Find Legal Information

JUSTICE HOLDRIDGE delivered the Opinion of the court:

Paul E. Botruff pled guilty to a charge of criminal sexualassault and was sentenced to four years in prison. At the end ofhis imprisonment term, he was further committed to the Departmentof Human Services (the Department) under the Sexually ViolentPersons Commitment Act (the Act) (725 ILCS 207/1 et seq. (West2000)). Subsequently, in connection with a mandatoryreexamination under the Act, the circuit court conducted aprobable cause hearing which Botruff was statutorily prohibitedfrom attending. An attorney appeared for him and requestedappointment of an independent evaluator. The judge denied therequest, and Botruff filed this appeal challenging the denial. He also challenges the constitutionality of the statute thatprohibited him from attending the probable cause hearing. Forthe following reasons, we reverse and remand for furtherproceedings.

The Act authorizes civil commitment of a person who isdeemed sexually violent upon release from imprisonment for asexually violent offense. The State initiates the commitmentprocess by filing a petition in the circuit court. 725 ILCS207/15 (West 2000). The court then conducts a hearing "todetermine whether there is probable cause to believe that the[respondent] is a sexually violent person." 725 ILCS 207/30(b)(West 2000). If the court finds probable cause, the respondentis taken into custody and transferred to an "appropriatefacility" for an evaluation regarding whether he is sexuallyviolent. 725 ILCS 207/30(c) (West 2000). Then the issue isadjudicated at a trial. 725 ILCS 207/35 (West 2000). If thecourt or a jury finds that the respondent is sexually violent, heis committed to the Department "until such time as [he] is nolonger a sexually violent person." 725 ILCS 207/40(a) (West2000).

The Department must conduct a reexamination of therespondent's mental condition within six months, and additionalreexaminations must occur in at least 12-month intervals. 725ILCS 207/55(a) (West 2000). The purpose of these reexaminationsis to determine whether the respondent has progressed enough tobe conditionally released or discharged. 725 ILCS 207/55(a)(West 2000). At the time of each reexamination, the respondentreceives written notice of his right to petition the court fordischarge. The notice must contain a waiver of rights. 725 ILCS207/65(b)(1) (West 2000). If the respondent does not waive hisright to petition for discharge, the court conducts a probablecause hearing to determine if facts exist that warrant a hearingon the issue of whether he remains a sexually violent person. 725 ILCS 207/65(b)(1) (West 2000). "The committed person has aright to have an attorney represent him or her at the probablecause hearing, but the person is not entitled to be present atthe probable cause hearing." 725 ILCS 207/65(b)(1) (West 2000).

Botruff's initial reexamination occurred in August of 1999. Based on the examining doctor's report, the State moved for adirected finding against Botruff on the issue of probable cause. Botruff then moved for appointment of an independent evaluator,which motion was granted. He ultimately stipulated to theexamining doctor's report and the independent evaluator's report. Based on those reports, the judge granted the State's motion fora directed finding.

The next reexamination occurred in September of 2000. Botruff did not waive his right to petition for discharge, andthe court thus conducted a probable cause hearing. Botruff wasindigent and did not attend the hearing because his attendancewas statutorily prohibited. An attorney appeared for him andrequested appointment of an independent evaluator. The judgedenied the request, stating:

"I think in order for Mr. Botruff to beindependently [evaluated] there must be at least somebasis for the Court to order such an independent[evaluation] other than just that he would like to be[evaluated] by another party; that there is somethingin the report of the [examiner] that indicates to me heis perhaps somehow biased or skewed or not accuratelyreporting the results of the examination, or that thereare some other factors that the [examiner] has notconsidered in the report."

Based on the examining doctor's report, the judge found thatBotruff remained a sexually violent person and that no probablecause existed to warrant a hearing on the issue. The judge thusordered continued commitment of Botruff under the Act. Thisappeal followed.

