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Docket No. 95987-Agenda 7-January 2004.

THE PEOPLE OF THE STATE OF ILLINOIS, Appellant, v.
ROBERT W. BURNS, Appellee.

Opinion filed April 15, 2004.

JUSTICE THOMAS delivered the opinion of the court:

At issue in this case is whether a respondent filing an application forrecovery under the Sexually Dangerous Persons Act (the SDPA) (725ILCS 205/0.01 et seq. (West 2000)), is entitled to an independentpsychiatric examination. The appellate court reversed the La Salle Countycircuit court's order denying respondent's motion for an independentpsychiatric exam, holding that a respondent in a recovery proceeding hasa due process right to such an exam. 337 Ill. App. 3d 224. We allowedthe State's petition for leave to appeal from the appellate court's decision.177 Ill. 2d R. 315(a).

BACKGROUND

On November 25, 1985, respondent, Robert W. Burns, wascharged by information with aggravated criminal sexual abuse. Ill. Rev.Stat. 1985, ch. 38, par. 12-16. The information alleged that respondenthad placed his mouth on the penis of a boy who was under the age of 13for purposes of his own sexual arousal. Thereafter, the State filed apetition to declare respondent a sexually dangerous person under section3 of the SDPA (725 ILCS 205/3 (West 2000)).

Under the SDPA, the State may seek an involuntary, indeterminatecommitment in lieu of a criminal prosecution if a defendant is charged witha criminal offense and is believed to be sexually dangerous. See, e.g.,People v. McDougle, 303 Ill. App. 3d 509, 515 (1999). Once the Statefiles a petition to declare the defendant sexually dangerous, the trial courtmust appoint two psychiatrists to examine the defendant. 725 ILCS 205/4(West 2000). A sexually dangerous person is defined as a person who hassuffered from a mental disorder for a period of not less than one year, whohas criminal propensities to the commission of sex offenses, and who hasdemonstrated propensities toward acts of sexual assault or sexualmolestation of children. 725 ILCS 205/1.01 (West 2000). Proceedingsunder the SDPA are civil in nature (725 ILCS 205/3.01 (West 2000)),although a defendant is entitled to counsel and may demand a jury trial onthe State's petition (725 ILCS 205/5 (West 2000)). In addition, the Statemust prove sexual dangerousness beyond a reasonable doubt. 725 ILCS205/3.01 (West 2000).

Respondent waived his right to a jury trial on the State's petition todeclare him a sexually dangerous person. At respondent's bench trial,Detective Lieutenant Tom Templeton of the La Salle County sheriff'sdepartment testified that he arrested respondent on December 27, 1985,for aggravated criminal sexual abuse. Templeton testified that after he gaverespondent his Miranda rights, respondent stated that he was willing totalk and admitted that the allegations against him were true and that he hadplaced the victim's penis in his mouth. Respondent told Templeton that hehad sexual urges toward children and that he had sexual contact withchildren possibly on average of one child a day for the past four years.Respondent would go to parks or would attempt to find jobs baby-sittingor cleaning houses in order to facilitate his access to children.

Dr. Carl Hamann, a medical doctor specializing in psychiatry, testifiedthat he had examined respondent and concluded that respondent was asexually dangerous person. Dr. Hamann testified that respondent had apsycho-sexual disturbance with a great immaturity that had lasted for morethan a year. Respondent would be classified as a pedophile. The trial courtalso reviewed the deposition testimony of Dr. Myer Kruglik. The partiesthen stipulated that the victim, E.K., would testify that he is four years oldand that before Christmas of the previous year, he was awakened byrespondent "sucking his wee-wee."

At the close of testimony, the circuit court found that the allegationsagainst respondent had been proven beyond a reasonable doubt and thatrespondent was a sexually dangerous person within the meaning of theSDPA. Pursuant to section 8 of the SDPA (725 ILCS 205/8 (West2000)), the trial court ordered the Director of Corrections to takeguardianship of respondent and committed respondent to the custody ofthe Department of Corrections (Department).

On May 14, 2001, respondent filed the application for dischargepursuant to section 9 of the SDPA (725 ILCS 205/9 (West 2000)).⁽¹⁾Section 9 provides that a person committed under the SDPA may file anapplication at any time showing that he has recovered and requesting thathe be released. Once an application for discharge is filed, the psychiatrist,sociologist, psychologist and warden of the institution where the applicantis confined must prepare a socio-psychiatric report concerning theapplicant. 725 ILCS 205/9 (West 2000). In addition, the respondent isentitled to the appointment of counsel and a jury trial on his application.People v. Olmstead, 32 Ill. 2d 306, 314 (1965); 725 ILCS 205/5 (West2000). Respondent's application for discharge alleged that respondenthad demonstrated that he was no longer sexually dangerous, that he hadattended group therapy and posed no risk to society or himself, that hehad addressed and resolved the issues that led to his offending behavior,and that he had completed his treatment.

