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THIRD DIVISION
Date Filed: October 29, 2003

No. 1-02-1421

JUSTICE HALL delivered the opinion of the court:

The respondent, Harold Powell, appeals from an order of thecircuit court of Cook County denying his motion to dismiss theState's petition to commit him as a sexually violent person.

On September 25, 2000, the State filed a petition to committhe respondent as a sexually violent person pursuant to section15 of the Sexually Violent Persons Commitment Act (the Act) (725ILCS 207/15 (West 2000)). The respondent filed a motion todismiss the petition as untimely, alleging that the petition wasfiled more than 90 days prior to his entry into mandatorysupervised release (MSR) or was not filed within 30 days of hisentry into MSR, as required by section 15(b-5)(1) of the Act (725ILCS 207/15(b-5)(1) (West 2000)).

At the hearing on the motion to dismiss, the respondenttestified as follows.

The respondent was scheduled to be released from prison intoMSR on September 30, 2000. On September 26, 2000, he was servedwith the State's commitment petition. On September 30, 2000, hewas asked to sign his MSR papers. The respondent refused to signthe MSR papers because he wanted to serve his MSR in Tennesseeand did not wish to accept parole in Illinois. Because herefused to sign the MSR papers, the respondent remained inprison. On March 14, 2001, the respondent signed the MSR papersdue to the discontinuation of his blood pressure medication bythe prison staff.

The circuit court denied the respondent's motion to dismiss,but certified the following question to this court:

"[w]hether the State's original Petition was untimely filedwhere it was not filed within 30 days of the respondent'srelease onto mandatory supervised release, or within 90 daysafter said release, as required by 725 ILCS 207/15(b-5)(1)."⁽¹⁾

This court allowed the respondent's appeal pursuant toSupreme Court Rule 308 (155 Ill. 2d R. 308).

Issues as to statutory construction are reviewed de novo. In re Detention of Lieberman, 201 Ill. 2d 300, 307, 776 N.E.2d218, 223 (2002); Revolution Portfolio, LLC v. Beale, 332 Ill.App. 3d 595, 600, 774 N.E.2d 14, 19 (2002).

In Lieberman, our supreme court set forth the applicablecriteria courts should utilize in construing a statute, statingas follows:

"It is well settled that the primary objective of thiscourt in construing the meaning of a statute is to ascertainand give effect to the intention of the legislature.[Citation.] All other rules of statutory construction aresubordinate to this cardinal principle. [Citations.] Wedetermine legislative intent by examining the language ofthe statute, which is 'the most reliable indicator of thelegislature's objectives in enacting a particular law.'[Citations.] The statutory language is to be given itsplain, ordinary and popularly understood meaning [citation],and we are to afford the statutory language the fullest,rather than narrowest, possible meaning to which it issusceptible [citation].

Because all provisions of a statutory enactment areviewed as a whole [citations], words and phrases should notbe construed in isolation, but must be interpreted in lightof other relevant provisions of the statute [citations]. Each word, clause and sentence of the statute, if possible,must be given reasonable meaning and not renderedsuperfluous. [Citations.] Accordingly, in determining theintent of the legislature, the court may properly considernot only the language of the statute, but also the reasonand necessity for the law, the evils sought to be remedied,and the purpose to be achieved. [Citations.] 'Legislativeintent can be ascertained from a consideration of the entireAct, its nature, its object and the consequences that wouldresult from construing it one way or the other.'[Citations.] In construing a statute, we also presume thatthe General Assembly, in its enactment of legislation, didnot intend absurdity, inconvenience or injustice.[Citations.] 'Statutes must be construed in the mostbeneficial way which their language will permit so as toprevent hardship or injustice, and to oppose prejudice topublic interests.' [Citations.]" Lieberman, 201 Ill. 2d at307-09, 776 N.E.2d at 223-24.

Finally, where the language of a statute is clear andunambiguous, it will be given effect without resort to other aidsfor construction. People v. Woodard, 175 Ill. 2d 435, 443-44,677 N.E.2d 935, 939 (1997). Criminal or penal statutes are to bestrictly construed in favor of an accused, and nothing should betaken by intendment or implication beyond the obvious or literalmeaning of the statute. Woodard, 175 Ill. 2d at 444, 677 N.E.2dat 939.

