Murneigh v. Gainer
Annotate this Case
Murneigh v. Gainer, Nos. 81195, 82042 cons. (9/18/97)
NOTICE: Under Supreme Court Rule 367 a party has 21 days after
the filing of the opinion to request a rehearing. Also, opinions
are subject to modification, correction or withdrawal at anytime
prior to issuance of the mandate by the Clerk of the Court.
Therefore, because the following slip opinion is being made
available prior to the Court's final action in this matter, it
cannot be considered the final decision of the Court. The
official copy of the following opinion will be published by the
Supreme Court's Reporter of Decisions in the Official Reports
advance sheets following final action by the Court.
Docket Nos. 81195, 82042 cons.--Agenda 11--January 1997.
JOE MURNEIGH, Appellee, v. TERRANCE GAINER, Director of State
Police, et al., Appellants.
Opinion filed September 18, 1997.
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 (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 sec. sec. 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, sec. 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 (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 (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 sec. 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 sec. 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 (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 plaintiff's assertion that section 5--4--3(i) was
unconstitutional as violating separation of powers.
The circuit court granted plaintiff's motion to file an
amended complaint in light of the fact that at the time of
defendants' motion to dismiss, plaintiff had provided a blood
specimen and had been offered parole. The amended complaint
retained the same legal arguments but requested that the blood
specimen, given under threat of the contempt sanction found in
section 5--4--3(i) and the two administrative regulations, be
expunged.
In ruling upon the parties' cross-motions for summary judgment
on the amended complaint, the trial court held that section 5--4--
3(i) and its implementing regulations violated the separation of
powers doctrine of the Illinois Constitution because they
"vitiate[d] the discretion that is inherent in the judiciary in the
exercise of the contempt power." Consequently, the court ordered
defendants to expunge plaintiff's blood sample and take no further
action against him to obtain another sample. The court declined to
address or decide the other two constitutional claims alleged in
count I (ex post facto law) and count II (violation of due
process). Defendants then brought this direct appeal, which we
granted (134 Ill. 2d R. 603).
ANALYSIS
Because this appeal arises from an order granting summary
judgment on issues of law, our standard of review is de novo. E.g.,
Busch v. Graphic Color Corp., 169 Ill. 2d 325, 333 (1996). The
party challenging the constitutionality of legislation, in this
case plaintiff, bears the burden of establishing that the provision
in issue is unconstitutional, overcoming the presumption of
constitutionality. E.g., Doe, 162 Ill. 2d at 19.
As a preliminary matter, we consider defendants' assertion
that plaintiff's complaint is moot because he provided a blood
specimen and was consequently released from prison. We note that
the trial court granted plaintiff's motion to expunge his specimen
from the records and further enjoined defendants from seeking
another blood sample from him. Therefore, the issues are not moot
as to plaintiff. Nor do we believe it would be appropriate to
dispose of plaintiff's claims on mootness grounds where the
threatened harm to a group of prisoners in plaintiff's position is
likely to recur and the where the issue presents questions of
public interest. See In re E.G., 133 Ill. 2d 98, 105-06 (1989);
People ex rel. Wallace v. Labrenz, 411 Ill. 2d 618, 622 (1952).
I. Res Judicata
Defendants argue that plaintiff's challenge to section 5--4--
3(i) is barred by the doctrine of res judicata because the instant
action involves the same parties, facts, and issues that were
before this court in defendants' prior appeal in Doe, 162 Ill. 2d 15. According to defendants, plaintiff could have challenged the
contempt provisions at issue in the instant case at the same time
that he raised the ex post facto and due process challenges to the
statutory requirement that he provide a blood specimen before his
release from prison. Because plaintiff did not include the contempt
provisions in his prior challenge to sections 5--4--3(a)(3) and
(c), defendants contend, principles of res judicata bar plaintiff's
claim in the case at bar.
We reject defendants' argument. Res judicata is an equitable
doctrine designed to prevent the multiplicity of lawsuits between
the same parties and involving the same facts and the same issues.
See, e.g., Torcasso v. Standard Outdoor Sales, Inc., 157 Ill. 2d 484, 490-91 (1993). Under this doctrine, a final judgment on the
merits of a cause operates as a bar to subsequent litigation of the
same claim, demand, or cause of action between the same parties.
Torcasso, 157 Ill. 2d at 490. In the case at bar, defendants'
attempt to invoke res judicata rests on the assumption that the
operative facts and issues in Doe and in the instant case are the
same. That assumption is erroneous. The parties are the same, but
the facts giving rise to the separate suits do not arise from a
single incident. Moreover, the controlling legal issues differ.