Respondent filed several pro se motions along with his application fordischarge, including a motion to exclude the testimony and report of Dr.Mark Carich and a motion for an independent psychiatric examination. Inhis motion for an independent psychiatric examination, respondent allegedthat Dr. Ijaz Ahmad Jatala, a psychiatrist employed by the Department ofCorrections, would not give respondent an independent examinationbecause he was an employee of the State of Illinois and therefore wouldcomply with the Department's desire to find that respondent was stillsexually dangerous. Respondent also alleged that Dr. Jatala would notconduct an independent examination but instead would prepare a socio-psychiatric report using boilerplate language and inserting respondent'sname. In his motion to exclude the testimony of Dr. Carich, respondentalleged that Dr. Carich is not a psychologist and therefore could notprepare the socio-psychiatric report required under section 9 of the Act(725 ILCS 205/9 (West 2000)). Respondent further alleged that if Dr.Carich was called to testify on behalf of the State, he would give a biasedreport that would be misleading and would include "untrue alleged facts"concerning respondent.

The trial court denied respondent's motion to exclude Dr. Carich'sreport and testimony. The trial court also denied respondent's motion foran independent psychiatric examination. Citing this court's decision inPeople v. Trainor, 196 Ill. 2d 318 (2001), the trial court stated that "itcouldn't be any clearer that the defendant doesn't have a right to anindependent doctor." The trial court also found that respondent had failedto show bias on the part of the doctors working for the Department.

The trial court then conducted a hearing on respondent's petition. Atthe hearing, Dr. Carich testified that he had assessed and treated sexuallydangerous persons for 10 years and had supported a respondent'sapplication for discharge in 19 cases during that time. Dr. Carich statedthat respondent had refused to be interviewed in connection with hisapplication, so Dr. Carich based his testimony on his work withrespondent since 1989 and his review of respondent's records. Dr. Carichtestified that respondent had been committed for abusing more than 40victims, both male and female, ranging in age from six months to nine yearsold. Dr. Carich believed that respondent was still sexually dangerous eventhough he had made some progress since his admission. Dr. Carich basedhis opinion on the fact that respondent had dropped out of his treatmentprogram, had had sexual contact with other members of his group, and stillexhibited some antisocial and borderline behaviors. Respondent also hadperformed poorly on a phallometric assessment for male infants, preschoolmales, resisting noncompliant teen males, and child violence. Dr. Carichbelieved that respondent presented a high risk to reoffend if he wasreleased at this point.

On cross-examination, Dr. Carich testified that respondent hadsubstantially improved his phallometric scores between 1997 and 1999and had attempted to rejoin his treatment program after dropping out.During the time respondent was a member of the treatment group, he hadfaithfully attended group and had dramatically improved his personalhygiene and social skills. Dr. Carich also testified that respondent had self-reported 39 of his 40 victims and had accepted responsibility for hisoffenses and had developed empathy for his victims.

Dr. Jatala testified that he had diagnosed respondent as suffering frompedophilia, voyeurism and exhibitionism. Based upon Dr. Jatala's reviewof respondent's file and his work with respondent, Dr. Jatala concludedthat respondent was still sexually dangerous and would have a high risk ofreoffending if released into the community. On cross-examination, Dr.Jatala acknowledged that he had seen respondent only six or seven timesin the past four years.

Finally, respondent testified that he understood that his pattern ofengaging in sexual behavior with younger children was wrong. Respondentdid not believe he had been cured, but believed he could conduct himselfproperly and keep from engaging in that type of behavior. Respondentstated that he could not be around children anymore.

Following testimony and closing arguments, the jury found thatrespondent was still a sexually dangerous person. Accordingly, respondentwas remanded to the custody of the Department.

Respondent appealed, claiming, inter alia, that the trial court haderred in denying his motion for an independent psychiatric examination andhad erred in denying his motion to strike Dr. Carich's report andtestimony. The appellate court agreed with respondent that he had a rightto an independent psychiatric examination under the due process clauseof the United States Constitution. 337 Ill. App. 3d 224, 227. Theappellate court noted that pursuant to Mathews v. Eldridge, 424 U.S.319, 47 L. Ed. 2d 18, 96 S. Ct. 893 (1976), courts must consider threefactors when considering a due process issue: (1) the liberty or propertyinterest with which the State has interfered; (2) the risk of erroneousdeprivation of the interest through the procedures already in place and theprobable value of additional or substitute procedural safeguards; and (3)the effect the administrative and fiscal burdens would have on the State.337 Ill. App. 3d at 227.

