good morning everyone welcome judge drove her is appearing with us via video conference and council we'll see her at the podium in the small monitor with that i will call our first case this morning it is number seventeen ten sixty for an existing for a preexisting residence meaning that a person can find himself in violation of this law having done nothing other than remain in the home where he lives solely because a third party has decided to obtain a license to operate a home daycare within five hundred feet of his home we're here today on a communal rather sorry can you bring us up to date on the current living vasquez has renewed his lease for another year along with his wife and his ten year old daughter and so they are still living in the same apartment mr cardona continues to live in the family home where he has resided for over twenty five years and which he has of which he's been the owner since two thousand decision and finding that plaintiffs had not stated a claim that this cash to violates their constitutional rights and we are asking this court to reverse the decision of the district court with regard to all four of the constitutional theories advanced by the plaintiffs in their complaint namely that the statute in its application to the plaintiffs violates the ex post facto clause that it violates the fourteenth amendment guarantee of procedural due process that it violates substantive due process and then it violates the fifth amendment is played to school i think that's your weakest claim i'm surprised that you're focusing on it i'm assuming that the core is referring to the connecticut versus joe decision from two thousand and three in the supreme court right your argument is that there's no  hearing at which the sex offender can prove lack of dangerousness but that's not a criteria for application of the buffer zone requirement so that's an immaterial fact  so there is no due process violation of a procedural type underlying the application of the residency restrictions to the plaintiffs in this case is an assumption that they present a current unacceptable danger to the community such that it's appropriate to make the move out of an existing residence that they've already established right that's a categorical determination that's been made by the legislative branch there is not a judicial determination or other adjudicated determination that needs to be made in a case specific way that applies to every sex offender yes the illinois legislature has made a judgment that this same restriction should be applied very broadly to a very heterogeneous group of people that risk that all child sex offenders should be kept oh way from children it's an extremely heterogeneous group of people who are lumped under the category of people regulated by this statue and that includes people like the plaintiffs who have never had physical contact of an inappropriate nature with a minor and who have lived in the community offense free for over ten years right but that's really a claim about the substance of the statute that it does not include a dangerousness assessment of an individualized nature it's not a procedural to process claim well plaintiff's claim here is that underlying the application of this restriction to the plaintiffs is a determination that was not an issue in the underlying criminal proceeding and that the plaintiffs currently present a danger and it's our contention that to be afforded an opportunity to contest that right that's a claim about the substance of the statute because the statute does not provide for a requirement of dangerousness yes  o you're challenging that but the statute facially and maybe you've got a good substantive due process claim maybe you don't but it's not a procedural due process claim i think that you're quite right that the statute  applies very broadly without any individual eyes determination and that is a problem with the substance of the statue in that it really isn't logically connected to it's a clause of course prohibits the imposition of retroactive punishment meaning a statute cannot rector actively increase the burdens that are imposed on someone for a crime that was committed before the date of the enactment well that's a bit of an overstatement of the it's not any burden it's only punishments correct and the supreme court has articulated a five factor balancing task to guide t court in determining whether the burdens imposed under a statue are so severe that it ought to be considered to amount to a punishment is the sixth circuit noted in its recent decision in snyder versus purpose and here we contend that the law is excessive in two primary ways one that it sweeps very broadly to people who have been living in the community without committing an offen for decades to it there is a lack of evidence that such restrictions on people's residency meaningfully advance public safety particularly under illinois law the restrictions have a very harsh effect which is that people are subject to a life time of housing instability this restriction is not tied to registration so someone like mr cardew and i want to the plaintiffs in this case was only required to register for ten years will still be subject to the statute for the rest of his life so he could he has already lived in the community for eleven years without being accused of committing another france and he could live in the community for another thirty forty or fifty years and be notified at any time that he has to move out of the home he has established because of the act of a third party the statute really does not require any showing ill intent of harm to anyone or a carden or anyone else right but this part of the ex post facto analysis doesn't require a close fit between the means chosen by the legislature to advance the child protective purpose of the statute and and the end you know of a reasonable legislative