# In re Detention of Hardin

> Illinois Supreme Court · June 24, 2010

URL: https://www.frixlaw.com/law-library/cases/3135597

## Case

- **Court:** Illinois Supreme Court
- **Decided:** June 24, 2010
- **Precedential status:** Published
- **Opinion:** Opinion
- **Cited by:** 0 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/3135597

## How later opinions describe it (automated extraction)

- stating the statutory language in Wisconsin’s SVP statute is identical to the language in the Illinois statute and finding the analysis in the Wisconsin case law persuasive
- finding the Wisconsin Supreme Court’s interpretation of a portion of that state’s “similar statute” persuasive
- stating that probable cause addresses factual and practical probabilities of everyday life

## Opinion text

Docket No. 108615.

IN THE
SUPREME COURT
OF
THE STATE OF ILLINOIS

In re DETENTION OF TOMMY O. HARDIN (The People of the
State of Illinois, Appellee, v. Tommy O. Hardin, Appellant).

Opinion filed June 24, 2010.

JUSTICE KILBRIDE delivered the judgment of the court, with
opinion.
Chief Justice Fitzgerald and Justices Freeman, Thomas, Garman,
Karmeier, and Burke concurred in the judgment and opinion.

OPINION

The circuit court of Du Page County found no probable cause
supporting the civil commitment of respondent, Tommy O. Hardin,
under the Sexually Violent Persons Commitment Act (725 ILCS
207/1 et seq. (West 2006)). The State appealed, and the appellate
court reversed the trial court’s finding. See 391 Ill. App. 3d 211.
In his appeal before this court, respondent raises two issues of first
impression: (1) the jurisdiction of the appellate court after entry of a
no-probable-cause finding in a sexually violent person (SVP)
commitment proceeding; and (2) the quantum of evidence necessary
to support the State’s SVP commitment petition at a probable cause
hearing. He also challenges the sufficiency of the evidence presented
at the probable cause hearing.
We affirm the appellate court judgment. We hold that the appellate
court has jurisdiction to hear appeals from findings of no probable
cause in SVP commitment proceedings and announce the adoption of
the proper evidentiary standard in those hearings. We also conclude
that the evidence offered by the State in this case was sufficient to
satisfy our newly adopted standard.

I. BACKGROUND
In 2000, respondent was convicted of five counts of aggravated
criminal sexual abuse of a 15-year-old runaway girl committed in 1997
(720 ILCS 5/12–16(d) (West 1996)) and was sentenced to concurrent
22-year prison terms. That offense was committed while respondent
was on mandatory supervised release (MSR) following his 1992
conviction for aggravated criminal sexual abuse of a victim between
the ages of 13 and 16. His 1992 conviction, in turn, was based on acts
committed while he was on probation for a 1991 conviction for
aggravated criminal sexual abuse of a victim between the ages of 13
and 16.
On November 19, 2007, one day before respondent’s latest
scheduled MSR period, the State timely filed a petition in the circuit
court of Du Page County seeking his civil commitment under the
Sexually Violent Persons Commitment Act (725 ILCS 207/1 et seq.
(West 2006)).
The petition was supported by a report written by Dr. Ray
Quackenbush, a licensed clinical psychologist and SVP evaluator for
the Department of Corrections (DOC) and the Department of Human
Services with extensive experience and credentials in SVP evaluations.
The trial court qualified him as an expert witness without objection by
respondent. The report was based on a two-hour interview with
respondent, the results of three psychological tests administered by
Dr. Quackenbush, as well as respondent’s DOC sex offender
prerelease evaluation, his presentence report, his DOC “master file”
and medical file, and other Illinois records. In Dr. Quackenbush’s
expert opinion, respondent suffered from both “paraphilia, not
otherwise specified, nonconsenting persons” and “personality
disorder, not otherwise specified, with antisocial features” and
presented a substantial risk of committing future sexually violent