At the time plaintiff filed his first pro se petition
challenging sections 5--4--3(a) and (c) of the Act, he had not been
subjected to or threatened with contempt proceedings pursuant to
section 5--4--3(i). Instead, the basis of defendants' attempt to
keep him in prison past his anticipated parole date was language in
section 5--4--3(c), which defendants interpreted as authorizing
prison authorities to retain prisoners in plaintiff's circumstances
indefinitely, past their anticipated release dates, as long as they
refused to cooperate in giving blood samples. After this court's
opinion in Doe, which prevented defendants from keeping plaintiff
in prison past his departure date for purposes of blood collection,
defendants again sought a blood sample from plaintiff. This
subsequent attempt to obtain plaintiff's blood sample was
predicated on the contempt provision of section 5--4--3(i) and the
two implementing regulations. In light of the defendants' renewed
threat to keep plaintiff in prison past his anticipated release or
parole date until he gave a blood specimen, plaintiff filed his
second suit to challenge the contempt provision and administrative
regulations. The circuit court again ruled in plaintiff's favor,
but on different grounds from those present in the first lawsuit.
Therefore, defendants are incorrect in their assertion that the
facts and issues in both lawsuits are the same, for purposes of res
judicata. See Mistretta v. Village of River Forest, 2 Ill. App. 3d
102, 104 (1971) ("Where facts are alleged in a second complaint
which arose after the termination of the prior litigation and the
issue in the second litigation thus differs from the first" res
judicata does not bar the second suit); accord O'Connor v. Greer,
55 Ill. App. 3d 253, 261 (1977).
We also reject defendant's res judicata argument because in
the prior appeal we expressly declined to resolve whether section
5--4--3(i) was unconstitutional. We stated,
"Both parties have attempted to raise on appeal the
constitutionality of section 5--4--3(i) of the Code,
which provides for a finding of contempt of court against
any prisoner ordered by the court to provide a blood
sample who refuses to cooperate. (730 ILCS 5/5--4--3(i)
(West 1992).) However, we need not decide that issue
here. While the State has argued that section 5--4--3(i)
is the valid enforcement mechanism of section 5--4--3,
and defendant has responded, the trial court never ruled
on that section. The trial court's order was limited to
sections 5--4--3(a)(3) and (c). Moreover, the State
appealed only the constitutionality of sections 5--4--
3(a)(3) and (c) in its notice of appeal, and not the
constitutionality of section 5--4--3(i). The validity of
section 5--4--3(i) is not before this court." (Emphasis
added.) Doe, 162 Ill. 2d at 22.
Neither the trial court nor this court determined the
constitutional validity of section 5--4--3(i) in the first lawsuit
because the parties believed that sections 5--4--3(a)(3) and (c)
were dispositive on the question of whether prison officials were
authorized to retain plaintiff in prison until he gave a blood
specimen. It was not until this court's opinion in Doe that the
parties were apprised that the statutory requirement of providing
blood samples before a prisoner's release from prison operated as
a "timing device" instead of an enforcement mechanism. The Doe
opinion deliberately left open the question whether section 5--4--
3(i) was a constitutionally valid enforcement provision, which is
the issue now directly before this court as a result of defendants'
instant appeal.
In light of the above, defendants have not established that
the precise question, or point, involving the constitutionality of
section 5--4--3(i), was or should have been considered in
determining the former suit. See Torcasso, 157 Ill. 2d at 491. Res
judicata should not be applied to preclude a party from litigating
the central issue in a second suit where such issue was not
adjudicated in the first suit, because it was not considered
essential to the disposition of the issues then pending before the
court. Accordingly, defendants' attempt to bar plaintiff's
constitutional challenges by a strained application of res judicata
is unavailing.
II. Separation of Powers
In the case at bar, the circuit court held that section 5--4--
3(i) and the two implementing regulations violated separation of
power principles by vitiating the discretion that is inherent in
the judiciary in the exercise of its contempt power. In their
appeal to this court, defendants contend that these provisions do
not violate separation of powers because the legislative regulation
of the contempt power in the instant case does not unduly restrict
the courts' inherent contempt power. Instead, according to
defendants, section 5--4--3(i) and the regulations increase the
judiciary's contempt power, by facilitating the courts' exercise of
such power.
In response to defendants' arguments, plaintiff asserts that
the court correctly invalidated section 5--4--3(i) and the two
implementing regulations because these provisions compel the
judiciary to enter orders that are administrative in nature and
then to punish violations of such orders with contempt of court.
According to plaintiff, violations of administrative orders are not
punishable by contempt under Illinois law. Moreover, plaintiff
states, the mandatory nature of the provisions in issue vitiates
the courts' inherent discretion in matters concerning the exercise
of their contempt power. For these reasons, plaintiff contends,
section 5--4--3(i) and the two regulations violate the separation
of powers doctrine.
