IN THE CIRCUIT COURT OF KANE COUNTY, ILLINOIS CHANCERY DIVISION MARCUS SABO, ARTHUR BAKER, RODNEY CAMPBELL, MICHAEL DOUGLAS, ROBERT DUKE, EDWARD FOLTZ, ROBERT GATEWOOD, GREGORIO GONZALEZ, DEMETRIUS HUGHES, HARRY LAMON, BRIAN TRANTHAM, DOUGLAS EARL MARTIN, RICHARD MOORE, ROBIN LISH, CARLOS RIVERA, DAVID ROCHEVILLE, BRYAN ELLIS, and DELQUISE ALLEN, Plaintiffs, v. CITY OF AURORA, and KANE COUNTY STATE’S ATTORNEY JOE MCMAHON, Defendant. ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) 19-CH-000996 MOTION FOR A TEMPORARY RESTRAINING ORDER AND A PRELIMINARY INJUNCTION Plaintiffs, through counsel, pursuant to 735 ILCS 5/11-102, respectfully move this Court for entry of a temporary restraining order and a preliminary injunction requiring Defendant City of Aurora to allow Plaintiffs to continue residing at Wayside Cross Ministries, located at 215 E. New York Street in Aurora, Illinois, and to register their addresses there; and enjoining Defendant Kane County State’s Attorney Joe McMahon from initiating prosecutions for violation of 720 ILCS 5/119.3 (b-10) if Plaintiffs continue to reside at 215 E. New York Street. In support thereof, Plaintiffs state as follows: INTRODUCTION Plaintiffs are 18 residents of Wayside Cross Ministries (“WCM”), located at 215 E. New York Street in Aurora, Illinois. Plaintiffs are participants in the Master’s Touch Ministry, a Bible-based community that seeks to help men in crisis rebuild their lives through prayer, mentoring, and supportive services. Each of the Plaintiffs has been convicted of a sex offense that makes him subject to the residency restrictions set forth in 720 ILCS 5/11-9.3(b-5) and (b-10) (hereinafter “the Residency Law”). The City of Aurora has given the Plaintiffs notice that if they do not move out of WCM by January 15, 2020, they will be referred to the Kane County State’s Attorney’s Office for criminal prosecution. For decades, the City of Aurora has registered individuals subject to the Residency Law (including all of the Plaintiffs) at Wayside Cross Ministries.1 But the City has decided that it is illegal for Plaintiffs to continue residing at WCM because of its proximity to McCarty Park, a City park located in downtown Aurora. If they are kicked out of WCM, the Plaintiffs will become homeless and be deprived of a faith community that is enabling them to rebuild their lives. As set forth in Plaintiffs’ complaint, the City of Aurora’s determination that Plaintiffs may not live at WCM violates their rights under the Illinois Religious Indeed, the City registered Plaintiffs Rodney Campbell and Demetrius Hughes at 215 E. New York Street on November 2, 2019, only four weeks prior to issuing notices that it illegal for them to continue to reside there. The City registered Plaintiff Carlos Rivera at Wayside on December 24, 2019—more than a week after it gave notice to the residents that it was illegal for them to remain at Wayside Cross. 1 2 Freedom Restoration Act. Complaint at ¶¶52–73. In addition, Plaintiffs seek a declaratory judgment that the City’s determination that Plaintiffs may not reside at WCM is based on a misinterpretation and misapplication of the Residency Law. Id. at ¶¶74–85. Plaintiffs request that this Court enter a temporary restraining order allowing Plaintiffs to continue to register and reside at WCM without threat of criminal prosecution until such time as the Court can rule on a preliminary injunction. FACTUAL BACKGROUND I. Wayside Cross Ministries Founded in 1928, WCM ministers to people whose lives are in crisis. WCM offers six Bible-based transformational programs for men, women, women with children, at-risk youth, the incarcerated, and ex-offenders. Ex. 4, Decl. of James Lukose, WCM Executive Director, at ¶1. The Master’s Touch Ministry is a comprehensive residential, life transformation program for troubled men whose lives are out of control as a result of drugs, alcohol, or other destructive behavior. Id. at ¶2. The program helps them confront their problems and empowers them to change their lives through daily bible study, daily religious services, biblically based mentoring, work rehabilitation, education, partnerships with local churches and transitional housing. Id. at ¶3. Plaintiff Robert Gatewood describes the Master’s Touch Ministry program as “a spiritual family” where the residents are committed to transforming their lives through deepening their connection with God and supporting their fellow residents’ 3 spiritual progress. Ex. 5 at 2, Declaration of Gatewood. Likewise, Plaintiff Gregorio Gonzalez describes his experience at WCM as “transformational” because the residents “pray together, read the Bible together and are learning together how to be productive people and to do it for the glory of God.” Ex. 5 at 8, Declaration of Gonzalez. There are presently 90 men in WCM’s resident population at 215 E. New York Street, nine of whom are resident staff and the rest of whom are working their way through the program. Ex. 4 at ¶3. WCM has provided its ministry in downtown Aurora for more than 90 years, and has been at its current location for more than 60 years. Id. at ¶5. As reported by the Chicago Tribune, “Even the Aurora Police Department acknowledges Wayside runs a tight ship that has resulted in fewer problems than other areas of the city.” Ex. 23. II. McCarty Park McCarty Park is a public park located in downtown