2022 IL 126978 

IN THE 

SUPREME COURT 

OF 

THE STATE OF ILLINOIS 

(Docket No. 126978) 

THE PEOPLE OF THE STATE OF ILLINOIS, Appellee, v. KEVIN SROGA, Appellant. 

Opinion filed May 19, 2022. 

JUSTICE CARTER delivered the judgment of the court, with opinion. 

Chief Justice Anne M. Burke and Justices Garman, Theis, Neville, Michael J. 

Burke, and Overstreet concurred in the judgment and opinion. 

OPINION 

¶ 1 Petitioner Kevin Sroga was convicted of a Class A misdemeanor under section 

4-104(a)(4) of the Illinois Vehicle Code (625 ILCS 5/4-104(a)(4) (West 2012)) for 

displaying an unauthorized license plate on a vehicle. He later filed a petition under 

section 2-1401 of the Code of Civil Procedure (735 ILCS 5/2-1401 (West 2016)), 

asserting that his conviction violated the Illinois proportionate penalties clause (Ill. 

Const. 1970, art. I, § 11). He argued that section 3-703 of the Vehicle Code (625 
 

 

 

 

ILCS 5/3-703 (West 2012)) created a Class C misdemeanor covering the same 

conduct for which he was convicted but imposed a lesser penalty than section 4-

104(a)(4). Neither provision contained an express mental state requirement. The 

trial court granted the State’s motion to dismiss the petition, and petitioner 

appealed. 

¶ 2 The appellate court affirmed the dismissal of the petition, concluding that 

section 4-104(a)(4) had an implied mental state of knowledge and section 3-703 

created an absolute liability offense. 2020 IL App (1st) 171992-U, ¶ 41. Because 

the mental state requirements of the two offenses were not identical, no 

proportionate penalties clause violation occurred. We affirm the appellate court’s 

judgment. 

¶ 3 I. BACKGROUND 

¶ 4 After noticing a Crown Victoria car parked on a sidewalk in October 2012, two 

Chicago police officers ran a license plate check that revealed the car’s plates 

belonged to a different vehicle, a Saturn model. Petitioner approached the officers 

and stated he was the owner of the Crown Victoria. The officers informed petitioner 

that the plates were registered to a different vehicle, and petitioner responded, “You 

got me on the plates.” He was later determined to be the owner of both the Crown 

Victoria and Saturn vehicle. Petitioner was charged in Cook County circuit court 

with displaying a license plate registered to one vehicle on another vehicle under 

section 4-104(a)(4) of the Vehicle Code (625 ILCS 5/4-104(a)(4) (West 2012)). 

¶ 5 Petitioner was convicted in a jury trial in October 2014 and filed a motion for a 

new trial. In that motion, he argued that the State improperly charged him with a 

Class A misdemeanor under section 4-104(a)(4) (id.) when it should have charged 

him with a Class C misdemeanor under section 3-703 of the Vehicle Code (id. § 3-

703), because he owned both vehicles. The trial court denied petitioner’s motion 

and sentenced him to 12 months’ probation and a $500 fine. He did not file a direct 

appeal. In 2016, he filed a petition seeking relief under section 2-1401 of the Code 

of Civil Procedure (735 ILCS 5/2-1401 (West 2016)). 

¶ 6 That petition reiterated, inter alia, petitioner’s prior claim that he was 

improperly charged under section 4-104(a)(4) when he should have been charged 

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under section 3-703, which defined identical conduct but carried a less severe 

penalty. The State filed a motion to dismiss, and petitioner amended his section 2-

1401 petition by adding a claim that his conviction violated the proportionate 

penalties clause of the Illinois Constitution (Ill. Const. 1970, art. I, § 11). Relying 

on principles of res judicata, the trial court granted the State’s motion to dismiss, 

finding that petitioner had previously raised that challenge in his original motion 

for a new trial. 