The Illinois Constitution provides that the legislative,
executive, and judicial branches of government are separate and
that no branch shall "exercise powers properly belonging to
another." Ill. Const. 1970, art. II, sec. 1. The separation of
powers doctrine exists to insure that each of the three branches of
government retains its own sphere of authority, free from undue
encroachment by the other branches. See, e.g., City of Waukegan v.
Pollution Control Board, 57 Ill. 2d 170, 175 (1974); People ex rel.
Hansen v. Phelan, 158 Ill. 2d 445, 451 (1994). The legislative
function of enacting general laws and the executive function of
enforcing those laws is complemented by the judicial function of
interpreting and applying laws in specific cases. A unique and
integral part of the judicial role in resolving specific
controversies is the contempt authority, which imbues the judiciary
with the power to punish certain types of conduct, i.e., acts which
significantly interfere with the dignity of the court or acts which
defy court orders. See, e.g., In re G.B., 88 Ill. 2d 36, 41 (1981);
In re Baker, 71 Ill. 2d 480 (1978); R. Johnston & K. Bry, An
Overview of Illinois Contempt Law: A Court's Inherent Power And the
Appropriate Procedures and Sanctions, 26 J. Marshall L. Rev. 223
(1993).
It is true, as defendants note, that the constitutional
requirement of separation of powers does not contemplate an
entirely separate and distinct exercise of authority by the
executive, legislative, and judicial branches of government. See,
e.g., City of Waukegan, 57 Ill. 2d at 174. The legislature may
enact laws involving judicial practice if they do not infringe
unduly upon the judiciary's inherent powers. See People v. Davis,
93 Ill. 2d 155, 161 (1982). Indeed, this court has recognized that
not all legislative attempts to regulate the judicial power of
contempt violate separation of powers principles. See People ex
rel. Rusch v. White, 334 Ill. 465, 484-85 (1929); see also In re
Baker, 71 Ill. 2d 480, 484 (1978) (legislature cannot restrict
court's contempt power but may provide a statutory alternative for
court to enforce, at its discretion).
In a recent opinion, we reiterated that "[t]he power to punish
for contempt does not depend on constitutional or legislative
grant." People v. Warren, 173 Ill. 2d 348, 370 (1996). Because the
power of contempt is inherent in the judiciary, and vital to its
authority, the other branches of government may not require judges
to exercise their discretionary authority to punish for contempt
(see In re Marriage of Metz, 233 Ill. App. 3d 50, 57 (1992)), or
tell the judiciary the manner in which it will exercise such power
(e.g., People v. Joseph, 113 Ill. 2d 36, 42 (1986)). When the
legislature encroaches upon a fundamentally judicial prerogative,
this court has not hesitated to protect the court's authority.
Joseph, 113 Ill. 2d at 43.
Section 5--4--3(i) states that 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." (Emphasis added.) 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." (Emphasis
added.) 20 Ill. Adm. Code sec. 1285.30(d) (1994).
Section 1285.30(f) of the Administrative Code provides:
"A general order issued under the administrative
authority of the chief judge of the circuit of proper
jurisdiction is sufficient to satisfy the court order
requirements 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." (Emphasis added.) 20 Ill. Adm.
Code sec. 1285.30(f) (1994).
These three provisions collectively set forth a scheme for
judicially enforcing the blood collection requirement against
incarcerated sex offenders. According to plaintiff, this scheme
violates the separation of powers clause of the Illinois
Constitution in that the scheme requires the courts to issue orders
that are administrative in nature, which is not a proper function
of the judiciary. In addition, as the circuit court found, the
provisions usurp the courts' discretion in exercising an inherently
judicial power by requiring the courts to punish violations of such
orders through the contempt power. We initially address the latter
issue.
A
Section 5--4--3(i) and the first regulation, section
1285.30(d) of the Administrative Code, set forth the procedure by
which the State Police can procure blood specimen from
noncooperative prisoners through use of the courts. This procedure
for obtaining and enforcing court orders to procure prisoners'
blood samples is couched in mandatory terms. Administrative
regulation 1285.30(d) compels the judiciary to issue compliance
orders against prisoners whenever requested by the State. If such
orders are then violated by a prisoner's deliberate refusal to
cooperate in providing a blood sample, section 5--4--3(i) provides
that the sanction for such violation shall be contempt of court.
