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09/18/97 JOE MURNEIGH v. TERRANCE GAINER

September 18, 1997

JOE MURNEIGH, APPELLEE,
v.
TERRANCE GAINER, DIRECTOR OF STATE POLICE, ET AL., APPELLANTS.



The Honorable Justice McMORROW delivered the opinion of the court.

The opinion of the court was delivered by: Mcmorrow

The Honorable Justice McMORROW delivered the opinion of the court:

In this appeal we determine the constitutionality of a statutory provision and two regulations which provide for the collection of blood specimens from certain convicted sex offenders. These provisions require Illinois courts to enter orders for the collection of blood from certain convicted sex offenders and to enforce such orders by the exercise of the court's contempt power. The circuit court held that these provisions violate the separation of powers clause of the Illinois Constitution of 1970.

Plaintiff, Joe Murneigh, is a former prisoner of the Illinois Department of Corrections who was convicted in 1973 of rape and deviate sexual assault. Defendants are the Director of State Police, the former Director of Corrections, and the warden of Shawnee Correctional Center.

This is the second appeal arising from plaintiff's refusal to provide a blood specimen to defendants pursuant to section 5-4-3 of the Unified Code of Corrections (730 ILCS 5/5-4-3 (West 1994)). See Doe v. Gainer, 162 Ill. 2d 15, 204 Ill. Dec. 652, 642 N.E.2d 114 (1994). Plaintiff brought the instant action to challenge the constitutionality of section 5-4-3(i) of the statute and the two implementing regulations found at 20 Ill. Adm. Code §§ 1285.30(d), (f) (1994). According to plaintiff, section 5-4-3(i) and the two regulations contravene the separation of powers provision of the Illinois Constitution. Ill. Const. 1970, art. II, § 1. He further contends that because this statutory and administrative scheme for collecting blood samples was enacted after his conviction for sexual offenses, defendants' attempts to retain him in prison beyond his parole or release date because of his refusal to provide the blood sample deprive him of his due process rights and also violate the prohibition against ex post facto laws.

The circuit court granted summary judgment in plaintiff's favor on the ground that section 5-4-3(i) and regulations 1285.30(d) and (f) infringe upon the judiciary's inherent power of contempt, and therefore violate the separation of powers clause of the Illinois Constitution. Accordingly, the court enjoined defendants from further attempts to seek a blood sample from defendant and ordered his previously taken blood sample expunged. Defendants, invoking Rule 302(a) (134 Ill. 2d R. 302(a)), then brought this direct appeal from the court's order declaring section 5-4-3(i) and the administrative regulations invalid. We affirm the judgment of the circuit court.

BACKGROUND

In 1973, plaintiff was sentenced to an indeterminate term of 20 to 60 years following his convictions for rape and deviate sexual assault. In 1989, the General Assembly enacted section 5-4-3 of the Unified Code of Corrections, which established the statutory framework for the creation of a deoxyribonucleic acid (DNA) data bank for the collection and genetic marker grouping analysis of blood samples from certain sex offenders and sexually dangerous persons. See 730 ILCS 5/5-4-3 (West 1994).

Under this statute, the Illinois Department of State Police is charged with the responsibility of collecting, analyzing, and exchanging with other law enforcement agencies DNA information derived from blood specimens taken from certain convicted sex offenders. The statute classifies persons subject to the blood collection requirement into two groups: (1) sex offenders and sexually dangerous persons who have been convicted on or after the effective date of the statute (see 730 ILCS 5/5-4-3(a)(1) (West 1994)) and (2) sex offenders or sexually dangerous persons who were convicted of a sex offense before the effective date of the act and who are "presently confined as a result of such conviction *** or [are] presently serving a sentence of probation, conditional discharge or periodic imprisonment as a result of such conviction." 730 ILCS 5/5-4-3(a)(3) (West 1994). Offenders who are convicted and sentenced on or after the effective date of the blood collection statute must, pursuant to court order, provide a blood specimen within 45 days after sentencing. 730 ILCS 5/5-4-3(b) (West 1994). Offenders who were convicted before the effective date of the Act and are still in the prison system are required to provide a specimen "prior to final discharge, parole, or release" from prison. 730 ILCS 5/5-4-3(c) (West 1994). In 1992, amendments to the statute were enacted, including the addition of the contempt provision, section 5-4-3(i). The contempt provision is the subject of the instant appeal.

To resolve the issues in the case at bar we examine the chronological events relevant to plaintiff's two separate lawsuits which challenged different provisions of the blood collection requirements set forth in section 5-4-3. The controversy began in November 1992, when the medical staff at Shawnee Correctional Center attempted to satisfy sections 5-4-3(a)(3) and (c) of the statute by obtaining a blood specimen from plaintiff, who was then eligible for parole from his 1973 convictions. Plaintiff refused to cooperate. Thereafter, he filed a pro se action in which he challenged the constitutionality of sections 5-4-3(a)(3) and (c) of the Unified Code of Corrections (730 ILCS 5/5-4-3(a)(3), (c) (West 1994)). See Doe v. Gainer, 162 Ill. 2d 15, 204 Ill. Dec. 652, 642 N.E.2d 114 (1994). According to plaintiff, these two provisions denied him due process of law and constituted ex post facto punishment because they operated to lengthen his original sentence or delay his release on parole until he provided the blood sample. He requested declaratory and injunctive relief.