With regard to the first factor, the appellate court found that therewas little question that a respondent's right to liberty is jeopardized underthe SDPA. 337 Ill. App. 3d at 227. With regard to the second factor, theappellate court noted that at any stage in a commitment proceeding, arespondent is at serious risk of his liberty being erroneously deprived. 337Ill. App. 3d at 227. Consequently, a respondent at a commitmentproceeding and at a recovery proceeding must be provided the essentialprotections available at a criminal trial, such as the right to a jury,representation by counsel, and proof of sexual dangerousness beyond areasonable doubt. 337 Ill. App. 3d at 227. The appellate court concludedthat under notions of due process, the rights available to a respondent ata commitment or recovery proceeding include the right to an independentpsychiatric examination. 337 Ill. App. 3d at 227. The appellate courtreasoned that disallowing a respondent's request for an independentexamination would place a respondent at an extreme disadvantagebecause the jury is left only with the State expert's opinion as to therespondent's mental state. 337 Ill. App. 3d at 227. The courtacknowledged that a respondent can bring a motion for appointment of anindependent expert at a recovery proceeding, but noted that such motionsare often denied by the court because the respondent fails to provideevidence of bias or prejudice. 337 Ill. App. 3d at 228. The court foundthis "safeguard" inadequate, because a respondent lacks the means withwhich to prove bias or prejudice. 337 Ill. App. 3d at 228. The appellatecourt conceded that providing a committed person with an independentexpert's examination would impose a significant fiscal burden on the Statebecause there is no limitation on the number of applications for recoveryor the time between each filing. 337 Ill. App. 3d at 228. However, thecourt stated that it was not in a position to alter such legislative oversights.337 Ill. App. 3d at 228. Based upon its analysis of the Mathews v.Eldridge factors, the appellate court held that the trial court had violatedrespondent's right to due process in denying his request for anindependent psychiatric examination. 337 Ill. App. 3d at 228.

Given its finding that the trial court should have granted respondent'smotion for an independent psychiatric examination, it was unnecessary forthe appellate court to address the remaining issues raised by respondenton appeal. However, for purposes of judicial economy, the appellate courtelected to address respondent's challenge to Dr. Carich's testimony andreport. The appellate court rejected respondent's claim that Dr. Carich'sreport did not satisfy section 9 of the SDPA because Dr. Carich is not alicensed psychologist. 337 Ill. App. 3d at 229. The appellate court notedthat the SDPA does not impose any licensing requirements forpsychologists who sign the section 9 socio-psychiatric report. 337 Ill.App. 3d at 229. In addition, Dr. Carich had been found qualified torender opinions for purposes of recovery applications in other appellatecases. 337 Ill. App. 3d at 229.

One justice dissented from the finding that Dr. Carich was qualified.337 Ill. App. 3d at 229-30 (McDade, P.J., concurring in part &dissenting in part). The partial dissent stated that although the SDPA doesnot contain a licensing requirement, it does require that a respondent beassessed by a psychologist. 337 Ill. App. 3d at 229-30 (McDade, P.J.,concurring in part & dissenting in part). The partial dissent noted that Dr.Carich had a bachelor's degree in psychology, but a master's degree anda doctorate in educational counseling, not in psychology. 337 Ill. App. 3dat 231 (McDade, P.J., concurring in part & dissenting in part). The partialdissent maintained that Dr. Carich was not and had never been apsychologist, and thus did not satisfy the plain language of the statute. 337Ill. App. 3d at 231 (McDade, P.J., concurring in part & dissenting inpart).

ANALYSIS

On appeal to this court, the State argues that due process does notentitle a sexually dangerous person seeking discharge under section 9 ofthe SDPA to an independent psychiatric expert at the State's expense.The standard of review for determining whether an individual'sconstitutional rights have been violated is de novo. See Patel v. IllinoisState Medical Society, 298 Ill. App. 3d 356, 370 (1998). The Stateobserves that this court has twice stated that respondents seekingdischarge under section 9 of the SDPA are not entitled to the appointmentof an independent psychiatric expert, first in People v. Capoldi, 37 Ill. 2d11 (1967), then more recently in People v. Trainor, 196 Ill. 2d 318(2001). The State notes that the appellate court in this case did not evencite Capoldi and did not analyze Trainor's due process holdings.

