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Docket No. 97204-Agenda 9-September 2004.

In re DETENTION OF WILLIAM G. SWOPE (The People of the
State of Illinois, Appellee, v. William G. Swope, Appellant).

Opinion filed December 2, 2004.

JUSTICE FREEMAN delivered the opinion of the court:

Petitioner, William Swope, was adjudicated a sexually violentperson pursuant to the Sexually Violent Persons Commitment Act(Act) (725 ILCS 207/1 et seq. (West 2000)). The circuit court of OgleCounty committed Swope to the custody of the Department ofHuman Services (DHS). Swope subsequently petitioned the circuitcourt for conditional release. The circuit court denied Swope'spetition and the appellate court affirmed. 343 Ill. App. 3d 152. Weallowed Swope's petition for leave to appeal (177 Ill. 2d R. 315(a)).We now affirm the judgment of the appellate court in part and vacatethe judgment in part.

BACKGROUND

On November 9, 1999, Swope was adjudicated a sexually violentperson and committed to the custody of DHS. See 725 ILCS 207/35,40 (West 2000). The appellate court upheld the adjudication andcommitment. No. 2-99-1272 (unpublished order under SupremeCourt Rule 23).

Following his commitment, Swope, in July 2000, requested thecircuit court to appoint Ralph Underwager and Hollinda Wakefield ofthe Institute of Psychological Therapies (Institute) to perform aperiodic reexamination of him. The request was made pursuant tosection 55 of the Act, which provides that "[a]t the time of areexamination under this Section, the person who has been committedmay retain or, if he or she is indigent and so requests, the court mayappoint a qualified expert or a professional person to examine him orher." 725 ILCS 207/55 (West 2000). The circuit court granted themotion and authorized Swope to employ the Institute to examine him,prepare a report, and testify in court.

The circuit court held status hearings to monitor the progress ofthe examination. At two of these hearings, on October 31 andDecember 28, 2000, Swope's counsel informed the court thatSwope's DHS treatment providers refused to discuss Swope'streatment progress with Underwager and Wakefield. At each hearing,both counsel discussed the possible use of depositions to obtain thesought-after DHS information. At the December 28 status hearing,Swope's counsel, the State, and the court agreed that Swope'scounsel would depose the DHS treatment providers.

In February 2001, the circuit court authorized the issuance of asubpoena for the deposition of Thomas Speaker, a member ofSwope's DHS treatment team. See 740 ILCS 110/10(d) (West 2000).In March 2001, Speaker was deposed. Underwager and Wakefieldevaluated Swope using the information from the deposition "in lieu ofan interview." However, in their April 12, 2001, report, they noted:

"This procedure is not adequate. An attorney cannot beexpected to know what questions to ask and what issues needto be explored more fully. Therefore, it is our professionalopinion that Mr. Swope has been seriously disadvantaged bythe state's refusal to allow professional psychological contactwith the treatment staff. Once a person has been committed,it is crucial to be able to assess as fully and accurately aspossible what changes have been brought about and observedin the course of treatment provided as the civil commitmentlaw requires. *** Not having full access to comprehend theprocess and the outcomes limits Mr. Swope's ability to get afair and complete assessment of his progress."

Underwager and Wakefield opined that Swope had made sufficientprogress to be conditionally released. See 725 ILCS 207/55(a) (West2000).

In May 2001, Swope filed a petition for conditional release,pursuant to section 60 of the Act (see 725 ILCS 207/60 (West 2000)).Pursuant to the statute, the circuit court appointed Wakefield as anexaminer, who would examine Swope and furnish a written report ofthe examination to the court. The court also appointed Barry Leavittto evaluate Swope on behalf of the State. See 725 ILCS 207/60(c)(West 2000). Underwager and Wakefield reevaluated Swope andreported their opinion in a July 20 addendum to their April 12, 2001,report. Underwager and Wakefield reiterated their opinion that Swopeshould be conditionally released.