¶ 7 On appeal, the appellate court agreed with petitioner that the penalty imposed 

pursuant to section 4-104(a)(4) was harsher than that in section 3-703, but it 

rejected petitioner’s disproportionate penalties challenge on its merits because the 

elements of the two offenses were not identical. 2020 IL App (1st) 171992-U, 

¶¶ 21, 41. The court concluded that the statutes’ requisite mental states were 

different, with section 4-104(a)(4) incorporating an implied mental state of 

knowledge and section 3-703 creating an absolute liability offense with no requisite 

mental state. Id. ¶ 41. Petitioner filed an unsuccessful petition for rehearing, arguing 

that the decision was contrary to Illinois law because the record did not reveal a 

clear legislative intent in section 3-703 to impose absolute liability for displaying 

the wrong license plate. Petitioner then filed a petition for leave to appeal pursuant 

to Illinois Supreme Court Rule 315 (eff. Oct. 1, 2020) and Rule 612 (eff. July 1, 

2017), which this court allowed. 

¶ 8 II. ANALYSIS 

¶ 9 Petitioner raises three issues: (1) whether sections 4-104(a)(4) and 3-703 of the 

Vehicle Code, which define identical conduct, possess the same requisite mental 

state; (2) whether petitioner’s conviction for a violation of section 4-104(a)(4), a 

Class A misdemeanor, violates the proportionate penalties clause (Ill. Const. 1970, 

art. I, § 11) by imposing a more severe punishment than section 3-703, a Class C 

misdemeanor, when the elements of the two offenses are identical; and (3) if a 

proportionate penalties violation exists, the proper remedy for that violation. 

Because each of these issues addresses questions of law and statutory construction, 

we review them de novo. People v. Ligon, 2016 IL 118023, ¶ 11. 

¶ 10 When construing a statute, our primary goal is to ascertain and give effect to 

the intent of the legislature. People v. Boclair, 202 Ill. 2d 89, 100 (2002). If that 

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intent is discernible from the plain and ordinary meaning of the language enacted, 

we must effectuate that language and not depart from it by reading in exceptions, 

restrictions, or conditions that conflict with the expressed legislative intent. Id. To 

determine the legislature’s intent, we may consider generally the purpose of the 

statute, the evils it seeks to remedy, and the goals the legislature sought to achieve. 

People v. Blair, 215 Ill. 2d 427, 443 (2005). 

¶ 11 Because this appeal involves a constitutional challenge, we must start from the 

presumption that all statutes are constitutionally valid. A reviewing court is bound 

to construe the challenged statute so as to uphold its constitutionality whenever 

reasonably possible. People v. Hollins, 2012 IL 112754, ¶ 13. 

¶ 12 The proportionate penalties clause is found in article I, section 11, of the Illinois 

Constitution. It mandates that “[a]ll penalties shall be determined both according to 

the seriousness of the offense and with the objective of restoring the offender to 

useful citizenship.” Ill. Const. 1970, art. I, § 11. To determine whether the 

proportionate penalties clause has been violated, this court has adopted the 

“identical elements test,” first applied in People v. Christy, 139 Ill. 2d 172, 181 

(1990). As its name implies, the identical elements test examines whether the 

statutes under review contain the same elements. If so, the court must consider 

whether the penalties for a violation of each provision are also the same. If the 

penalties are not the same, the statute with the harsher penalty will be deemed to 

violate the proportionate penalties clause. Id. 

¶ 13 In the instant appeal, both parties agree that section 4-104(a)(4), the statute 

under which petitioner was convicted, and section 3-703 address identical conduct. 

A straightforward reading of the plain statutory language confirms that conclusion. 

Section 4-104(a)(4) states: 

“(a) It is a violation of this Chapter for: 

* * * 

4. A person to display or affix to a vehicle any certificate of title, 

manufacturers statement of origin, salvage certificate, junking certificate, 

display certificate, temporary registration permit, registration card, license 

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plate or registration sticker not authorized by law for use on such vehicle[.]” 

625 ILCS 5/4-104(a)(4) (West 2012). 

Section 3-703 provides: 

“No person shall lend to another any certificate of title, registration card, 

registration plate, registration sticker, special plate or permit or other evidences 

of proper registration issued to him if the person desiring to borrow the same 

would not be entitled to the use thereof, nor shall any person knowingly permit 

the use of any of the same by one not entitled thereto, nor shall any person 

display upon a vehicle any registration card, registration sticker, registration 

plate or other evidences of proper registration not issued for such vehicle or 

not otherwise lawfully used thereon under this Code. No person shall duplicate, 

alter or attempt to reproduce in any manner a registration plate or registration 

sticker issued under this Code. No person shall make fraudulent use of 

evidences of registration or certificates of title issued erroneously by the 

Secretary of State. No person shall manufacture, advertise, distribute or sell any 

certificate of title, registration card, registration plate, registration sticker, 

special plate or permit or other evidences of proper registration which purports 

to have been issued under this Code. The Secretary of State may request the 

Attorney General to seek a restraining order in the circuit court against any 

person who violates this Section by advertising such fraudulent items. Any 

violation of this Section is a Class C misdemeanor.” (Emphasis added.) Id. § 3-

703. 

