or fish first case on the call the docket today wednesday january sixteenth two thousand and thirteen is agenda number five case number one one four zero seven six people versus  unlawful restraint of a person under the age of eighteen at a discharge hearing and the judge decided the offense was sexually motivated mr cardona will probably never be tried for this unlawful restraint offense or for any other offense because doctors have concluded that he  unfit and will unlikely ever be found competent to stand trial however the judge certified mr cohen as a child sex offender and released him from treatment in a mental health hospital agreeing with the doctor's recommendation that he did not pose a serious threat to the public counsel before you get into the mirrors on the jurisdictional issue i noticed you filed a reply brief that indicated it appears there was a lot of discussion about  which the motion to reconsider was filed without asking for an extension in this case the request for an extension of time to file the motion to reconsider was made before the end of the thirty day plus judgment period and so  brief i recklessly clarified although the appellate court called this reinvestment and i discussed how this could be investment because it was filed so late as a matter of fact it really is a case in which they never actually lost jurisdiction because it was continuing without objection from the state the defense counsel kept asking for extensions of time but ask for that first one before the end of the thirty days and even as this court recognized them flowers that is acceptable as long as the request is made before the end of the thirty days or you can pursue ok thank you we're here today because mr cardona is case presents a procedural due process has never been afforded the procedural safeguard of a trial and his guilt for the unlawful restraint has never been determined but he has nonetheless been ordered to comply with the sex offender registration act and its host of restrictions and registration requirements just as though he had been criminally convicted the public sex offender database also lists him as a convicted child sex offender but this is not true because the determination of its guilt has never been determined procedural due process requires that a person be given notice and a meaningful opportunity to be heard before the government takes action to deprive him of life liberty or property and here mr cardona lacks the ability to make himself heard because he was incompetent to stand trial he was subject only to a discharge hearing which as this court noted in weight is an innocence only hearing a procedure only to determine whether to enter a judgment of a two step process but upon further consideration there's really three steps first look at the private interest that was affected to consider the risk of an erroneous deprivation of that private interest through the procedures that we use and three weigh against these first two considerations the government centrist so in this case step one is the private interest is mr carr going to liberty interest so i has impacted his freedom to live with his family freedom to move at will in his community freedom of association interest in his reputation interest in not having to give the police his personal information on ongoing basis it's also impacted his liberty interest in not being arrested and detained in jail or a mental health hospital if he cannot comply with the registration requirements and the briefs discussed at length how his liberty interest has been affected and to say as opposing counsel has that this is a minimal impact on liberty is frankly absurd he can no longer even live with the people who have been his caretakers in the case of wade of the civil commitment i don't know if any of you have had the chance to look at my reply brief yet but i'm actually distinguishing the procedure that was used in a way that's been sufficient to simply commit him at the discharge hearing pearse's this must you know there is presumably in way you discuss how this is an indefinite period of time for civil commitment here his liberty impact and mr cardenas case could be affected forever because he simply cannot comply with his registration requirements because he is scott's a frantic he faces this continuing cycle of being arrested for noncompliance found unfit to stand trial for the registration violations released back into the community it goes on and on and on so when we talk about the procedure his liberty interest being this great and the procedures that are used it's the liberty interest you get around the u s supreme court as well this is what i'm kind of trying to say here about we been found not to be a threat to the public this is you know if there are procedures that can be you know weighing the government's interest in safety versus his there are procedures to protect the public from dangerous s if he had committed a predatory criminal sexual assault with a class x sense of up to thirty years the law allows for such a person who was not ever found fit to trial to be civilly committed for up to the length of that sentence in this case we have a person who was found not a threat to the public cannot be reasonably expected to comply and it's never been convicted comparing the procedures in this case i would ask you to suggest to the verses cannot connect the situation in wh that information was not being widely circulated and because they could also petition to turn themselves terminated off the sex offender registry but the fact that they did not have that extra procedural protection of a jury trial was adequate procedural due process in that situation so we think about procedural due process as being flexible and and address to the specific situation in this situation we're saying mr cardona unfit defendant cannot comply is being treated just the same as adult sex offender who has been criminally convicted has been able to make himself meaningfully heard at a trial in a system is defense mr cardona can do none of these things yet he's not a threat to the public so one way his interest not guilty by reason of insanity which i said presumably means they had a trial but i don't know what the procedures even if they were fit for the time of trial they were not guilty of the fence when they committed it