third and final case on the docket this morning is his number one one zero one nine four people versus claudia madrigal agenda number six mr fisher you pre under the city substantive due process protections of the united states or illinois constitutions the prophylactic measure of barring people from the on authorized use of another's personal identification information to gain access to records of that person's activities communications or transactions advances a legitimate state interest in combating a substantial increase in identity theft crimes and thus a wasat is pfizer rational basis test nor has this court consistently required lawmakers to so carefully craft criminal legislation such that it captures no innocent conduct in order to survive rational basis review to the extent this court has adopted a no innocent conduct test as part of its rational basis review but i should be reconsidered and if this court reaffirms that test initial make clear that is moving away from lockstep on this point rational basis review is a fundamental part of the due process in intention for the clauses to mean the same thing and there is no counterbalance to traditional values reflected in longstanding president to indicate something to the contrary given this the problem with a no innocent conduct test i twofold first it appears to require perfection of the general assembly in crafting criminal legislation such that it captures no conduct that's not relevant to its purpose united states supreme court said for example to music language and comstock that a lot need not be in every respect logically consistent with it seems to be constitutional it's enough that there is an evil at hand for correction and then it might be thought that a particular legislative measure is a rational way of correcting it and contract the  proffered no innocent conduct tass asking whether a statute could take potentially encompasses any innocent conduct requires a criminal statute to be widely consistent with its aims in each and every case in order for it to survive rational basis review in other words if the law can be applied to any innocent conduct then it's unconstitutional and thus this test undermines the deferential nature of the rational basis review as it's been articulated by the united states supreme  court the second problem is the use of the word innocence it's the power of the general assembly to decide which conduct is criminal and which conduct is innocent by assigning criminal penalties to certain conduct the proper inquiry under rational basis review and i believe the increase this court has consistently engaged in it is is whether statute cover so much conduct irrelevant to its purpose as to render the statute an unreasonable means of pursuing that purpose though the state can scenes that it is not perfectly crafted to avoid applying to all behavior not relevant to that purpose but the supreme court has made clear cases like vance and lewis perfections not the standard asking whether it covers so much conduct irrelevant to its purpose as to render it unreasonable the people might disagree with the application of that testing carpenter for example but it would require an  overturning of carpentering if however carpenter was decided in this court's opinion on the basis of a no innocent conduct test then yes people would ask that this court overturned that or are you asking is it your position that courts should be able purpose avoids any confusion with the general assembly's authority to assign criminal penalties to conduct and the and the people are not asking this court to read into the statute anything that is not present in the identity theft law when it's viewed as a whole as drafted by the general assembly and section five the general assembly made its intent clear in the purpose of any legislative interpretation is to give effect to the general assemblies and ten its intent was to apply to on also arise use of personal identification information to access records so we're not asking the court to read an additional criminal purpose into the statute we're not asking the court to to read anything into the statute that's not already in the identity theft law when viewed as a whole i mean we are only dealing with a seven here is that that is correct your honor there's no reason it wouldn't be separable from the remainder of given the clear purpose of the statute as laid out in subsection five it's possible to read the statute in such a way that preserves its validity even though the plain language of subsection  identity theft was a whole i don't believe in answer to the specific question about vagueness that on authorized as an element of a crime is and harder for the public or a jury to understand than the elements of any number of crimes in fact an authorized is an element of you know several crimes under illinois law and serve to the extent that you know it could be argued in the future that had begun this challenge to the statute might be appropriate the defendant in this case with lack standing to raise such a challenge because her conduct falls within the core misconduct that's governed by the statute she access according to the charges against her the diff the victim's insurability rating and her credit report which are well clear to anyone not the kinds of records that one would ordinarily authorize a member of the general public to access it's not big with that kind of because it is i just do not believe so your honor i think that falls within the core misconduct governed by the statute and thus to defend in this case would not have standing to make the vagueness challenge information that one would generally authorize another member of the public to access and once on do with that information the defendant might have been able to determine then at that point that the victim was a suitable target for some sort of fraud against statute that required a knowing mental state without explicit removal pressure ok looking at that case we found that even the conduct the defendant proposes does not extend beyond the very kind of the legislature meant to punish we had said that and is it your position then that it seems like that the present statute does sweep in or may sweep in and let's put it that way wholly innocent conduct beyond what the legislature meant to punish but it your position that even if we only look at the insurability report that that is conduct that the legislature meant to punish i was not wholly innocent and so yes i have