By PETER HANCOCK
Capitol News Illinois
phancock@capitolnewsillinois.com

SPRINGFIELD – The Illinois Supreme Court has ruled that a state law restricting where previously convicted child sex offenders can live is constitutional, although it left open the possibility that it was improperly applied to one individual.

In a 6-0 decision, the court found the residency restriction “does not infringe upon a child sex offender’s fundamental rights” and that there was a “rational basis” for the state to restrict where a person convicted of such a crime can live.

“The legislature has a legitimate interest in protecting children from neighboring child sex offenders and sexual predators,” the court said in an opinion written by Justice David Overstreet. “The Residency Restriction bears a reasonable relationship to furthering the State’s public interest in protecting children by creating a buffer between a child day care home and the home of a child sex offender to protect children from the harm for which child sex offenders have been convicted.”

The case involved Martin Kopf, a Kane County resident, now in his 50s, who was convicted in 2003 of aggravated criminal sexual abuse for an incident involving a 15-year-old boy. According to a published report of the incident, Kopf was a high school basketball coach at the time and sexually abused a member of his team during a sleepover at which he allegedly served the boy alcohol.

Kopf served three years’ probation and reportedly has not reoffended since that incident. But he is permanently required to register as a sex offender, which, among other things, entails legal restrictions on where he is allowed to live.

In 2018, Kopf and his wife bought a home in the village of Hampshire, in Kane County. But before doing so, they checked with both the Illinois State Police and the Hampshire Police Department to make sure it complied with his residency restrictions. Records indicate both agencies told him that it did.

Three months after moving in, however, they were told a day care facility was located within 500 feet of their home – a violation of the state’s residency restrictions – and, as a result, they would have to move.

Kopf, who represented himself in court proceedings, challenged the law as unconstitutional, and in 2021, Kane County Circuit Judge Kevin Busch agreed. Busch wrote the law was both unconstitutional “on its face,” meaning it would violate constitutional rights under any circumstances, and “as applied” to Kopf.

But in an opinion released March 21, the Illinois high court disagreed, overturning Busch’s ruling that the law was facially unconstitutional, and saying there was no factual evidence in the record to support a finding that it was unconstitutional “as applied” in Kopf’s case.

The court therefore sent the case back to Kane County for the sole purpose of determining whether there was evidence to find the law unconstitutional “as applied” to Kopf.

Courts generally use one of two standards in deciding whether a law is constitutional. In cases involving a “fundamental right,” the standard of “strict scrutiny” applies, meaning the government has to show the law serves a compelling state interest and that it is narrowly tailored to achieve that interest.

But in cases involving rights that are less than fundamental, courts use a “rational basis test,” meaning the government only has to show a rational connection between the law’s means and its goals.

Citing language first coined by U.S. Supreme Court Justice Benjamin Cardozo in a famous 1937 opinion, the state’s high court said the right to live where one pleases is not “fundamental” because it “is not ‘deeply rooted in this Nation’s history and tradition’ or ‘implicit in the concept of ordered liberty’ such that ‘neither liberty nor justice would exist if [it] were sacrificed.’”

Therefore, the court said, the state only needed to show a rational basis for residency restrictions.

Kane County Judge Busch said the restrictions failed the rational basis test, citing studies that have shown there is little or no evidence to suggest such restrictions reduce the chance of someone reoffending.

But in its March 21 ruling, the Supreme Court reversed that decision, saying such studies don’t matter because the legislature’s judgment in drafting a statute “may be based on rational speculation unsupported by evidence or empirical data and are not subject to judicial factfinding.”

Capitol News Illinois is a nonprofit, nonpartisan news service covering state government. It is distributed to hundreds of newspapers, radio and TV stations statewide. It is funded primarily by the Illinois Press Foundation and the Robert R. McCormick Foundation, along with major contributions from the Illinois Broadcasters Foundation and Southern Illinois Editorial Association.