In Capoldi, this court reviewed a trial court's order denying thedefendant's motion for a hearing on his recovery petition. Capoldi, 37 Ill.2d 11. This court held that upon the filing of the defendant's applicationfor recovery under section 9, the trial court should have held a hearing todetermine if defendant had recovered. Capoldi, 37 Ill. 2d at 18. TheCapoldi court also addressed the defendant's request for fees with whichto hire an independent psychiatrist. Capoldi, 37 Ill. 2d at 18. This courtrejected defendant's request for fees, holding that:

"There is no provision in the act entitling [defendant] to theservices of an independent psychiatrist and we do not believethat such services are necessary to protect defendant's rights.There has been no showing that the psychiatrists employed bythe Department of Mental Health and the Department of PublicSafety will not give an honest and unprejudiced opinion of thedefendant's mental condition, and in fact defendant alleges in his1963 petition that he was interviewed by a member of thepenitentiary's psychiatric division and found to be 'recoveredfrom his mental condition.' " Capoldi, 37 Ill. 2d at 18-19.

Respondent claims that the State's reliance on Capoldi is misplaced.Respondent contends that the Capoldi court concluded that the defendantwas not entitled to an independent psychiatric expert because a memberof the penitentiary's psychiatric division found the defendant to berecovered. Here, in contrast, the psychologist and psychiatrist employedby the Department found that respondent had not recovered.

Respondent misapprehends the basis for this court's holding inCapoldi. This court denied the defendant's request for an independentpsychiatrist in Capoldi because there is no provision in the SDPA entitlinga defendant to the services of an independent psychiatrist and because wedid not believe that such services were necessary to protect thedefendant's rights. See Capoldi, 37 Ill. 2d at 18. Contrary torespondent's interpretation of the Capoldi holding, the fact that the Statepsychiatrist found the defendant to be recovered was not the basis for thecourt's holding. Rather, it was in support of the holding denying anindependent psychiatric exam that we noted that the defendant had notshown bias on the part of the State psychiatrists, and further noted that apsychiatrist employed by the State had in fact found the defendant to berecovered. See Capoldi, 37 Ill. 2d at 18-19. Under Capoldi, then, arespondent filing a recovery petition under section 9 of the SDPA is notentitled to an independent psychiatric expert unless he can show that theexperts employed by the State will not give an honest and unprejudicedopinion of the respondent's mental condition.

Respondent additionally claims that the State's reliance on Capoldiis misplaced because Capoldi was decided before the United StatesSupreme Court's decision in Ake v. Oklahoma, 470 U.S. 68, 84 L. Ed.2d 53, 105 S. Ct. 1087 (1985). In Ake, the Supreme Court held thatwhen a defendant has made a preliminary showing that his sanity at thetime of the offense is likely to be a significant factor at trial, theConstitution requires a state to provide access to a psychiatrist'sassistance on the issue of defendant's sanity if defendant cannot otherwiseafford a psychiatrist. Ake, 470 U.S. at 74, 84 L. Ed. 2d at 60, 105 S. Ct.at 1091-92. Respondent asserts that based upon Ake, a trial court in arecovery proceeding also must provide an indigent respondent with accessto a psychiatrist's assistance.

We disagree. Ake's holding applied to criminal trials. The instantproceedings are civil in nature. See 725 ILCS 205/3.01 (West 2000).Indeed, as the United States Supreme Court has stated, the fact that arespondent in a proceeding under the SDPA is provided "some of thesafeguards applicable in criminal trials cannot itself turn these proceedingsinto criminal prosecutions requiring the full panoply of rights applicablethere." Allen v. Illinois, 478 U.S. 364, 372, 92 L. Ed. 2d 296, 306, 106S. Ct. 2988, 2993 (1986); see also Goetz v. Crosson, 967 F.2d 29, 33(2d Cir. 1992) (court holds that Ake does not control issue off whetherindigent individual is entitled to independent psychiatric assistance atcommitment or retention hearing because constitutional protectionsgranted criminal defendants are not automatically extended to civilcommitment proceedings). Consequently, we find that Ake's holding doesnot extend to proceedings under the SDPA.

As the State observes, this court recently reaffirmed that arespondent seeking discharge under section 9 of the SDPA is not entitledto the appointment of an independent psychiatric expert. See Trainor,196 Ill. 2d 318. At issue in Trainor was whether the State could move forsummary judgment on a respondent's application for recovery undersection 9 of the SDPA. In addressing the issue, this court first addressedwhether the State or the respondent bears the burden of proof in arecovery proceeding. Trainor, 196 Ill. 2d at 326. Decisions of theappellate court had placed the burden of proof on the respondent to showby a preponderance of the evidence that he had recovered. Trainor, 196Ill. 2d at 334. This court clarified that under a plain reading of the SDPA,when a respondent files an application for recovery, the State must showat the recovery hearing that the respondent is still sexually dangerous.Trainor, 196 Ill. 2d at 335. The State's burden of proof is beyond areasonable doubt. Trainor, 196 Ill. 2d at 335. This court further notedthat section 5 of the SDPA, providing a respondent with the right tocounsel and the right to demand a jury trial, also applies during a recoveryproceedings. Trainor, 196 Ill. 2d at 335. Given that the State bears theburden of proof at the recovery proceeding and that a respondent has aright to counsel and to demand a jury trial, this court held that summaryjudgment was not appropriate in a recovery proceeding because summaryjudgment would relieve the State of its burden of proof and wouldcircumvent a respondent's right to a jury trial. Trainor, 196 Ill. 2d at 340-41.