several several points and in response to your question on first yes a green your honor that  our position is that even if we just look at the insurability rating that that this case does not implicate any conduct that's not relevant to the purpose of the statute second your honor williams is an example of a case where where it would the court have better with what the general assembly's intends to require some additional criminal purpose and we agreed that this is a similar type of s actually wanting to know from your it seems like you're in a cave that william illustrates the principle that the legislature may criminalize knowing conduct that lacks a criminal purchaser if there is a reasonable risk that such conduct will have harmful consequences if we think that william stands for the proposition that the conduct touted by the defendant in that case is innocent was not actually innocent is that defeat your  argument i want to know if you're saying there is a criminal purpose or not there's no criminal purpose beyond knowing and in this case a couple of responses to that first i think that the u s supreme court has made clear the navigation of the rational basis test and terminating that a statute is a reasonable means of of pursuing a purpose that simply identifying one or a limited number of examples of conduct not relevant to the purpose of so called innocent conduct does not render a statute irrational and once it's been determined that a a such as a reason or means of pursuing its purpose under salerno and this part has applied this you know longstanding principle in many cases in race eve people the guardian simply identifying a set of circumstances in which the application of a statute would not be valid doesn't render it facially unconstitutional so requiring perfection requiring that there are no examples of conduct not relevant to this actually its purpose in order first that should survive rational basis review undermines the deferential nature a rational basis review as it's been ask first amendment implications here and if so does that change the elsa's i do not believe there are any first amendment implications here if there were first amendment implications then yes it would entirely change the level of scrutiny that  come up with an order to keep all argument that this doesn't things on his first amendment rights or her first amendment rights in some way at which point the court would have to adjust that question and if it agreed then subject the watch to a higher level of scrutiny on rational basis review is deferential but it doesn't mean that the general assembly can simply declare any conduct criminal and thereby stop people from forming a generic conduct they can't infringe on a certain set of identified fundamental rights including the rights of chico in the bill of rights and privacy and certain other things that the united states supreme court has identified but when those rights are implicated then the and technology age where information is is available at the tip of our fingers that most people of our time are doing exactly that kind of thing using the name which is specifically one of the jenna fires in the statute to find out about activities by other people the no your honor that would not be criminalized by the statute as read in the context of any s whole because now in sort of a player several steps here so who's a bear with me first off a name is not the kind of personal identification information that in and of itself the use is not generally authorized you know that was a message to the one of the fact it was in the statute and if it were used to access to knowingly knowingly used to access the kind of records that one would not generally want access by the public  using it to access records of bank accounts or bank transactions so on and so forth then you would be in violation of of the statute but if you use it to find out you know how someone did in you know the race judicata road race that would not be an authorized use of personal identification information to gain a solicitor back or find you would have to make some kind of decision about what also rise and unauthorized are you know words that have simple easy to understand definitions for jury i mean it's permitted in ass and do you make no bones about the fact that you have to go outside of you some of them to hear that interpretation be i think we can see much harder to argue that that would be a constitutional under rational basis of you would certainly incorporate and compass a lot more conduct not relevant to its purpose  for your argument and maybe maybe better for the system in general because of the type of thing we're just as strange just brought up the fact questions for the jury and each and every case that the legislature turns up this language to the language is not perfectly crafted that doesn't render it and on reasonable means of pursuing its goal it doesn't render it unconstitutional under rational basis review did not include some of the restrictions on conduct that were present elsewhere in the act and the court in order to provide a constitutional reading of the statue  identity theft laws right there of one you know presumes the public to read the statutes is to determine what that is criminal it's all it's all right there in the identity theft law to get to govern their their behavior and furthermore as i mentioned before to the sense that you know a vagueness challenge could be made this defendant would have no standing to make a big michelle and her conduct heating someone's name and without their knowledge or authorization going through a system that that also that access to her insurability rating which is you know not information that one goes around should be into the public and according to the charges access her credit report something that concerned the defendant and you know sieves says significantly enough that when she found out about it she complains that that this defendant's conduct reverse in this case that we would have to overrule such cases as carpenter in which i believe absolutely your honor yes but i do have a further question on that would you also agree that those cases that want a clear uses does seem to have a little bit they do seem to have a little different analysis than the traditional rational basis to your agree with i mean respectfully i'm not sure i would just i that the language sometimes has changed a little bit from wyck through williams but in all the cases that this court