-2-
offenses. Dr. Quackenbush’s report determined that respondent met
the criteria for civil commitment as a SVP. A probable cause hearing
was scheduled for January 2, 2008.
Dr. Quackenbush was the only witness at the probable cause
hearing. He testified about the methodology and information
underlying his opinion that respondent met the statutory criteria for
civil commitment. Dr. Quackenbush stated that his opinions were
based on materials customarily relied on by SVP evaluators, including
his interview with respondent, respondent’s available records, and the
results of the psychological tests. He concluded that respondent
suffered from the mental disorders of: (1) paraphilia, not otherwise
specified, nonconsenting persons, and (2) personality disorder, not
otherwise specified, with antisocial features. Untreated, these
disorders made respondent likely to re-offend, a conclusion also
supported by respondent’s test results and his repeated rejection of
offers for sex offender treatment while in prison.
After hearing the testimony and the parties’ oral arguments, the
trial court found no probable cause to believe respondent was a SVP
who was likely to re-offend. Initially, the court agreed with
respondent that his current convictions alone could not be used to
meet the statutory criteria. It also concluded that “there has not been
any testimony of any behavior on the part of [respondent] which
would give probable cause to believe that he suffers from any kind of
a disorder, a personality disorder. The lack of any evidence and
testimony of any disciplinary matters or anything else that would
indicate an antisocial personality really belies my ability to make a
finding that he suffers from this classified disorder.” Lastly, the court
stated that the State had not presented any evidence that respondent
continued to have an unusual interest in teenage girls, “so that there
really is no other basis for this petition, other than the conviction for
which he has served his term in the [DOC].”
Consequently, the court ordered respondent to be released and
placed on MSR. The cause did not proceed to a full trial on the merits
of the State’s civil commitment petition. The State appealed the trial
court’s finding of no probable cause and unsuccessfully attempted to
stay execution of the order pending appeal.
Respondent filed a motion to dismiss the appeal, claiming the
appellate court lacked jurisdiction because: (1) the Act does not

-3-
authorize an appeal by the State from a finding of no probable cause
in a SVP proceeding; and (2) even if the State generally has a right to
appeal a finding of no probable cause, it cannot appeal the order in
this case because the order was not a final judgment. The appellate
court denied the motion to dismiss and later reversed the finding of no
probable cause and remanded to the trial court for further
proceedings. 391 Ill. App. 3d 211. Respondent filed a motion to
reconsider, arguing the court failed to address his jurisdictional
arguments. The appellate court denied the motion, explaining it had
previously rejected those arguments for the reasons stated in the
State’s response to the motion to dismiss the appeal. This court
allowed respondent’s petition for leave to appeal. 210 Ill. 2d R. 315.

II. ANALYSIS
Before this court, respondent raises two issues: (1) whether the
appellate court erred in holding it had jurisdiction over the State’s
appeal, and (2) whether the appellate court gave sufficient deference
to the trial court’s credibility and probable cause determinations in
reversing the finding that no probable cause existed to believe
respondent is a SVP who is likely to re-offend. We begin with the
threshold question of whether a reviewing court has jurisdiction to
hear an appeal by the State from a finding of no probable cause that
the subject of a civil commitment petition is a SVP under the Act.

A. Jurisdiction
We review de novo the purely legal issue of jurisdiction. People
v. Drum, 194 Ill. 2d 485, 488 (2000). Respondent relies on two
arguments to support his position that the State cannot appeal a
finding of no probable cause under the Act: (1) the language of the
Act establishes the legislature’s intent that the State may not appeal a
finding of no probable cause; and (2) even if the State had a general
right to appeal, the order was not a final, appealable judgment.
Respondent’s first argument is largely based on section 35(g) of
the Act, involving SVP trials. That section states:
“A judgment entered under subsection (f) of this Section
on the finding that the person who is the subject of the petition
under Section 15 is a sexually violent person is interlocutory