Aurora at 350 E. Galena Boulevard. McCarty Park is situated between E. New York Street on the North, W. Park Place on the West, E. Galena Blvd. on the South, and E. Park Place on the East. Ex. 1, Google Maps Satellite Image. McCarty Park has been at that location for more than 100 years. McCarty Park is open to the public and contains benches, landscaping, paved pathways and a fountain. Ex. 4, Decl. of Lukose at ¶7. The fountain has been located in the center of McCarty Park for approximately 10 years. Id. In the summer of 2019, the City 4 added two children’s rocking horses to the lawn on the east side of the park near E. Park Place. Ex. 2, Photo; Ex. 4 at ¶7. Google Maps’ measuring tool shows that the easternmost boundary of 215 E. New York Street is within 500 feet of the westernmost boundary of McCarty Park. Ex. 1. The fountain at the center of McCarty Park is more than 550 feet from the easternmost boundary of 215 E. New York Street. Id. The rocking horses on the east side of McCarty Park are more than 700 feet from the easternmost boundary of 215 E. New York Street. Id.2 III. The Relevant Provisions of Illinois Law Because of their criminal convictions, all of the Plaintiffs are subject to the Residency Law, which sets forth restrictions on where they may reside. See 720 ILCS 5/11-9.3(b-5) and (b-10). The statute makes it illegal for Plaintiffs to reside within 500 feet of schools, playgrounds, daycare facilities, and facilities providing programs or services directed exclusively towards minors. The provision prohibiting residency within 500 feet of playgrounds went into effect on July 7, 2000. 720 ILCS 5/11-9.3(b-10). There is no statute that prohibits Plaintiffs or other individuals subject to the Residency Law from living within 500 feet of a “park.” The Residency Law contains no provision to “grandfather in” existing residences when a new daycare, school, or playground is established. Thus, an individual who is subject to the Residency Law has to move out of his or her home if a new school, The Court can take judicial notice of geographical features and distances measured using Google Maps. People v. Stiff, 391 Ill. App. 3d 494, 504, 904 N.E.2d 1174, 328 Ill. Dec. 664 (2009); People v. Clark, 406 Ill. App. 3d 622, 633-34, 346 Ill. Dec. 386, 940 N.E.2d 755 (2010). 2 5 daycare or playground opens within 500 feet of where he lives, unless he or she owned the property prior to the effective date of the statute (i.e. 2000). Id. It is a Class 4 felony for an individual subject to the Residency Law to reside in a prohibited location. 720 ILCS 5/11-9.3(f). Illinois law defines a “playground” as “a piece of land owned or controlled by a unit of local government that is designated by the unit of local government for use solely or primarily for children’s recreation.” 720 ILCS 5/11-9.3(d)(13). Per 720 ILCS 5/11-9.3(e), the 500-foot distance is measured from “the edge of the property comprising the ... playground ... to the edge of the child sex offender’s place of residence.” Under Illinois law, an individual who is required to register as a sex offender must register his address and other identifying information annually “with the chief of police in the municipality in which he or she resides.” 730 ILCS 150/3 (a)(1). Failure to register and/or providing false registration information is a Class 3 felony. 730 ILCS 150/10. There are two mechanisms by which the Residency Law is enforced: (1) It is within the discretion of each local registration authority (i.e., the local police department) to apply the Residency Law to addresses within its jurisdiction and determine whether a registrant is permitted to register a particular address. Thus, if a local police department deems a particular residence to be too close to a playground, day care, or school, it has the authority to refuse to register an individual at that address, and to give the individual notice that they must relocate to a different address; and (2) the state’s attorney of each county is responsible for initiating criminal charges for violations of the Residency Law that occur within its jurisdiction. 55 ILCS 5/3-9005(a). In practice, such prosecutions are typically brought only 6 when a local registration authority notifies the state’s attorney’s office that an individual is residing in a location prohibited by law. IV. The Enforcement of the Residency Law Against Plaintiffs Defendant City of Aurora, through its police department, has given each of the Plaintiffs (except Delquise Allen) written notice that he is prohibited from continuing to reside at WCM because doing so violates the Residency Law. Ex. 3, Notice. The notice states that “it appears that you are residing within 500’ of ... McCarty Park, a playground.” Id. The notice states that if the Plaintiff does not move out of Wayside Cross by January 15, 2020, the City of Aurora will “notify the State’s Attorney” who may “authorize felony charges as a result.” Id. To date, Aurora police have given notices to 17 residents of Wayside Cross Ministries. For decades, the City has registered individuals who have been convicted of sex offenses involving minors at WCM using 215 E. New York Street as their home address. The City never raised a concern that WCM is too close to McCarty Park or any other prohibited location. Ex. 4 at ¶8. Prior to issuance of this notice, the City registered each of the Plaintiffs at WCM. See Ex. 5, Declarations of Plaintiffs. The City will no longer allow individuals subject to the Residency Law to register at WCM because the City has determined that 215 E. New York Street does not comply with the Residency Law due to its proximity to McCarty Park. In making this determination, the City has decided to treat the entirety of McCarty Park as a “playground” due to the presence of a fountain in the center of the park and two rocking horses on the east side of the park. Ex. 7, Correspondence from Corporation Counsel Richard Veenstra; Ex. 3, Notice. 