judgment as long as it's not a sham for punishment is sufficient yes i think that the supreme court  its recent packing him decision stated that although it's clear that sexual abuse of a child is a most serious crime and that a legislature may pass valid was to protect children in other sexual assault victims of a valid government interest cannot in every context be insulated from all constitutional protections so the supreme court is calling for there to be fair judicial review of these types of legislative determinations even when they are premised on some kind of legislative finding of fact that certain people present a danger to us and such that we should limit their rights limit where they're allowed to live and even kick them out of homes that they have already the only discretion the city exercises is to allow who are thirty days before affecting an arrest but more generous than day care how does notice and extra time harm the plaintiffs that's an excellent question and it really gets to the main arguments that are advanced by both of the defendants in this case and that's that they're simply not the right parties here that they have not engaged in the type of policy making that ought to subject them to mow not liability the principle cases they've relied on for that contention are surplus store versus city of delphi and but that's the court's decision in both of those cases is really a determination that simply implementing a state law is not the type of policymaking decision that ought to subject a municipality to liability for compensatory damages now this in contrast is an injunctive case we are seeing injunctive relief perspective equitable relief from a threatened by a lation of our client's constitutional rights to their property and to their security and their homes who  has violated your client's constitutional rights so pursuant to the state legislation the city police department has been authorized and empowered to enforce the law so you challenge is to the statute it's not to any executive action specific executive action enforcing the statute that's particular to your clients this is a broad spectrum constitutional challenge to the statutory scheme yes i think you're right and i have to say that my briefing fell short in this way and i'd love an opportunity to submit a supplemental brief really explain explaining the proper basis for liability against the city and the state's attorney's office here really the rea empowered to act as agents of the state to enforce this law if we had gone had ensued bruce around or lisa madigan and director b illinois state police we have a problem with redress ability meaning that our clients received notice from the city of chicago move within thirty days or you're going to be arrested and charged who would do that arresting and he would do that charging tribal police department and the cook county state's attorney's office not lisa madigan not groups around her and so we s injunctive relief from those high level state officials who are not actually personally involved in enforcing the statue we're not going to get any effective relief that can redress our client's claims so really it was necessary for us to name the city and the state because that's who would prosecute the plaintiffs that is who would charge them and arrest them and subject them to felony charges and with the court's leave i would love an opportunity to submit a brief very shortly citing that forth in writing because i think it is really underlying a claim against the city and the state's attorney is this agency question and that might raise questions of eleventh amendment immunity if the state's attorney and the city are seen as agents of the state they may be immune from  compensatory damages but not from injunctive relief and that's quite clear in the case law returning to the ex post facto claim the district court did not even reach any of the balancing factors that were set forth in smith versus vasquez's conviction occurred in two thousand and one which occurred on his conviction occurred in two thousand and two and this is a two thousand in act meant that is now being applied to the plaintiffs to force them to move out of their homes and i see that i'm you know entering my rebuttal time so i would just saying conclusion that we ask the court to reverse the decision of the district or and allow plaintiffs an opportunity to proceed on their constitutional claims thank you thank you issue it seems possible that a plan of can face additional punishment hundred is statute for literally doing nothing post line is for example are simply staying in homes that were in compliance when they took come precedence their liability under the statute is created by the actions of third parties obtaining daycare licenses why do you think that would not violate the ex post facto clause or i think that question is answered by this court's decision in u v leach and leach this court said that the sex offender registration notification act the federal act is creates a new prospect of legal obligations based on the person's prior history and i think that that's exactly what we have here that is the conduct that would violate this statute is post the enactment of this statute and the the only thing that relates back to their previous crime is what the element of placing them in the category of sex requirement this retroactively makes an existing residence of a sex offender unlawful so so why isn't that retrospective in nature and the real pressure point so it is maybe more analogous to being a felon in possession of a firearm the coming into possession of a firearm is a new problem and it is the  only element that we need that would i suppose predate the statute would be the fact that you were in the category of felons and similarly here was the statute  liability when a neighbor simply chains a daycare license or must