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Docket No. 89350-Agenda 8-January 2001.

THE PEOPLE OF THE STATE OF ILLINOIS, Appellant, v. TIMOTHY TRAINOR, Appellee.

Opinion filed May 24, 2001.

JUSTICE FITZGERALD delivered the opinion of the court:

At issue in this appeal is whether, pursuant to a defendant'sfiling of an application for recovery under the Sexually DangerousPersons Act (725 ILCS 205/3.01 (West 1998)), the State canobtain summary judgment. In the present situation, the La SalleCounty circuit court granted the State's motion for summaryjudgment following Timothy Trainor's application for recovery.The appellate court reversed the circuit court's decision, holdingthat "summary judgment is a civil remedy that has no place insexually dangerous person proceedings." 312 Ill. App. 3d 860,862. For the following reasons, we affirm the decision of theappellate court, which remanded the cause for a jury trial ondefendant's application.

BACKGROUND

Defendant was adjudicated a sexually dangerous person inMay 1984. A jury found that he was still dangerous and the circuitcourt denied his petition for recovery. In May 1995, defendantfiled a second petition for recovery. The State filed a motion todismiss, which the trial court granted. The appellate court affirmedthe trial court's decision. People v Trainor, No. 3-95-0629 (1997)(unpublished order under Supreme Court Rule 23). Thereafter, inMay 1998, defendant filed a third petition for recovery. In hispetition, defendant stated that for the past 14 years he participatedin therapy when it was offered to him and that he made significantprogress in controlling his inappropriate sexual behavior.Defendant further stated in the petition that he had recovered to thepoint where he could be placed in a less restrictive environment aspart of his reintegration into society. Along with the petition,defendant filed a motion for a jury trial and appointment of anindependent expert to evaluate his progress. Defendant maintainedthat the psychologist retained by the Department of Corrections(Department) to evaluate defendant was biased against him.

In response, the Department filed a socio-psychologicalevaluation signed by the Department's administrativepsychologist, psychiatrist, a social service worker, the assistantwarden and the warden at Big Muddy River Correctional Center.The report described the method of treatment received bydefendant and explained the stage of "recovery" that defendant hadachieved. The report concluded that defendant was not"recovered." It further noted that defendant was at a high risk toreoffend if placed into mainstream society.

The State filed a motion for summary judgment pursuant tosection 2-1005 of the Code of Civil Procedure (735 ILCS5/2-1005 (West 1998)) arguing that there was no genuine issue asto any material fact and that the State was entitled to judgment asa matter of law. In support of the motion the State maintained thatthe Department's report indicated that defendant had not recoveredand was still deemed sexually dangerous. The State further arguedthat defendant presented no credible evidence that would permita determination on the petition that he is no longer sexuallydangerous or that would create a genuine issue of material fact.Rather, the State argued, defendant merely presented his ownallegation that he was recovered. Such an bald assertion,unsupported by other evidence, was insufficient to overcome asummary judgment motion.

In granting the motion for summary judgment the trial courtstated:

"The law does state that Mr. Trainor can file anapplication showing recovery, however, on motion[s] forsummary judgment the application for recovery can bedismissed before a jury is impaneled or before the issuegoes to a jury. Courts have ruled that that is [a]permissible procedure.

* * *

The defendant has made significant progress in histherapy, is learning to control his sexually inappropriatebehavior which led him to being a sexually dangerousperson. Those are the allegations contained in Mr.Trainor's petition for recovery. However, when you lookto the report which was ordered by this Court and thestatute provides for ***there are several things that thereport which was completed by the members of theDepartment of Corrections as far as the rehabilitationstreatment program, there are several things contained inthe report which state to the contrary.

* * *

I see no genuine issue of material fact, and in light ofthe Department of Corrections report I see no substantialchange, and apparently it's just the same thing as before.There is no marked improvement. Mr. Trainor is notentitled to any court-appointed expert, independent of theDepartment of Corrections. If he wishes privately toobtain one, he can always do so; but it's never been done.So what I have in front of me is the Department ofCorrections report. It does not indicate any genuine issueof material fact. The motion for summary judgment willbe granted in this matter."

Defendant appealed. The appellate court reversed the decisionof the trial court and remanded the cause for further proceedings.The appellate court concluded that summary judgment isinappropriate in sexually dangerous person proceedings becauseit deprives a defendant of his "statutory method of regaining hisliberty." 312 Ill. App. 3d at 862. Additionally, the appellate courtruled that defendant was not entitled to an independent expert.This appeal followed.

ANALYSIS

I. Sexually Dangerous Persons Act

The question before us is whether the State is entitled to movefor summary judgment under the Sexually Dangerous Persons Act(Act) (725 ILCS 205/0.01 et seq. (West 1998)). In order to answerthat question, we must review the legislature's purpose and intentin creating the Act.