7 V. Procedural History The City first sought to remove Plaintiffs from WCM in July 2019, when the City gave notice to each resident of Wayside Cross Ministries who has been convicted of a sex offense involving a minor that he must relocate due to the proximity to McCarty Park. Plaintiffs brought an action in the United States District Court for the Northern District of Illinois federal court, Sabo et. al v. City of Aurora, 1:19-cv04837, in which they alleged the Illinois RFRA and Declaratory Judgment counts set forth below, along with a claim under the First Amendment of the United State Constitution’s free exercise clause. At the agreement of the parties, the district court entered an order on Plaintiffs’ motion for a temporary restraining order setting forth that “the City [would] reregister Plaintiffs and register new residents who are classified as ‘child sex offenders’ at Wayside Cross Ministries, 215 E. New York Street, Aurora, Illinois”; and would take “no further action to initiate a criminal prosecution of any of the Plaintiffs” until further order of the Court. Ex. 8, Federal Injunction Order. Pursuant to that Order, Plaintiffs have remained at Wayside Cross Ministries and have not been prosecuted for violation of the Residency Law. The City then moved to dismiss Plaintiffs’ federal complaint under the doctrine of Pullman Abstention, pursuant to which a federal court will abstain from ruling on a U.S. Constitutional claim if such a claim might be mooted by a state court determination of pertinent state law. Rowell-Chemical Corp. v. Village of Western Springs, 2019 WL 1858511 (N.D. Ill. 2019) (citing 3637 Corp., Inc. v. City of Miami, 8 314 F.Supp.3d 1320, 1334 (S.D. Fla. 2018)). Based on this doctrine, Plaintiffs voluntarily dismissed their federal lawsuit and now bring their Illinois RFRA and declaratory judgment claims in this court. VI. Security Provisions at WCM The residential building of WCM where Plaintiffs all reside is located at 215 E. New York Street. Ex. 4 at ¶9. The residents of the Master’s Touch ministry are only permitted to enter and exit the residential building through a door on the west side of the building. Id. at ¶10. This door is more than 500 feet from the nearest boundary of McCarty Park. Id. The residents of the Master’s Touch ministry are restricted from leaving the residence property at night because of a 9:30 p.m. curfew and also because they are closely supervised by the staff at WCM. Id. at ¶11. WCM is prepared to secure written agreements from the Plaintiffs that they would not be permitted on portions of Wayside’s property that are less than 500 feet from the McCarty Park property line after the close of business. Id. at ¶12. VII. The Plaintiffs Are Being Seriously Harmed Each of the Plaintiffs came to WCM because his life was in crisis after he was convicted of a serious crime. Exs. 5, Declarations of Plaintiffs. Plaintiffs are at WCM to transform their lives through deepening their faith in God, break negative patterns of behavior, and build skills that will allow them to be independent. If Plaintiffs are forced to leave WCM, they will be deprived of the stability, services and supportive religious community that are essential to their growth and progress towards leading law abiding, productive lives. 9 For example, Plaintiff Bryan Allen states that living at Wayside Cross “gives [his] life structure” because he has “something productive to occupy every day.” Ex. 5 at 18. He emphasized the importance of “the Christian aspect of life at Wayside,” and the ways in which it is teaching him “peace and self-control.” Id. However, if he has to leave Wayside, he will be “homeless and destitute.” Id. Similarly, Plaintiff Brian Trantham states that “[b]efore coming to Wayside Cross, [he] was hopeless and suicidal.” Ex. 5 at 11. But since coming to Wayside, “[he has] not thought of suicide” thanks to attending church four times a week and Bible study six times a week. Id. Plaintiffs Sabo, Martin, Baker, Campbell, Douglas, Gatewood, Gonzales, Foltz, Hughes, Lamon, Trantham, Moore, Lish, Rivera, Rocheville, Ellis and Allen will all become homeless if they are forced to move out of WCM. Ex. 5 at 1–5, 7–8, 918. They are indigent, not eligible for placement in public housing due to their criminal backgrounds, and do not have family members who can take them in. Plaintiffs Duke and Hughes have a small amount of savings that they would seek to put towards obtaining housing, but they fear that if they move out of WCM, their lives and their employment will be destabilized and they will be at risk of homelessness due to lack of funds and the difficulties that people with felony backgrounds (especially those who have been convicted of sex offenses) have in finding housing. Ex. 5 at 6 and 9. If the Plaintiffs do not have housing, they will be forced to sleep outside in the middle of the midwestern winter because most homeless shelters in Illinois will not accept individuals who are required to register as sex offenders. 