-4-
to a commitment order under Section 40 and is reviewable on
appeal.” 725 ILCS 207/35(g) (West 2006).
Respondent argues that although section 35 does not specifically
address probable cause hearings, it limits appellate review to cases
when a finding of probable cause has been entered, thus barring the
appeal of a finding of no probable cause. He adds that the same
legislative intent is shown in sections 30(c) and 35(f), requiring the
court to dismiss the State’s civil commitment petition: (1) if, at the
probable cause hearing, “the court determines that probable cause
does not exist to believe that the person is a sexually violent person”
or (2) if, at the conclusion of a SVP trial, “the court or jury is not
satisfied beyond a reasonable doubt that the person is a sexually
violent person.” 725 ILCS 207/30(c), 35(f) (West 2006).
These claims involve statutory construction, presenting a pure
legal question subject to de novo review. Weather-Tite, Inc. v.
University of St. Francis, 233 Ill. 2d 385, 389 (2009). When
construing a statute, our goal is to determine and effectuate the
legislature’s intent, best indicated by giving the statutory language its
plain and ordinary meaning. Weather-Tite, 233 Ill. 2d at 389. This
court will not depart from the statute’s plain language by reading in
exceptions, limitations, or conditions in conflict with the legislature’s
intent. Weather-Tite, 233 Ill. 2d at 390.
After examining the plain language of both sections 35(f) and
35(g), we conclude those sections pertain only to judgments entered
after a full trial on the merits of the State’s petition. Here, the issue is
the State’s right to appeal a finding entered at the earlier probable
cause stage of the proceedings. Indeed, only if a finding of probable
cause is entered at this early stage would respondent ever be subject
to a trial on the merits of the State’s petition. Thus, the plain language
of the Act shows that sections 35(f) and 35(g) do not apply here. We
are not persuaded by respondent’s argument that the absence of
language in the Act affirmatively authorizing a State appeal from a
finding of no probable cause mandates the conclusion that the State
may not appeal.
Nonetheless, based on the language in section 30(c) mandating
dismissal of the State’s civil commitment petition after a finding of no
probable cause, respondent maintains that the legislature intended to
bar the State’s appeal. He contends the legislature would have

-5-
specifically provided for an appeal, or at least a bond pending appeal,
if it had intended the State to be able to appeal. We do not believe,
however, that the absence of specific statutory language affirmatively
providing for appeals or bonds supports that interpretation. Indeed,
the primary error in respondent’s argument is his reliance on the
statute’s purported silence. His argument overlooks express statutory
language affirmatively stating that “[t]he proceedings under this Act
shall be civil in nature. The provisions of the Civil Practice Law, and
all existing and future amendments of that Law shall apply to all
proceedings hereunder except as otherwise provided in this Act.” 725
ILCS 207/20 (West 2006). Thus, the Act is not silent about the
applicable appellate rules, as respondent claims, but rather directs us
to consider the applicable civil provisions.
Section 1–107 of the Code of Civil Procedure states that
“[a]ppeals may be taken as provided for in civil cases.” 735 ILCS
5/1–107 (West 2006). In turn, Supreme Court Rule 301 notes that
“[e]very final judgment of a circuit court in a civil case is appealable
as of right.” 155 Ill. 2d R. 301. Therefore, if the trial court’s finding
of no probable cause in this case constitutes a final judgment, the State
may appeal that finding.
Accordingly, we next consider respondent’s second jurisdictional
argument, namely, that the State may not appeal here because a
finding of no probable cause in a civil SVP proceeding is not a final
judgment. Respondent compares the State’s right to appeal in this
context to its appellate rights after entry of a finding of no probable
cause in a criminal prosecution, citing a Wisconsin case, State v.
Watson, 227 Wis. 2d 167, 201, 595 N.W.2d 403, 418 (1999). He
notes that only final judgments are appealable in both contexts and
asserts that the State may not appeal from a finding of no probable
cause in a criminal case because the ruling is not final. In a criminal
case, the State’s only options are to refile its charges or seek a grand
jury indictment. He contends the outcome should be the same here,
limiting the State to filing another civil commitment petition “no more
than 90 days before [respondent’s] discharge or entry into mandatory
supervised release” (725 ILCS 207/15(b–5) (West 2006)) or “within
30 days of [his] placement onto parole or mandatory supervised
release” (725 ILCS 207/15(a)(1) (West 2006)).
We reject respondent’s argument for two reasons. First, his