that name or actually be more running a daycare  day home cares that the day home care definition requires that there be three or more children that are not your children in the whole so i think based on the definition it d day care would need to be situation i believe in mr cardona situation the day care had actually been operational sense twenty fourteen and for whatever reason that's unclear from the record the police didn't get around to giving him the violation notice they they they would run afoul of that because they are in that category so they are to leach similar to connecticut department of public safety it is the category is in state law that allows him to recover for that loss i believe there is your honor i i understand that and callahan the city it that the court it be in the in the court of claims or in circuit court for the situation that you've just articulated judge drove there and i do also want to be clear that mr cardona is uniquely situated in that he purchased the home in two thousand and ten post the two thousand and eight in athens so he purchased the home knowing that he was in the category of people that may very well be subject to liability in in this under this statute or scheme and therefore we would argue in the first instance that there is no taking but if this court were to find that there is wheat we do believe under illinois law whether it's in the court of claims or in circuit court that he would have a remedy and that would be our first condemnation action it's it appears that the the way illinois case law reads  illinois state law damaging actions which is i think what would be here you would go to circuit court you know some type of reverse inverse combination action from in so i think with with  it's see my my time is about to run out so i will just address briefly the problem something to do process claim which is directed solely at the state's attorney and we would simply argue to the court that city of course did not enact the criminal statute at issue and the c p s role is to give a notice to child sex offenders that their residences violate the state law and then provide an opportunity for these  any place left in the city for a child sex offender land your honor i'm not i don't know i can't answer that question to how many licensed day care centers there are it's to my knowledge that was not in the  a legend the complaint then the complaint would answer that but i don't i don't have that fact at my fingertips i apologize as i understand it the city's role is to administer the registry and that's  the vehicle through which these notices are given correct your honor those that there is a separate state law that requires a sex offender to come in and register in the process of doing that read the address is run through the computer and then that would give you no indication that the address is in a location that is prohibited by the statute that we're here to discuss today person that he is not in compliance and then arrest him immediately when he returns home because it certainly looks old you know a challenge to the notice the sufficiency of the notice they receive that's not the it that's not the allegation that they're directed against they say the city the claim against the city is simply to hold the city liable for the takings the ex post facto you know the other substance of clauses and mono prohibits that because what we do is for state law the statute is worded in a way that perhaps somebody could be constitutional injury before the plaintiff can have a judgment of liability against the city so the city the city has a policy of notifying registering offenders that their homes are no longer income this actually criminalizes knowing the lady knowingly residing within five hundred feet of a daycare so with out the city's policy these men might not know that a name block away has a chained and in  license but wouldn't that be enough to meet them oh no requirement of the city's policy causing harm no your honor because that would that would just get them the final piece in the elements necessary to commit the offense but the harm there has to be that the city's policy has to actually cause harm in the sense of constitutional violation constitutional injury that just gets in the last piece and having committed the crime but that doesn't get them that the city's policy in providing a notice gives it actually causes the ex post facto violation prohibited them from residing and thereby took their property interest in residing within so many feet of these locations if there is an ex post facto violation constitutional violation it's because the law is punishing conduct retroactively it's not because the city gives them the knowledge that they need to have committed the offense it's actually the offense that you know the statute on the books that's causing those other constitutional injuries that's  deflation it is no more appropriate to hold the city liable for a claim that requires an injunction than it is for holding the city liable for a claim that requires damages relief no other words it is not the nature of the relief that matters it's whether there is to hold if you get a judgment against immunise the pallet there must be a municipal path policy that's actually causing the constitutional violation it doesn't matter what kind of relief you requested and los angeles county vs humphrey squarely hold the supreme court case squarely holds that an injunction is no more appropriate and i would direct the court's attention to snyder and which this court did discuss los angeles county versus against somebody right and i would leave that to the state but i would say it would be the state and not because it would not be the city because it's not our policy that's causing you know these alleged constitutional violations i would  directed me to ask you a question so i will and that is if