10 Moreover, based on the City’s new interpretation of the Residency Law, the City is refusing to register Plaintiffs at 215 E. New York Street. If the Plaintiffs’ registration lapses and the City refuses to re-register them because of its new interpretation of the Residency Law, they face potential felony criminal charges. 730 ILCS 150/10 (making failure to register one’s address annually a Class 3 felony). Plaintiffs Trantham, Gatewood, Sabo, and Foltz all must register again within the next three weeks. Ex. 5 at 1, 2, 7 and 11. ARGUMENT I. Temporary Restraining Order and Preliminary Injunction Standards To be entitled to a temporary restraining order, a plaintiff must demonstrate “(i) an ascertainable right in need of protection, (ii) a likelihood of success on the merits, (iii) irreparable harm in the absence of injunctive relief, and (iv) the lack of an adequate remedy at law. People ex rel. Klaeren v. Village of Lisle, 202 Ill. 2d 164, 781 N.E.2d 223, 269 Ill. Dec. 426 (2002). If the movant establishes “a prima facie case, the court may also consider whether the balance of harms favors the grant or denial of injunctive relief.” Lumbermen’s Mutual Casualty Co. v. Sykes, 384 Ill. App. 3d 207, 230, 890 N.E.2d 1086, 322 Ill. Dec. 167 (2008). Similarly, in order to obtain a preliminary injunction, a plaintiff must establish four elements: “(1) a clearly ascertainable right requires protection, (2) irreparable injury will result in the absence of an injunction, (3) no adequate remedy at law is available, and (4) the moving party is likely to succeed on the merits of the case.” Roxana Cmty. Unit Sch. Dist. No. 1 v. WRB Ref., LP, 2012 IL App (4th) 120331, ¶ 11 23, 362 Ill. Dec. 677, 683-84, 973 N.E.2d 1073, 1079-80 (Ill. App. 2012) (citing Clinton Landfill, Inc. v. Mahomet Valley Water Authority, 406 Ill. App. 3d 374, 378, 943 N.E.2d 725, 729, 348 Ill. Dec. 117 (2010)). In addition, a preliminary injunction should be issued only if the harm to the plaintiff in the absence of such relief is “likely to outweigh the harm to the defendant if the relief is granted.” Id. To obtain a preliminary injunction, the movant must raise a “fair question” that each of these elements is satisfied. Id. Plaintiffs meet both of these standards and therefore request that the Court grant a temporary restraining order and a preliminary injunction requiring the Defendant City to register Plaintiffs at 215 E. New York Street in Aurora, Illinois and prohibit Defendant McMahon from initiating prosecutions for violations of the Residency Law if Plaintiffs remain at Wayside Cross.3 II. Plaintiffs Have a Likelihood of Success on the Merits of their Claim Under the Illinois Religious Freedom Restoration Act Plaintiffs assert a claim under the Illinois Religious Freedom Restoration Act, 775 ILCS 35/1, et seq. (“RFRA”). Illinois RFRA provides, in pertinent part: Government may not substantially burden a person’s exercise of religion, even if the burden results from a rule of general applicability, unless it demonstrates that application of the burden to the person (i) is in furtherance of a compelling governmental interest and (ii) is the least restrictive means of furthering that compelling governmental interest. 775 ILCS 35/15. Taking each of these requirements in turn, Plaintiffs show below they satisfy each one of them — namely, (1) Defendants are substantially burdening Plaintiffs requests that a temporary restraining order be granted immediately to protect Plaintiffs from being evicted until such time as the Court has an opportunity to hold a hearing on the motion for a preliminary injunction. 3 12 Plaintiffs’ exercise of religion by requiring them to move out of their residences at WCM or face criminal prosecution; (2) Defendants’ actions are not in furtherance of a compelling governmental interest; and (3) Defendants’ actions are not the least restrictive means of furthering that interest. A. Defendants’ Actions Impose a Substantial Burden on Plaintiffs’ Exercise of Religion and Freedom of Association Defendants’ actions substantially burden Plaintiffs’ exercise of religion by forcing them to move out of WCM or face criminal prosecution. All 18 of the Plaintiffs are part of WCM’s Bible-based, Christ-centered ministry. Ex. 4, Declaration of James Lukose at ¶2,3. Plaintiffs are part of WCM’s Master’s Touch Ministry program. Id. at ¶4, 6. The Master’s Touch Ministry is a comprehensive residential, life transformation program for troubled men whose lives are out of control as a result of drugs, alcohol, or other destructive behaviors. Id. at ¶3. The program helps them confront their problems and empowers them to change through spiritual development, biblically based mentoring, work rehabilitation, education, partnerships with local churches and transitional housing. Id. There are presently 90 men in the resident population. Nine are Resident Staff and the rest are working their way through the program. Id. Plaintiffs have experienced spiritual transformation through WCM’s Biblebased, Christ-centered ministry. Plaintiff Robert Gatewood describes the Master’s Touch Ministry program as a spiritual family where the residents are committed to transforming their lives through deepening their connection with God and supporting their fellow residents’ spiritual progress. Ex. 5 at 2, Decl. of Gatewood. 