In analyzing the procedure previously followed by the appellate court,this court stated:

"If the recovery hearing scheme created by the appellatecourt, which places the burden of proof on the defendant, wasapproved, a defendant would gain nothing in terms of anopportunity to regain his freedom. Because, according toIllinois law, the trial court is not required to provide anindependent psychiatrist to the defendant under the Act, thedefendant would have nothing but his own application to presentto the trier of fact. People v. McVeay, 302 Ill. App. 3d 960,964 (1999). The necessarily limited allegations made in thedefendant's application alone would almost always be insufficientto sustain the burden placed on him to show by a preponderanceof the evidence that he has recovered." (Emphasis added.)Trainor, 196 Ill. 2d at 339.

Moreover, in addressing the issue of summary judgment, this court againstated: "As we have previously noted, defendant is not entitled toappointment of an independent expert." Trainor, 196 Ill. 2d at 341. Despite the preceding statements, respondent denies that Trainorreaffirmed that a respondent in a recovery proceeding is not entitled to anindependent psychiatric expert. Respondent claims that because Trainorchanged prior case law concerning the burden of proof in a recoveryproceeding, so that the burden of proof in recovery proceedings is nowthe same as the burden of proof at the initial determination, it follows thatbecause independent psychiatric evidence is required to initially commit arespondent, independent psychiatric evidence is required at the recoverystage.

We are not persuaded by respondent's analysis. Although theTrainor decision changed the burden of proof in a recovery proceedingto the same burden as at the initial commitment proceeding, it does notfollow that a respondent is entitled to an independent psychiatric expert athis recovery hearing. In fact, contrary to respondent's claim, a respondentis not entitled to his own independent psychiatric expert at the initialcommitment proceedings under the SDPA. Rather, section 4 of the SDPAprovides that:

"After the filing of the petition, the court shall appoint twoqualified psychiatrists to make a personal examination of suchalleged sexually dangerous person, to ascertain whether suchperson is sexually dangerous, and the psychiatrists shall file withthe court a report in writing of the result of their examination, acopy of which shall be delivered to the respondent." 725 ILCS205/4 (West 2000).

At the initial commitment proceeding, then, the respondent is examined bytwo psychiatrists appointed by the court. Nothing in section 4 of theSDPA provides that a trial court must allow a respondent to retain his ownindependent psychiatric expert. See 725 ILCS 205/4 (West 2000); seealso People v. McVeay, 302 Ill. App. 3d 960, 964 (1999) (nothing insection 4 of the SDPA explicitly provides a respondent with the right toretain or have appointed his own expert to perform a psychiatric exam).

In any event, we need not speculate that Trainor intended to providethat an independent psychiatric exam is required in a recovery proceeding.Had this court intended to so provide, it certainly would have done so,particularly since the appellate court in Trainor specifically addressed theissue and held that a defendant in a recovery proceeding is not entitled tothe appointment of an expert of his own choosing. See People v. Trainor,312 Ill. App. 3d 860, 862 (2000). Instead of reversing the appellatecourt's ruling, Trainor twice quite clearly stated that a trial court is notrequired to provide an independent psychiatrist during recoveryproceedings under the SDPA.

As the State observed, the appellate court in this case did not evencite Capoldi and did not address Trainor's statements that a respondentin a recovery proceeding is not entitled to an independent psychiatricexam. Rather, the appellate court held that the Supreme Court's decisionin Mathews v. Eldridge requires a trial court to provide an indigentrespondent in an SDPA recovery proceeding with an independentpsychiatric expert. Although Mathews concerned the proceduralsafeguards required by the due process clause of the fifth amendmentbefore a person may be deprived of property, the United States SupremeCourt has since characterized the Mathews balancing test as setting fortha general approach for testing challenged state procedures against a dueprocess claim in civil cases. Medina v. California, 505 U.S. 437, 444,120 L. Ed. 2d 353, 362, 112 S. Ct. 2572, 2576 (1992). Mathewsprovides that three distinct factors must be considered to identify thespecific dictates of due process: (1) the private interest that will beaffected by the official action; (2) the risk of an erroneous deprivation ofsuch interest through the procedures used, and the probable value, if any,of additional or substitute safeguards; and (3) the government's interest,including the function involved and the fiscal and administrative burdensthat the additional or substitute procedure requirement would entail.Mathews, 424 U.S. at 335, 47 L. Ed. 2d at 33, 96 S. Ct. at 903.