Defendants do not dispute that the word "shall" in section 5--
4--3(i) and regulation 1285.30(d) is mandatory. Nor do defendants
suggest that these two provisions should be interpreted as merely
permissive. Cf. People v. Davis, 93 Ill. 2d 155, 162 (1982)
(construing the word "shall" as permissive in the context of a
statute requiring, as a prerequisite for felony sentencing, that
the court obtain and consider written presentence report). However,
defendants suggest that the mandatory nature of section 5--4--3(i)
and regulation 1285.30(d) does not offend separation of powers
principles. Defendants analogize the instant case to other cases in
which this court has rejected constitutional challenges to
legislation that limits judicial discretion. Specifically,
defendants rely on People v. Dunigan, 165 Ill. 2d 235 (1995), and
People ex rel. Carey v. Chrastka, 83 Ill. 2d 67 (1980), both of
which involved provisions requiring enhanced sentencing for
habitual offenders.
In both Dunigan and Chrastka, the offenders were subjected to
mandatory enhanced sentencing upon their convictions for the
qualifying offenses. The defendants raised separation of powers
challenges to the sentencing provisions, which required the courts
to impose the increased penalty if the prosecutor requested the
enhancement and further established the factual predicates
necessary to impose the increased penalty. In both cases, this
court rejected the offenders' argument that the mandatory
sentencing provisions violated separation of powers principles by
limiting the courts' discretion in imposing sentences. According to
defendants in the case at bar, cases such as Dunigan and Chrastka
support their argument that the mandatory nature of the instant
scheme does not render it unconstitutional.
We do not agree that the enhanced sentencing cases are
persuasive authority for deciding the separation of powers issue in
the instant case. This court, in Chrastka, recognized that the
legislature is authorized to define criminal offenses and
sentences. Such legitimate legislative authority does not usurp the
sentencing function of the judiciary. See Chrastka, 83 Ill. 2d at
79. Unlike the mandatory enhanced sentencing provisions under
review in Dunigan and Chrastka, however, section 5--4--3(i) is not
akin to a statutory sentencing provision for a specific offense. In
fact, we note that a prisoner's refusal to give blood is not
criminalized by section 5--4--3 and carries no sentence. While the
legislature may specify mandatory sentences without violating the
separation of powers doctrine, the legislature lacks similar
authority to specify mandatory contempt of court sanctions. The
inherent power of the court to maintain the dignity of the court or
to enforce its own orders in a specific judicial proceeding is
unlike the lawmaking power of the legislature to proscribe certain
types of conduct as crimes and to determine sentences for such
crimes. Accordingly, the holdings and reasoning of Dunigan and
Chrastka are inapposite to the issues before the court in this
appeal.
We conclude that the circuit court in the case at bar
correctly determined that section 5--4--3(i) and the two
regulations vitiate the court's discretion in exercising its
contempt power. See, e.g., People v. Joseph, 113 Ill. 2d 36, 42
(1986) (legislative branch lacks power to specify how the judicial
power shall be exercised under a particular set of circumstances);
In re Marriage of Metz, 233 Ill. App. 3d 50, 57 (1992) (court's
discretion includes the power not to impose contempt sanctions).
The provisions under review remove the judiciary's inherent
discretion by directing that the compliance orders shall be entered
and, if violated, that such orders shall be punishable by contempt
of court.
B
The second separation of powers problem, according to
plaintiff, is that the courts are required to wield a "rubber
stamp" in issuing orders that are administrative in nature. As
such, the scheme embodied in section 5--4--3(i) and regulations
1285.30(d) and (e) requires the Illinois judiciary to exercise
powers belonging to the executive branch of government. This
vesting of an executive function in the judiciary is prohibited by
the separation of powers clause of the Illinois Constitution.
Moreover, plaintiff contends, the violation of an administrative
order is not punishable by contempt of court because the contempt
power is reserved to the courts in their judicial function, and the
administrative orders in issue are not judicial in character.
We agree with plaintiff's arguments. The provisions under
review conscript the courts of Illinois into the service of an
essentially administrative program for the collection and analysis
of blood samples for inclusion in the state's data bank. The
courts' mandatory participation by the entry of compliance orders
and the enforcement of the orders with the contempt power does not
advance a judicial prerogative. Instead, judicial participation in
the administrative scheme promotes an executive purpose, viz.,
maintaining a blood data bank for law enforcement purposes. As this
court has often noted, the Illinois Constitution expressly
prohibits one branch of government from exercising the functions of
another. See Administrative Office of the Illinois Courts v. State
& Municipal Teamsters, Chauffeurs & Helpers Union, Local 726, 167 Ill. 2d 180 (1995); People v. Jackson, 69 Ill. 2d 252, 256 (1977);
see also Fields Jeep-Eagle, Inc. v. Chrysler Corp., 163 Ill. 2d 462, 479 (1994) (invalidating statute as improper delegation of
legislative or administrative decision-making to judiciary); cf. In
re General Order of October 11, 1990, 256 Ill. App. 3d 693 (1993)
(ho
NOTICE: Under Supreme Court Rule 367 a party has 21 days after
the filing of the opinion to request a rehearing. Also, opinions
are subject to modification, correction or withdrawal at anytime
prior to issuance of the mandate by the Clerk of the Court.