Botruff first claims the judge erred in denying his requestfor appointment of an independent evaluator during hisreexamination proceedings. This claim turns on construction oftwo provisions in the Act--subsections 25(e) and 55(a). Subsection 25(e) reads:

"Whenever the person who is the subject of thepetition is required to submit to an examination underthis Act, he or she may retain experts or professionalpersons to perform an examination. *** If the personis indigent, the court shall, upon the person'srequest, appoint a qualified and available expert orprofessional person to perform an examination." (Emphasis added.) 725 ILCS 207/25(e) (West 2000).

Subsection 55(a), which deals with post-commitment examinations,reads:

"At the time of a reexamination under this Section, theperson who has been committed may retain or, if he orshe is indigent and so requests, the court may appointa qualified expert or a professional person to examinehim or her." (Emphasis added.) 725 ILCS 207/55(a)(West 2000).

Under subsection 25(e), the word "shall" requiresappointment of an independent expert if an indigent respondentrequests one. Under subsection 55(a), however, the word "may"places such appointment within the court's discretion despite arequest from an indigent respondent. See Anderson v. FinancialMatters, Inc., 285 Ill. App. 3d 123 (1996) (noting that the word"may" signals discretional rather than mandatory action). Botruff argues that these provisions conflict and that we shouldinterpret subsection 55(a) as subject to the rights conferred insubsection 25(e). The State argues that no conflict existsbecause subsection 25(e) applies only to pre-commitmentexaminations, thus excluding it from the post-commitment realm ofsubsection 55(a).

The fundamental cannon of statutory construction is toascertain and effectuate the legislature's intent. Nottage v.Jeka, 172 Ill. 2d 386 (1996). The best indicator of such intentis the language the legislature used in the statute. Nottage,172 Ill. 2d 386. Courts cannot use construction as a guise forsupplying omissions, remedying defects, adding limitations, orotherwise departing from the plain meaning of a statute'slanguage. Toys "R" Us, Inc. v. Adelman, 215 Ill. App. 3d 561(1991). Questions of statutory construction invoke de novoreview. In re Application for Tax Deed, 285 Ill. App. 3d 930(1997).

We cannot adopt the State's view that subsection 25(e)applies only to pre-commitment examinations. First, we note thatsection 25 as a whole is not limited to such application. Forexample, one provision of the section enumerates certain rightsthat apply "at any hearing conducted under [the] Act" with onlytwo exceptions. 725 ILCS 207/25(c) (West 2000). Although bothexceptions involve post-commitment hearings, the Act provides forseveral other post-commitment hearings that are not excepted. See 725 ILCS 207/60(d), 65(a)(2), 65(b)(2), 90(b) (West 2000). Such hearings clearly qualify as "any hearing conduced under[the] Act" and thus invoke rights contained in section 25.

We also note that subsection 25(e) itself contravenes theState's asserted limitation. According to the plain language ofthat subsection, it applies "[w]henever the person who is thesubject of the petition is required to submit to an examinationunder [the] Act." (Emphasis added.) 725 ILCS 207/25(e) (West2000). The word "whenever" indicates comprehensiveness ratherthan limitation. Furthermore, the phrase "an examination under[the] Act" describes post-commitment examinations just as well asit describes pre-commitment examinations. We will not add alimitation that the legislature did not place in the statute. Wethus conclude that subsection 25(e) requires a court to grant anindigent respondent's request for appointment of an independentevaluator during post-commitment proceedings.

In denying Botruff's request, the judge stated that therequest was insufficient without additional grounds forappointing an independent evaluator (e.g., evidence that thestate examiner was skewed or biased). However, the State has notcited any authority showing that an "additional grounds"requirement exists under the Act. Neither are we aware of anysuch authority.