has has decided on this issue of cases where this is an allegation that the statute punishes in an innocent conduct and fuss is a violation of substantive due process the court has used the same analysis so i i would think it's the same analysis  the as has been pointed out already we're dealing with just one of the paragraphs of the identity theft statute at the time of this offense there were seven different paragraphs i think an eighth one has been added but at the time of this alleged offense there were seven the only one we're dealing with here today is a seven a one through a five all clearly deal with identity theft situation where you have somebody using somebody's personal information and then doing something wrong with it a six is a little bit different because it's but it's still i think would probably survive scrutiny because it applies to the situation of somebody impersonating the person whose information they're seeking his seventh is the one that loosely punishes all kinds of innocent conduct i would go so far as to say that the innocent conduct that is punished in this statute is more than all of the other cases that this course has decided combined from wyck through williams the innocent conduct is just mind boggling when you think about it and i'm very thankful that justice tice raised the issue of first amendment because i did not raise it in my brief and as i was preparing for this argument the more i thought about it if there are first amendment implications here if i want to do research and i want to write a biography about somebody i might want to read a book about the justice of the supreme court about your prior activities prior to ascending to the supreme court and i would be violating the statute by obtaining the information necessary to write that and i think that certainly would implicate my first amendment rights there are just of all kinds of scenarios that i could point out like that the statute i know one of the things that the state what the trial court when he struck down the statute judge anderson from kane county he stated that we point out the example of somebody who's doing research on a doctor that they might be considering hiring or a lawyer and the state in their brief responded well but that would be in the ordinary course of business so it would be exempted and i would ask the justices of this court to closely read the exemption statute with this which is sixteen g dash forty which outlines what those exceptions are and it really does not exempt anything  there would be if there would be a violation of the statute that we're dealing with here the exemption says in sixteen g dash forty that this article does not prohibit the capture or transmission of personal identifying information in the ordinary and lawful course of business so it only it only does not prohibit the capture or transmission of the unit of the end of the identifying information so for instance a name it could be something as simple as a name qualifies as personal identification information so the statute doesn't prohibit capturing or transmitting that information but it doesn't say anything about the article not applying to somebody been used as a personal identification information and obtains records of actions taken or activities or other things that are prohibited by the statute that we're dealing with here today said exemption doesn't offer us any protection from the statute the this court in people versus wick stated back in one thousand nine hundred five that we have consistently stated that the standard of a proper exercise of the police power is whether the statute is reasonably designed to remedy the evils which the legislator has determined to be a threat to the public health safety in general welfare most recently in two thousand and nine twenty five years later justice thomas wrote that the court well the court did apply the rational basis test and held that the statute did not violate substantive due process because because it bore a reasonable relationship to a public interest to be served and the means adopted were a reasonable method of accomplishing the desired objective and that's been called most recently the rational basis test they didn't use that terminology specifically in which but it's the same test in between that time the court has struck down laws and upheld some laws and  written and the supreme court in tallahassee said well because there's no element at all that there's no mental state element in there that we are going to require that that it's only a violation if it was done with a criminal purpose or some criminal knowledge  and in all of the precedents of this court the court has only has indicated that the poor will only add a mental state to require a criminal focus or knowledge because there is no mental state already in the statutes in the statute we're dealing with here paragraph a seven of the identity theft statute we already have the mental state of knowledge i believe it would be inconsistent with all those precedents for the court to try and add support of a mental further mental state to it now i believe that  the court stated although the prevention of vandalism and malicious mischief are undoubtedly a lot of bull goals protecting otherwise innocent conduct from criminal prosecution is an equally laudable goal and that's the situation that we're dealing with here today the as i say this statute punishes i believe more innocent conduct and all the other statutes that have been struck down combined based on this based on this type of analysis some of the things the justice types pointed out justice carmen just googling somebody you've committed a felony i punched in ernie banks his name the other day just as ernie banks home run record and you get up all kinds of things to tell you what his records were what is what is the to streets where when he was a ballplayer is information about i've used his personal identification information to obtain records of his activities when he was a basic when he was a very great baseball player scuse me so the state has  stated well the first argument is that this statute is reasonably related to this legislative objective and i would respectfully disagree based on all of the myriad in this in conduct that is punished far more than any other statute has been dealt with by this court i would should be abandoned in their citation their authority for this is a long string of cases many of summer's illinois supreme court cases are united states