¶ 14 Although section 3-703 encompasses multiple offenses, the elements of the 

particular offense highlighted above are identical to those of the offense in section 

4-104(a)(1) for which petitioner was convicted: “nor shall any person display upon 

a vehicle any registration card, registration sticker, registration plate or other 

evidences of proper registration not issued for such vehicle or not otherwise 

lawfully used thereon under this Code.” Id.; cf. id. § 4-104(a)(4) (stating “[i]t is a 

violation of this Chapter for *** 4. A person to display or affix to a vehicle any 

certificate of title, manufacturers statement of origin, salvage certificate, junking 

certificate, display certificate, temporary registration permit, registration card, 

license plate or registration sticker not authorized by law for use on such vehicle”). 

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¶ 15 On the face of the two statutes, it is also readily apparent that neither 

incorporates a specific mental state requirement. Thus, to apply the identical 

elements test, the first step in our inquiry is to determine the proper mental state 

requirements, if any, in section 4-104(a)(4) and section 3-703. 

¶ 16 Generally, if a “statute does not prescribe a particular mental state applicable to 

an element of an offense (other than an offense which involves absolute liability), 

any mental state defined in Sections 4-4 [(intent)], 4-5 [(knowledge)] or 4-6 

[(recklessness)] is applicable.” 720 ILCS 5/4-3(b) (West 2012). The “ ‘ “mere 

absence of express language describing a mental state does not per se lead to the 

conclusion that none is required.” ’ ” People v. Witherspoon, 2019 IL 123092, ¶ 30 

(quoting People v. Gean, 143 Ill. 2d 281, 286 (1991), quoting People v. Valley Steel 

Products Co., 71 Ill. 2d 408, 424 (1978)). Section 4-9 defines two broad standards 

identifying whether a particular offense imposes absolute liability: 

“A person may be guilty of an offense without having, as to each element 

thereof, one of the mental states described in Sections 4-4 through 4-7 if the 

offense is a misdemeanor which is not punishable by incarceration or by a fine 

exceeding $1,000, or the statute defining the offense clearly indicates a 

legislative purpose to impose absolute liability for the conduct described.” 720 

ILCS 5/4-9 (West 2012). 

See Witherspoon, 2019 IL 123092, ¶ 29. 

¶ 17 The first standard is wholly objective, comparing the possible penalties for the 

offense to the punishment guidelines set forth in section 4-9. The second standard 

requires the court to determine whether the legislature expressed a clear intent to 

create an absolute liability offense. When construing a statute without an express 

mental state to ascertain whether it imposes absolute liability, we will infer a mental 

state element whenever possible. Witherspoon, 2019 IL 123092, ¶ 30 (citing People 

v. O’Brien, 197 Ill. 2d 88, 92 (2001)). We now examine section 4-104(a)(4) and 

section 3-703 to determine whether the legislature intended either of them to create 

absolute liability. If we determine that absolute liability was not intended, we will 

infer the requisite mental state. 

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¶ 18 A. Section 4-104(a)(4) 

¶ 19 We turn first to section 4-104(a)(4). We begin by applying the first standard of 

identifying an absolute liability offense in section 4-9. Under that standard, an 

offense imposes absolute liability if it is a misdemeanor that cannot be punished by 

incarceration or a fine of over $1000. 720 ILCS 5/4-9 (West 2012). A first-time 

violation of section 4-104(a)(4), however, is a Class A misdemeanor that carries 

the possibility of up to 364 days in jail and a fine of up to $2500. 625 ILCS 5/4-

104(a)(4), (b)(3) (West 2012); 730 ILCS 5/5-4.5-55(a), (e) (West 2012). Moreover, 

subsequent violations of section 4-104(a)(4) result in a Class 4 felony, accompanied 

by even harsher penalties. 625 ILCS 5/4-104(b)(3) (West 2012); 730 ILCS 5/5-4.5-

45 (West 2012). Because the potential penalties for a violation of section 104(a)(4) 

exceed the ceiling for a finding of absolute liability under the first standard 

enumerated in section 4-9, section 4-104(a)(4) does not qualify as an absolute 

liability offense under that standard. 720 ILCS 5/4-9 (West 2012) (allowing a 

finding of absolute liability “if the offense is a misdemeanor which is not 

punishable by incarceration or by a fine exceeding $1,000”); 2020 IL App (1st) 

171992-U, ¶¶ 30-31. 