Therefore, because the following slip opinion is being made
available prior to the Court's final action in this matter, it
cannot be considered the final decision of the Court. The
official copy of the following opinion will be published by the
Supreme Court's Reporter of Decisions in the Official Reports
advance sheets following final action by the Court.
Docket Nos. 81195, 82042 cons.--Agenda 11--January 1997.
JOE MURNEIGH, Appellee, v. TERRANCE GAINER, Director of State
Police, et al., Appellants.
Opinion filed September 18, 1997.
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 (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 sec. sec. 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, sec. 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 (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 (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 sec. 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 sec. 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 (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 plaintiff's assertion that section 5--4--3(i) was
unconstitutional as violating separation of powers.
The circuit court granted plaintiff's motion to file an
amended complaint in light of the fact that at the time of
defendants' motion to dismiss, plaintiff had provided a blood
specimen and had been offered parole. The amended complaint
retained the same legal arguments but requested that the blood
specimen, given under threat of the contempt sanction found in
section 5--4--3(i) and the two administrative regulations, be
expunged.
In ruling upon the parties' cross-motions for summary judgment
on the amended complaint, the trial court held that section 5--4--
3(i) and its implementing regulations violated the separation of
powers doctrine of the Illinois Constitution because they
"vitiate[d] the discretion that is inherent in the judiciary in the
exercise of the contempt power." Consequently, the court ordered
defendants to expunge plaintiff's blood sample and take no further
action against him to obtain another sample. The court declined to
address or decide the other two constitutional claims alleged in
count I (ex post facto law) and count II (violation of due
process). Defendants then brought this direct appeal, which we
granted (134 Ill. 2d R. 603).
ANALYSIS
Because this appeal arises from an order granting summary
judgment on issues of law, our standard of review is de novo. E.g.,
Busch v. Graphic Color Corp., 169 Ill. 2d 325, 333 (1996). The
party challenging the constitutionality of legislation, in this
case plaintiff, bears the burden of establishing that the provision
in issue is unconstitutional, overcoming the presumption of
constitutionality. E.g., Doe, 162 Ill. 2d at 19.
As a preliminary matter, we consider defendants' assertion
that plaintiff's complaint is moot because he provided a blood
specimen and was consequently released from prison. We note that
the trial court granted plaintiff's motion to expunge his specimen
from the records and further enjoined defendants from seeking
another blood sample from him. Therefore, the issues are not moot
as to plaintiff. Nor do we believe it would be appropriate to
dispose of plaintiff's claims on mootness grounds where the
threatened harm to a group of prisoners in plaintiff's position is
likely to recur and the where the issue presents questions of
public interest. See In re E.G., 133 Ill. 2d 98, 105-06 (1989);
People ex rel. Wallace v. Labrenz, 411 Ill. 2d 618, 622 (1952).
I. Res Judicata
Defendants argue that plaintiff's challenge to section 5--4--
3(i) is barred by the doctrine of res judicata because the instant
action involves the same parties, facts, and issues that were
before this court in defendants' prior appeal in Doe, 162 Ill. 2d 15. According to defendants, plaintiff could have challenged the
contempt provisions at issue in the instant case at the same time
that he raised the ex post facto and due process challenges to the
statutory requirement that he provide a blood specimen before his
release from prison. Because plaintiff did not include the contempt
provisions in his prior challenge to sections 5--4--3(a)(3) and
(c), defendants contend, principles of res judicata bar plaintiff's
claim in the case at bar.
We reject defendants' argument. Res judicata is an equitable
doctrine designed to prevent the multiplicity of lawsuits between
the same parties and involving the same facts and the same issues.
See, e.g., Torcasso v. Standard Outdoor Sales, Inc., 157 Ill. 2d 484, 490-91 (1993). Under this doctrine, a final judgment on the
merits of a cause operates as a bar to subsequent litigation of the
same claim, demand, or cause of action between the same parties.
Torcasso, 157 Ill. 2d at 490. In the case at bar, defendants'
attempt to invoke res judicata rests on the assumption that the
operative facts and issues in Doe and in the instant case are the
same. That assumption is erroneous. The parties are the same, but
the facts giving rise to the separate suits do not arise from a
single incident. Moreover, the controlling legal issues differ.