-6-
analogy to adverse rulings in criminal probable cause hearings fails
because it ignores the statute’s plain directive to apply civil law
“except as otherwise provided in this Act.” 725 ILCS 207/20 (West
2006). Because the Act does not otherwise provide for State appeals
from a finding of no probable cause, we must look to the applicable
civil law, rather than analogize to our criminal law. Second,
respondent’s argument is circular because it presumes that the reason
the State may not appeal from a finding of no probable cause in a
criminal case is because the ruling is not final without providing any
support for his presumption. In our view, respondent’s reliance on
section 30(c) of the Act supports the opposite conclusion.
Under section 30(c), the State’s petition must be dismissed if
probable cause is not found. 725 ILCS 207/30(c) (West 2006). This
court has repeatedly applied three criteria to determine whether a civil
ruling is final. A ruling is final if: (1) it terminates the litigation
between the parties, and (2) it fixes the parties’ rights, (3) “so that, if
affirmed, the trial court has only to proceed with execution of the
judgment” (Kellerman v. Crowe, 119 Ill. 2d 111, 115 (1987)). See In
re A.H., 207 Ill. 2d 590, 594 (2003); In re Curtis B., 203 Ill. 2d 53, 59
(2002); Flores v. Dugan, 91 Ill. 2d 108, 112 (1982). After a finding
of no probable cause in respondent’s case, the State’s petition had to
be dismissed under section 30(c), effectively terminating the litigation
and defining both parties’ rights, leaving only enforcement of the
judgment. Respondent was entitled to begin his MSR period, and the
State was precluded from advancing the contentions in its civil
commitment petition in the trial court. Under our case law, the trial
court’s finding that no probable cause existed to believe respondent
was a SVP constitutes a final judgment and the State was entitled to
file an appeal under the statutes and supreme court rules generally
applicable in civil cases. Thus, we affirm the appellate court’s denial
of respondent’s motions to dismiss the State’s appeal and to
reconsider the appellate judgment because we hold that the appellate
court has jurisdiction to decide the merits of State appeals from
findings of no probable cause in SVP proceedings.

B. Determination of Probable Cause
The second issue raised on appeal is whether the appellate court
gave sufficient deference to the trial court’s credibility and probable

-7-
cause determinations in reversing the finding of no probable cause to
believe respondent is a SVP. To support a finding of probable cause
in a SVP proceeding, the evidence must establish that the subject of
the petition:
(1) has been found guilty, delinquent, or not guilty by
reason of insanity, mental disorder, or mental defect of a
sexually violent offense;
(2) has a mental disorder; and
(3) is a danger to others because the mental disorder
causes a substantial probability that the subject will commit
acts of sexual violence. See 725 ILCS 207/5(f), 15(b) (West
2006).
This appeal presents a controverted question of first impression
for this court. The parties note that the Act does not specify the
quantum of evidence necessary to establish the three elements
required for a finding of probable cause in a SVP proceeding. The
determination of the proper quantum of evidence does not involve any
questions of fact, making it a legal issue to be reviewed de novo. See
People v. Moore, 207 Ill. 2d 68, 75 (2003) (explaining that “[a]
reviewing court determines a legal question independently of the trial
court’s judgment”).
Relying on sections 35(d)(1) and 35(e), respondent argues that the
State must prove each element beyond a reasonable doubt. 725 ILCS
207/35(d)(1), (e) (West 2006). Although respondent recognizes that
section 35 specifically applies only to SVP trials, he contends it should
be provided at probable cause hearings as well as one of the many
criminal procedure protections available in probable cause hearings
under the SVP Act. These other protections include the rights to be
present at the proceeding, to remain silent, to present and cross-
examine witnesses, to have the hearing recorded, and to be
represented by counsel. 725 ILCS 207/25(c) (West 2006).
Respondent claims that if a lower burden of proof is applied, the State
could rely on his prior convictions for sexually violent offenses alone
to satisfy both the first and second elements, requiring showings that
he had committed a sexually violent offense and had a mental disorder.
He argues that result would conflict with section 35(e), stating that
evidence of the prior commission of a sexually violent offense “is not