A sexually dangerous person is defined, under the Act, as aperson who suffers from a mental disorder coupled withpropensities to the commission of sex offenses and hasdemonstrated propensities toward acts of sexual assault or acts ofsexual molestation of children. 725 ILCS 205/1.01 (West 1998).The Act's purpose is twofold: (1) to protect the public bysequestering a sexually dangerous person until such a time as theindividual is recovered and released, and (2) to subject sexuallydangerous persons to treatment such that the individual mayrecover from the propensity to commit sexual offenses and berehabilitated. People v. Cooper,132 Ill. 2d 347, 355 (1989).

The Illinois legislature first created a civil commitment statutefor sex offenders, known as the criminal sexual psychopathicpersons act, in 1938. See Ill. Rev. Stat. 1939, ch. 38, par. 820. The1938 Act was revised in 1955 and thereafter became the SexuallyDangerous Persons Act. Ill. Rev. Stat. 1955, ch. 38, pars. 820.01through 825e. The revised act further provided that theproceedings be civil in nature. Despite being civil in nature,however, an accused was provided with some of the sameprocedural rights guaranteed in a criminal proceeding, such as theright to a trial by jury and the right to counsel. Ill. Rev. Stat. 1955,ch. 38, par. 822.01.

In 1963 the Act was amended to include a provision thatquashed all outstanding indictments that served as the basis for anoffender's civil commitment proceeding. See Ill. Rev. Stat. 1963,ch. 38, par. 105-9. This change altered the aim of the Act becauseit focused on the rehabilitative treatment of the offender ratherthan punishment. Nearly two decades later, in 1982, the Act wasagain amended. This time the amendment added a requisite burdenof proof. The amendment designated that before one could becommitted as a sexually dangerous person, the State must provethe same beyond a reasonable doubt. Ill. Rev. Stat. 1983, ch. 38,pars. 105-3.01.

In creating and amending the Act, the Illinois legislatureintended that, instead of being criminally punished for theircriminal sexual offenses, sexually dangerous persons becommitted to the Department for treatment until they are no longerconsidered sexually dangerous. People v. Cooper, 132 Ill. 2d 347,355 (1989). The legislature classified sexually dangerous personsas people who suffer from a mental illness and need specializedcare and commitment. Cooper, 132 Ill. 2d at 355. Thus, the Actdoes not promote traditional aims of punishment, such asretribution or deterrence. Rather, under the Act, the State has astatutory obligation to provide care and treatment for personsadjudged sexually dangerous. This care is designed to effectrecovery in a facility set aside to provide psychiatric care. Allen v.Illinois, 478 U.S. 364, 92 L. Ed. 2d 296, 106 S. Ct. 2988 (1986).

II. The State's Motion for Summary Judgment The question of whether the State can obtain summaryjudgment on defendant's application for recovery under the Act isa legal one which we review de novo. Berlin v. Sarah BushLincoln Health Center, 179 Ill. 2d 1, 7 (1997). The purpose ofsummary judgment is to determine whether there are any genuineissues of material fact. Purtill v. Hess, 111 Ill. 2d 229, 240 (1986).Summary judgment should be granted when "the pleadings,depositions, and admissions on file, together with the affidavits,if any, show that there is no genuine issue as to any material factand that the moving party is entitled to a judgment as a matter oflaw." 735 ILCS 5/2-1005(c) (West 1998). If the party moving forsummary judgment supplies facts which, if left uncontradicted,would entitle the party to a judgment as a matter of law, theopposing party cannot rely on its pleadings alone to raise an issueof material fact. Purtill, 111 Ill. 2d at 240.

Here, the State moved for summary judgment on the basisthat, "The petitioner has no credible evidence *** pursuant towhich could create or permit a determination that he is no longersexually dangerous, nor which could create a genuine issue ofmaterial fact of the same." In support of this motion, the Statecited to an appellate court case that upheld a trial court's ruling ona similar motion for summary judgment. People v. Savage, 277 Ill.App. 3d 63, 67 (1995). In Savage, the trial court noted that thedefendant failed to offer any substantive evidence to support hisallegation that he had recovered. The trial court, therefore, grantedsummary judgment after finding that " '[t]here is absolutely nobasis whatsoever in the record to suggest that there is ***a triableissue of material fact in a civil proceeding.' " Savage, 277 Ill. App.3d at 67.

As an initial matter, we note that the appellate court in Savageapproached the recovery proceeding from the perspective that thedefendant had the burden to establish that he had recovered fromhis sexual affliction and that he had failed to do so. The appellatecourt cited, with approval, the trial court's finding that " 'thedefendant has not offered any substantive evidence of any kind insupport of his bald allegation that he is recovered.' " Failing tomeet that burden, and create a triable issue of fact, the appellatecourt held that a motion for summary judgment was appropriate.Savage, 277 Ill. App. 3d at 67.

