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People v. Morger

Supreme Court of Illinois

November 21, 2019

THE PEOPLE OF THE STATE OF ILLINOIS, Appellee,
v.
CONRAD ALLEN MORGER, Appellant.

          JUSTICE KARMEIER delivered the judgment of the court, with opinion. Justices Thomas, Kilbride, Garman, Theis, and Neville concurred in the judgment and opinion.

          OPINION

          KARMEIER JUSTICE.

         ¶ 1 In this appeal, the defendant, Conrad Morger, challenges, as overbroad and facially unconstitutional, the probationary condition set forth in section 5-6-3(a)(8.9) of the Unified Code of Corrections (Code of Corrections) (730 ILCS 5/5-6-3(a)(8.9) (West 2016)). Defendant submits that section's "complete ban on accessing 'social networking websites' as a condition of probation is unreasonable and unconstitutional under the First Amendment." The appellate court rejected that argument. 2018 IL App (4th) 170285. We allowed the defendant's petition for leave to appeal (Ill. S.Ct. R. 315 (eff. July 1, 2013)) and now reverse, in part, the judgment of the appellate court.

         ¶ 2 STATUTES PERTINENT TO DEFENDANT'S SEX OFFENDER PROBATION

         ¶ 3 Multiple statutory conditions of probation were imposed in this case, but we consider four subsections of section 5-6-3 of the Code of Corrections (730 ILCS 5/5-6-3 (West 2016)) of particular significance in analyzing the issue presented for our consideration: id. § 5-6-3(a)(8.7) (mandatory for a child sex offender), id. § 5-6-3(a)(8.9) (mandatory if convicted of a sex offense as defined in the Sex Offender Registration Act (SORA) (730 ILCS 150/1 et seq. (West 2016))), 730 ILCS 5/5-6-3(a)(11) (West 2016) (mandatory if convicted of a sex offense as defined in SORA), and id. § 5-6-3(b)(18) (discretionary if convicted of a sex offense as defined in SORA). The pertinent conditions provide:

"(a) The conditions of probation and of conditional discharge shall be that the person:
(8.7) if convicted for an offense *** that would qualify the accused as a child sex offender ***, refrain from communicating with or contacting, by means of the Internet, a person who is not related to the accused and whom the accused reasonably believes to be under 18 years of age; ***[1]
(8.9) if convicted of a sex offense as defined in [SORA] committed on or after January 1, 2010 (the effective date of Public Act 96-262), refrain from accessing or using a social networking website as defined in Section 17-0.5 of the Criminal Code of 2012;
(11) if convicted of a sex offense as defined in Section 2 of [SORA] *** may not knowingly use any computer scrub software on any computer that the sex offender uses; ***
(b) The Court may in addition to other reasonable conditions relating to the nature of the offense or the rehabilitation of the defendant as determined for each defendant in the proper discretion of the Court require that the person:
(18) if convicted for an offense committed on or after June 1, 2009 (the effective date of Public Act 95-983) that would qualify as a sex offense as defined in [SORA]:
(i) not access or use a computer or any other device with Internet capability without the prior written approval of the offender's probation officer, except in connection with the offender's employment or search for employment with the prior approval of the offender's probation officer;
(ii) submit to periodic unannounced examinations of the offender's computer or any other device with Internet capability by the offender's probation officer, a law enforcement officer, or assigned computer or information technology specialist, including the retrieval and copying of all data from the computer or device and any internal or external peripherals and removal of such information, equipment, or device to conduct a more thorough inspection;
(iii) submit to the installation on the offender's computer or device with Internet capability, at the subject's expense, of one or more hardware or software systems to monitor the Internet use; and
(iv) submit to any other appropriate restrictions concerning the offender's use of or access to a computer or any other device with Internet capability imposed by the offender's probation officer[.]" Id. § 5-6-3(a)(8.7), (a)(8.9), (a)(11), (b)(18).

         The definition of a "social networking website" appears at section 17-0.5 of the Criminal Code of 2012 (720 ILCS 5/17-0.5 (West 2016)):

" 'Social networking website' means an Internet website containing profile web pages of the members of the website that include the names or nicknames of such members, photographs placed on the profile web pages by such members, or any other personal or personally identifying information about such members and links to other profile web pages on social networking websites of friends or associates of such members that can be accessed by other members or visitors to the website. A social networking website provides members of or visitors to such website the ability to leave messages or comments on the profile web page that are visible to all or some visitors to the profile web page and may also include a form of electronic mail for members of the social networking website."

         ¶ 4 BACKGROUND

         ¶ 5 The State's uncontested evidence, resulting in defendant's convictions, is more fully set forth in the appellate court's original opinion. See 2016 IL App (4th) 140321 (Morger I) (remanding for resentencing because the circuit court had delegated the responsibility of imposing conditions of probation to "Court Services"). We summarize here only those facts pertinent to our disposition.

         ¶ 6 In January 2013, defendant, who was 20 years old (born May 14, 1992), was charged with aggravated criminal sexual abuse and criminal sexual abuse. Each charge alleged that defendant's criminal acts-perpetrated against his teenage sister-occurred between August 2010 and November 2012. The evidence at defendant's bench trial established that defendant, while in the family residence, touched his sister's breast and vagina and that he had her touch his penis. Defendant was convicted of both charges. As the State points out, presentencing evaluation by a clinician concluded that defendant was viewed as "a moderate to high risk to reoffend," but it was "likely" that he could be safely treated in the community with appropriate supervision. The evaluator recommended, among other things, that defendant be prohibited from having contact with anyone under 18 years of age and from viewing, owning, or downloading pornography or sexually stimulating material.[2] Statutory conditions of probation referenced at the outset of this opinion implemented those recommendations. Those conditions and a host of others (18 in all) were ultimately imposed by the McLean County circuit court-after remand from the appellate court-as part of defendant's four-year sentence of probation.