-8-
sufficient to establish beyond a reasonable doubt that the person has
a mental disorder.” 725 ILCS 207/35(e) (West 2006).
We are not persuaded that the proper quantum of evidence in a
probable cause hearing under the Act is provided in section 35. As we
have already noted, section 35 specifically addresses trials under the
Act, not probable cause hearings, expressing only the clear legislative
intent to apply that evidentiary standard in full SVP trials. To
determine the proper quantum of evidence in probable cause hearings
under the Act, section 20 of the Act directs us to look to the Civil
Practice Law. See 725 ILCS 207/20 (West 2006). Unfortunately,
neither the Civil Practice Law nor the Code of Civil Procedure
provides any guidance on the appropriate quantum of evidence in a
probable cause hearing under the Act. Thus, unlike the jurisdictional
issue raised in this appeal, in this instance the Act is truly silent about
the applicable standard.
Even if we look to our criminal case law, we must reject
respondent’s contention that a reasonable doubt standard is proper in
making a probable cause determination. In People v. Jackson, we
explained that
“whether probable cause exists is governed by commonsense
considerations, and the calculation concerns the probability
of criminal activity, rather than proof beyond a reasonable
doubt. [Citation.] ‘Indeed, probable cause does not even
demand a showing that the belief that the suspect has
committed a crime be more likely true than false.’ [Citation.]”
(Emphasis added.) People v. Jackson, 232 Ill. 2d 246, 275
(2009).
Although Jackson addressed probable cause in the context of a motion
to quash arrest and suppress evidence (Jackson, 232 Ill. 2d at 274),
the same concept is applicable in other criminal contexts, such as
preliminary hearings (725 ILCS 5/111–2(a) (West 2006) (making
“probable cause to believe the defendant committed an offense” the
touchstone in a preliminary hearing)). Indeed, the Illinois SVP statute
is sui generis, containing elements of various criminal and civil
proceedings. Neither defendant nor our own research, however, has
uncovered any context where probable cause must be proven beyond
a reasonable doubt. Similarly, the United States Supreme Court has
recognized the necessary “difference in standards and latitude allowed

-9-
in passing upon the distinct issues of probable cause and guilt.”
Brinegar v. United States, 338 U.S. 160, 174, 93 L. Ed. 1879, 1889,
69 S. Ct. 1302, 1310 (1949). Because the language chosen by our
legislature has not clearly established its intent to impose the same
high burden of proof present in a criminal trial at the probable cause
stage of a SVP proceeding, this court will not impose that standard
here.
Alternatively, the State suggests we adopt the evidentiary standard
recognized in the Wisconsin case of State v. Watson, 227 Wis. 2d 167,
595 N.W.2d 403 (1999). In Watson, the Wisconsin Supreme Court
specifically addressed the quantum of evidence needed to support a
finding that a respondent is a SVP. Respondent acknowledges that the
Wisconsin SVP statute is substantially similar to our own state statute,
and our case law also supports this conclusion. See People v. Botruff,
212 Ill. 2d 166, 181 (2004) (expressly recognizing that the Wisconsin
SVP statute is similar to the Illinois SVP statute); People v.
Masterson, 207 Ill. 2d 305, 324-25 (2003) (citing with approval a
Wisconsin Supreme Court case that “considered state sexually violent
offender acts which, like our own SVPA, require proof of the
commission of a prior offense, and include specific definitions of
‘mental abnormality’ or ‘mental disorder’ ”); In re Detention of
Hayes, 321 Ill. App. 3d 178, 188 (2001) (finding the Wisconsin
Supreme Court’s interpretation of a portion of that state’s “similar
statute” persuasive); In re Detention of Bailey, 317 Ill. App. 3d 1072,
1084-86 (2000) (stating the statutory language in Wisconsin’s SVP
statute is identical to the language in the Illinois statute and finding the
analysis in the Wisconsin case law persuasive).
As the Watson court explained, the purpose of a probable cause
hearing in a SVP proceeding is “to show that there is a substantial
basis for going forward with the commitment, when it is virtually
certain that if probable cause is found, the person will remain in
custody until” the end of the proceeding, thus providing “a barrier to
improvident or insubstantial commitment petitions which are not likely
to succeed on the merits.” Watson, 227 Wis. 2d at 201, 595 N.W.2d
at 418. This purpose is similar to that of a preliminary hearing in a
Wisconsin felony case, and the court required a similar quantum of
evidence to support a finding of probable cause in both contexts.
The Watson court noted that a probable cause hearing in either