At the hearing held on Swope's petition for conditional release,Leavitt was the State's witness. In preparing his evaluation, Leavitthad discussed Swope's treatment progress with Swope's DHStreatment providers. Swope's witnesses included Speaker, Wakefield,and himself. Speaker was the member of Swope's DHS treatmentteam who had been deposed by Swope's counsel. Wakefield testifiedthat the lack of cooperation on the part of Swope's DHS treatmentproviders made her evaluation of Swope more difficult because shewas not able to obtain information on Swope's progress in specifictreatment areas. At the close of the hearing, the trial court deniedSwope's petition for conditional release.

Swope appealed. The appellate court affirmed the order of thecircuit court. 343 Ill. App. 3d 152. The appellate court concluded thatit was a violation of Swope's right to procedural due process to allowSwope's DHS treatment providers to refuse to discuss his treatmentprogress with Wakefield while they engaged in such discussions withLeavitt. 343 Ill. App. 3d at 155. However, the appellate court furtherobserved that Swope's counsel "took a deposition and never gave thetrial court an opportunity to correct the situation. This was aprocedural default by Swope, wherein he volunteered to act andacquiesced in a procedure that ultimately may have short-circuited hisown right to due process. See In re B.L., 315 Ill. App. 3d 602, 605(2000)." 343 Ill. App. 3d at 156. Thus, according to the appellatecourt, Swope "cannot now appeal from an alleged defect that he,himself, helped to create. For this reason, while we find that Swope'sright to due process was violated, we will not reverse the trial court'sjudgment on this basis." 343 Ill. App. 3d at 156.

This court allowed Swope's petition for leave to appeal. 177 Ill.2d R. 315(a). Additional pertinent background will be discussed in thecontext of our analysis of the issues.

ANALYSIS

Swope's sole claim before this court is that the proceedings heldon his petition for conditional release violated his right to due processof law. He contends that he was denied procedural due process whenhis DHS treatment providers refused to discuss his treatment progresswith his court-appointed expert while they engaged in suchdiscussions with the State's expert witness. In response, the State firstpoints out that Swope acquiesced in the procedure employed in thecircuit court and cannot be heard to complain about it now on appeal.The State further argues that Swope was provided with proceduraldue process in that he was allowed every opportunity to put forwardrelevant and competent evidence before the circuit court.

The appellate court concluded that the proceeding held onSwope's petition for conditional release violated his right toprocedural due process. 343 Ill. App. 3d at 155. However, theappellate court did not reverse the trial court's order on this basisbecause of Swope's acquiescence in the procedure. 343 Ill. App. 3dat 155-56. In his brief filed in this court, Swope contends: "TheState's disregard of Swope's right to a fair hearing and its refusal tocooperate with Swope's expert witness is so egregious that its actionsshould not be excused under any circumstances." Swope argues thatthe appellate court based its finding of acquiescence on a single case(343 Ill. App. 3d at 156, citing In re B.L., 315 Ill. App. 3d at 605) thatis distinguishable from the facts of this case.

We earlier noted that at the October 31 and December 28, 2000,status hearings, both counsel discussed the possible use of depositionsto obtain the sought-after DHS information. At the October 31hearing, the following colloquy occurred:

"MR. MILLER [Swope's attorney]: Yes, sir. Judge, thiswas set by, this used to be Judge Roe's case, it's now settoday for a status hearing. Judge Roe approved an orderallowing me to engage some experts to examine Mr. Swope.*** I got a call from Doctor Underwager, who is one of thetwo, last week, stating that he hasn't quite finished thereport. He wanted to talk to or take a deposition of two ofthe people who are employed by the Department of HumanServices, that's where Mr. Swope is in custody, a [Thomas]Speaker and a Sean Jumper, J-u-m-p-e-r. I said since we hada status hearing coming up, I would bring this up with theAssistant Attorney General, Mr. Curran, and with the court.Mr. Curran has no objection to an order being entered.

MR. CURRAN [assistant Attorney General]: Although,you know, Judge, just subsequent to our thinking about it, Idon't think we can really order a witness to speak unlessthere is a deposition.