¶ 20 Applying the second section 4-9 standard for identifying an absolute liability 

offense requires a determination of whether, in the absence of any express 

language, the legislature clearly intended to impose absolute liability for the 

conduct defined. As we explained in Gean, 143 Ill. 2d at 287, the severity of the 

potential punishment is a critical factor in ascertaining whether the legislature 

intended to create an absolute liability offense. That is because “ ‘[i]t would be 

unthinkable to subject a person to a long term of imprisonment for an offense he 

might commit unknowingly.’ [Citation.] Therefore, ‘where the punishment is great, 

it is less likely that the legislature intended to create an absolute liability offense.’ 

[Citations.]” Id. Thus, we must look at the severity of the potential punishment for 

violating section 4-10(4)(a). 

¶ 21 A first violation of section 4-104(a)(4) is a Class A misdemeanor, bearing with 

it the highest possible penalty for any misdemeanor: up to 364 days in jail and a 

fine of up to $2500. 625 ILCS 5/4-104(a)(4) (West 2012); 730 ILCS 5/5-4.5-55(a), 

(e) (West 2012). In People v. Nunn, 77 Ill. 2d 243 (1979), we considered the 

severity of the possible punishment for a Class A misdemeanor while addressing 

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whether the legislature intended that another Vehicle Code provision created 

absolute liability. In holding that it did not, we analyzed that statute under the 

standards in section 4-9. Id. at 249. After noting that the offense in Nunn was a 

Class A misdemeanor, we concluded that the potential penalty for that class of 

offense “must be considered substantial.” Id. The parties have offered no rationale 

for departing from that conclusion in this case. Thus, we conclude that section 4-

104(a)(4) does not create an absolute liability offense under the second standard in 

section 4-9. 

¶ 22 In the absence of an express mental state requirement or a finding of absolute 

liability for section 4-104(a)(4), we must infer a mental state of intent, knowledge, 

or recklessness. 720 ILCS 5/4-3(b) (West 2012). Section 4-5 of the Criminal Code 

of 2012 (Criminal Code) defines the mental state of “knowledge:” 

“A person knows, or acts knowingly or with knowledge of: 

(a) The nature or attendant circumstances or his or her conduct, 

described by the statute defining the offense, when he or she is consciously 

aware that his or her conduct is of that nature or that those circumstances 

exist. Knowledge of a material fact includes awareness of the substantial 

probability that the fact exists. 

(b) The result of his or her conduct, described by the statute defining the 

offense, when he or she is consciously aware that that result is practically 

certain to be caused by his conduct.” Id. § 4-5. 

¶ 23 The appellate court assessed that knowledge is the proper inferred mental state 

in section 4-104(a)(4), and the parties agree. In reaching that conclusion, the 

appellate court discussed this court’s decisions in Gean and People v. Tolliver, 147 

Ill. 2d 397 (1992), where we examined the applicable mental state to be inferred in 

section 4-104(a)(1), (2), which also lacked an express mental state. In Gean, we 

held that knowledge was the appropriate mental state for both subsections (a)(1) 

and (a)(2) because “[k]nowledge generally refers to an awareness of the existence 

of the facts which make an individual’s conduct unlawful” and those offenses were 

designed to criminalize the operation of “chop shops.” Gean, 143 Ill. 2d at 288-89 

(citing 21 Am. Jur. 2d Criminal Law § 136 (1981)). 

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¶ 24 Tolliver modified that mental state requirement for section 4-104(a)(2), a felony 

offense, by adding a requisite showing of criminal intent to the knowledge 

requirement. We reasoned that, without an additional showing of criminal intent to 

defraud or commit a crime, individuals could be convicted of a felony and be 

subjected to severe punishment for purely innocent conduct, an outcome we could 

not countenance. Tolliver, 147 Ill. 2d at 400-01. 