that would be a different situation to this we don't know all the particulars we do know that illinois is in the minority in requirements some states there are potentially other procedural safeguards that could be adjusted for a situation such as some states i believe give it up to the judge's discretion whether to order an unfit person to  fifty's who has been living in this community who's very very crazy into sort of in his thinking and apparently has never done anything like this before like grab a child by the rest outside of school and it's a little bit ambivalent or a conflicting is the man because the little child could not identify him whether or not but he said to this child because according to the doctors he can only make himself understood in spanish is because english is an animal we don't know what his motivation was for doing th because of the extent to which it is making its reach into every aspect of a presence right from being held to these standards for example having to give the police should i turn around are you going to be away from home for more than two days and everything that's been held to them but yes it's been held non punitive but this is the liberty interest is kind of separate from the punishment issue the procedure to process as far as your liberty interest your liberty your freedom to live your freedom to move around the community this man who has disordered mind found not a threat to the public would be in violation of sex offender registration act requires maintenance and solitary provisions if he was even on a public way within five hundred feet of a park where people under the age of eighteen were present how on earth can this man be expected to comply with this this this would this is not necessarily punishment but his liberty to move in the community has been extremely affected so again this case highlights the tension between liberty and public safety public can be protected from dangerous individuals without restricting the liberty of a sketch which team's not a harm to the public safety and he asked this court to find out the statute subjecting him to  unconstitutional as applied to him a person unfit to stand trial was never been convicted of a sex offense not considered to pose a threat to the public and you cannot reasonably be expected to comply with so i and it's comforting restrictions to the extent that the vo statute is a parallel provision with similar restrictions that should also be unconstitutional as applied to him he asked the squire to reverse the appellate court's decision that affirmed the circuit court certification of him as a sex offender thank you it please the court counsel my name is lee a bendix from the illinois attorney general's office on behalf of the people of the state of illinois this court should affirm the appellate court's judgment finding no procedural due process violation and requiring defendant to register as a sex offender given his finding of not not guilty at a discharge hearing hearing for a qualifying sex offense to touch very briefly on the jurisdictional question given this independent basis from the reply brief the state would agree that this court has a publisher stiction given the tim ss of the reconsideration the request for an extension for reconsideration motion so turning men to the merits of the issue it is in fact a two step process to determine whether there is a procedural due process violation the first pr looks at whether a life liberty or property interests rises to the level of being constitutionally protected and if so then the question is whether given the extent of that infringement on that interest the amount of process that was provided beforehand was sufficient now as this court has done in the past in the connects case and as the united states supreme court has also done in connecticut department of public safety versus doe perhaps the easier way forward is to answer this case on the second prong  prying open that seems especially simple in this case in light of people versus wade because after all people versus wade was a case in which there was director view by this court of order by the circuit court finding the discharge hearing statute effectively unconstitutional and reviewing both a confrontation clause challenge and a procedural due process challenge to that provision this court found no procedural due process problem and why that's important for this case is because since that case involved an unfit defendant who is going through the discharge hearing process this court rightfully acknowledged that a person in that circumstance faces the potential liberty infringement of being civilly committed up to the maximum term of th that person were convicted of the charged offense that is certainly a physical restraint on liberty that certainly crosses the threshold of being constitutionally protected now what defendant is asking for here in contrast is in light of the steam out of procedure the discharge hearing whether the liberty infringement attendant to being registered as a sex offender is appropriate now in defendant's opening brief he listed only three limits on his liberty specifically the possibility that he be prosecuted for a felony second freedom of movement limitations with regard to going to public parks schools and bus stops and finally that there were residency restrictions in terms of how close he could live to a school it is true in his reply has added additional limitations he cites that should perhaps be regarded as forfeited because they were not raised in the opening brief but even if all are considered none of them involve the physical restraint involved in civil commitment and because w found in light of civil commitment for a period of years that type liberty infringement is hat poses no procedural due process problem when a discharge hearing is provided that case could not exist along with this court finding for defendant as he requests here because the liberty infringement connected to the sex offender registry is certainly lesser than civil commitment for a period of years but even if this court wanted to do an independent matthews vs eldritch test as  opponent has has begun to argue again here the same result follows it is conspicuous that even now in her opening remarks she acknowledges the three steps of matthews but she skipped the