supreme court cases none of which i would submit have anything to do with with the situation that we're dealing with race here and i'd like to point out some some things in because the funny thing about case law is you can make it say whatever you want if you just take an isolated sentence out of the case and say that's what the case stands for but then when you read the case more closely maybe it doesn't stand for that so well first off as to salerno people versus salerno uses some very differential case very deferential language and basically if it under people versus i'm sorry united states versus salerno which is the united states supreme court case the challenger must show or that no set of circumstances exist under which a statute might be valid if that were the standard to be applied the due process clause would be meaningless to protect those from abuses by the legislature it would be meaningless because for instance if you want to outlaw if you want to punish or prevent  jaywalking you pass a law saying people can't walk anymore by this definition in salerno there are a set of circumstances under which the statute could be valid because as long as we could assume that police officers would only apply the statute when people are jaywalking statute but there are a whole lot of circumstances under which people might be arrested for jail for just walking when they're not jaywalking drinking and driving if you want to outlaw drinking and you want to terror punish rincon in driving so yeah law driving i think that would be a little bit too far by the test that this court has set forth but yet if you look strictly at the language of salerno that would be a valid law well the interesting thing is this court has incited salerno in any of the cases  we've dealt with this issue whether a statute that punishes potentially innocent conduct violates the process the reason this court hasn't cited that language in any of those cases is because it doesn't apply to that scenario united states versus alert it was it was a statute under it was not a criminal statute it was a statute under the federal bail reform act and it authorized pretrial detention if this if the federal government could prove the future dangerousness of the person to be were to be released on bail  court held that it did not violate the eighth amendment or subset of due process the court specifically how there was not a punishment statute but it was regulatory in nature and did not pass to to punishment and so has been cited by this court in some civil applications other applications but not in the criminal context and not in this context we're dealing with a statute that punishes innocent conduct i would submit it hasn't been cited because it's not relevant because there are different different interests when you're talking about protecting somebody from arrest being arrested for innocent conduct versus deciding whether you're going to uphold a section of the parentage act in the in the in slumming versus nestor misstated for the proposition that in a substantive due process case state action is invalid only if it manifests and scuse me only if it and then quotes manifest patently arbitrary classification utterly lacking in rational rational justification you look at the case flowing versus nestor number one it's not a criminal case it's not the situation we're dealing with here that a statute that punishes innocent conduct that statute up held a statute that had cut off social security benefits to certain non citizens who were deported for certain reasons the united states supreme court went on to hold that the statute was it was really a subset of the it wasn't a due process case anyway because persons covered by the social security act would not have been a prude such an accrued property right as to be protected by the fifth amendment additionally if you read the state's sentence on the bottom of page three in a subset of due process case state action is invalid only if and then they have the quote if you actually look at the case that's not what it says exactly that part of the quote is there but the first two thirds of their sentence are left out particularly when we deal with a withholding or actual benefit under a social welfare program such as this we must recognize that the due process clause him be thought to interpose a bar only if the statute and then you have the quote that the state has in their brief not optical and that also was not a criminal statute it was a civil commitment of sexually dangerous persons who were about to be released from federal prison and the supreme court upheld that not under the due process clause they upheld it under the necessary and proper clause of the united states constitution on page nine hundred sixty five ninety one thousand nine hundred sixty five of that opinion the supreme court specifically stated stated we do not reach or decide any claim that the statute or its application denies equal protection of the laws procedural or substantive due process or any other rights guaranteed by the constitution respondents are free to pursue those claims and remained and any others that they have preserved it's not a subset of due process case the  justice kennedy in in his conqueror and doesn't mention the language that the state cites that the law need not in every respect be logically consistent with his aims to be constitutional it is enough that there is an evil at hand for correction and that it might be thought that the particular legislative measure was a rational way to correct it at languages in there in a concurrent and justice kennedy right side and if i believe it's a fair reading of his using that language that he's actually being critical of that he's certainly being critical of it as applied to the analysis in this case which was under the necessary and proper clause and i believe he's expressing some caution about it even in a due process application and the case that that he pulled that quote out of his people versus layoffs of people  and things like that and the court did use the language just cited in the attorney general's brief however a mediately following nath the supreme court says the days go on when this court uses the due process clause of the fourteenth amendment to strike down state laws regulatory of business and industrial conditions because they may be unwise in providence or out of harmony with a particular school of thought this case was not meant to live our situation i'm not aware of any