With these criteria in mind, we turn to section 15(b-5)(1)of the Act.

We observe, first, that the question, as certified by thecircuit court, presupposes that the respondent's MSR did notcommence on September 30, 2000. However, the State's argument onappeal, in part, is that the respondent had entered upon MSR asof September 30, 2000.

There is a split among the authorities as to the scope ofreview of an appeal under Rule 308 as it relates to certifiedquestions. Arriola v. Time Insurance Co., 323 Ill. App. 3d 138,142, 751 N.E.2d 221, 224 (2001). In Arriola, a division of thiscourt followed the view that the appellate court is not limitedto reviewing the question presented but may also consider theappropriateness of the order giving rise to the appeal. SeeArriola, 323 Ill. App. 3d at 142, 751 N.E.2d at 224.⁽²⁾

However, in Levy v. Markal Sales Corp., 311 Ill. App. 3d552, 724 N.E.2d 1008 (2000), this division held that review of anappeal under Rule 308 was strictly limited to the questionidentified by the circuit court's order and would not be expandedon appeal to encompass other matters that could have beenincluded but were not. Arriola, 323 Ill. App. 3d at 142, 751N.E.2d at 224; Levy, 311 Ill. App. 3d at 554, 724 N.E.2d at 1009.

The issue of whether the respondent was on MSR as ofSeptember 30, 2000, was argued before the circuit court. Thecircuit court rejected the argument that by refusing to sign theMSR papers, an inmate could control when his MSR commenced. Thecircuit court concluded that the State had the right to rely onthe "anticipated" date of release.

Therefore, the question of whether the defendant enteredinto MSR on September 30, 2000, or March 14, 2001, will not beaddressed on this appeal. See Levy, 311 Ill. App. 3d at 554, 724N.E.2d at 1009-10 (issue of retroactivity, while relevant, wouldnot be reviewed, where that issue had been addressed before thecircuit court, and the certified question was solely concernedwith the applicable limitations period).

The issue presented by the certified question is, therefore,whether the filing requirements of section 15(b-5)(1) aremandatory or merely directory. Illinois courts have notpreviously addressed this question.

Section 15(b-5)(1) provides in pertinent part as follows:

"(b-5) The petition must be filed:

(1) No more than 90 days before discharge or entry into mandatory supervised release from a Department of Corrections correctional facility for a sentence that was imposed upon a conviction for a sexually violent offense *** and no more than 30 days after the person's entry into parole or mandatory supervised release[.]" 725 ILCS 207/15(b-5)(1) (West 2000).

The use of the words "must" or "shall" is generally regardedas mandatory. Andrews v. Foxworthy, 71 Ill. 2d 13, 21, 373N.E.2d 1332, 1335, (1978). When a statute prescribes theperformance of an act by a public official or a public body, thequestion of whether it is mandatory or directory depends upon itspurpose. Andrews, 71 Ill. 2d at 21, 373 N.E.2d at 1335. If theprovision merely directs a manner of conduct for the guidance ofthe officials or specifies the time for the performance of anofficial duty, it is directory, absent negative language denyingthe performance after the specified time. Andrews, 71 Ill. 2d at21, 373 N.E.2d at 1335. If, however, the conduct is prescribedin order to safeguard someone's rights, which may be injuriouslyaffected by failure to act within the specified time, the statuteis mandatory. Andrews, 71 Ill. 2d at 21, 373 N.E.2d at 1335-36.

In Brennan v. Illinois State Board of Elections, 336 Ill.App. 3d 749, 784 N.E.2d 854 (2002), the reviewing court held thata statutory provision providing that the board of elections"shall" render its judgment within 60 days was directory becausethere was no penalty for failing to comply with the provision,and there was nothing to suggest that the plaintiff's rights wereadversely affected by the board's failure to enter a finaljudgment within 60 days. Brennan, 336 Ill. App. 3d at 759-61,784 N.E.2d at 862-63.

Section 15(b-5)(1) does not specify a penalty for theState's failure to comply with the time limitations for filingthe petition. However, the respondent argues that his libertyrights were adversely affected by the State's failure to file thepetition in accordance with those limitations.