At the time plaintiff filed his first pro se petition
challenging sections 5--4--3(a) and (c) of the Act, he had not been
subjected to or threatened with contempt proceedings pursuant to
section 5--4--3(i). Instead, the basis of defendants' attempt to
keep him in prison past his anticipated parole date was language in
section 5--4--3(c), which defendants interpreted as authorizing
prison authorities to retain prisoners in plaintiff's circumstances
indefinitely, past their anticipated release dates, as long as they
refused to cooperate in giving blood samples. After this court's
opinion in Doe, which prevented defendants from keeping plaintiff
in prison past his departure date for purposes of blood collection,
defendants again sought a blood sample from plaintiff. This
subsequent attempt to obtain plaintiff's blood sample was
predicated on the contempt provision of section 5--4--3(i) and the
two implementing regulations. In light of the defendants' renewed
threat to keep plaintiff in prison past his anticipated release or
parole date until he gave a blood specimen, plaintiff filed his
second suit to challenge the contempt provision and administrative
regulations. The circuit court again ruled in plaintiff's favor,
but on different grounds from those present in the first lawsuit.
Therefore, defendants are incorrect in their assertion that the
facts and issues in both lawsuits are the same, for purposes of res
judicata. See Mistretta v. Village of River Forest, 2 Ill. App. 3d
102, 104 (1971) ("Where facts are alleged in a second complaint
which arose after the termination of the prior litigation and the
issue in the second litigation thus differs from the first" res
judicata does not bar the second suit); accord O'Connor v. Greer,
55 Ill. App. 3d 253, 261 (1977).
We also reject defendant's res judicata argument because in
the prior appeal we expressly declined to resolve whether section
5--4--3(i) was unconstitutional. We stated,
"Both parties have attempted to raise on appeal the
constitutionality of section 5--4--3(i) of the Code,
which provides for a finding of contempt of court against
any prisoner ordered by the court to provide a blood
sample who refuses to cooperate. (730 ILCS 5/5--4--3(i)
(West 1992).) However, we need not decide that issue
here. While the State has argued that section 5--4--3(i)
is the valid enforcement mechanism of section 5--4--3,
and defendant has responded, the trial court never ruled
on that section. The trial court's order was limited to
sections 5--4--3(a)(3) and (c). Moreover, the State
appealed only the constitutionality of sections 5--4--
3(a)(3) and (c) in its notice of appeal, and not the
constitutionality of section 5--4--3(i). The validity of
section 5--4--3(i) is not before this court." (Emphasis
added.) Doe, 162 Ill. 2d at 22.
Neither the trial court nor this court determined the
constitutional validity of section 5--4--3(i) in the first lawsuit
because the parties believed that sections 5--4--3(a)(3) and (c)
were dispositive on the question of whether prison officials were
authorized to retain plaintiff in prison until he gave a blood
specimen. It was not until this court's opinion in Doe that the
parties were apprised that the statutory requirement of providing
blood samples before a prisoner's release from prison operated as
a "timing device" instead of an enforcement mechanism. The Doe
opinion deliberately left open the question whether section 5--4--
3(i) was a constitutionally valid enforcement provision, which is
the issue now directly before this court as a result of defendants'
instant appeal.
In light of the above, defendants have not established that
the precise question, or point, involving the constitutionality of
section 5--4--3(i), was or should have been considered in
determining the former suit. See Torcasso, 157 Ill. 2d at 491. Res
judicata should not be applied to preclude a party from litigating
the central issue in a second suit where such issue was not
adjudicated in the first suit, because it was not considered
essential to the disposition of the issues then pending before the
court. Accordingly, defendants' attempt to bar plaintiff's
constitutional challenges by a strained application of res judicata
is unavailing.
II. Separation of Powers
In the case at bar, the circuit court held that section 5--4--
3(i) and the two implementing regulations violated separation of
power principles by vitiating the discretion that is inherent in
the judiciary in the exercise of its contempt power. In their
appeal to this court, defendants contend that these provisions do
not violate separation of powers because the legislative regulation
of the contempt power in the instant case does not unduly restrict
the courts' inherent contempt power. Instead, according to
defendants, section 5--4--3(i) and the regulations increase the
judiciary's contempt power, by facilitating the courts' exercise of
such power.
In response to defendants' arguments, plaintiff asserts that
the court correctly invalidated section 5--4--3(i) and the two
implementing regulations because these provisions compel the
judiciary to enter orders that are administrative in nature and
then to punish violations of such orders with contempt of court.
According to plaintiff, violations of administrative orders are not
punishable by contempt under Illinois law. Moreover, plaintiff
states, the mandatory nature of the provisions in issue vitiates
the courts' inherent discretion in matters concerning the exercise
of their contempt power. For these reasons, plaintiff contends,
section 5--4--3(i) and the two regulations violate the separation
of powers doctrine.