-10-
type of proceeding is merely a “summary proceeding to determine
essential or basic facts as to probability” and “is ‘concerned with the
practical and nontechnical probabilities of everyday life in
determining whether there is a substantial basis for bringing the
prosecution and further denying the accused his right to liberty.’ ”
(Emphases added.) Watson, 227 Wis. 2d at 204, 595 N.W.2d at 420,
quoting State v. Dunn, 121 Wis. 2d 389, 396-97, 359 N.W.2d 151,
154 (1984). Similarly, the United States Supreme Court has stated:
“In dealing with probable cause, however, as the very
name implies, we deal with probabilities. These are not
technical; they are the factual and practical considerations of
everyday life on which reasonable and prudent men, not legal
technicians, act. The standard of proof is accordingly
correlative to what must be proved.
‘The substance of all the definitions’ of probable cause ‘is
a reasonable ground for belief of guilt.’ [Citation.] And this
‘means less than evidence which would justify condemnation’
or conviction, as Marshall, C.J., said for the Court more than
a century ago in Locke v. United States [citation]. Since
Marshall’s time, at any rate, it has come to mean more than
bare suspicion ***. ” Brinegar, 338 U.S. at 175, 93 L. Ed. at
1890, 69 S. Ct. at 1310-11.
Our own case law has repeatedly cited portions of the probable
cause discussion in Brinegar with approval. See People v. Jackson,
232 Ill. 2d 246, 275 (2009) (quoting in part); People v. Wear, 229 Ill.
2d 545, 564 (2008) (quoting in part); People v. Love, 199 Ill. 2d 269,
279 (2002) (quoting in part); People v. Wright, 111 Ill. 2d 128, 145-
46 (1985), rev’d in part on other grounds in People v. Boclair, 202
Ill. 2d 89 (2002) (citing and quoting in part). Thus, the approach
taken in Watson is consistent with the approach of both this court and
the United States Supreme Court when addressing questions of
probable cause in criminal cases.
In a SVP probable cause hearing, the Watson court merely
required the State to “establish a plausible account on each of the
required elements to assure the court that there is a substantial basis
for the petition.” (Emphasis added.) Watson, 227 Wis. 2d at 205, 595
N.W.2d at 420. In making that determination, the trial judge must
consider “all reasonable inferences that can be drawn from the facts in