"'[T]he presence of a parole system by itself does not giverise to a constitutionally protected interest in parolerelease.'" Wilson v. Kelkhoff, 86 F.3d 1438, 1446 (7th Cir1996), quoting Board of Pardons v. Allen, 482 U.S. 369, 373, 96L. Ed. 2d 303, 309, 107 S. Ct. 2415, 2418 (1987). "However,where a parole statute creates 'an expectation of parole,' aninmate has a protectable liberty interest in release." Wilson,86 F.3d at 1446; Allen, 482 U.S. at 376-78, 96 L. Ed. 2d at 311-13, 107 S. Ct. at 2419-21. With the exception of inmatesreceiving certain sentences, the relevant Illinois statuteprovides for a protectable liberty interest in release; indeed,the statute requires that the Illinois Prison Review Boardprovide most inmates with a fixed release date. Wilson, 86 F.3dat 1446; 730 ILCS 5/3-3-2.1 (West 2000).

In cases such as these, inmates have an expectation ofrelease. When the State files a petition to commit an inmateunder the Act, the State's action, while authorized by statute,necessarily interferes with that expectation. In order toprotect an inmate's "liberty interest" in release, thelegislature provided that the petition "must" be filed no morethan 90 days before discharge or entry into MSR and no more than30 days after the inmate has been paroled or has entered intoMSR.

We glean some insight into this issue from mental healthcases, since involuntary commitment proceedings likewise involvea person's liberty interests, and the statutory sections of theMental Health and Developmental Disabilities Code (or Code) (405ILCS 5/1-100 et seq. (West 1998)), like penal statutes, are to bestrictly construed in favor of respondents. In re Demir, 322Ill. App. 3d 989, 992, 751 N.E.2d 616, 618 (2001)

In Demir, the respondent had been brought to the hospital bythe police. Having been brought to the hospital by the police,section 3-606 of the Code (405 ILCS 5/3-606 (West 1998)) requiredthe police to complete the commitment petition. However, thepetition was executed by a social worker pursuant to anotherprovision of the Code allowing the petition to be completed byany person age 18 or older. In addition, the State also failedto file copies of the petition along with proof that therespondent had been served with a statement of rights within 24hours of the respondent's admission to the hospital

The reviewing court held that the trial court erred indenying the respondent's motion to dismiss the petition on bothgrounds. As to the failure of the police to complete thepetition, the court noted that the "procedural safeguards inplace are not mere technicalities to be sidestepped. Rather, thelegislature created them to protect people from the deprivationof a liberty interest. [Citation]." Demir, 322 Ill. App. 3d at994, 751 N.E.2d at 619.

As to the failure to file the petition within the time frameset forth in the Code, the court noted that failure to timelyfile the petition was an error that could not be waived orconsidered harmless error, and then stated as follows:

"'Given the important liberty interests of the respondent,we do not believe we ought to make a string of unsupportedspeculations in order to reach the ultimate assumption theproper procedures were followed. The deadlines set forth inthe Code are not mere technicalities. They are bright linescreated by the legislature to avoid deciding these cases onan ad hoc basis and to prevent abuse of the proceduresinvolved.'" Demir, 322 Ill. App. 3d at 995, 751 N.E.2d at621, quoting In re Luttrell, 261 Ill. App. 3d 221, 229, 633N.E.2d 74, 80 (1994).

As in the present case, the Demir court was faced withbalancing the liberty interests of a group of individuals withthe need to protect society. Demir, 322 Ill. App. 3d at 992, 751N.E.2d at 618 ("'Inherent in the civil commitment proceeding arethe distinct interests of providing patients with necessarytreatment as well as protecting society from dangerous conduct.'[Citation.]").

We conclude that the time requirements for filing a petitionunder the Act, as set forth in section 15(b-5)(1), are proceduralsafeguards, not mere technicalities, which have been put in placeby the legislature to protect the liberty interest that an inmatehas in release from prison. Therefore, the State's petition wasuntimely in that it was filed more than 90 days prior to therespondent's entry into MSR, and the State failed to file anotherpetition within 30 days of the respondent's entry into MSR.

