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Docket No. 85469-Agenda 13-September 1999.

In re DETENTION OF DAVID C. SAMUELSON (The People of the State of Illinois, Appellant, v. David C. Samuelson, Appellee).

Opinion filed January 21, 2000.

CHIEF JUSTICE HARRISON delivered the opinion of the court:

At issue in this case is the constitutionality of this state's recently enacted Sexually Violent Persons Commitment Act (725 ILCS 207/1 et seq. (West 1998)), which authorizes the indefinite involuntary commitment of individuals found to be sexually violent persons.

The case comes before us after the State initiated proceedings in March of 1998 to commit David Samuelson under the new law. Samuelson is an inmate in the Department of Corrections who was about to be released from prison following completion of his sentence for aggravated criminal sexual assault, aggravated criminal sexual abuse, and exhibiting harmful material. Following various developments not relevant here, the court conducted a hearing to determine whether there was probable cause to believe that Samuelson was a sexually violent person within the meaning of the Act. Based on the material presented at that hearing, the circuit court determined that probable cause existed and ordered that Samuelson be transferred to the Sheridan Correctional Center pending trial. 725 ILCS 207/30 (West 1998).

Before the trial commenced, the circuit court dismissed the State's petition on Samuelson's motion, holding that the Act is unconstitutional. The circuit court's order constituted a final judgment and had the effect of invalidating the Act. The State therefore appealed directly to our court. 134 Ill. 2d R. 302(a). We stayed the circuit court's judgment pending the appeal. For the reasons that follow, we now reverse and remand for further proceedings.

The Sexually Violent Persons Commitment Act (725 ILCS 207/1 et seq. (West 1998)), which took effect in January of 1998, allows the State to extend the incarceration of criminal defendants beyond the time they would otherwise be entitled to release if those defendants are found to be "sexually violent." Under the Act, a person is deemed to be a "sexually violent person" and therefore subject to extended incarceration if he or she

"has been convicted of a sexually violent offense, has been adjudicated delinquent for a sexually violent offense, or has been found not guilty of a sexually violent offense by reason of insanity and who is dangerous because he or she suffers from a mental disorder that makes it substantially probable that the person will engage in acts of sexual violence." 725 ILCS 207/5(f) (West 1998).

For the purposes of this statute, a "sexually violent offense" is defined to mean criminal sexual assault (720 ILCS 5/12-13 (West 1998)), aggravated criminal sexual assault (720 ILCS 5/12-14 (West 1998)), predatory criminal sexual assault of a child (720 ILCS 5/12-14.1 (West 1998)), or aggravated criminal sexual abuse (720 ILCS 5/12-16 (West 1998)); first degree murder, if it is determined by the agency with jurisdiction to have been sexually motivated; or any solicitation, conspiracy or attempt to commit any of the foregoing crimes. 725 ILCS 207/5(e) (West 1998). A "[m]ental disorder" means "a congenital or acquired condition affecting the emotional or volitional capacity that predisposes a person to engage in acts of sexual violence." 725 ILCS 207/5(b) (West 1998).

The provisions of the Act are triggered when a defendant who has been convicted of a sexually violent offense, adjudicated delinquent on the basis of a sexually violent offense, or been found not guilty of a sexually violent offense by reason of insanity is nearing release or discharge from custody. If the defendant "may meet the criteria for commitment as a sexually violent person," the agency with authority to release or discharge him or her is required to notify the Attorney General and the relevant State's Attorney "as soon as possible beginning 3 months prior to the applicable date of" the defendant's anticipated release or discharge. 725 ILCS 207/10 (West 1998).

After the requisite notice is given, a petition alleging that the defendant is a sexually violent person may be filed by the Attorney General or, if the Attorney General elects not to proceed, by the relevant State's Attorney. 725 ILCS 207/15 (West 1998). Proceedings on the petition are characterized by the law as civil in nature (725 ILCS 207/20 (West 1998)), but at the trial on the merits, "all rules of evidence in criminal actions apply" and "[a]ll constitutional rights available to a defendant in a criminal proceeding" are available (725 ILCS 207/35(b) (West 1998)). A jury trial can be requested by the defendant, the defendant's attorney, the Attorney General or the State's Attorney. 725 ILCS 207/25(d) (West 1998). The defendant has the right to an attorney and the court must appoint one for him if he is indigent. He has the right to remain silent, the right to be present and to cross-examine witnesses, and the right to have the hearing recorded by a court reporter. In addition, if the defendant is required to submit to an examination, he is entitled to retain experts or professional persons of his own to perform an examination. If the defendant is indigent, the court shall, at the defendant's request, appoint a "qualified and available expert or professional person to perform an examination." 725 ILCS 207/25(e) (West 1998).

Upon the filing of the petition, the court is required to make a determination as to whether the defendant should be detained and to hold a hearing to determine whether there is probable cause to believe that the defendant is a sexually violent person. If probable cause is not established, the petition must be dismissed. If probable cause is shown and if the defendant is not already in custody, the court must order the defendant taken into custody pending trial. 725 ILCS 207/30(c) (West 1998).