¶ 25 Unlike the Class 4 felony offense created by section 4-104(a)(2), a first 

violation of section 4-104(a)(4) constitutes a Class A misdemeanor. While Class A 

misdemeanors carry a “substantial” penalty (Nunn, 77 Ill. 2d at 249), that penalty 

is far less onerous than the potential punishment for a Class 4 felony. Thus, we 

agree with the appellate court that Gean and Tolliver counsel in favor of inferring 

a mental state of knowledge in section 4-104(a)(4). That requirement is sufficient 

to deter the misdemeanor conduct defined in section 4-104(a)(4). Thus, a violation 

of section 4-104(a)(4) occurs if a person displays or affixes a license plate for the 

first time while knowing that the law does not authorize its use on that vehicle. 

¶ 26 B. Section 3-703 

¶ 27 Next, we turn to section 3-703 to determine whether the legislature intended 

that it impose absolute liability. As we did with section 4-104(a)(4), we start by 

applying the two standards outlined in section 4-9 (720 ILCS 5/4-9 (West 2012)). 

The first standard in section 4-9 bars a misdemeanor bearing a potential punishment 

of incarceration or a fine over $1000 from being deemed an absolute liability 

offense. Id. Because section 3-703 creates a Class C misdemeanor that is punishable 

by a sentence of up to 30 days in jail and a maximum fine of $1500 (730 ILCS 5/5-

4.5-65(a), (e) (West 2012)), we conclude it cannot be an absolute liability offense 

under the first standard in section 4-9. 

¶ 28 Applying the second standard in section 4-9, we next consider whether the 

legislature showed its clear intent to impose absolute liability. 720 ILCS 5/4-9 

(West 2012). After relying on this court’s decision in O’Brien, 197 Ill. 2d 88, the 

appellate court concluded that it did. 2020 IL App (1st) 171992-U. In O’Brien, we 

held that the plain language of section 3-707 of the Criminal Code of 1961, barring 

the operation of a motor vehicle without liability insurance coverage, “ ‘clearly 

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indicates a legislative purpose to impose absolute liability for the conduct 

described.’ ” O’Brien, 197 Ill. 2d at 92 (quoting 720 ILCS 5/4-9 (West 1998)). 

¶ 29 Petitioner argues that O’Brien is distinguishable from this case because section 

3-707 defines a business offense that is not subject to the possibility of 

incarceration, unlike section 3-703. We disagree. Although we noted in O’Brien 

that section 3-707 was a business offense bearing no risk of incarceration, our 

analysis did not end there. 

¶ 30 Indeed, the critical portion of our analysis enumerated three “sources” for 

gleaning the clear legislative intent to impose absolute liability as required by 

section 4-9. Those sources include a review of (1) the plain statutory language, 

(2) the comparative severity of the potential penalty, and (3) a reading of the statute 

in the context of related provisions. Id. at 92-94. Before deciding that the legislature 

clearly intended to impose absolute liability in section 3-707, we applied each of 

those sources of guidance to ascertain the legislature’s intent and will conduct that 

same review here. We look first to the plain language of section 3-703. 

¶ 31 Petitioner argues that the appellate court erred in reading that statutory language 

by relying on O’Brien’s construction of “shall,” a word common to both section 3-

707 and section 3-703. Section 3-707 provided that “ ‘[n]o person shall operate a 

motor vehicle unless the motor vehicle is covered by a liability insurance policy in 

accordance with Section 7-601 of this Code.’ ” Id. at 92 (quoting 625 ILCS 5/3-707 

(West 1998)). We emphasized the legislature’s selection of the word “shall,” 

“which this court has construed as a clear expression of legislative intent to impose 

a mandatory obligation” (id. at 93) in Village of Winfield v. Illinois State Labor 

Relations Board, 176 Ill. 2d 54, 64 (1997), and People v. Thomas, 171 Ill. 2d 207, 

222 (1996). As we explained, Thomas construed “shall” as clearly expressing an 

intent to create a mandatory duty “in the absence of any statutory exceptions.” 

O’Brien, 197 Ill. 2d at 93. For those reasons, the plain language of section 3-707 

“unquestionably” evinced the clear legislative intent to create absolute liability. Id. 

at 92. 