With regard to the first factor, "civil commitment for any purposeconstitutes a significant deprivation of liberty that requires due processprotection." Addington v. Texas, 441 U.S.418, 425, 60 L. Ed. 2d 323,330-31, 99 S. Ct. 1804, 1809 (1979). However, in analyzing the thirdfactor, it also is clear that the State has a strong interest in treating sexuallydangerous individuals and in protecting the community from the dangeroustendencies of those individuals. Allen, 478 U.S. at 373, 92 L. Ed. 2d at307, 106 S. Ct. at 2994. Indeed, the purpose of the SDPA is to protectthe public by sequestering the sexually dangerous person until he isrecovered and to provide treatment to the sexually dangerous person sothat he may recover and be rehabilitated. Trainor, 196 Ill. 2d at 323-24.Moreover, allowing the appointment of independent psychiatric expertsat the State's expense in recovery proceedings would impose significantfiscal and administrative burdens, because there is no limit on the numberof applications for discharge that a respondent can file.

The second Mathews factor addresses the adequacy of the statutoryprocedures in light of the action taken. People ex rel. Sheppard v.Money, 124 Ill. 2d 265, 276 (1988). The appellate court found that therewas a serious risk of an erroneous deprivation of a respondent's libertyinterest through the procedures used because disallowing a request for anindependent examination places a respondent at an extreme disadvantage.337 Ill. App. 3d at 227. The appellate court held that unless a respondentis provided an independent psychiatric expert, he is virtually incapable ofrebutting the State's evidence. 337 Ill. App. 3d at 227. The appellatecourt also stated that the "additional safeguard" of allowing a respondentto move for the appointment of an independent psychiatrist is inadequatebecause a respondent lacks the means with which to prove that the State'spsychiatrists are biased or prejudiced, so that motions for an independentexpert are often denied. 337 Ill. App. 3d at 228.

We disagree with the appellate court's analysis of the second factorunder Mathews. The appellate court incorrectly assumed that theDepartment professionals at the institution where the applicant is confinedwill prepare a biased and prejudiced socio-psychiatric report. We declineto make such an assumption. We agree with the State that the Departmentprofessionals who treat sexually dangerous persons such as respondentare untainted by their employment given the nature of their professionaland fiduciary relationship with their patients. In addition, the Departmentprofessionals treating respondent are most knowledgeable aboutrespondent's problems and progress toward recovery, and are in the bestposition to know if respondent has recovered. See People v. Finkle, 214Ill. App. 3d 290, 295-96 (1991) (Department experts have "superiorresources and expertise to deal with sexually dangerous persons. Theseexperts, of course, are most knowledgeable about a defendant's problemsand progress toward recovery"), overruled on other grounds, Peoplev. Trainor, 196 Ill. 2d 318 (2001). Given the unique relationship betweenthe Department professional and the respondent, we cannot say that thereis a serious risk of an erroneous deprivation of a respondent's libertyinterest if the respondent's motion for an independent psychiatricexamination is denied. In fact, contrary to the appellate court's assumptionthat a Department expert will always testify against a respondent'sdischarge, we note that Dr. Carich had testified as an expert in sexoffender treatment at least 80 times and had supported a respondent'sapplication for discharge in 19 cases.

Respondent, however, points to two section 9 recovery proceedingsin La Salle County in support of his argument that an independentpsychiatric examination is required. Respondent states that in both cases,the juries allowed the conditional release of the respondents after therespondents were allowed to have an independent psychiatric exam.

We decline to attribute great weight to these two cases. We will notpresume that an independent psychiatric expert will always testify contraryto the Department professionals or will always testify in favor of discharge.See, e.g., People v. Burk, 289 Ill. App. 3d 270, 271-72 (1997)(Department psychiatrist and an independent psychiatrist both concludedthat respondent remained sexually dangerous). That two dischargeapplications were granted because independent psychiatric experts wereappointed does not establish that a respondent has a due process right tosuch an expert.

Finally, we disagree with the appellate court's conclusion that unlessa respondent is provided an independent psychiatric expert he is virtuallyincapable of rebutting the State's evidence. There are numeroussafeguards in place to ensure the reliability of the recovery proceeding. Asthe appellate court conceded, a respondent can move for the appointmentof an independent psychiatric expert if he believes that the Departmentexperts are biased and prejudiced. A respondent has the right to counselwho can cross-examine the Department experts concerning any perceivedbias and prejudice. A respondent also has the right to a jury trial on hisrecovery petition, as well as the right to proof beyond a reasonable doubt.See People v. Allen, 107 Ill. 2d 91, 102 (1985) (under Mathews,privilege against self-incrimination would add little reliability to sexuallydangerous person proceedings because there are numerous safeguardsensuring reliability, including the right to a jury trial, the requirement ofproof beyond a reasonable doubt and the right to confront witnesses),aff'd, 478 U.S. 364, 92 L. Ed. 2d 296, 106 S. Ct. 2988 (1986). Theapplication of the Mathews balancing test, then, establishes that dueprocess does not require the appointment of an independent psychiatricexpert for a respondent in a section 9 discharge proceeding.