The State's reliance on the Savage case reveals a pervasiveunderlying issue that must be addressed, namely, whether thedefendant or the State bears the burden of proof in a recoveryproceeding. To answer this threshold question, we carefullyexamine the structure and language of the Act.

a. Commitment Proceeding

The Act is composed of two separate, yet interrelatedproceedings. The first part involves the commitment proceeding.During this proceeding, the defendant is committed to theDepartment and is adjudicated sexually dangerous. Thisproceeding is triggered when the State files a petition forcommitment. A petition can be filed "[w]hen any person ischarged with a criminal offense and it [appears] *** that suchperson is a sexually dangerous person, within the meaning of [the]Act." 725 ILCS 205/3 (West 1998). This petition must set forthfacts "tending to show that the person named is a sexuallydangerous person." 725 ILCS 205/3 (West 1998). The Actspecifies that either the State's Attorney or the Attorney Generalmay seek an involuntary, indeterminate institutional commitmentin lieu of criminal prosecution if the person is charged with acriminal offense and is believed to be sexually dangerous. 725ILCS 205/4 (West 1998).

While the question of whether an individual is a sexuallydangerous person is one of fact, it is one which, by its nature,cannot be answered by a court or jury without hearing the opinionsof people who have a special knowledge in the field of mentaldisorders and sexual aberration. People v. Covey, 34 Ill. 2d 195(1966). Thus, after filing a petition alleging sexual dangerousness,the trial court must appoint two psychiatrists to make a personalexamination of the person so charged and determine whether suchperson is sexually dangerous. 725 ILCS 205/4 (West 1998).

The Act states that "[t]he psychiatrists shall file with the courta report in writing of the result of their examination, a copy ofwhich shall be delivered to the respondent." 725 ILCS 205/4(West 1998). Once the psychiatrists file their report and providethe respondent with a copy, a hearing is held to determine thedefendant's sexual dangerousness. 725 ILCS 205/4 (West 1998).The reports of the psychiatrists must be introduced by directtestimony. People v. Pearson, 65 Ill. App. 2d 264 (1965).Nonetheless, although the statute provides that two qualifiedpsychiatrists shall be appointed to examine the defendant, there isno requirement that both psychiatrists shall testify; testimony ofone may provide a prima facie case in the absence of contradictoryreports. People v. Olmstead, 32 Ill. 2d 306 (1965).

Once the hearing begins, section 3.01 of the Act controls.Section 3.01 specifies that the proceedings under the Act are civil.It states,

"The proceedings under this Act shall be civil innature[;] however, the burden of proof required to commita defendant to confinement as a sexually dangerousperson shall be the standard of proof required in acriminal proceedings of proof beyond a reasonable doubt.The provisions of the Civil Practice Law, and all existingand future amendments of that Law and modificationsthereof and the Supreme Court Rules now or hereafteradopted in relation to that Law[,] shall apply to allproceedings hereunder except as otherwise provided inthis Act." 725 ILCS 205/3.01 (West 1998).

Section 5 of the Act mandates that the defendant is accordedcertain rights:

"The respondent in any proceedings under this Act shallhave the right to demand a trial by jury and to berepresented by counsel. At the hearing on the petition itshall be competent to introduce evidence of thecommission by the respondent of any number of crimestogether with whatever punishments, if any, wereinflicted." 725 ILCS 205/5 (West 1998).

These rights are conferred upon the defendant/respondentbecause, although the proceedings under the Act are civil innature, they may result in deprivation of liberty and incarcerationin the penitentiary for psychiatric treatment. Therefore, arespondent under the Act must be accorded the essentialprotections available at a criminal trial. See Olmstead, 32 Ill. 2d at312; People v. Capoldi, 37 Ill. 2d 11 (1967); People v. Nastasio,19 Ill. 2d 524 (1960). Moreover, due process under both theUnited States and Illinois Constitutions require that the loss ofliberty which results from civil commitment under the Act bejustified by proof beyond a reasonable doubt. 725 ILCS 205/3.01(West 1998); People v. Pembrock, 62 Ill. 2d 317, 321 (1976).

In discussing the Act, the Seventh Circuit Court of Appeals inUnited States ex rel. Stachulak v. Coughlin, 520 F.2d 931, 937(7th Cir. 1975), stated:

"We recognize that society has a substantial interest in theprotection of its members from dangerous deviant sexualbehavior. But when the stakes are so great for theindividual facing commitment, proof of sexualdangerousness must be sufficient to produce the highestrecognized degree of certitude."

The Seventh Circuit further stated, and we agree, that the rightto due process entitles the defendant to the right to confront andcross-examine witnesses testifying against him, the right againstself-incrimination and the right to a speedy trial. Coughlin v.Stachulak, 424 U.S. 947, 47 L. Ed. 2d 354, 96 S. Ct. 1419 (1976).We note that our legislature intended rigid adherence to rules ofevidence and that every necessary element of the State's petitionbe proved by competent evidence. People v. Bruckman, 33 Ill. 2d150 (1965); People v. Pearson, 65 Ill. App. 2d 264 (1965).