¶ 32 Petitioner, however, argues that the specially concurring opinion in O’Brien is 

better reasoned, contending that the inclusion of “shall” is “not particularly 

relevant” when determining whether the legislature intended to create absolute 

liability. Id. at 97 (McMorrow, J., specially concurring, joined by Freeman and 

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Kilbride, JJ.). He differentiates between how “shall” was used in section 3-707 in 

O’Brien and how it is used here in section 3-703. He claims that “shall” was used 

in O’Brien to create “a mandatory obligation” to purchase auto insurance, while it 

is used in section 3-703 “in the different sense of a prohibition” that bars the display 

of a license plate not issued for a particular vehicle. 

¶ 33 We are not persuaded by petitioner’s attempt to differentiate the legislature’s 

use of “shall” here and in O’Brien. He fails to explain why the virtually identical 

language that introduces both section 3-707 in O’Brien and section 3-703 here leads 

to the divergent conclusions that the former imposes absolute liability while the 

latter does not. The initial words in both statutes are “[n]o person shall.” Section 3-

707 states: “[n]o person shall operate a motor vehicle unless the motor vehicle is 

covered by a liability insurance policy” (625 ILCS 5/3-707 (West 1998)), while 

section 3-703 provides that “[n]o person shall lend to another *** nor shall any 

person display upon a vehicle any *** registration plate *** not issued for such 

vehicle” (625 ILCS 5/3-703 (West 2012)). Petitioner’s attempt to justify this court’s 

differential treatment of the two sections largely relies on his claim that section 3-

707 creates a mandate and section 3-703 creates a prohibition. We find that claim 

to be a distinction without a difference. 

¶ 34 The purported “mandate” in section 3-707 to obtain insurance coverage can be 

read just as easily to prohibit the operation of a motor vehicle without such 

coverage. Moreover, we did not draw any distinction between the use of “shall” in 

the context of statutes that created mandates versus those that created prohibitions 

in our discussion of the plain statutory language in O’Brien. Petitioner has failed to 

offer a convincing rationale for distinguishing our analysis of the plain statutory 

language in O’Brien. 

¶ 35 Turning next to the second “source” for determining legislative intent in 

O’Brien, we examined the impact the potential penalty for a violation of the statute 

had on the likelihood that it was intended to impose absolute liability. O’Brien, 197 

Ill. 2d at 93. We noted that the possible penalty for a violation of section 3-707 

included a fine ranging from $501 to $1000, a range that “only slightly exceed[ed] 

the $500 statutory maximum for per se absolute liability offenses” in section 4-9 

(720 ILCS 5/4-9 (West 1998)). O’Brien, 197 Ill. 2d at 93-94. Applying a principle 

borrowed from Gean, 143 Ill. 2d at 287, we explained that, “where the penalty is 

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severe, the likelihood of a legislative intent to impose absolute liability is reduced” 

and declared that “[t]he converse also is true.” O’Brien, 197 Ill. 2d at 94. Finding 

that a fine between $501 and $1000 was “not severe,” we concluded that “the 

likelihood of a legislative intent to impose absolute liability is enhanced.” Id. 

¶ 36 Similarly, here section 3-703 defines a number of Class C misdemeanors, 

including the offense that duplicates the physical acts defined in section 4-

104(a)(4). 625 ILCS 5/3-703 (West 2012). Class C misdemeanors are subject to a 

possible jail sentence, unlike the offense in O’Brien, but that sentence is limited to 

a maximum of 30 days in jail, a term that cannot reasonably be deemed to be 

“severe.” See 730 ILCS 5/5-4.5-65(a), (e) (West 2012) (stating the punishments for 

a Class C misdemeanor). The section 3-703 offense is also punishable by a 

maximum fine of $1500 (id.), a sum that is only slightly above the range we 

concluded was not severe in O’Brien. A difference of $500 in the maximum fine 

that could be imposed in O’Brien and section 3-703 is not sufficient to render the 

misdemeanor in O’Brien an absolute liability offense without a similar finding here. 

The potential penalty in section 3-703 is far closer to that in O’Brien than it is to 

the felony offenses in Gean that we deemed too serious not to require the inference 

of a mental state element. As in O’Brien, the relatively minor penalties that could 

be imposed for a violation of section 3-703 are consistent with an enhanced 

likelihood that the legislature intended to create an absolute liability offense. See 

O’Brien, 197 Ill. 2d at 94 (stating “[w]here, as here, the penalty is not severe, the 

likelihood of a legislative intent to impose absolute liability is enhanced”). 