Regarding the discretional "may" in subsection 55(a), wenote our obligation to construe statutes in a manner that avoidsconstitutional difficulties, injustice, and inconsistencies inapplication of the law. People v. Berg, 277 Ill. App. 3d 549(1996). Under the construction the State urges, a respondentwith money could freely obtain an independent evaluation duringreexamination proceedings, but an indigent respondent could onlyrequest such an evaluation and hope the court obliged. Thesecircumstances would raise equal protection concerns and, in ourview, create an injustice by inconsistently applying the lawbetween indigent respondents and those who can afford to retainan independent evaluator.⁽¹⁾ We thus construe subsection 55(a) assubject to the rights conferred in subsection 25(e).

Botruff next claims the provision in subsection 65(b)(1) ofthe Act (725 ILCS 207/65(b)(1) (West 2000)) that prohibited himfrom attending his probable cause hearing is unconstitutional. He bases this claim on the due process clause of the UnitedStates Constitution. U.S. Const., amend. XIV.

The State contends that Botruff's claim lacks merit, citingIn re Detention of Samuelson, 189 Ill. 2d 548 (2000) (upholdingthe Act against several constitutional claims). However, inSamuelson our supreme court did not issue a blanket pronouncementthat the Act's post-commitment discharge procedures are free fromdue process problems. The court simply held that Samuelson, whodid not challenge the provision at issue here, personally failedto identify an unconstitutional procedure. See Samuelson, 189Ill. 2d at 565. Botruff has not failed in this manner. We areconvinced that he has identified a due process problem in theAct's post-commitment discharge procedures.

The due process clause imposes constraints on governmentaldecisions that deprive persons of liberty or property interests. Mathews v. Eldridge, 424 U.S. 319, 47 L. Ed. 2d 18, 96 S. Ct. 893(1976). The clause is flexible and requires "such proceduralprotections as the particular situation demands." Morrissey v.Brewer, 408 U.S. 471, 481, 33 L. Ed. 2d 484, 494, 92 S. Ct. 2593,2600 (1972). "The fundamental requirement of due process is theopportunity to be heard at a meaningful time and in a meaningfulmanner. " Mathews, 424 U.S. at 333, 47 L. Ed. 2d at 32, 96 S.Ct. at 902, citing Armstrong v. Manzo, 380 U.S. 545, 552, 14 L.Ed. 2d 62, 66, 85 S. Ct. 1187, 1191 (1965).

In Mathews, the United States Supreme Court establishedthree factors to consider when identifying the dictates of dueprocess in a given case. Those factors are: (1) the privateinterest that will be affected by the questioned procedure; (2)the risk of the private interest being erroneously deprivedthrough the questioned procedure, and the probable value ofadditional or substitute procedural safeguards; and (3) thegovernment's interest, including the function involved and thefiscal and administrative burdens that would stem from "theadditional or substitute procedural requirement." Mathews, 424U.S. at 335, 47 L. Ed. 2d at 33, 96 S. Ct. at 903.

Applying the first factor, we note that Botruff's claiminvolves a private liberty interest. A committed person underthe Act is confined in a "secure facility" (725 ILCS 207/40(b)(2)(West 2000)) and cannot obtain a discharge without a favorablehearing in the committing court. There is no question that thesecircumstances invoke due process protection. The only questioninvolves the extent of the process that is due.

Regarding the second factor, a committed person faces aconsiderable risk of his liberty being erroneously deprived whenthe court conducts his probable cause hearing in his absence. For example, he cannot consult with his counsel on matters thatarise pertaining to probable cause. Neither can the judge assesshis demeanor and credibility through contemporaneous observation. More importantly, he cannot offer correction if false ormisleading statements are made regarding his reexamination. Instead he is limited to representation by a proxy who did notattend the reexamination and thus may not realize the need forcorrection. These concerns are significant because a committedperson must prevail at the probable cause hearing or hisdischarge efforts will terminate unsuccessfully.