If the State succeeds on its petition to adjudicate therespondent sexually dangerous, the respondent is committed to thecustody of the Director of Corrections as guardian. Section 8 of theAct states,

"The Director of Corrections as guardian shall keep safelythe person so committed until the person has recoveredand is released as hereinafter provided. The Director ofCorrections as guardian shall provide care and treatmentfor the person committed to him designed to effectrecovery. The Director may place that ward in any facilityin the Department of Corrections or portion thereof setaside for the care and treatment of sexually dangerouspersons." 725 ILCS 205/8 (West 1998).

The respondent is committed for an indeterminate time until thetime the respondent has recovered and is released under the Act.725 ILCS 205/9 (West 1998). We now turn to the second part ofthe Act, the recovery proceeding.

b. Recovery Proceeding

Once a person has been adjudicated sexually dangerous, thatperson may file, at any time, an application showing that he hasrecovered and requesting release. 725 ILCS 205/9 (West 1998).When such an application is filed, the psychiatrist, sociologist,psychologist and warden of the institution where the applicant isconfined must prepare a socio-psychiatric report concerning theapplicant. 725 ILCS 205/9 (West 1998). Section 9 of the Actstates,

"An application in writing setting forth facts showingthat such sexually dangerous person or criminal sexualpsychopathic person has recovered may be filed before thecommitting court. Upon receipt thereof, the clerk of thecourt shall cause a copy of the application to be sent to theDirector of the Department of Corrections. The Directorshall then cause to be prepared and sent to the court asocio-psychiatric report concerning the applicant. *** Thecourt shall set a date for the hearing upon such applicationand shall consider the report so prepared under thedirection of the Director of the Department of Correctionsand any other relevant information submitted by or onbehalf of such applicant. If the patient is found to be nolonger dangerous, the court shall order that he bedischarged." 725 ILCS 205/9 (West 1998).

We note that both the commitment and recovery proceedingsinvolve the "paramount factual issue of the mental condition of thedefendant; both involve his liberty." Olmstead, 32 Ill. 2d at 313.The first proceeding, the commitment of the defendant as asexually dangerous person, deprives the defendant of his liberty.The second proceeding, the recovery phase, gives a defendantapplying for recovery a chance to regain his freedom.

In Olmstead, this court decided the issue of whether section5 of the Act, the right to demand a jury trial and the appointmentof counsel in the commitment proceeding, applies to a defendantwho files an application for recovery under section 9 of the Act.The defendant, in Olmstead, was adjudicated sexually dangerouspursuant to the Act and the trial court dismissed his application forrecovery before appointing counsel and granting the defendant ajury trial. In determining whether the trial court erred in strikingthe defendant's application for recovery, we concluded that indevising the statute, "the legislature *** intended the right tocounsel and a jury to apply to both the original petitionproceedings and the application for discharge." (Emphasis added.)Olmstead, 32 Ill. 2d at 313.

In Capoldi, we reiterated the principle that persons proceedingunder the Act must be accorded the same procedural safeguardsthat are available to a defendant in a criminal trial. In Capoldi, thedefendant filed an application for recovery under section 9 of theAct that the trial court dismissed without a hearing. We noted thatonce the application has been filed, the court "shall" set a date forthe hearing and concluded that upon filing of the application forrecovery, the trial court should have held a hearing to determine ifthe defendant had recovered. Capoldi, 37 Ill. 2d at 18. We furtherheld that at the recovery hearing, the defendant is entitled to acourt-appointed attorney and the right to demand a trial by jurypursuant to section 5 of the Act. Capoldi, 37 Ill. 2d at 18.

Because both the commitment proceeding and the recoveryproceeding implicate a defendant's liberty interest, we havecontinuously emphasized in Olmstead and its progeny that thelegislature, in enacting the Act, clearly intended section 5 of theAct to apply both at the commitment proceeding and the recoveryproceeding. Olmstead, 32 Ill. 2d at 313; accord People v. Shiro, 52Ill. 2d 279, 282 (1972) (when a defendant files an application forrecovery, he must be granted a jury trial if so requested). Withthese crucial principles in mind, we next turn to a review of theburden of proof during the proceedings under the Act.

c. Burden of Proof

There is no dispute that the language in the Act clearly statesthat the State must prove a defendant sexually dangerous beyonda reasonable doubt during the commitment proceeding. 725 ILCS205/3.01 (West 1998). The Act does not explicitly state, however,where the burden of proof lies in a recovery proceeding.