Respondent, however, offers an additional argument in support of hisclaim that indigent respondents must be provided access to anindependent psychiatric examination in recovery proceedings. Respondentobserves that in a recent decision, People v. Masterson, 207 Ill. 2d 305(2003), this court engrafted the requirements of the Sexually ViolentPersons Commitment Act (the SVPA) (725 ILCS 207/1 et seq. (West2000)) into the SDPA with regard to volitional requirements. Respondentfurther notes that the SVPA provides that if a person found to be sexuallyviolent petitions the court for conditional release, "the person who hasbeen committed may retain or, if he or she is indigent and so requests, thecourt may appoint a qualified expert or a professional person to examinehim or her." 725 ILCS 207/55(a) (West 2000). Respondent thereforeasks this court to follow Masterson and engraft the provisions of section55(a) of the SVPA into the SDPA.

We find it unnecessary to engraft the provisions of section 55(a) ofthe SVPA into the SDPA. In Masterson, this court held that the SVPA'sdefinition of the term "mental disorder" should be read into the SDPA.Masterson, 207 Ill. 2d at 329. The SDPA did not define the term "mentaldisorder" and, thus, did not specifically address an individual's volitionalcapacity or provide an explicit standard for gauging the probability orlikelihood that the subject of the sexually dangerous person proceedingwould commit sexual offenses in the future. Masterson, 207 Ill. 2d at328-29. In contrast, the SVPA defined "mental disorder" to mean "acongenital or acquired condition affecting the emotional or volitionalcapacity that predisposes a person to engage in the commission of sexoffenses and results in serious difficulty controlling sexual behavior."Masterson, 207 Ill. 2d at 329. Because the term "mental disorder" in theSDPA was ambiguous, this court looked to the SVPA, a similar statute,to read defining language into the SDPA which had been omitted throughlegislative oversight. Masterson, 207 Ill. 2d at 329.

In contrast to the ambiguity concerning the term "mental disorder,"the SDPA clearly sets forth the procedures that apply when a respondentfiles an application for discharge pursuant to section 9. Absent anyambiguity in those procedures, there is no need to look to any similarstatutes to aid in construing section 9. Moreover, the dischargeprocedures in the SDPA differ from those set forth in the SVPA becausethey are directed at different categories of offenders. The SDPA providesan alternative to criminal prosecution (see 725 ILCS 205/1.01 (West2000)), while the SVPA provides for commitment in addition to criminalproceedings (see 725 ILCS 207/40(a) (West 2000)). Consequently, wesee no need to incorporate the reexamination procedures set forth in theSVPA into the discharge procedures in the SDPA.

As a final matter, we address respondent's claim in his response briefthat the trial court erred in denying his motion to exclude the testimony andsocio-psychiatric report of Dr. Mark Carich because Dr. Carich is not alicensed psychologist. Respondent claims that section 9 requires that alicensed psychologist prepare the socio-psychiatric report. Respondentclaims that because Dr. Carich is not a psychologist as defined by Illinoislaw, the socio-psychiatric report presented in his case was improperlyprepared and improperly used as a basis for the denial of the recoverypetition.

In response, the State observes that not only is Dr. Carich eminentlyqualified, but the appellate court has repeatedly rejected challenges to hisqualifications. In addition, section 9 of the SDPA does not require that thesocio-psychiatric report be prepared by a licensed psychologist, butinstead merely requires that the report be prepared by a psychologist.Finally, the State points out that section 3(e) of the Clinical PsychologistLicensing Act exempts individuals employed by the state, such asDr.Carich, from the licensing provisions of the Licensing Act. See 225ILCS 15/3(e) (West 2000).

As the State observes, the appellate court on numerous occasionshas rejected challenges to Dr. Carich's qualifications in section 9proceedings. In People v. Sizemore, 311 Ill. App. 3d 917 (2000),overruled on other grounds, People v. Trainor, 196 Ill. 2d 318 (2001),the appellate court rejected the respondent's claim that Dr. Carich'sopinion should be viewed with skepticism because Dr. Carich did nothave a professional license. The court stated:

"Dr. Carich worked as a psychologist for DOC for 13 years andcoordinated the sex-offender treatment programs at variousfacilities. We find that Dr. Carich was qualified to render anopinion that Sizemore was sexually dangerous and should not beconditionally released." Sizemore, 311 Ill. App. 3d at 928.