a person like mr card is forced to sell his home at a loss court cases west end d versus first united church and then sorrels vs city of may come and those state court cases do suggest that there is a an action that law would be appropriate to recover under the illinois constitution's takings clause which is broader than the u s constitution taking clause for interference with property rights it doesn't actually have to be a physical invasion of the right it could just be a preventing some sort of use and case allowed to actually a character claim to go forward and the allegation in that case was that the municipality had issued a demolition permit i build or a building permit or some sort of so there are definitely  compensation paid and so if there's a mechanism in state law for them to recover that compensation then they can go to state court and obtain that in state court well you just said  yes your honor there's there's there's they can bring a claim under the illinois constitution or an inverse commendation claim in illinois state court and i would direct the court's attention to the village of west indian the sorels decision that we cite in our brief and then just briefly i see my time is almost up but on the ex post facto law the on the merits although it's not the city is not really at issue here because it's the state i would just point out that there is at least one element of this offense that is occurring after the announcement of the statute and therefore it is not an ex post facto problem under this court's analysis and leach and i would also direct the court's analysis to this that to the dixon case from th whether the daycare moves in first or just you know the residence so it's not an exploit facto problem either for these reasons we respectfully ask the court to affirm the district court's judgment against this in favor of the city thank you thank you nicholas you've got five minutes left i think you judge first with regard to the ex post facto claim in the argument that was just made by the city counsel it is not the plaintiff's claim here that the criminal charges constitute a retroactive punishment it's that separate and apart from the prospect of criminal charges the burden imposed on the plaintiffs under this law constitutes a punishment meaning that the plaintiffs are presented with a choice move out of your home or face criminal charges that in of itself is what is retroactive about th statute and there can be no question that the state and its enforcement authorities apply that retroactively to people whose crimes were committed long before the enactment with regard to  defense that's their argument yes and it's the plaintiff's position here that facing that choice a life time of housing instability move out of your house or face felony prosecution that in  of itself amounts to a punishment separate and apart from whether the plaintiffs are ever charged with a crime mr vasquez has already had to move once in the past five years under this statute and he's now received a second notice that he must operate his family  and his ten year old daughter or be charged with a felony offense and it's the plaintiff's position here that that is such a severe burden that it amounts to a retroactive punishment and we're simply seeking the opportunity to develop the factual well there are we seek the opportunity to develop evidence concerning the burden this imposes on the plaintiffs and other people who are subject to this statue and also to hear why the state believes i necessary to apply the statutes so broadly to such a heterogeneous group of people who some of whom are like the plane deaths and who have never had physical contact of an inappropriate nature with a child and who have lived in the community for more than a decade errored in dismissing that claim out of twelve b six motion with regard to the arguments about the proper scope of liability and who ought to be held liable here it's really an agency question and the city here may have a point that you know they didn't engage in the type of municipal policy making that makes it appropriate to impose more now liability on them for damages claim however the city should really be seen as acting as an agent of the state the state of illinois has empowered the city of chicago and other rena's focal east departments as it's in force an arm the people who in force this unconstitutional policy are not the state police not the governor not the attorney general but it's local police departments like the city of chicago and its state's attorney's offices like the defendants here  and so it's really that the city and state attorney are wearing state hats here not acting in their capacity as the unicycle enforcement authorities i also want to draw the court's attention to something that was stated by fox attorney which is that this case should be seen the x was practically and should be seen as similar to the two thousand and three decision and smith versus doll that case is clearly in apple's said that only required that someone was truthful information about a past conviction on a publicly available registry and the court there held that that was not an exp because it did not amount to a punishment here this statute bears almost no resemblance to that first generation registry this statute of facts plaintiff's lives their housing their stability for the rest of their lives subjects them to a lifetime of continual punishment so it's very distinguishable face and i'll just close by saying that politicians in illinois and elsewhere are under a lot of pressure to pass ever more restrictive laws regulating th population of people and we have to come to the federal courts for some judicial review of that and so we ask that you reverse the decision of the district court and allow me to speak to proceed on the constitutional claims thank you thank you thanks to all coun