In deciding this issue, we are guided by the fundamental ruleof statutory construction-to ascertain and give effect to the trueintent and meaning of the legislature. Kraft, Inc. v. Edgar, 138 Ill.2d 178, 189 (1990). We look first to the words chosen by thelegislature and used in the statute itself as the best indicators ofwhat the statute means. The statutory language, however, is areliable indicator of true meaning only when it is read in thecontext of the entire Act. See Kraft, Inc., 138 Ill. 2d at 189 Thus,sections 3, 5 and 9 of the Act must be read in conjunction with oneanother and their language so construed as to make themharmonious and consistent. Their words cannot be read in afashion that would render other words or phrases, meaningless,redundant, or superfluous. Kraft, Inc., 138 Ill. 2d at 189.

Section 9 of the Act states that during the recoveryproceeding, the "patient" (defendant) shall file an "application" forrecovery. 725 ILCS 205/9 (West 1998). In resolving issuesconcerning applications for recovery, however, courts, includingthis court, have used the phrase "petition for recovery" whendiscussing an "application" for recovery. See, e.g., People v.Cooper, 132 Ill. 2d 347 (1989); Shiro, 52 Ill. 2d at 282; People v.Sizemore, 311 Ill. App. 3d 917 (2000); People v. Tunget, 287 Ill.App. 3d 533 (1997). People v. Hannan, 184 Ill. App. 3d 937(1989); People v. Parrott, 108 Ill. App. 3d 222 (1982). Theinterchangeable use of the terms "petition" and "application" overthe years has led to a misinterpretation of the burden of proof thatis required during a recovery proceeding. It has also led to amisunderstanding of the nature of the proceedings that thelegislature intended.

A "petition" is defined as "[a] formal written requestpresented to a court or other official body." Blacks Law Dictionary1165 (7th ed. 1999). A "petitioner" is defined as "[a] party whopresents a petition to a court or other official body, esp. whenseeking relief on appeal." Blacks Law Dictionary 1166 (7th ed.1999). This definition is consistent with the understanding that apetitioner is one who must proceed with pleadings. In contrast tothe petitioner, a "respondent" is the "party against whom an appealis taken" or a "party against whom a motion or petition is filed."Blacks Law Dictionary 1313 (7th ed. 1999). An "application," onthe other hand, is defined as "[a] request for an order not requiringadvance notice and an opportunity for a hearing before the orderis issued." Black's Law Dictionary 96 (7th ed. 1999).

The Act clearly states that when initiating commitmentproceedings against a person, the State should file "a petition"setting forth facts to show that the person is sexually dangerous.725 ILCS 205/3 (West 1998). Thus, the State must set forth factsin the pleadings to show a person's sexual dangerousness. Inaddition to having the burden of pleading the facts necessary tocommit a person under the Act, the State must further show thatthe person is sexually dangerous "beyond a reasonable doubt." 725ILCS 205/3.01 (West 1998). Clearly, when the State files its"petition," it must sustain the burden of proof.

However, the term "petition" has no place in the recoveryproceeding under section 9 of the Act. Section 9 mandates that adefendant who is committed to the Department of Corrections canfile "[a]n application in writing setting forth facts showing thatsuch sexually dangerous person or criminal sexual psychopathicperson has recovered." (Emphasis added.) 725 ILCS 205/9 (West1998). Using the term "petition" when speaking of an "applicationfor recovery" is misleading because it implies that the defendantmust proceed with the evidence and sustain a burden of proofduring the recovery phase.

A review of various cases discussing recovery hearingproceedings under the Act shows that our appellate court hasstructured a recovery hearing scheme that places the burden ofproceeding with the evidence and the burden of proof on thedefendant to show that he has recovered. See People v. Coan, 311Ill. App. 3d 296 (2000); Sizemore, 311 Ill. App. 3d at 920; Peoplev. Cash, 282 Ill. App. 3d 638, 641 (1996); Savage, 277 Ill. App. 3dat 67; People v. Finkle, 214 Ill. App. 3d 290, 296 (1991); Peoplev. Cooper, 199 Ill. App. 3d 985, 987 (1990); Hannan, 184 Ill. App.3d 937; Parrot, 108 Ill. App. 3d 222; People v. Beksel, 10 Ill. App.3d 406, 407 (1973); People v. Sweeney, 114 Ill. App. 2d 81, 86(1969).

Over the years, the burden of proof on the defendant hasemerged as one of "preponderance of the evidence." Sizemore, 311Ill. App. 3d at 926; Cooper, 199 Ill. App. 3d at 989; Hannan, 184Ill. App. 3d at 941; Beksel, 10 Ill. App. 3d at 407; Sweeney, 114Ill. App. 2d at 88. Even this court, in dicta, has alluded to adefendant's burden of proof during recovery proceedings. Peoplev. Cooper, 132 Ill. 2d 347, 355 (1989) (until a defendant proves tothe court he is no longer sexually dangerous, he retains thatstatus); People v. Fish, 36 Ill. 2d 220, 222 (1966) (burden of proofshifts to the defendant in subsequent proceedings); People v.Couvion, 33 Ill. 2d 408, 411 (1965) (the burden of proof shifts tothe defendant in subsequent proceedings following commitment).