The State then argues that its petition was not untimelyfiled because the Act allows the State to file its petition basedupon the "anticipated" date on which the respondent would enterinto MSR. The State relies on section 10 of the Act, whichprovides in pertinent part as follows:

"(b) If an agency with jurisdiction has control orcustody over a person who may meet the criteria forcommitment as a sexually violent person, the agency withjurisdiction shall inform the Attorney General and theState's Attorney in a position to file a petition underparagraph (a)(2) of Section 15 of this Act regarding theperson as soon as possible beginning 3 months prior to theapplicable date of the following:

(1) The anticipated release from imprisonment or theanticipated entry into mandatory supervised release of a person who has been convicted of a sexually violentoffense." 725 ILCS 207/10(b)(1) (West 2000).

The State argues that, under Lieberman, this court mustconstrue the Act as a whole and that construing sections 10 and15(b-5)(1) together shows that the legislature intended section15(b-5)(1) to refer to "anticipated" discharge or entry into MSR,even though section 15(b-5)(1) does not use the term"anticipated." We disagree.

The process leading up to the filing of the petition beginswith section 10(b)(1). Under that section, the notification tothe Attorney General and the State's Attorney is to begin threemonths prior to the "anticipated" release or entry into MSR.

Next, section 15(a)(1) provides that if the Attorney Generaldecides to file the petition, "he or she shall file the petitionbefore the date of the release or discharge of the person orwithin 30 days of placement onto parole or mandatory supervisedrelease." 725 ILCS 207/15(a)(1) (West 2000). Under that samesection, if the petition is to be filed prior to the inmate'sentry into MSR, the legislature expressly required that thepetition not be filed more than 90 days prior to entry into MSRor discharge. 725 ILCS 207/15(b-5)(1) (West 2000).

Construing these provisions together, we discern that thelegislature's intent was that the concerned agencies and theAttorney General or the State's Attorney not act prematurely withregard to petitions under the Act. The fact that section10(b)(1) refers to "anticipated" release or entry into MSR is fornotification purposes. However, for the actual filing of thepetition, the legislature set forth specific requirements as towhen the petition must be filed.

We note that in section 10(b)(1), the legislature used theterms "3 months" and "anticipated" release or entry into MSRwhile in section 15(b-1)(1), the legislature used the terms "90days" and "discharge or entry into mandatory supervised release." "It is well established that, by employing certain language inone instance and wholly different language in another, thelegislature indicates that different results were intended.[Citations.]" In re K.C., 186 Ill. 2d 542, 549-50, 714 N.E.2d491, 495 (1999).⁽³⁾

We conclude that construing section 15(b-5)(1) of the Act asrequiring that the petition be filed no more than 90 days priorto an inmate's "actual" entry into MSR rather than "anticipated"entry is consistent with the legislature's intent as expressed bythe clear language of the Act.

Finally, with regard to the concern expressed by both thecircuit court and the State, that such an interpretation allowsthe inmate to determine when his or her MSR commences, thelegislature has provided that the petition under the Act may alsobe filed after the inmate has entered into MSR. Therefore, in acase such as the one before us, the State's premature filing ofthe commitment petition could have been remedied by filinganother petition once the respondent actually entered into MSR.

In response to the question certified to us, we hold thatthe State's petition to commit the respondent under the Act wasuntimely where it was filed more than 90 days prior to his entryinto MSR and not refiled within 30 days of the respondent's entryinto MSR.

Certified question answered and case remanded

HOFFMAN, P.J., and KARNEZIS, J., concur.

1. The certified question, as posed in the circuit court'sorder, misquotes section 15(b-5)(1). Section 15(b-5)(1) requiresthat the petition must be filed "[n]o more than 90 days beforedischarge or entry into mandatory supervised release *** and nomore than 30 days after the person's entry into parole ormandatory supervised release." (Emphasis added.) 725 ILCS207/15(b-5)(1) (West 2000).

2. In Dowd & Dowd, Ltd. v. Gleason, 181 Ill. 2d 460, 469-70,693 N.E.2d 358, 363-64 (1998), our supreme court observed that it"may go beyond the limits of a certified question in theinterests of judicial economy" where appropriate. Dowd & Dowd,Ltd., 181 Ill. 2d at 472, 693 N.E.2d at 365.

3. As a practical matter, "3 months" is not always the same as"90 days," given that months have varying numbers of days inthem.