¶ 37 Finally, we apply the third source of legislative intent to impose absolute 

liability gleaned from O’Brien by construing section 3-703 alongside related 

Vehicle Code provisions. Id. The third method grew out of our decision in In re 

K.C., 186 Ill. 2d 542, 550 (1999), where we held that section 4-102(a)(1), (2) of the 

Vehicle Code (625 ILCS 4-102(a)(1), (2) (West 1996)), barring unauthorized 

persons from damaging or tampering with a vehicle, defined absolute liability 

offenses. To support that conclusion in In re K.C., we compared section 4-102(a)(2) 

of the Vehicle Code with section 21-2 of the Criminal Code (720 ILCS 5/21-2 

(West 1996)). In re K.C., 186 Ill. 2d at 549-50. Although both statutes involved 

unlawful trespass to a vehicle, section 4-102(a)(2) did not include a mental state, 

but section 21-2 had a knowledge requirement. Id. at 550. We concluded that the 

use of “ ‘certain language in one instance and wholly different language in 

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another’ ” signaled the legislative intent to make section 4-102(a)(2) an absolute 

liability offense. O’Brien, 197 Ill. 2d at 94 (quoting In re K.C., 186 Ill. 2d at 549-

50). We also cautioned that a contrary construction would render the 

“ ‘ “knowingly” ’ ” mental state in section 21-2 “ ‘ “meaningless surplusage.” ’ ” 

Id. (quoting In re K.C., 186 Ill. 2d at 550). 

¶ 38 Applying a similar analysis to construe whether the legislature intended section 

3-707 to impose absolute liability in O’Brien, we noted that “chapter 3, article VII, 

of the Code is replete with penal statutes containing a culpable mental state.” Id. 

We compared the absence of a mental state in section 3-707 with the express 

knowledge requirement in 3-701(1), section 3-702(a)(1), (b), and section 3-710 

(625 ILCS 5/3-701(1), 3-702(a)(1), (b), 3-710 (West 1998)). O’Brien, 197 Ill. 2d at 

95. Particularly telling here, we recognized that one of the offenses defined in 

section 3-703 (625 ILCS 5/3-703 (West 1998)) also included a knowledge 

requirement. O’Brien, 197 Ill. 2d at 95. We concluded that the express inclusion of 

a culpable mental state in those related statutes presumptively established the 

legislature’s intent to signal its intent to create absolute liability in section 3-707 by 

omitting an express mental state. Id. at 94-95. We then reiterated our admonishment 

in In re K.C., stating that, “were we to hold that section 3-707 implicitly requires 

proof of a culpable mental state, the specific knowledge requirements of sections 

3-701, 3-702(a)(1), 3-702(b), 3-703, and 3-710 would be rendered ‘meaningless 

surplusage.’ ” Id. at 95. 

¶ 39 Our review of the language used in statutes addressing related matters in 

O’Brien and In re K.C. directly guides our review of petitioner’s proportionate 

penalty clause challenge in this case. We cannot ignore our recognition in O’Brien 

that chapter 3, article 7, of the Vehicle Code, defining conduct identical to that for 

which petitioner was convicted in section 4-104(a)(4), includes numerous offenses 

with an express knowledge requirement. Those provisions in section 3-701(1), 

stating that “[n]o person shall operate, nor shall an owner knowingly permit to be 

operated” a vehicle without proper registration (625 ILCS 5/3-701(1) (West 2012)), 

section 3-702(a)(1), providing that “[n]o person shall operate, nor shall an owner 

knowingly permit to be operated” a vehicle with an invalid registration (id. § 3-

702(a)(1)), section 3-702(b), mandating that “[n]o person shall use, nor shall any 

owner use or knowingly permit the use of” an invalid vehicle registration (id. § 3-

702(b)), and section 3-710, asserting that “[n]o person shall display evidence of 

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insurance to a law enforcement officer, court, or officer of the court, knowing there 

is no valid liability insurance in effect on the motor vehicle” (id. § 3-710). Most 

tellingly, one of the offenses neighboring the one at issue here in section 3-703 also 

includes a culpable mental state, providing that “[n]o person shall *** knowingly 

permit the use of any [evidence of vehicle registration] by one not entitled thereto” 

(id. § 3-703). See O’Brien, 197 Ill. 2d at 94-95. 