The record indicates that defendants, in their answer to plaintiff's lawsuit in the circuit court in Doe, admitted that sections 5-4-3(a)(3) and (c) authorized prison officials to retain plaintiff in prison until he cooperated with the blood collection process. According to defendants, however, such a result was not unconstitutional as violating due process or ex post facto prohibitions. The circuit court disagreed, and held that the above provisions unconstitutionally allowed the State to detain plaintiff in prison beyond the date of his anticipated release or parole as long as he refused to comply with prison officials' request that he provide a blood specimen for the state data bank. The operation of such a law, according to the trial court, was to impose an ex post facto punishment upon previously convicted prisoners, like plaintiff, who declined to provide blood specimens voluntarily. Because the prisoner would be subject to remaining in prison or being denied parole as long as he refused to comply with the statute, the effect of the provisions in issue would be to retroactively impose an additional punishment for the original crime. Consequently, the trial court declared sections 5-4-3(a)(3) and (c) unconstitutional and enjoined their enforcement against plaintiff.

The State appealed to this court. Doe v. Gainer, 162 Ill. 2d 15, 204 Ill. Dec. 652, 642 N.E.2d 114 (1994). We reversed the judgment of the trial court on the ground that sections 5-4-3(a)(3) and (c) could be construed in a constitutional manner. Doe, 162 Ill. 2d at 20. We held that section 5-4-3(c), which required that prisoners in plaintiff's situation provide a blood specimen before being released, discharged, or paroled from prison, was not to be construed as an enforcement mechanism, as the trial court had done, but should instead be viewed as a timing device specifying when the blood sample was to be provided. Doe, 162 Ill. 2d at 20-21. We held that the provisions in issue did not authorize prison officials to extend prison terms, deny parole, or delay release of those prisoners who refused to voluntarily provide blood specimens. See Doe, 162 Ill. 2d at 21. Cf. Gilbert v. Peters, 55 F.3d 237 (7th Cir. 1995) (holding that the Illinois blood collection requirements could be construed in a constitutional manner despite an ex post facto challenge because the statute was not punitive in nature and the sanctions for failure to comply would be internal administrative punishments such as loss of "good time" or other disciplinary measures). Notably, in Doe, we expressly declined the State's request that we consider section 5-4-3(i), the contempt provision at issue in the case at bar, as the means by which the State can enforce the blood collection requirement.

After this court's decision in Doe, the Illinois State Police again sought to obtain a blood sample from plaintiff, this time invoking the contempt provision of section 5-4-3(i). Section 5-4-3(i) provides:

"A person ordered by the court to provide a blood specimen shall cooperate with the collection of the specimen and any deliberate act by that person intended to impede, delay or stop the collection of the blood specimen shall be punishable as contempt of court." 730 ILCS 5/5-4-3(i) (West 1994).

Section 1285.30(d) of the Administrative Code provides:

"In the event no court order has been issued at the time of sentencing requiring the qualifying offender to provide a sample, the designated agency shall request the State's Attorney of the court of conviction or the county in which the offender is located to request the court to issue such an order. The court shall issue an order requiring the offender to provide the sample." 20 Ill. Adm. Code § 1285.30(d) (1994).

Section 1285.30(f) of the Administrative Code states:

"A general order issued under the administrative authority of the chief judge of the circuit court of proper jurisdiction is sufficient to satisfy the court order provisions of these rules. In the event such an order exists and is valid with respect to the qualifying offender, the State's Attorney need not seek an individualized order." 20 Ill. Adm. Code § 1285.30(f) (1994).

Plaintiff refused defendants' second request for a blood specimen. In November 1994, plaintiff filed his second lawsuit, which is the subject of the instant appeal. He alleged that, once again, defendants were threatening to prevent his release on parole unless he provided a blood specimen for inclusion in the data bank. According to plaintiff's complaint, defendants were invoking section 5-4-3(i) and the two implementing regulations as authorizing the "continued incarceration of inmates past their release dates for failure to comply with the blood testing requirement." In so doing, plaintiff charged, defendants were attempting, by using the contempt provision and regulations, to achieve the same unconstitutional result of delaying his release date from prison that they were unable to achieve by their original construction of sections 5-4-3(a) and (c) in Doe v. Gainer, 162 Ill. 2d 15, 204 Ill. Dec. 652, 642 N.E.2d 114 (1994). Consequently, plaintiff sought declaratory and injunctive relief on the ground that section 5-4-3(i) of the Code is unconstitutional. In count I of his complaint, plaintiff alleged that section 5-4-3(i) and the implementing regulations were ex post facto laws. In count II, plaintiff alleged that the same statutory provision and regulations violated his right to due process of law. In count III, he alleged that the provision and implementing regulations violated the separation of powers doctrine embodied in the Illinois Constitution.

The parties filed cross-motions for summary judgment. Defendants argued, inter alia, that plaintiff's challenge to section 5-4-3(i) was barred by res judicata because of this court's ruling in Doe. In addition, defendants contended that the cause was moot because plaintiff had given a blood sample on April 4, 1995, and was subsequently granted parole. Finally, defendants disputed ...


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