13 Plaintiff Gregorio Gonzales describes his experience at WCM as “transformational” because the residents “pray together, read the Bible together and are learning together how to be productive people and to do it for the glory of God.” Ex. 5 at 8, Decl. of Gonzales. Additionally, Defendant’s actions violate Plaintiffs’ right of free association by requiring them to sever their connection with WCM and their faith community or face criminal prosecution. Courts “have long understood as implicit in the right to engage in activities protected by the First Amendment a corresponding right to associate with others in pursuit of a wide variety of political, social, economic, educational, religious, and cultural ends.” Roberts v. United States Jaycees, 468 U.S. 609, 622 (1984).4 If Plaintiffs are required to move out of WCM, they will be unable to continue practicing their faith with the group of their choosing. They are joined to WCM and to each other in living a religious life and providing each other with religious fellowship. Their relationship with Wayside and each other is akin to a parishioner’s with his church, or a monk’s with the monastery where he lives. By imposing the threat of criminal prosecution if Plaintiffs do not remove themselves from their faith community, Defendants violate Plaintiffs’ right of association. See Smith at 882 (identifying freedom of association as a worthy companion claim, noting that “it is easy to envision a case in which a challenge on freedom of association grounds would likewise be reinforced by Free Exercise Clause concerns”) (citations omitted). The other companion constitutional claims the Smith Court identified to establish a valid hybrid rights claim, when combined with a religious interest, were (i) the freedom of speech and of the press; and (ii) the right of parents to direct the care, custody, and control of their children. See Smith at 881. 4 14 B. Defendants’ Actions Are Not Justified by a Compelling Governmental Interest In determining whether the government has demonstrated a compelling governmental interest, courts must “look[] beyond broadly formulated interests justifying the general applicability of government mandates and scrutinize[] the asserted harm of granting specific exemptions to particular religious claimants.” Gonzales v. O Centro Espirita Beneficente Uniao do Vegetal, 546 U.S. 418, 431 (2006). Here, Defendants cannot show that they have a compelling governmental interest in preventing Plaintiffs from living on a property whose boundary is less than 500 feet from the property line of McCarty Park for several reasons: a. The dormitory where Plaintiffs reside is more than 500 feet from the fountain and two hobby horses that Defendant asserts convert McCarty Park into a “playground.”5 Ex. 1, Google Maps Satellite Photo; b. Plaintiffs are restricted from leaving the property because of a 9:30 p.m. curfew and also because the men are closely supervised by the staff at Wayside. Ex. 4, Decl. of Lukose at ¶11; c. Wayside is prepared to secure written agreements from the men that they would not be permitted on portions of Wayside’s property that are less than 500 feet from the McCarty Park property line after the close of business. Id. at ¶11; d. Wayside has provided its ministry in downtown Aurora for more than 90 years, and has been at its current location for more than 60 years. Id. at ¶5. As reported by the Chicago Tribune, “Even the Aurora Police Department acknowledges Wayside runs a tight ship that has resulted in fewer problems than other areas of the city.” Ex. 6; and Plaintiffs dispute Defendant’s characterization of McCarty Park as a “playground.” See discussion in §III (B), infra. 5 15 e. For decades, the City of Aurora has considered WCM to be an acceptable address for Plaintiffs and registered all of them there. Ex. 3 at ¶8; Ex. 5. In addition, in December 2017, the Illinois Sex Offenses and Offender Registration Task Force, which was established by the Illinois General Assembly with the mandate to “examine the implementation and impact of the state’s sex offender registration and residency restrictions,” released its Final Report (“Report”)6 which concluded as follows: No research was available on whether [residency] restrictions would prevent sexual offending prior to implementation in states and local jurisdictions across the nation. Since that time, research has shown residency restrictions neither lead to reductions in sexual crime or recidivism, nor do they act as a deterrent. One reason for this null finding is that while residency restrictions were premised on preventing sexual abuse by strangers, research has shown most offenders are not strangers to their victims and abuse tends to happen in a private residence rather than identified public locations. At the same time, registry restrictions produce collateral consequences that stem from the inability to secure stable housing and employment or meaningfully participate in civic, social, or religious activities. Many of these collateral consequences weaken protective factors that reduce the risk of criminal behavior, such as family support, and aggravate factors that increase risk, such