We note that the Act specifically refers to the defendant as an"applicant" and a "respondent." Under a plain reading of theseterms, the defendant does not have the obligation to move forwardwith the evidence or to sustain the burden of proof during therecovery proceeding. Nonetheless, panels of the appellate courthave extrapolated the language in the Act to place a nonexistentburden on the defendant. The result is the creation of an entirehearing scheme that is incompatible with the notion of due processand the express language of the Act.

Had the defendant been required to sustain the burden ofproof during the recovery proceeding, that language would havebeen incorporated in the Act. If this court can ascertain legislativeintent from the plain language of the statute itself, that intent mustprevail. Barnett v. Zion Park District, 171 Ill. 2d 378 (1996). Wewill not depart from the plain language of the statute by readinginto it exceptions, limitations, or conditions that conflict with theexpress legislative intent. Barnett, 171 Ill. 2d at 389. Under a plainlanguage reading of the Act, when the defendant/applicant files anapplication for recovery, this application triggers the requirementof a recovery hearing. At the recovery hearing, the defendantbecomes a respondent and the State is the petitioner. The State, asthe petitioner, must show, beyond a reasonable doubt, that thedefendant/respondent is still sexually dangerous.

Additionally, section 5 of the Act, the right to counsel and todemand a jury trial, clearly applies both during the commitmentproceeding and during the recovery proceeding. Shiro, 52 Ill. 2dat 282. We find significant that our legislature, in granting thedefendant the right to demand a jury trial and the right to berepresented by counsel, referred to him as the "respondent," notthe "petitioner." 725 ILCS 205/5 (West 1998). The reference todefendant as a "respondent" in a proceeding where he is grantedthe right to demand a jury and appointment of counsel indicatesthat, as the respondent, the defendant does not have the burden ofproceeding with the evidence.

In support of our conclusion, we also look to a similar statute,the Sexually Violent Persons Commitment Act (hereinafter, theSexually Violent Persons Act). The Sexually Violent Persons Actapplies to persons who are within 90 days of (1) discharge for asentence that was imposed upon a conviction for a sexually violentoffense; (2) release from a Department of Corrections juvenilecorrectional facility following a delinquency adjudication on thebasis of a sexually violent offense; or (3) release from acommitment following a finding of not guilty of a sexually violentoffense by reason of insanity. 725 ILCS 207/15(b) (West 1998).

We realize that in creating the Sexually Violent Persons Act,the legislature encompassed a more limited group of offendersthan those to which the Act applies. A sexually violent person,who is likely to commit acts of sexual violence in the future,creates different societal problems from those created by asexually dangerous person who has suffered from a mentaldisorder for more than one year. See People v. McVeay, 302 Ill.App. 3d 960 (1999); People v. McDougle, 303 Ill. App. 3d 509(1999). Despite the fundamental differences⁽¹⁾ between the two acts,however, we note that the underlying goal and the legislature'sintent in creating these two statutes is the same.

Both statutes are specifically tailored towards achieving theirdual objectives to provide for care and treatment of sexuallydangerous individuals and to remove such individuals fromsociety. People v. McDougle, 303 Ill. App. 3d 509 (1999).Consistent with these objectives, our legislature has also providedmechanisms that are available to a committed person to obtaindischarge once he has recovered and no longer needs treatment orexclusion from society. 725 ILCS 205/9 (West 1998); 725 ILCS207/65 (West 1998).

During the recovery hearing under the Sexually ViolentPersons Act, the State must show by clear and convincingevidence that the defendant is still sexually violent. 725 ILCS207/65(b)(2) (West 1998). The Sexually Violent Persons Actprovides three different procedures that are available to adefendant who is committed where the State must sustain itsburden of proof.⁽²⁾ In this respect, the State's evidence, which is thebarrier to a defendant's discharge from commitment, is testedbefore an impartial fact finder.

We find it significant that in crafting the Sexually ViolentPersons Act the legislature clearly mandated that the State, not thedefendant, must continue to sustain a burden of proof during therecovery proceeding. 725 ILCS 207/65(b)(2) (West 1998). Webelieve that the legislature intended that a similar mechanism fordischarge be available to a defendant proceeding under the Act.Although the language in the Act is not as precise as the SexuallyViolent Persons Act, nor does it provide three different methodsto obtain discharge, it does, nonetheless, provide a specificmechanism, through the recovery hearing, for a defendant to testthe State's evidence against him.