The Illinois Constitution provides that the legislative,
executive, and judicial branches of government are separate and
that no branch shall "exercise powers properly belonging to
another." Ill. Const. 1970, art. II, sec. 1. The separation of
powers doctrine exists to insure that each of the three branches of
government retains its own sphere of authority, free from undue
encroachment by the other branches. See, e.g., City of Waukegan v.
Pollution Control Board, 57 Ill. 2d 170, 175 (1974); People ex rel.
Hansen v. Phelan, 158 Ill. 2d 445, 451 (1994). The legislative
function of enacting general laws and the executive function of
enforcing those laws is complemented by the judicial function of
interpreting and applying laws in specific cases. A unique and
integral part of the judicial role in resolving specific
controversies is the contempt authority, which imbues the judiciary
with the power to punish certain types of conduct, i.e., acts which
significantly interfere with the dignity of the court or acts which
defy court orders. See, e.g., In re G.B., 88 Ill. 2d 36, 41 (1981);
In re Baker, 71 Ill. 2d 480 (1978); R. Johnston & K. Bry, An
Overview of Illinois Contempt Law: A Court's Inherent Power And the
Appropriate Procedures and Sanctions, 26 J. Marshall L. Rev. 223
(1993).
It is true, as defendants note, that the constitutional
requirement of separation of powers does not contemplate an
entirely separate and distinct exercise of authority by the
executive, legislative, and judicial branches of government. See,
e.g., City of Waukegan, 57 Ill. 2d at 174. The legislature may
enact laws involving judicial practice if they do not infringe
unduly upon the judiciary's inherent powers. See People v. Davis,
93 Ill. 2d 155, 161 (1982). Indeed, this court has recognized that
not all legislative attempts to regulate the judicial power of
contempt violate separation of powers principles. See People ex
rel. Rusch v. White, 334 Ill. 465, 484-85 (1929); see also In re
Baker, 71 Ill. 2d 480, 484 (1978) (legislature cannot restrict
court's contempt power but may provide a statutory alternative for
court to enforce, at its discretion).
In a recent opinion, we reiterated that "[t]he power to punish
for contempt does not depend on constitutional or legislative
grant." People v. Warren, 173 Ill. 2d 348, 370 (1996). Because the
power of contempt is inherent in the judiciary, and vital to its
authority, the other branches of government may not require judges
to exercise their discretionary authority to punish for contempt
(see In re Marriage of Metz, 233 Ill. App. 3d 50, 57 (1992)), or
tell the judiciary the manner in which it will exercise such power
(e.g., People v. Joseph, 113 Ill. 2d 36, 42 (1986)). When the
legislature encroaches upon a fundamentally judicial prerogative,
this court has not hesitated to protect the court's authority.
Joseph, 113 Ill. 2d at 43.
Section 5--4--3(i) states that 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." (Emphasis added.) 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." (Emphasis
added.) 20 Ill. Adm. Code sec. 1285.30(d) (1994).
Section 1285.30(f) of the Administrative Code provides:
"A general order issued under the administrative
authority of the chief judge of the circuit of proper
jurisdiction is sufficient to satisfy the court order
requirements 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." (Emphasis added.) 20 Ill. Adm.
Code sec. 1285.30(f) (1994).
These three provisions collectively set forth a scheme for
judicially enforcing the blood collection requirement against
incarcerated sex offenders. According to plaintiff, this scheme
violates the separation of powers clause of the Illinois
Constitution in that the scheme requires the courts to issue orders
that are administrative in nature, which is not a proper function
of the judiciary. In addition, as the circuit court found, the
provisions usurp the courts' discretion in exercising an inherently
judicial power by requiring the courts to punish violations of such
orders through the contempt power. We initially address the latter
issue.
A
Section 5--4--3(i) and the first regulation, section
1285.30(d) of the Administrative Code, set forth the procedure by
which the State Police can procure blood specimen from
noncooperative prisoners through use of the courts. This procedure
for obtaining and enforcing court orders to procure prisoners'
blood samples is couched in mandatory terms. Administrative
regulation 1285.30(d) compels the judiciary to issue compliance
orders against prisoners whenever requested by the State. If such
orders are then violated by a prisoner's deliberate refusal to
cooperate in providing a blood sample, section 5--4--3(i) provides
that the sanction for such violation shall be contempt of court.