second step the second st asks what is the risk of an erroneous depravation and what is the value of additional procedures if there had been provided what is noticeable today as well as in the reply brief at pages eighteen and nineteen defendant never clarifies exactly what procedure what process the state failed to provide him by not clarifying what that extra process should have been and how it would have increased the risk or increase the likelihood of an accurate determination this shows how  least to some extent his argument is actually a substantive due process argument mislabeled as a procedural due process argument he does not seem to be saying i should have received a full adult criminal trial instead of a discharge hearing he seemed to be saying because i am actually unfit it is constitutionally unacceptable to required me to register as a sex offender period as this court has clarified in the case of people versus turner which is located at two o six illinois second specifically pages three ninety four and ninety five it can sometimes be complicated where that line is perceived between substantive due process and procedural due process and in that case this court explained that where a person is suspected to be unfit that person experiences a procedural due process violation if he is criminally prosecuted without also receiving a fitness hearing that is the preceding or that is missing for constitutional purposes but a person who is actually unfit receives a substantive due process violation if he is criminally prosecuted period now defendant's argument actually seems to resemble the latter more than the former because he's saying as long as i unfit there is nothing you can do state there is no process you can provide me to constitutionally allow me to be registered as a sex offender period he does not seem to be asking for a full adult criminal trial so to the extent that that is true those arguments are not relevant to procedural due process because a procedural due process question asks only what additional process did i fail to receive now this court in light of that should follow the example set by the united states supreme court in connecticut public seesmic connecticut department of public safety versus doe and that case the court quite quickly dispatched of a procedural due process challenge to the connecticut sex offender registration statute by saying look respondent you received the process that you were due under the statute there is no procedural due process problem in labeling you as a sex offender and so to the extent that you are actually raising a substantive due process challenge because you have chosen not to label it or invoke substantive due process we will not comment on the substantive due process aspects of your claim that's found in pages seven and eight of that opinion this court should follow that example and only analyze procedural due process and so the question really is did he receive enough process prior to being ordered to register as a sex offender and even given people versus wade the answer should b and indeed if this court wants to do the math he's weighing itself in the spectrum of liberty infringements certainly one end of the spectrum perhaps would be natural life imprisonment where we are here is limitations on his movement in public where he is not physically restrained and some duties that he also must comply with certainly that is a much lesser liberty infringement than criminal incarceration or civil commitment so contrasting that with the other side of the spectrum the amount of process that's provided a discharge hearing is very much like an adult criminal trial he only difference is is that there is no right to a jury trial and that that some secondary hearsay is admissible by taking only two of the rights away that are in a full adult criminal trial but contrasting that with the fact that the liberty infringement alleged is actually much lesser than what can follow a full adult criminal trial using the matthews weighing the amount of process provided is sufficient especially in light of the fact that defendant has not stated this x y z is the procedure that i did not experience and that type of procedure would have increased the accuracy here because he escaped the second step himself and in light of wade this court could resolve this case easily on the second prong but if this court would like to reach the liberty prodding the first prong this would fail as well defendant continues to reliant least in part on the damage to his reputation and being labelled as a sex offender and so it is appropriate that it is the stigma plus test from paul versus davis that applies to determine whether the liberty interest alleged rises to the threshold level of being constitutionally protected and in fact to find it fails both parts of the statement plus test as for the stigma part what he fails to do is allege a false statement after all paul comes from the line of defamation cases even though he's made some comments here about the facts his brief itself is not raising an issue about the sufficiency of the evidence that preceded his not guilty finding which he had raised in the appellate court and by dropping that issue he has dropped his argument about its accuracy and because he does not allege much less show that his label of being a sex offender in terms of complying with what is required by the statute he cannot show the falsity required to show stigma additionally he cannot show the plus part of the pov or says davis plus test again there were only three limits that he listed in his opening brief and none of those should be found to be sufficient under the paul test after all the politics is not simply is there a limitation on my liberty is there a new duty i must comply with it's much more narrow than that paul says this that the court must ask whether the interest identified is one that is recognized and protected by state law that is then either changed or removed and the two examples are very telling paul provides two examples of being driver's licenses and parole to take the driver's licenses example it's certainly appropriate for the state in certain circumstances to completely deny a person the right to operate a motor vehicle it does so for children aged ten for example and so if once it decides to allow a person