federal case where the language from salerno from in from this optical case this language is not cited in the context that we're dealing with here and then into cases that i'm aware of establishing the statutes in validity under any set of facts and of cold and therefore the law survives so long as and then we have a new quilt under at least one set of facts the statute is constitutionally valid but the problem with that number one the people versus gov was a criminal case in a sense but it wasn't a criminal statute that punished any kind of conduct it was a statute they were dealing with that dealt with whether a convicted felon had to give d number two it's that the issue was decided on the fourth amendment and number three this it's not exactly quoted as is in eternal generals brief because the first part of his his quote to mount a successful facial challenge defend a most  the difficult task of establishing the statutes in the village in validity under any set of facts and of quote that part is in there but the second part where he says and therefore the law survived so long as it a new quote under at least one set of facts the statute is constitutionally valid i've read the case ten times more i cannot find that language anywhere in there it certainly doesn't follow the first part of the state's quote and i'm sure it's inadvertent on his part and i think maybe that's his opinion on what that first quote means but it's not in case that you're dealing with in the case of bar where is in a in a facial challenge to a statute the facts in the case of bar irrelevant i believe they're relevant in all the cases that is where this fire has decided the facial challenge you might have referred to the facts of the case but you've never said the facts of the case are dependent upon our ruling the last case that i would point out to the court is people versus wilson which the state cited in at the bottom of page eight of the reply brief the defendant cannot escape application of the statute by arguing that it might be unconstitutional as applied to someone else and they're using that to try and show why the fall is wrong and work and it's just ethel's and oranges that way was wilson was a a vagueness statute and not just the facial challenge to the statute so to the  i don't think there's any case law that says that this court has been doing anything wrong for the last twenty five years for the last twenty five years to get a case although you handed down an issue to issue is reasonable it's rational it's consistent it's very clear i think this statute fails or that test conduct or maybe they didn't think about it this statue would only be vague if you followed the attorney general's request and somehow added some kind of a test to try and make it a valid as you then you would create off and vagueness so for all those reasons i would respectfully ask th constitutional that's what official challenge means however before getting to the inquiry under salerno this court has to determine whether the statute is constitutional this court could certainly look at a statute say it that's irrelevant to its purpose that the statute is not a reasonable means of of pursuing that purpose and therefore the statute fails the rational basis test that statute is then unconstitutional under any circumstances and salerno isn't a factor the people's point regarding salerno is if this court analyzes the conduct that's covered by the statute and says well it doesn't cover so much irrelevant conduct as for the statute to be an unreasonable means of pursuing its purpose the statute then would survive rational basis review the fact that the court could then go on and identify a set of circumstances under which the statute would not be constitutionally applied doesn't mean  would fail for a constitutional challenge under salerno but first it does obviously have to survive rational basis review which does properly asked that question whether a statute cover so much conduct irrelevant to its purpose as to render  it an unreasonable means of of pursuing that purpose and the reason that i keep emphasizing the relevance of the conduct to the purposes is that it's not disputed that the general assembly has the authority to determine whether specific conduct is criminal or or innocent and to say that conduct is innocent if the general assembly has said no their conduct is is its purpose and in identifying that conduct this criminal but it does have the authority to determine which conduct this criminal in which conduct is in a sense i know we spoke earlier about the fact that the fed and haven't raise confusing speech and access the fact that it is illegal to access information in certain ways doesn't infringe on the first amendment right to speech if someone were writing a  to restrict the ways in which one goes about accessing information  also i think in response to defendant's argument that this court has not read additional mental states into statutes where there is already a mental state stated in the language of the statute people are not asking this court to read an additional mental state into the statute  a crime to knowingly impersonate a police officer a crime to knowingly observe another person voting all without any additional criminal purpose as an element of the crime because of the circumstances where a prophylactic measure  appropriate by the general assembly just because the general assembly is also created additional crimes that make it illegal to engage in further criminal conduct once they've arm themselves with with this kind  of person identification from ation in these kinds of records doesn't mean that the general assembly's lacks the authority to pass a prophylactic measure so long as that that prophylactic criminal statute is a reasonable means of pursuing  perfection is not required under rational basis review perfectly eliminating all conduct irrelevant to the purpose of the statute is not required to survive rational basis review and the general assembly shouldn't be required to thread a needle in order to pass constitutional remedies to the evils that confront the state so the people believe this court should should hold that session sixteen fifty seven does does not violate defendants substantive process rights incorporate a no innocent conduct test into this inquiry and if this court does reaffirm task in which any statute that that incorporates any conduct not relevant to its purposes is going to fail rational basis review than the cour