-11-
evidence.” Watson, 227 Wis. 2d at 205. The requirement that the
evidence supporting each element be “plausible” indicates that trial
judges need not ignore blatant credibility problems, but the Watson
court stressed that this type of hearing was “not a proper forum to
choose between conflicting facts or inferences.” Watson, 227 Wis. 2d
at 205, 595 N.W.2d at 420. Consequently if after hearing the
evidence, the trial judge decides the probable cause determination is
supported by a reasonable inference, the cause should be held over for
a full trial.
Today, we adopt the Watson evidentiary standards to guide our
own SVP probable cause proceedings. They are consistent with our
traditional approach in criminal cases and provide significant guidance
to our trial courts for probable cause hearings in SVP proceedings.
Applying these principles here, we conclude the trial court did not
apply the correct evidentiary standards. In finding that the State failed
to establish probable cause that respondent is a SVP, the trial court
weighed the conflicting evidence presented during both the direct and
cross-examination of the State’s sole witness, Dr. Quackenbush, as
well as delving extensively into the credibility of his expert testimony.
While these factors are generally relevant in a full trial on the merits
of the State’s SVP petition, they are well beyond the scope of the
limited inquiry in a probable cause hearing. As long as the State
presented enough evidence at the hearing to “establish a plausible
account on each of the required elements,” providing “a substantial
basis for the petition” when all reasonable factual inferences are
considered, probable cause is established. Watson, 227 Wis. 2d at 205,
595 N.W.2d at 420.
Here, it is indisputable that respondent has been found guilty of a
sexually violent offense, satisfying the first element. Respondent’s
argument, therefore, is limited to the sufficiency of the evidence on the
second and third elements. The second element requires evidence that
respondent has at least one mental disorder. The third element
requires evidence that respondent presents a danger to others because
his mental disorder causes a substantial probability that he will commit
other acts of sexual violence. 725 ILCS 207/5(f) (West 2006).
The State presented testimony on each of these elements from Dr.
Quackenbush, who was qualified as an expert witness without
objection. Dr. Quackenbush unquestionably had extensive experience

-12-
as a clinician, a SVP evaluator, and an expert witness in SVP cases.
On the second probable cause element, he testified that respondent
had at least one mental disorder. Based on his two-hour interview
with respondent, his review of respondent’s criminal records and
master file, the somewhat conflicting information about respondent’s
sex offender treatment history, and the diagnostic criteria of the
Diagnostic and Statistical Manual of Mental Disorders IV (DSM-IV),
Dr. Quackenbush concluded that respondent suffered from two mental
disorders: (1) paraphilia, not otherwise specified, nonconsenting
persons, and (2) personality disorder, not otherwise specified, with
antisocial features.
According to Dr. Quackenbush, a paraphilia diagnosis requires
evidence that respondent has experienced strong sexual urges,
fantasies or behaviors with nonconsenting individuals over at least six
months at some point in his life and that they caused a major social
disruption in his life. Dr. Quackenbush testified those criteria were met
when respondent was convicted of three sex offenses involving
nonconsenting persons within five years.
Dr. Quackenbush also explained that a diagnosis of personality
disorder, not otherwise specified, with antisocial features required
evidence that respondent had a personality disorder that did not fit
within another personality disorder category. Dr. Quackenbush could
not definitively diagnose respondent with antisocial personality
disorder because insufficient information was available about whether
respondent suffered from conduct disorder before he was 15, a
necessary component of that diagnosis.
During cross-examination, respondent emphasized that Dr.
Quackenbush did not interview the victims, relying instead on
summaries of police reports and other institutional records to make
the paraphilia diagnosis, and that he had not reviewed respondent’s
DOC disciplinary history prior to making the personality disorder
diagnosis. In addition, Dr. Quackenbush had not asked respondent for
specific details about his alleged sex offender treatment while
incarcerated or his intent to further his education and marry once he
was out of prison. Lastly, Dr. Quackenbush acknowledged that
respondent had not exhibited any behavior consistent with paraphilia
during his most recent DOC term.
The trial court found that the testimony did not establish that