The dissent dismisses these concerns by characterizing theprobable cause hearing as a "limited review" where the meaningfulevents have already occurred and the respondent's presence wouldadd noting. How could a judge's first-hand observation of theperson whose liberty is at stake add nothing? We realize that notestimony is offered at a probable cause hearing. As notedabove, however, that fact limits commentary on the reexaminationto statements from persons who were not present when it occurred. Such circumstances present a heightened possibility of misleadingor erroneous statements about the reexamination. Although therespondent can discuss the reexamination report with his attorneybefore the hearing, he cannot predict what the state's attorneywill say about the reexamination at the hearing. Only byattending the hearing could he meaningfully address such matterswith his attorney.

On the matter of additional or substitute safeguards, theAct does provide two other avenues for pursuing a discharge. Under subsection 65(a)(1), if the Secretary of Human Services(the Secretary) determines at any time that a committed person isno longer sexually violent, the Secretary must authorize theperson to file a discharge petition in the committing court. 725ILCS 207/65(a)(1) (West 2000). The petition is then adjudicatedat a hearing. 725 ILCS 207/65(a)(1), (2) (West 2000). Alsounder section 70, a committed person may file a dischargepetition at any time, and the matter will be set for a probablecause hearing. 725 ILCS 207/70 (West 2000).

"[H]owever, if a person has previously filed a petitionfor discharge without the Secretary's approval and thecourt determined, either upon review of the petition orfollowing a hearing, that the person's petition wasfrivolous or that the person was still a sexuallyviolent person, then the court shall deny anysubsequent petition under this Section without ahearing unless the petition contains facts upon which acourt could find that the condition of the person hadso changed that a hearing was warranted." 725 ILCS207/70 (West 2000).

The State contends that these additional procedures provideadequate safeguards against improper commitment. We agree thatthe procedures provide added protection; however, we do not sharethe State's view regarding the value of that protection.

Although subsection 65(a)(1) requires the Secretary toauthorize a discharge petition upon determining that a committedperson is no longer sexually violent, that subsection contains noprovisions requiring investigation of the person's condition tomake such a determination. The person simply has no guidanceregarding when (if ever) and how the Secretary will act.⁽²⁾ Additionally, the full benefit of the lenient language in section70 really only applies to first-time petitioners. If a committedperson has already filed an unsuccessful discharge petitionwithout the Secretary's approval, section 70 requires summarydismissal of any subsequent petitions unless a heightenedpleading burden is met. Furthermore, all petitioners undersection 70 must still survive a probable cause hearing wheretheir statutory right to attend is unclear.⁽³⁾

The third Mathews factor requires consideration of thegovernment's interest, including the fiscal and administrativeburdens that would stem from allowing a committed person toattend his probable cause hearing. The State cites In reDetention of Varner, 315 Ill. App. 3d 626 (2000), where theAppellate Court, Second District, upheld the Act against adifferent due process challenge. We note that when the courtaddressed the third Mathews factor, it was concerned with thefinancial and administrative burdens of "requiring an evidentiaryhearing in every instance when a committed person files apetition for discharge." Varner, 315 Ill. App. 3d at 636. Thisconcern clearly does not exist in the instant case. Botruff isnot asking for a hearing the court would, or may, not otherwiseconduct. He simply wants to attend a hearing the court isrequired to conduct anyway. The State has not shown that anundue burden would stem from allowing a committed person inBotruff's situation to attend his probable cause hearing. Neither do we believe such a procedure would be undulyburdensome.

We repeat that due process requires an opportunity to beheard "at a meaningful time and in a meaningful manner." Armstrong, 380 U.S. at 552, 14 L. Ed. 2d at 66, 85 S. Ct. at1191. For a committed person under the Act, the probable causehearing is certainly a "meaningful time." In light of theconcerns discussed above, we are convinced that conducting thehearing in absentia is not a "meaningful manner" for due processpurposes. We thus hold that the provision in subsection 65(b)(1)prohibiting a committed person from attending his probable causehearing is unconstitutional.