Subsequently, in People v. Kastman, the appellate court held thatsection 9 of the SDPA does not mandate that the psychologist preparingthe socio-psychiatric report be licensed under the Licensing Act. Peoplev. Kastman, 335 Ill. App. 3d 87, 95 (2002). The Kastman court furthernoted that section 3(e) of the Licensing Act "obviates the necessity of alicense for an individual employed by a state agency to perform the dutiesof a psychologist." Kastman, 335 Ill. App. 3d at 96. Accord People v.Trainor, 337 Ill. App. 3d 788, 793 (2003) (holding that a psychologistwho signs a socio-psychiatric report in a section 9 proceeding does notneed to hold a professional license, and further finding that Dr. Carich'sdegrees and experience qualified him to render an opinion).

We agree with the appellate court on this issue. With regard to thesocio-psychiatric report, section 9 of the SDPA provides:

"The Director shall then cause to be prepared and sent to thecourt a socio-psychiatric report concerning the applicant. Thereport shall be prepared by the psychiatrist, sociologist,psychologist and warden of, or assigned to, the institutionwherein such applicant is confined." 725 ILCS 205/9 (West2000).

Nothing in this section mandates that the psychologist that prepares thereport be licensed, and we decline to read such a requirement into thestatute. As the State observes, where a licensed psychologist is required,the General Assembly has clearly placed such a condition in the statute.See 405 ILCS 5/3-504(d) (West 2000) (evaluation by a "licensed clinicalpsychologist" can support emergency admission of minors to a mentalhealth facility); 725 ILCS 5/102-21(a) (West 2000) (for purposes of theCode of Criminal Procedure of 1963, defining "clinical psychologist" tomean "a psychologist licensed under the Clinical Psychologist LicensingAct").

In addition, as the appellate court recognized, Dr. Carich is exemptfrom the licensing requirements under the Licensing Act. Section 3(e) ofthe Licensing Act provides:

"Nothing in this Act shall be construed to limit the servicesand use of official title on the part of a person, not licensed underthe provisions of this Act, in the employ of a State *** insofarthat such services are a part of the duties in his or her salariedposition, and insofar that such services are performed solely onbehalf of his or her employer." 225 ILCS 15/3(e) (West 2000).

Dr. Carich's services as a psychologist are part of the duties of his salariedposition in the employ of the state and are performed solely on behalf ofthe state. Consequently, as the appellate court has found, Dr. Carich isexempt from the licensing requirements of the Licensing Act.

Finally, we agree with the appellate court that Dr. Carich is eminentlyqualified to render an opinion in a recovery proceeding. Dr. Carich has aB.S. in psychology, and an M.A. and Ph.D. in counseling. From 1989 to1995, Dr. Carich served as a psychologist administrator for the sexuallydangerous persons program at Menard Correctional Center. SinceDecember 1995, Dr. Carich has served as PsychologistAdministrator/Public Service Administrator at the Big Muddy RiverCorrectional Center, where sexually dangerous persons are confined. Dr.Carich has held academic positions related to the treatment of sexualoffenders and has authored or coauthored at least 250 articles andmanuscripts, as well as several books, on the subject of sex offendertreatment and psychology. In fact, Dr. Carich is the principal designer ofthe state's sexually dangerous persons program. Allison v. Snyder, 332F.3d 1076, 1078 (7th Cir. 2003). Given his education and experience,Dr. Carich clearly is qualified to submit socio-psychiatric reports and totestify in discharge proceedings under section 9 of the SDPA. Theappellate court therefore properly affirmed the trial court's order denyingrespondent's motion to strike Dr. Carich's testimony and the socio-psychiatric report.

For all the foregoing reasons, we disagree with the appellate court'sholding that the trial court violated respondent's right to due process indenying his request for an independent psychiatric examination. As weheld in Capoldi, a respondent filing an application for discharge pursuantto section 9 of the SDPA is not entitled to an independent psychiatricexamination unless he can show that the experts employed by the Stateare biased or prejudiced. We agree, however, with the appellate court'sfinding that Dr. Carich's testimony and report satisfied section 9 of theSDPA. The judgment of the appellate court is reversed, and the judgmentof the circuit court is affirmed.

Appellate court judgment reversed;

circuit court judgment affirmed.

1.  Although the SDPA states that a respondent shall file an "application" for recovery, courts have also used the phrase "petition for recovery" in discussing a section 9 application. People v. Trainor, 196 Ill. 2d 318, 332 (2001). In addition, the SDPA refers to a party filing a section 9 application as an applicant or a respondent, although some cases continue to use the term defendant.