MR. MILLER: Yeah.

MR. CURRAN: But I, I don't know why they're nottalking to this doctor, and they should, so maybe, maybe aphone call will be enough.

MR. MILLER: We talked outside, Mr. Curran said, well,I will talk to the [DHS] attorney, and I'm sure we can setsomething up, I'll get back to you, and that's fine with me, soI would suggest, Judge, we continue this for sixty days to seeif we can get this wound up, I mean at least as to the report.

MR. CURRAN: That's fine, your Honor."

At the December 28 status hearing, the following colloquy occurred:

MR. MILLER: *** So what our problem is here is that Iwas trying to set up an interview between one of my expertwitnesses, and two of the workers at DHS, and was workingwith, through Mr. Curran. He's not able to budge them, sowhat I'm going to have to do is subpoena them in for adeposition. So if you would put this for a status about sixtydays from now, I'll subpoena those people in and get thattaken care of. That should be pretty well finalized, I think.

THE COURT: Sounds like a fair approach.

MR. CURRAN: That's fine, Judge. You know, like I said,I wish I could be of more help to Mr. Miller in expediting theprocess, but they don't want to talk without being deposed,so I guess it's, civil rules allow for it as much."

The circuit court subsequently authorized the issuance of a subpoenafor the deposition of Speaker.

The rule of invited error or acquiescence is a procedural defaultsometimes described as estoppel. People v. Harvey, 211 Ill. 2d 368,385 (2004). Simply stated, a party cannot complain of error whichthat party induced the court to make or to which that party consented.The rationale behind this well-established rule is that it would bemanifestly unfair to allow a party a second trial upon the basis of errorwhich that party injected into the proceedings. McMath v. Katholi,191 Ill. 2d 251, 255 (2000) (and cases cited therein); accord Peoplev. Segoviano, 189 Ill. 2d 228, 240-41 (2000).

In this case, the above-quoted colloquies show that Swope'scounsel and the State agreed on the possible use of depositions toobtain the sought-after DHS information. Swope's counselsubsequently asked to depose the DHS treatment providers, and theState and the circuit court agreed. Swope, "having insisted upon thatview upon the trial and having procured a ruling from the court inaccordance with [his] view, cannot now insist that the action of thecourt in that particular was wrong, but is bound by the action of thetrial court in that regard." Drainage Commissioners of DrainageDistrict No. 2 v. Drainage Commissioners of Union Drain No. 3, 211Ill. 328, 331 (1904). Swope may not now attack a procedure to whichhe agreed, even though that acceptance may have been grudging. SeeCasey v. Baseden, 111 Ill. 2d 341, 349 (1986). We uphold theappellate court's finding of acquiescence.

Our affirmance of the appellate court's finding of acquiescencedoes not mean, however, that we approve of the approach taken bythat court in resolving Swope's appeal. As noted previously, theappellate court began its analysis in this case by holding, in the firstinstance, that "it was a violation of Swope's right to due process toallow the DHS employees to decline to talk to Swope's expert whilethey talked to the State's expert." 343 Ill. App. 3d at 155. In ourview, this case presents us with the opportunity to remind bench andbar that "[a] court should avoid constitutional questions where thecase may be decided on other grounds." In re S.G., 175 Ill. 2d 471,479 (1997); Bonaguro v. County Officers Electoral Board, 158 Ill. 2d391, 396 (1994). This court has viewed cases of acquiescence strictly,finding that a party's "active participation in the direction ofproceedings *** goes beyond mere waiver" such that the traditionalexceptions to the waiver rule do not apply. People v. Villareal, 198Ill. 2d 209, 227 (2001). In light of this precedent, we believe theappellate court ought not to have concluded that due process wasviolated in this case without first resolving the threshold acquiescenceissue. We therefore vacate that part of the judgment of the appellatecourt which discusses and holds that the procedure utilized in the trialcourt violated Swope's right to due process.

For the foregoing reasons, the judgment of the appellate court isaffirmed in part and vacated in part.

Appellate court affirmed in part

and vacated in part.