¶ 40 Applying the reasoning from O’Brien, we conclude that the failure to include a 

mental state requirement in the section 3-703 offense at issue sufficiently 

establishes the legislature’s intent to create a less serious offense than in section 4-

104(a)(4). We “presume that, by specifically including a culpable mental state in 

the numerous statutes identified above, the legislature’s omission of a culpable 

mental state” (id. at 95 (citing In re K.C., 186 Ill. 2d at 550)) in the section 3-703 

offense here “indicates that different results were intended” (id. at 94 (citing In re 

K.C., 186 Ill. 2d at 550)). We conclude that the legislature intended to impose 

absolute liability in the relevant offense in section 3-703. 

¶ 41 Our conclusion is consistent with the legislature’s acquiescence in our holding 

in O’Brien. People v. Casler, 2020 IL 125117, ¶ 36 (stating “ ‘[i]t is axiomatic that 

where a statute has been judicially construed and the construction has not evoked 

an amendment, it will be presumed that the legislature has acquiesced in the court’s 

exposition of the legislative intent’ ” (quoting People v. Hairston, 46 Ill. 2d 348, 

353 (1970))). If the legislature disagreed with our analysis in O’Brien and In re 

K.C, it had innumerable opportunities to amend the relevant statutes to clarify its 

intent during the decades since those decisions were filed. It has not done so. 

¶ 42 Having reviewed the three sources useful for inferring legislative intent to 

create absolute liability in O’Brien, we conclude that each one supports the 

conclusion that the legislature intended that the relevant portion of section 3-703 

create an absolute liability offense. 

¶ 43 Nonetheless, petitioner argues that, if that provision imposes absolute liability, 

it improperly criminalizes wholly innocent conduct, citing the example of an owner 

of multiple vehicles who accidentally swaps the license plates issued for two of 

those vehicles. He argues that no threat of immediate public danger or strong public 

policy supports the criminalization of that innocent error. See In re K.C., 186 Ill. 

2d at 553 (concluding that offenses punishing motor vehicle vandalism were 

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constitutionally defective because they “sweep too broadly, potentially imprisoning 

Good Samaritans, errant batters, and even wedding parties, all of whom possess 

wholly innocent motives”). Therefore, petitioner contends that policy 

considerations require this court to infer an implied mental state in section 3-703. 

¶ 44 Under our constitution, the legislature has the exclusive power to enact state 

laws after balancing the relevant interests. “It is not our role to inject a compromise, 

but, rather, to interpret the acts as written.” Folta v. Ferro Engineering, 2015 IL 

118070, ¶ 43. “[W]e do not sit as a superlegislature to weigh the wisdom of 

legislation nor to decide whether the policy which it expresses offends the public 

welfare.” (Internal quotation marks omitted.) Roselle Police Pension Board v. 

Village of Roselle, 232 Ill. 2d 546, 557 (2009). Moreover, if we adopt petitioner’s 

view and infer a mental state requirement in section 3-703, that construction would 

render the express mental state requirements the legislature chose to include in 

other offenses within that article, including one in section 3-703 itself, 

“ ‘ “meaningless surplusage.” ’ ” O’Brien, 197 Ill. 2d at 94 (quoting In re K.C., 186 

Ill. 2d at 550). For that reason, we decline to adopt petitioner’s suggestion. 

¶ 45 We have carefully applied the three sources in O’Brien of determining whether 

the legislature intended to impose absolute liability. After reaching the same 

conclusion in each instance, we hold that section 3-703 at issue here was intended 

to impose absolute liability. 

¶ 46 III. CONCLUSION 

¶ 47 Having inferred a requisite mental state of knowledge for petitioner’s section 

4-104(a)(4) conviction and concluded that the parallel provision in section 3-703 

imposes absolute liability, we reject petitioner’s proportionate penalties clause 

challenge. Although the two offenses criminalize the same physical act, they 

possess different mental state requirements. Because section 4-104(a)(4) has an 

inferred mental state of knowledge and section 3-703 imposes absolute liability, the 

imposition of harsher punishment for a conviction under section 4-104(a)(4) than 

under section 3-703 is constitutionally sound. Thus, we need not address the proper 

remedy for a constitutional violation in this case. Accordingly, we affirm the 

appellate court’s judgment that upheld the dismissal of petitioner’s section 2-1401 

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petition asserting a proportionate penalties clause violation. 

¶ 48 Judgments affirmed. 

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