having you know complied with certain requirements to get a driver's license there must be process provided before that right is taken away that dynamic is not present though in the types of interest that defendant identifies there is no protected right to not be prosecuted for failure to comply with the registration act there is no affirmative right to not have your movement limited and actually this one is the easiest because there are seven circuit cases state provides in its brief that specifically applying paul versus davis say a person does not have a right to access a public park a person does not have an affirmative right to go to school property for example that is why public parks can be closed at dark or at ten o'clock or whatever pallies may choose because there is no affirmative protected right for people to have unlimited access to public parks or school property and as for residenc y the key here is not that so a says you cannot live with your family what what the limitation is is that you cannot live within a certain distance of a school so if his family were to change where the residency is it would comply with the statute and because it's an indirect regulation this court should again find it does not cross that constitutional threshold so if if there were no  questions the the state would ask that this court find number one that under the second prong the press process provided in the discharge hearing is adequate number two that if this court were to reach the first question the defendant can comply with neither aspect of the stigma plus test and in any case this court should affirm the judgment of the appellate court thank you thank you due process is based on fundamental fairness and seems to be missing from the state's angle here is exactly how it is fair to make a person not considered a threat to the public not to be able to live with his family in the family home and walk again when it's not considered a threat to the public to make him comply with all of these steps i believe that i have addressed the procedural due process issue as far as step two which is asking what the cycle is going to continually run every time he is released until not a threat to the public he's going to be unable to comply with us unless they lock him up in his bedroom in his house and if that is not considered a liberty interest i don't know what is he cannot basically even he can't be in the house period unless this family moves which apparently co counsel counsel posing counsel thinks is a minimal intrusion on people's rights in this country so yes it is true there is no process that is going to give this person to make him subject to source in the same way as adult is unless he has a full trial but he can't have a trial because incompetent he cannot make himself heard he cannot confront the witnesses against him  cannot assist his attorney in his defense which is the rather mentary stops for a fair trial so he has just not had that process at all miss what is the record explain the fusion or conditions psychologically that will never be fit for some type of trial hearing yes they say he's never going to unfit for example i'm sorry yes he never will be found fit and what that is the record that isn't well it isn't the record it's him he and it's in the documents impounded evaluation reports for example apparently he said he was born in houston texas his father died when he was born he has three younger sisters born to the same father the sort of thing he said he was born in the town of opt out of copper which is actually an income ruler is a pleasant man according to the valuation process he's willing he's cooperated he attended the therapy sessions even though they were in english sat there smiles has never really done anything apparently except on if he in fact is this person which we do not know because he never was able to testify and has never had an actual trial to determine his guilt if in fact he is that person that could have the child by the hand because all that she could say w had beat up black shoes and her dad wandered around the neighborhood and said this man has beat up black shoes another girl picked this photo out of a photo array so perhaps there is sufficient evidence to find him not guilty but he has never had the four procedural protection of a trial so there are no procedures that can actually compensate for this man i discuss you know the unconstitutional as applied to him perhaps there's a public safety but maybe the legislature can craft something that can be  procedurally adequate to address the liberty interests of unfit defendants who are found not a threat to the community and are not severely committed plus test was discussed in my opening brief it's also i kind of backed away from it a little bit upon further reflection by the reply brief thinking about how there are direct celebrity impacts there is the freedom to reside there is the freedom to to associate with people there is the freedom to travel around your community these are actual freedoms which go well beyond the stigma plus test and if you do want to look at it is by stigmatize task which many jurisdictions have looked at when they found liberty infringements for sex offenders they do look at this first step of the harm to the back of taishan which it's not completely true that it has to be false it has to be arguably false and here because he's never had a determination of guilt the label child sex offender is arguably false because he's never been tried for the underlying offense to be found that that he deserves this label so and it's also stigmatized in the us supreme court in this case is like the tech vs jones's recognizing that stigma is this badge of him for me that you can put on to a person that that makes them appear different in the eyes of the community here when you look on the database it says it says county of conviction lake it says child sex offender says what this crime was and the public looks at the same things man this is public knowledge this person has done this heinous thing to a child and in it it's a go get him let's do something he doesn't know which end is not this man is really really seems really mentally disabled but apparently has been pleasant and never has harmed anybody so for these reasons we're asking is quite to find it is unconstitutional