as homelessness or unemployment. Id., pp. 22-23. In this case, just such “collateral consequences” are likely to result if Plaintiffs are required to remove themselves from their support network at WCM. As such, far from furthering a compelling governmental interest, Defendant’s actions are likely to exacerbate the very risk that it purportedly wishes to prevent. Sex Offenses and Sex Offender Registration Task Force Final Report (2017), http://www.icjia.state.il.us/assets/articles/SOTF_report_final_12292017.pdf. 6 16 C. Defendants’ Actions Are Not the Least Restrictive Means of Achieving Any Compelling Governmental Interest Assuming arguendo that Defendant has a compelling governmental interest in preventing contact between minors who may be present in McCarty Park and individuals who have been convicted of sex offenses, Defendant’s actions are not the least restrictive means of furthering that interest. This is so for two primary reasons. First, the very existence of a government-sanctioned exception to a regulatory scheme that is purported to be the least restrictive means can demonstrate that other, less-restrictive alternatives exist. See Burwell v. Hobby Lobby Stores, Inc., 573 U.S. 682, 730-31 (2014). Here, the Illinois Criminal Code provides an exception to the general rule that a child sex offender may not reside within 500 feet of a playground. This exception applies to child sex offenders who own property that was purchased before July 7, 2000. 720 ILCS 5/11-9.3(b-10). This governmentsanctioned exception suggests that requiring Plaintiffs to leave Wayside is not the least restrictive means of furthering any interest in protecting minors from recidivist sex offenders. Additionally, the Report recommended ways to “[e]nsure [r]estrictions are [n]arrowly [t]ailored to [i]mprove [p]ublic [s]afety,” also suggesting those restrictions are not currently narrowly tailored. Report, p. 28. Second, there are less restrictive options that would ensure the protection of minors in McCarty Park without substantially burdening Plaintiffs’ free exercise of religion including, for example: 17 a. Securing agreements from WCM and Plaintiffs that they would not be permitted on portions of Wayside’s property that are less than 500 feet from the McCarty Park property line after the close of business; b. Obtaining a statement from WCM describing the precise supervision and restrictions placed on each of the Plaintiffs; c. Allowing Defendants to verify that the only unlocked entrance to Plaintiffs’ residence building is more than 500 feet from McCarty Park. Ex. 1; Ex. 4 at ¶10; and d. Enforcement of the statutory restrictions that prohibit Plaintiffs from being “present” in a park or “loitering” near a park. See 720 ILCS 5/119.3 (a-10) and (b-2). Based on the above, Plaintiffs have a likelihood of success on their RFRA claim. III. Plaintiffs Are Likely to Succeed on the Merits of the Declaratory Judgment Action Plaintiffs have a likelihood of success on their claim for declaratory relief because, as shown below, they satisfy the two elements necessary to succeed on such a claim: (1) the parties’ rights and responsibilities under the law are in question and Plaintiffs are in danger of sustaining serious harm because of the City’s misinterpretation of the law; and (2) 215 E. New York Street is not within 500 feet of a “playground” as that term is defined in Illinois law. A. A Declaration of Law Is Necessary and Warranted The Illinois Supreme Court has explained that a declaratory judgment is appropriate where the plaintiff “seeks construction of a governmental regulation or written instrument and a declaration of the rights of the parties involved.” Am. Family Mut. Ins. Co. v. Savickas, 193 Ill. 2d 378, 390 (Ill. 2000) (citing 735 ILCS 7/2-701(a) (West 1998)). Where, as here, a plaintiff brings a declaratory judgment 18 action concerning the validity or proper application of a statute, the plaintiff “must have sustained, or be in immediate danger of sustaining, a direct injury as a result of enforcement of the statute.” Lebron v. Gottlieb Mem’l Hosp., 237 Ill. 2d 217, 26667 (Ill. 2010) (citing Village of Chatham v. County of Sangamon, 216 Ill. 2d at 41920 (Ill. 2005)). A declaration of law is necessary and proper here because the parties are in disagreement concerning the proper interpretation of 720 ILCS 5/11-9.3(b-10) and whether 215 E. New York Street is within 500 feet of a “playground” under Illinois law. The resolution of these disputes will have a substantial and immediate impact on the parties’ respective legal rights and responsibilities. First, Plaintiffs will sustain serious injury if the City persists in its erroneous interpretation of 720 ILCS 5/11-9.3(b-10). As explained above, if Plaintiffs are forced to leave WCM, they will be deprived of their ability to participate in the supportive religious community of the Masters’ Touch Ministry. All of the Plaintiffs will be at risk of homelessness. Ex. 5. If the City will not register Plaintiffs at 215 E. New York Street, they will either have to sleep on the street or face potential felony charges for violation of the Sex Offender Registration Act. It is a Class 4 felony for an individual subject to the Act to reside in a prohibited location (720 ILCS 5/119.3(f)) and a Class 3 felony to fail to register one’s address (730 ILCS 150/10). Second, a proper interpretation of 720 ILCS 5/11-9.3(b-10) is necessary so both Plaintiffs and Defendants know their legal rights and responsibilities. Plaintiffs have a legal obligation to not reside within 500 feet of a playground and can face 19 felony prosecution if they fail to abide by this restriction. 