At trial, the State has the burden of proving the allegations in its petition beyond a reasonable doubt. 725 ILCS 207/35(d)(2) (West 1998). If the court or jury is not satisfied beyond a reasonable doubt that the defendant is a sexually violent person, the court must dismiss the petition and direct that the defendant be released, unless the defendant is under some other lawful restriction. 725 ILCS 207/35(f) (West 1998). If, on the other hand, the court or jury finds that the defendant is a sexually violent person, the court is required to enter judgment on that finding and order the defendant to be committed to the custody of the Department of Human Services "for control, care and treatment until such time as the person is no longer a sexually violent person." 725 ILCS 207/40(a) (West 1998).

The initial commitment order is to be made following a hearing. The hearing to be held as soon as practicable after the circuit court's entry of judgment. In the order, the court must specify either institutional care in a secure facility or conditional release. 725 ILCS 207/40(b)(2) (West 1998). If the defendant is committed to institutional care, the Department of Human Services is required to place the defendant in a facility provided by the Department of Corrections. 725 ILCS 207/50 (West 1998).

After a defendant has been committed to institutional care, the Department of Human Services is to conduct an examination of his mental condition within six months of the initial commitment and again thereafter at least once every 12 months. The purpose of the periodic examinations is to determine whether the defendant has made sufficient progress to be conditionally released or discharged. 725 ILCS 207/55 (West 1998).

A defendant who has been committed to institutional care may petition the court to authorize conditional release once certain time requirements are met. 725 ILCS 207/60(a) (West 1998). If the defendant files the petition without counsel, the court must serve the Attorney General or State's Attorney and, if the defendant is indigent, appoint counsel to represent him. 725 ILCS 207/60(b) (West 1998).

Once the defendant has filed his petition for conditional release, the court must appoint one or more examiners to examine the defendant and make a written report. After the report has been submitted, the court, sitting without a jury, must hear the petition and must grant it

"unless the State proves by clear and convincing evidence that the person is still a sexually violent person and that it is still substantially probable that the person will engage in acts of sexual violence if the person is not confined in a secure facility." 725 ILCS 207/60(d) (West 1998).

For a defendant to obtain discharge rather than conditional release, three different procedures are available. The first involves the Secretary of the Department of Human Services. If the Secretary determines, at any time, that the defendant is no longer a sexually violent person, the Secretary must authorize the defendant to petition for discharge. As with hearings on petitions for conditional release, the hearing on such a petition for discharge is before the court, sitting without a jury. The State has the right to have the defendant examined by an expert or professional person and has the burden of proving by clear and convincing evidence that the petitioner is still a sexually violent person. If the State cannot meet that burden, the defendant must be discharged. 725 ILCS 207/65(a) (West 1998).

The second mechanism for discharge is triggered whenever the defendant undergoes one of the periodic examinations required by the statute. At the time of each such examination, the defendant must be given written notice that he has the right to petition for discharge over the Secretary's objection. If the defendant does not affirmatively waive that right, the court must set a probable cause hearing to determine whether facts exist that warrant a hearing on whether the defendant is still a sexually violent person. 725 ILCS 207/65(b)(1) (West 1998).

If the court finds that there is probable cause to believe that the defendant is no longer a sexually violent person, it must set a hearing on the issue. Again, the hearing is to take place before the court, sitting without a jury, and the State has the burden of proving by clear and convincing evidence that the defendant is still a sexually violent person. 725 ILCS 207/65(b)(2) (West 1998). If the State fails to meet that burden, the defendant is entitled to be discharged. 725 ILCS 207/65(b)(3) (West 1998).

Finally, the defendant may petition for discharge at times other than the periodic examinations and may do so without the approval of the Secretary. If the defendant has not previously filed a petition for discharge without the Secretary's approval, the court must set a probable cause hearing and, if appropriate, proceed in accordance with the same procedures governing unapproved petitions for review filed at the time of the statutorily mandated periodic examinations. If, on the other hand, the defendant did previously file a petition for discharge without the Secretary's approval and the court determined based on review of the petition or following a hearing that the petition was frivolous or that the defendant was still a sexually violent person, an important limitation applies. The court is required to dismiss the petition without a hearing unless the petition contains facts that would support a finding that the defendant has so changed that a hearing is warranted. 725 ILCS 207/70 (West 1998).

The case before us today is at a relatively early stage in this process. As previously indicated, the State filed a petition alleging that defendant is a sexually violent person, a hearing was held on that petition, the circuit court determined that there is probable cause to believe that defendant is a sexually violent person, and the court ordered defendant detained pending trial. Trial on the State's petition has not yet taken place.

There is no dispute that defendant is subject to the Sexually Violent Persons Commitment Act (725 ILCS 207/1 et seq. (West 1998)) by virtue of his criminal convictions for aggravated criminal sexual assault and aggravated criminal sexual abuse. There is no dispute that the proceedings thus far have been in accordance with the Act. There is no dispute that the circuit court had probable cause to believe that defendant is a sexually violent person within the meaning of the law. At this point in the proceedings, defendant's arguments are addressed solely to the validity of the statute itself. Defendant contends that the law is fatally infirm and cannot be enforced because it denies due process and equal protection; contravenes the prohibition against double jeopardy; violates ex post facto principles; and infringes on the rights secured by article I, section 13, of the Illinois Constitution of 1970, which provides that "[t]he right of trial by jury as heretofore enjoyed shall remain inviolate." Ill. Const. 1970, art. I,