Defendants do not dispute that the word "shall" in section 5--
4--3(i) and regulation 1285.30(d) is mandatory. Nor do defendants
suggest that these two provisions should be interpreted as merely
permissive. Cf. People v. Davis, 93 Ill. 2d 155, 162 (1982)
(construing the word "shall" as permissive in the context of a
statute requiring, as a prerequisite for felony sentencing, that
the court obtain and consider written presentence report). However,
defendants suggest that the mandatory nature of section 5--4--3(i)
and regulation 1285.30(d) does not offend separation of powers
principles. Defendants analogize the instant case to other cases in
which this court has rejected constitutional challenges to
legislation that limits judicial discretion. Specifically,
defendants rely on People v. Dunigan, 165 Ill. 2d 235 (1995), and
People ex rel. Carey v. Chrastka, 83 Ill. 2d 67 (1980), both of
which involved provisions requiring enhanced sentencing for
habitual offenders.
In both Dunigan and Chrastka, the offenders were subjected to
mandatory enhanced sentencing upon their convictions for the
qualifying offenses. The defendants raised separation of powers
challenges to the sentencing provisions, which required the courts
to impose the increased penalty if the prosecutor requested the
enhancement and further established the factual predicates
necessary to impose the increased penalty. In both cases, this
court rejected the offenders' argument that the mandatory
sentencing provisions violated separation of powers principles by
limiting the courts' discretion in imposing sentences. According to
defendants in the case at bar, cases such as Dunigan and Chrastka
support their argument that the mandatory nature of the instant
scheme does not render it unconstitutional.
We do not agree that the enhanced sentencing cases are
persuasive authority for deciding the separation of powers issue in
the instant case. This court, in Chrastka, recognized that the
legislature is authorized to define criminal offenses and
sentences. Such legitimate legislative authority does not usurp the
sentencing function of the judiciary. See Chrastka, 83 Ill. 2d at
79. Unlike the mandatory enhanced sentencing provisions under
review in Dunigan and Chrastka, however, section 5--4--3(i) is not
akin to a statutory sentencing provision for a specific offense. In
fact, we note that a prisoner's refusal to give blood is not
criminalized by section 5--4--3 and carries no sentence. While the
legislature may specify mandatory sentences without violating the
separation of powers doctrine, the legislature lacks similar
authority to specify mandatory contempt of court sanctions. The
inherent power of the court to maintain the dignity of the court or
to enforce its own orders in a specific judicial proceeding is
unlike the lawmaking power of the legislature to proscribe certain
types of conduct as crimes and to determine sentences for such
crimes. Accordingly, the holdings and reasoning of Dunigan and
Chrastka are inapposite to the issues before the court in this
appeal.
We conclude that the circuit court in the case at bar
correctly determined that section 5--4--3(i) and the two
regulations vitiate the court's discretion in exercising its
contempt power. See, e.g., People v. Joseph, 113 Ill. 2d 36, 42
(1986) (legislative branch lacks power to specify how the judicial
power shall be exercised under a particular set of circumstances);
In re Marriage of Metz, 233 Ill. App. 3d 50, 57 (1992) (court's
discretion includes the power not to impose contempt sanctions).
The provisions under review remove the judiciary's inherent
discretion by directing that the compliance orders shall be entered
and, if violated, that such orders shall be punishable by contempt
of court.
B
The second separation of powers problem, according to
plaintiff, is that the courts are required to wield a "rubber
stamp" in issuing orders that are administrative in nature. As
such, the scheme embodied in section 5--4--3(i) and regulations
1285.30(d) and (e) requires the Illinois judiciary to exercise
powers belonging to the executive branch of government. This
vesting of an executive function in the judiciary is prohibited by
the separation of powers clause of the Illinois Constitution.
Moreover, plaintiff contends, the violation of an administrative
order is not punishable by contempt of court because the contempt
power is reserved to the courts in their judicial function, and the
administrative orders in issue are not judicial in character.
We agree with plaintiff's arguments. The provisions under
review conscript the courts of Illinois into the service of an
essentially administrative program for the collection and analysis
of blood samples for inclusion in the state's data bank. The
courts' mandatory participation by the entry of compliance orders
and the enforcement of the orders with the contempt power does not
advance a judicial prerogative. Instead, judicial participation in
the administrative scheme promotes an executive purpose, viz.,
maintaining a blood data bank for law enforcement purposes. As this
court has often noted, the Illinois Constitution expressly
prohibits one branch of government from exercising the functions of
another. See Administrative Office of the Illinois Courts v. State
& Municipal Teamsters, Chauffeurs & Helpers Union, Local 726, 167 Ill. 2d 180 (1995); People v. Jackson, 69 Ill. 2d 252, 256 (1977);
see also Fields Jeep-Eagle, Inc. v. Chrysler Corp., 163 Ill. 2d 462, 479 (1994) (invalidating statute as improper delegation of
legislative or administrative decision-making to judiciary); cf. In
re General Order of October 11, 1990, 256 Ill. App. 3d 693 (1993)
(ho
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