         ¶ 7 When the case again came before the appellate court, defendant challenged multiple conditions of his probation-including the condition challenged here-all of which were upheld. 2018 IL App (4th) 170285 (Morger II). Defendant's constitutional challenge to the flat ban on the use of social media was premised principally, as it is now, upon the United States Supreme Court's decision in Packingham v. North Carolina, 582 U.S.___, 137 S.Ct. 1730 (2017). Morger II, 2018 IL App (4th) 170285, ¶ 69.

         ¶ 8 In Packingham, defendant, a registered sex offender who had completed his sentence, was convicted for violating a North Carolina law that barred registered sex offenders from gaining access to commercial social networking websites. The Supreme Court concluded the North Carolina statute impermissibly restricted lawful speech in violation of the first amendment. Packingham, 582 U.S. at___, 137 S.Ct. at 1737.

         ¶ 9 The appellate court found this case

"different from Packingham in two important respects: (1) defendant's access to social media is not foreclosed altogether, as was the case in Packingham, and (2) defendant has not yet completed his sentence and his probation conditions cannot 'endure for 30 years or more.' Packingham, 582 U.S. at___, 137 S.Ct. at 1734." (Emphasis in original.) Morger II, 2018 IL App (4th) 170285, ¶ 83.

         ¶ 10 With respect to the first distinction, the appellate court construed the conditions of defendant's probation so as to allow a probation officer to "temporarily *** lift or modify a condition if the probation officer believed doing so would be appropriate, given both defendant's need to have that condition temporarily lifted or modified, as well as the need to protect the public, particularly children." Id. ¶ 82. The appellate court believed the broad powers granted a probation officer under subsection (b)(18) of section 5-6-3-a discretionary condition of probation imposed in this case-allowed the probation officer to "lift" what, by its terms, appears to be the mandatory, unequivocal ban on access to social media imposed by subsection (a)(8.9).

         ¶ 11 The appellate court also found Packingham distinguishable because (1) defendant was still serving his sentence, unlike Packingham, and thus defendant could be subjected to restrictions that would be unconstitutional if applied to Packingham and (2) the ban on defendant's access to social media was only temporary-for the duration of his sentence-whereas the ban in Packingham had no temporal limitation-it was, in effect, a lifetime ban.

         ¶ 12 Before the appellate court, defendant argued that multiple conditions of his probation were "unconstitutional, overly broad, and unreasonable." The appellate court rejected those arguments. Before this court, he argues, on the basis of overbreadth, only one condition is unconstitutional-the "complete ban" on the use of social media.

         ¶ 13 ANALYSIS

         ¶ 14 As a preliminary matter, the parties have acknowledged the completion of defendant's sentence, which would render this matter moot. Nonetheless, they submit that an exception to the mootness doctrine applies.

         ¶ 15 Although, as a general rule, we will not decide moot questions (In re Jarquan B., 2017 IL 121483, ¶ 17), this court has recognized exceptions to that rule (see In re Alfred H.H., 233 Ill.2d 345, 354-55 (2009) (discussing the public interest exception, the capable-of-repetition-yet-avoiding-review exception, and the collateral consequences exception to the mootness doctrine)). The public interest exception applies when (1) the question presented is of a public nature, (2) there is a need for an authoritative determination for the future guidance of public officers, and (3) there is a likelihood of future recurrence of the question. In re Lance H., 2014 IL 114899, ¶ 13. This case meets those criteria. The issue implicates first amendment rights and access to social media websites-which the Supreme Court has characterized as "the modern public square." See Packingham, 582 U.S. at___, 137 S.Ct. at 1737. The flat ban on access to those websites, by its terms, applies to any probationer convicted of a sex offense as defined in SORA. Hence, the question of its constitutionality will recur frequently until authoritatively resolved by this court. We thus consider the issue presented under the public interest exception.

         ¶ 16 Principles of Review

         ¶ 17 The probationary condition at issue is statutory and mandatory for all probationers who are convicted of a sex offense as defined in SORA. The constitutionality of a statute is a question of law that we review de novo. People v. Minnis, 2016 IL 119563, ¶ 21. All statutes are presumed constitutional; the party challenging the constitutionality of a statute has the burden of clearly establishing its invalidity. Id. This court must construe the statute so as to uphold its constitutionality if reasonably possible. Id.

         ¶ 18 With respect to our probation system, specifically, this court has recognized that the State of Illinois has a legitimate interest in promoting the effective operation of its probation system, which serves the purposes of rehabilitating probationers while punishing them and protecting the public from crime. People v. Lampitok, 207 Ill.2d 231, 250 (2003). The effectiveness of that system will, at times, necessarily involve limitations on constitutional rights the probationer would otherwise enjoy. As the Supreme Court observed in Griffin v. Wisconsin, 483 U.S. 868, 874 (1987):

"To a greater or lesser degree, it is always true of probationers (as we have said it to be true of parolees) that they do not enjoy 'the absolute liberty to which every citizen is entitled, but only . . . conditional liberty properly dependent on observance of special [probation] ...

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