The judgment of the Warren County circuit court is reversed,and the cause is remanded for further proceedings consistent withthis disposition.

Reversed and remanded.

SLATER, J., concurs.

LYTTON, P.J., dissents.

PRESIDING JUSTICE LYTTON, dissenting:

I respectfully dissent. The majority finds that section 25hearings are essentially the same as section 55 hearings andmakes them indistinguishable, thus concluding that the trialjudge was required to provide Botruff with an independentevaluator. The majority also believes that Botruff's exclusionfrom this limited hearing was unconstitutional. I disagree withboth premises.

Section 25 of the Sexually Violent Persons Commitment Act(the Act) discusses the rights of a person subject to a State'spetition for commitment under the Act. 725 ILCS 207/25 (West2000). Section 25(e) requires the trial court to appoint anindependent evaluator "[w]henever the person who is the subjectof the petition is required to submit to an examination under[the] Act." (Emphasis added) 725 ILCS 207/25(e) (West 2000). Section 55 of the Act provides for a periodic reexamination of a"person who has been committed" under the Act. (Emphasis added)725 ILCS 207/55 (West 2000). Section 55(a) grants the courtdiscretion to appoint an independent evaluator at the time of thereexamination of a "person who has been committed." (Emphasisadded) 725 ILCS 207/55(a) (West 2000).

The majority interprets section 25 of the Act to mandate theappointment of an independent evaluator at hearings followingreexamination under section 55 of the Act. In reaching thisconclusion, the majority treats a "person who is the subject ofthe petition" and a "person who has been committed" identically. This is an error.

Section 25 is concerned with the respondent's rights at thetime of the original petition alleging that the respondent is asexually violent person. 725 ILCS 207/25(a) (West 2000). Section 55 is concerned with the respondent's rights uponreexamination, after the petition has been adjudicated and thecourt has determined that the respondent should be committed. 725 ILCS 207/55(a) (West 2000). Each section applies to adifferent proceeding and a different examination with a differentpurpose under the Act. We should not lump the same rightsgranted for pre-commitment proceedings under section 25 into thepost-commitment proceedings of section 55.

Moreover, the cardinal rule of statutory construction is toascertain and effectuate the intent of the legislature. Zunamonv. Zehnder, 308 Ill. App. 3d 69, 74 (1999). We should alwaysinterpret a statute, if possible, so that no clause or term isrendered superfluous. Zunamon, 308 Ill. App. 3d at 74. Themajority's interpretation fails in this regard. Section 55(a)grants discretionary authority to appoint an independentevaluator; section 25 mandates one. The majority renders thisdistinction meaningless since there would be no need for adiscretionary appointment of an independent evaluator if section25 already required one. Again, the majority lumps section 25rights into section 55 without regard to the differing purposesand intent of the two statutory provisions.

3. Section 70 does not clarify whether such hearings equatewith probable cause hearings under subsection 65(b)(1), whichexpressly prohibits respondents from attending. Section 70 doesincorporate subsection 65(b)(2), which cannot operate withoutapplication of subsection 65(b)(1).

4. While the Finkle decision was couched in due process terms, its rationale deals with anissue at the heart of equal protection, i.e. whether an indigent defendant has an adequateopportunity to present his claim. Compare Finkle, 214 Ill. App. 3d at 296 (Due process requiresthat indigent defendants be given the "basic tools of an adequate defense or appeal.") with Ross,417 U.S. 600, 612, 41 L. Ed. 2d 341, 352, 94 S. Ct. 2437, 2449 (Equal protection requiresprovision of the advantages necessary to ensure that indigent defendants have "an adequateopportunity to present their claims within the adversary system."). The concern in Finkle wasidentical to ours, that is, a committed person with adequate funds can always obtain anindependent evaluator, while an indigent person who wants one is subject to the judge'sdiscretion. See Finkle, 214 Ill. App. 3d at 292. Thus, I find Finkle instructive in this case.