Our legislature has implemented specific safeguards to protecta defendant's due process rights. Of paramount importance is theright to be represented by counsel, the right to a jury trial and theright to have the State prove its case beyond a reasonable doubt.Pembrock, 62 Ill. 2d at 321; Olmstead, 32 Ill. 2d at 312. Thus,when a defendant files an application for recovery under the Act,this application triggers an opportunity for a hearing in which thedefendant becomes a respondent and is entitled both to a right todemand a jury and appointment of counsel. 725 ILCS 205/5 (West1998). The burden of proof, as in the Sexually Violent PersonsAct, remains on the State, to provide that defendant is stillsexually dangerous. 725 ILCS 205/3.01 (West 1998).⁽³⁾ We nowturn to the substantive issue in the present case.

III. A Summary Judgment Motion Is Inappropriate in aRecovery Proceeding

The State maintains that because section 3.01 of the Act refersto the provision of the Civil Practice Law, the summary judgmentprovision of that section automatically applies to proceedingsunder the Act. There is no dispute that the proceedings under theAct are civil in nature. The plain language of the statute makes thisfact apparent. Nonetheless, this court has long recognized that theapplication of the Act may result in deprivation of liberty. As such,we have consistently held that a person proceeding under the Actmust be accorded the essential protections available to a defendantin a criminal trial, including the right to counsel and the right to ajury trial. Olmstead, 32 Ill. 2d at 312; Capoldi, 37 Ill. 2d at 18. Inthat respect the Act can be characterized as a hybrid; although civilin nature, it still confers certain rights of a criminal defendant toa person proceeded against under the Act. The extension of theserights to a person filing an application for recovery under section9 of the Act guides our decision in this case.

If the recovery hearing scheme created by the appellate court,which places the burden of proof on the defendant, was approved,a defendant would gain nothing in terms of an opportunity toregain his freedom. Because, according to Illinois law, the trialcourt is not required to provide an independent psychiatrist to thedefendant under the Act, the defendant would have nothing but hisown application to present to the trier of fact. People v. McVeay,302 Ill. App. 3d 960, 964 (1999). The necessarily limitedallegations made in the defendant's application alone wouldalmost always be insufficient to sustain the burden placed on himto show by a preponderance of the evidence that he has recovered.

Theoretically, a defendant could, on his own or with the helpof privately retained expert witnesses, make a sufficient allegationin his petition to meet the present burden. However, a review ofnearly half a century of case law interpreting the Act has failed toreveal such a hypothetical case. To require the defendant to provethat he has recovered and to rebut the statutorily required socio-psychiatric report effectively reduces the defendant's right to a jurytrial to an exercise in futility. See People v. Coan, 316 Ill. App. 3d14, 16-17 (2000) (McLaren, J., specially concurring). Adefendant's right to assistance of counsel and the right to demanda jury trial, that we have previously held is available to him undersection 5 of the Act, would be, in almost all cases, rendered of novalue. 725 ILCS 205/5 (West 1998); Shiro, 52 Ill. 2d at 282.

In Shiro, we held that if a person who is committed as asexually dangerous person files an application for release, thecourt is required to determine whether he should be released andmust grant the defendant's request for a jury trial. Shiro, 52 Ill. 2dat 282, citing Capoldi, 37 Ill. 2d at 18. However, if the defendantduring a recovery proceeding were placed in the situation wherehe had to proceed with the evidence, he would never be able tosustain his burden of proof by a preponderance of the evidence. Itis unlikely that such a defendant would ever survive a motion fora directed verdict at the close of his evidence. Essentially, section5 of the Act would be rendered completely ineffectual in therecovery proceedings.

The eradication of the protections provided by section 5 of theAct was the appellate court's concern in this case on direct appeal. 312 Ill. App. 3d 860. As the appellate court accurately noted,granting a summary judgment motion would allow the State to"circumvent the defendant's right to a jury trial in violation ofsection 5 of the Act." 312 Ill. App. 3d at 863. That was preciselythe outcome when the trial court granted the State's motion forsummary judgment in this case. Defendant was stripped of hisright to demand a jury trial, the right to be represented by counsel,and the right to test the State's evidence against him.

The requirements of due process, under both the United Statesand the Illinois Constitutions, required that the drastic impairmentof the liberty and reputation of an individual which results fromcivil commitment under the Act be justified. Pembrock, 62 Ill. 2dat 321. Allowing a system to exist which would make section 5essentially inoperable during recovery proceedings would deny thedefendant of any viable method of regaining his freedom andwould violate his due process rights.

