stating the 1991 Electronic Home
Detention Law "did not so affect the terms and conditions of his
sentence as to violate his constitutional rights." Taylor, slip
op. at (2002 WL 554520, at *3). The court found as follows:
"The Electronic Home Detention Law simply
allows for a person on parole or mandatory
supervised release to be placed on electronic
home detention. The revision of existing
parole procedures *** did not alter a sub-
stantial, personal right. The plaintiff was
statutorily required to serve three years of
mandatory supervised release; supervised
release easily encompasses the concept of
electronic home detention, even if the tech-
nology to support that form of monitoring did
not widely exist at the time the plaintiff
committed the crime for which he was sen-
tenced.
The statute governing parole and manda-
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tory supervised release provides, 'The condi-
tions of parole or mandatory supervised re-
lease shall be such as the Prisoner Review
Board deems necessary to assist the subject
in leading a law-abiding life.' 730 ILCS
5/3-3-7(a). Electronic home detention serves
that end. The increased limitation on the
plaintiff's freedom engendered by electronic
home detention did not violate the Ex Post
Facto Clause. Such placement did not in-
crease the quantum of punishment for the
crime of which the plaintiff was convicted.
*** It is not the case that the plaintiff
was required to serve more time in prison or
on supervised release than he would under the
old law. An essentially procedural condition
of release was simply added." Taylor, slip
op. at (2002 WL 554520, at *4).
We also note other courts have found the parole condition of
electronic monitoring does not amount to an ex post facto viola-
tion. See Vineyard v. Keese, 70 F.3d 1266 (5th Cir. 1995) (1995
WL 696732, at *1-2) (electronic monitoring was neither "so
onerous" that it was effectively impossible to meet nor a mone-
tary payment and thus did not amount to an ex post facto viola-
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tion); Rollins v. Quarterman, No. 3-06-CV-1055-K, slip op. at ___
(N.D. Texas February 12, 2007) (2007 WL 465304, at *3) (manda-
tory supervision conditions of electronic monitoring and home
confinement did not constitute punishment, thus defeating the
petitioner's ex post facto claim); Randall v. Cockrell, No. 3-02-
CV-0648-G, slip op. at ___ (N.D. Texas September 25, 2002) (2002
WL 31156704, at *2) (mandatory supervision conditions requiring
the petitioner to wear an electronic monitor and reside in a
halfway house did not constitute punishment and did not violate
the ex post facto clause); see also Martin v. Walker, No. 04-C-
6098, slip op. at ___ (N.D. Ill. December 1, 2004) (2004 WL
2966930, at *1) (electronic home detention was "only a condition
of [the plaintiff's] release and did not affect the duration of
his time on mandatory supervised release").
In this case, the electronic monitoring condition was
another tool the Board could utilize in its discretion to assist
the plaintiff in leading a law-abiding life as he stepped outside
the confines of the penitentiary and ventured back into a free
society. The condition was neither punitive in nature nor an
increase in his sentence. Thus, as in Neville and the federal
court decisions, plaintiff cannot establish an ex post facto
violation, thereby rendering his complaint for mandamus relief
and a declaratory judgment without merit.
III. CONCLUSION
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For the reasons stated, we affirm the trial court's
judgment.
Affirmed.
MYERSCOUGH and KNECHT, JJ., concur.
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