720 ILCS 5/11-9.3(f). It is thus necessary for them to know how the distance between a playground and a residence will be measured so they can conform their conduct to the law. Likewise, the City has a legal responsibility to register individuals who have been convicted of sex offenses residing within its jurisdiction. 730 ILCS 150/3 (a)(1). The City has to know how to properly measure the distance between a between a playground and a residence so it can properly carry out its obligation to administer the registration law and register individuals such as Plaintiffs who live within Aurora. Defendant McMahon has a legal obligation to enforce the statute by bringing criminal prosecutions against those who live in violation of it. 55 ILCS 5/3-9005(a). For these reasons, a declaratory judgment is necessary. B. 215 E. New York Street Is Not Within 500 Feet of a Playground Plaintiffs have a substantial likelihood of success on their claim for declaratory relief because 215 E. New York Street is not within 500 feet of a “playground” as that term is used in Illinois law. 1. At Most, Only a Small Section of McCarty Park Meets the Statutory Definition of a Playground Illinois law defines a “playground” as “a piece of land owned or controlled by a unit of local government that is designated by the unit of local government for use solely or primarily for children’s recreation.” 720 ILCS 5/11-9.3(d)(13) (emphasis added). The City contends that McCarty Park constitutes a “playground” because of the presence of two hobby horses on the lawn on the east side of the park and the 20 presence of an “interactive fountain” at the park’s center. See Ex. 7, Veenstra letter; Ex. 2, photo of lawn with hobby horses. Yet neither the lawn nor the fountain meet the definition of a “playground” under the plain language Illinois law. These areas are not “solely or primarily” for children. They are open to be enjoyed by all members of the public, adults and children alike. Children might play on the hobby horses or run through the fountain, but these areas are also to be enjoyed by adults. These features are not like a traditional jungle gym with swings, slides, ladders and other equipment that is designed for use by kids. More importantly, even if the hobby horses and/or the fountain are deemed to meet the definition of a “playground” under Illinois law, that does not mean that the entirety of McCarty Park is a playground. McCarty Park is a general use park open to members of the public (adults and children alike) which contains paved walking paths, open green space, landscaping, other amenities. Ex. 1, Google Maps Satellite Image; Ex. 4, Decl. of Lukose at ¶7. The fact that the larger park contains some features that children may enjoy does not convert the entire larger park, including the areas that have nothing to do with children’s recreation, into a “playground.” Indeed, long standing past practices demonstrate that not even the City of Aurora thinks that the entirety of McCarty Park is a playground. The fountain at the center of McCarty Park has been there for approximately 10 years. Ex. 4 at ¶7. The City has routinely registered individuals subject to the Residency Law, including all of the Plaintiffs, at 215 E. New York Street. Ex. 4 at ¶8. Exs. 5 (declarations of all Plaintiffs stating that when they registered with the Aurora 21 police department, the registration authorities raised no concerns about the proximity of McCarty Park to WCM). Only now, has the City decided that McCarty Park is a “playground.” Ex. 4 at ¶13. 2. The Proper Measurement Is From the Actual Playground to the Residence The relevant statute provides that the 500-foot distance is measured from “the edge of the property comprising the … playground … to the edge of the child sex offender’s place of residence.” 720 ILCS 5/11-9.3(e). The statute does not specifically state how the distance from a playground to a residence should be measured where a children’s playground is contained within a larger park. The City contends that measurement should be made from the boundary of the park to the residence. Plaintiffs contend that the measurement should be made from the boundary of the area of the park that constitutes a playground to the residence. There is no published opinion from the Illinois Courts addressing this question. However, in a Rule 23 Order (i.e., a non-precedential order), the Illinois Appellate Court interpreted the law as requiring proof that an individual’s residence is within 500 feet of the “particular areas” of a park that “meet the statutory definition of a playground.” See People v. Cripe, 2017 IL App (4th) 150400U, ¶ 38 (Ill. App. 4th, 2017) (“the State failed to prove that defendant resided within 500 feet of a playground…. The evidence showed that defendant resided approximately 438 feet from the ‘Saunemin City Park and Playground.’ But the evidence did not establish which areas of the Saunemin City Park and Playground met the statutory definition of a ‘playground’ or how far defendant resided from 22 those particular areas.”). The Cripe court’s analysis makes good sense when viewed in light of the rules of statutory construction. In particular, when the language of a statute “is unambiguous, the statute must be applied as written.” First Am. Bank Corp. v. Henry, 239 Ill. 2d 511, 515-16 (Ill. 2011) (citing DeLuna v. Burciaga, 223 Ill. 2d 49, 59 (Ill. 2006)). And where there is any ambiguity, “the entire statute must be read as a whole, considering all relevant parts.” Id. (citing Kraft, Inc. v. Edgar, 138 Ill. 2d 178, 189 (Ill. 1990)). These two rules of statutory construction point to the conclusion that where a children’s playground area is located within a larger, general use park, the Illinois legislature intended the distance to be measured from the boundary of the playground area, not the property line of the larger park. The plain language of the statute restricts residence within 500 feet of a “playground” and does not restrict residence within 500 feet of a “park.” See 720 ILCS 5/11-9.3 (b-5) and (b-10). The statute gives separate definitions of “playground” and “public park.” See 720 ILCS 5/11-9.3(d)(14); 720 ILCS 5/119.3(d)(13). If the Illinois legislature intended to make it illegal for individuals such as Plaintiffs to live within 500 feet of general use parks such as McCarty Park, it would have said so. And if the legislature intended the definition of “playground” to include any larger park that contains a playground area, it would have said so in the definition of “playground.” But it didn’t. 23 Accordingly, the City’s interpretation of the statute and its determination that Plaintiffs may not continue to live at 215 E. New York Street is contrary to law. As shown in the satellite image attached hereto as Exhibit 1, 215 E. New York Street is within 500 feet of McCarty Park but more than 550 feet from the fountain and more than 650 feet from the hobby horses. Ex. 1. Accordingly, Plaintiffs have a likelihood of success on their claim for a declaratory judgment and should be granted a temporary restraining order and preliminary injunction allowing them to remain in their homes. IV. Plaintiffs Are Suffering Irreparable Harm, and Any Harm to the Defendant’s Interests Will Be Minimal In addition to establishing a likelihood of success on the merits of their claims, Plaintiffs lack an adequate remedy at law and will suffer irreparable harm in the absence of a temporary restraining order. As explained in full above, forcing Plaintiffs to move out of WCM will force them into homelessness and deprive them of the opportunity to continue their participation in the Master’s Touch faith community. Plaintiffs lack an adequate remedy at law for these harms. Plaintiffs should not have to live on the street until such time as the Court can reach a final determination on the merits of this action. The City cannot claim its interests will be harmed if the requested injunctive relief is granted. This is so for at least four reasons. First, Plaintiffs seek nothing more than to continue residing at a location the City has previously deemed to be entirely compliant with the law for decades. Second, the relevant statute, by its own terms, does not prohibit Plaintiffs from living within 500 feet of McCarty Park. The 24 City does not have a reasonable claim that it will be harmed by being prohibited from continuing to misinterpret and misapply the law. Third, the City cannot claim that public safety will be compromised if Plaintiffs are allowed to continue residing at WCM. Forcing Plaintiffs to live on the streets rather than in a stable home with supervision, a curfew, and supportive services doesn’t improve the safety of the City of Aurora. Fourth, even crediting as true the ostensible rationale for this statute— i.e., that keeping people who have committed offenses against children away from playgrounds will prevent recidivism—the City cannot claim it will suffer any harm if the requested injunctive relief is granted. This is so because the statute only restricts Plaintiffs from sleeping at 215 E. New York Street. They would not be prohibited from being there during the day when it is much more likely that children will be present within McCarty Park. CONCLUSION WHEREFORE, Plaintiffs respectfully request that this Honorable Court grant a temporary restraining order granting the following relief: • require the City of Aurora to register Plaintiffs at 215 E. New York Street; • prohibit the City of Aurora from arresting Plaintiffs who remain at WCM beyond January 15, 2020; • prohibit Defendant McMahon from initiating prosecutions against Plaintiffs for violation of the Residency Law if Plaintiffs remain at WCM. 25 Respectfully submitted, /s/ Adele D. Nicholas /s/ Mark G. Weinberg Counsel for Plaintiffs Law Office of Adele D. Nicholas 5707 W. Goodman Street Chicago, Illinois 60630 847-361-3869 adele@civilrightschicago.com ARDC No.: 6297293 Law Office of Mark G. Weinberg 3612 N. Tripp Avenue Chicago, Illinois 60641 773-283-3913 mweinberg@sbcglobal.net ARDC No.: 6199578 CERTIFICATE OF SERVICE Plaintiffs’ undersigned counsel certifies that she served the foregoing motion on counsel for Defendant City of Aurora via email to John Murphey (jmurphey@rmcj.com), and Corporation Counsel Richard Veenstra (RJVeenstra@aurora-il.org); and on counsel for Defendant Joe McMahon via email to Erin Brady (bradyerin@co.kane.il.us) on January 9, 2020. /s/ Adele D. Nicholas 26