As our court stated in Olmstead, a defendant's route tofreedom should not "find a road block in the fact that the indigentdefendant is inarticulate in the forms of law or that he does nothave the affidavits of psychiatric specialists to support hisapplication." Olmstead, 32 Ill. 2d at 314. The minimum pleadingrequirement for a defendant filing an application for recoveryunder the Act is that he must set forth facts and circumstancesshowing that he has recovered. Olmstead, 32 Ill. 2d at 314. Underthe principles set forth in Olmstead, and its progeny, defendant'sapplication in this case fulfilled the minimum pleadingrequirement. Those facts and circumstances did not need to beaccompanied by additional psychiatric reports or documents.Therefore, on its face, the application for recovery was sufficientand required the court to set the matter for a hearing and toimpanel a jury.

Defendant's only avenue to freedom, a hearing pursuant to anapplication for recovery where the State must sustain the burdenof proof against defendant, would be thwarted through a motionfor summary judgment. Applying the principles of a purely civilremedy would force defendant to show that a material fact exists.As we have previously noted, defendant is not entitled toappointment of an independent expert. Therefore, the only expertopinion that would be considered at a hearing on a motion forsummary judgment is that contained in the Department's socio-psychiatric report. Thus, the defendant would be placed in aposition where the true decision would not be made by animpartial fact finder but by the expert testimony of the governmentpsychiatrist or reliance on the Department's expert's report.

The defendant would have nothing to present to the trier offact, as he is indigent and without any means to procure evidencenecessary to overcome the presumption against him. As aconsequence, the State would never have to meet its burden ofproof beyond a reasonable doubt to show that the defendant hadnot recovered and that he should remain confined in theDepartment of Corrections.

The scheme envisioned by our appellate court would deprivedefendant of having a jury of 12 impartial citizens test thecredibility of the witnesses and determine the defendant's future.A defendant would only find success in a situation where theState's experts agreed that the accused has recovered from thecondition that first led to his commitment. This outcome, however,is highly improbable.

Stripping the defendant of the protections of section 5 underthe Act would render an absurd result. In essence, a defendant'savenue to liberty, paved with precious rights to counsel and trialby jury, under the current structure created by various panels of theappellate court, would be equipped with a dead end. To avoid sucha contrary result, we conclude that a motion for summaryjudgment is an inappropriate civil remedy that has no place inapplications for recovery filed under the Act.

We realize that the Act imposes a significant burden on thisState's limited judicial resources. The Act is silent and contains nolimitation on the number of applications showing recovery that asexually dangerous person may file. In addition, it also fails tospecify the length of time allowed between applications, unlike itssimilar sister statute.⁽⁴⁾ Although we recognize the impact of the Acton the State's resources, this is a legislative matter that we mustleave for the General Assembly to address.

IV. CONCLUSION

For these reasons, we find that upon defendant's filing of theapplication for recovery, the trial court should have appointedcounsel to represent the indigent defendant, should haveimpaneled a jury pursuant to the defendant's jury demand andshould have held a hearing, structured as we have indicated, todetermine if the defendant had recovered from the disabilityresponsible for his confinement. In this respect, the State'sevidence, which is the barrier to a defendant's freedom, is testedat a jury trial in which the State's witnesses have been cross-examined by counsel for the defendant; their credibility has beentested; and a decision is made by 12 impartial citizens whether theapplicant should continue to remain in the custody of the State.

The judgment of the appellate court is affirmed.

Affirmed.

1. ¹We recognize that the procedures under the Sexually DangerousPersons Act are different from the involuntary commitment proceedingsfor individuals committed under the provisions of the Sexually ViolentPersons Act, namely, the Act provides an alternative to criminalprosecution while commitment under the Sexually Violent Persons Actis pursued in addition to criminal proceedings. 725 ILCS 207/15(b)(West 1998); 725 ILCS 205/4 (West 1998).

2. ²The Sexually Violent Persons Act provides three differentprocedures available to a defendant who is committed under the Act ofobtaining discharge. The first involves a hearing where the State has theright to have the defendant examined by an expert and has the burdenof proving by clear and convincing evidence that the defendant is stillsexually violent. 725 ILCS 207/65(a)(2) (West 1998). The secondmechanism for discharge is triggered whenever the defendant undergoesone of the periodic examinations required by statute. The State mustshow by clear and convincing evidence that the defendant is stillsexually violent. 725 ILCS 207/65(b)(2) (West 1998). Finally, adefendant can petition for discharge at times other than the periodicexaminations, subject to certain limitations outlined in the act. 725 ILCS207/70 (West 1998).

3. ³Under both statutes the burden of proof during a recovery hearingremains on the State. However, unlike the Sexually Violent Persons Act,where the legislature has created a standard of proof by clear andconvincing evidence (725 ILCS 207/65(b)(2) (West 1998)) the standardof proof in the Act remains beyond a reasonable doubt (725 ILCS205/3.01 (West 1998)).

4. ⁴Under the Sexually Violent Persons Act (725 ILCS 207/1 et seq.(West 1998)), after a defendant has been committed to institutional care,the Department of Human Services is to conduct an examination of hismental condition within 6 months of the initial commitment and againthereafter at least once every 12 months.