-13-
respondent currently suffered from either paraphilia or personality
disorder and that his current conviction alone was insufficient to
support either diagnosis. Accordingly, the court believed it was unable
to make a finding of probable cause at that time. Building on the trial
court’s finding, respondent argues that if the mental disorder element
may be satisfied by a prior conviction for a sexually violent offense,
the State would only need to offer certified copies of the prior
conviction to establish all but one of the requisite elements. We
disagree.
While the presence of prior convictions cannot be determinative
of whether the subject of a SVP petition suffers from a mental
disorder, those convictions may, however, provide substantial
evidence of the presence of underlying behaviors and psychological
traits that combine to meet the diagnostic criteria for a particular
mental disorder. For example, here defendant was diagnosed with
paraphilia, not otherwise specified, nonconsenting persons, based on
his conduct over the time period specified in the DSM-IV, as
established by his three convictions for sex offenses in five years. The
critical component of the proper analysis is not the presence or
absence of prior related convictions, but rather whether evidence that
respondent committed acts meeting the appropriate diagnostic criteria
for a mental disorder has been presented, regardless of the source of
that evidence.
Respondent also contends the trial court correctly found that Dr.
Quackenbush’s testimony was insufficient to conclude he suffered
from a mental disorder. While the foundation of Dr. Quackenbush’s
diagnoses was directly attacked on cross-examination, the State was
not required to show more than “a plausible account” on that element
based on all reasonable inferences from the facts. At a probable cause
hearing in a SVP case, the court should not attempt to determine
definitively whether each element of the State’s claim can withstand
close scrutiny as long as some “plausible” evidence, or reasonable
inference based on that evidence, supports it. Here, Dr.
Quackenbush’s testimony on the DSM-IV criteria and the evidentiary
bases for his diagnoses was adequate to survive that relatively low
threshold standard. Hence, the trial court erred in finding the State did
not establish the second probable cause element.
Finally, we consider respondent’s claim that the State failed to

-14-
prove the third element necessary for a probable cause finding,
namely, that he presents a danger to others because his mental
disorder creates a substantial probability that he will commit additional
acts of sexual violence. Respondent argues only that if convictions for
sexually violent offenses are enough to show the presence of a mental
disorder, the State could claim in every case that “it is substantially
probable that the respondent will engage in acts of sexual violence.”
Thus, he contends that prior convictions could be used to establish all
three elements of probable cause summarily, weakening respondents’
protections against unjustified SVP petitions.
Respondent’s argument overlooks the intended purpose of a
probable cause hearing in a SVP proceeding. As Watson notes, the
hearing is intended to be preliminary in nature, a “summary
proceeding to determine essential or basic facts as to probability” and
“is ‘concerned with the practical and nontechnical probabilities of
everyday life’ ” while remaining cognizant of the respondent’s liberty
rights. Watson, 227 Wis. 2d at 204, 595 N.W.2d at 420, quoting
Dunn, 121 Wis. 2d at 396-97, 359 N.W.2d at 154. See also Jackson,
232 Ill. 2d at 275 (stating that probable cause addresses factual and
practical probabilities of everyday life).
Although probable cause deals with practical probabilities rather
than absolute certainties, more is required of the State than mere
argument. The State must provide actual evidence, even if based at
least in part on behaviors and traits reflected in prior convictions, to
support a finding that the respondent meets each of the three probable
cause elements. That evidentiary burden includes a showing that the
respondent is substantially likely to re-offend based on the presence of
a mental disorder. Here, Dr. Quackenbush testified to respondent’s
moderate to high scores on standardized psychological tests as
support for his expert opinion that respondent presented a substantial
risk of re-offending.
Dr. Quackenbush also explained that his risk assessment was
affected by the unique type of victim respondent consistently selected.
He noted that respondent “has a very focussed [sic] deviant interest.
He is interested in girls around the age of 15.” Dr. Quackenbush
stated that “[a] deviant sexual interest has been shown statistically in
research to show an increased likelihood of the risk of re-offense.”
While the standard in a probable cause hearing is relatively low, it

-15-
still must be met by the State, and we conclude it was met in this case.
The trial court, however, decided the standard was not met. Due to its
application of an inaccurate standard, the court relied on a full and
independent evaluation of Dr. Quackenbush’s credibility and
methodology, considerations that are inappropriate at the probable
cause stage of the SVP proceedings.
We note that if a finding of probable cause is entered in a SVP
proceeding, the State must overcome a significantly higher evidentiary
standard at trial by proving each of the requisite elements beyond a
reasonable doubt. The higher trial standard refutes respondent’s broad
claim that a lower probable cause standard necessarily undermines
respondents’ basic liberty rights. See 725 ILCS 207/35(d)(1) (West
2006).

III. CONCLUSION
For the stated reasons, we conclude that the State has the right to
appeal from a finding of no probable cause in a SVP proceeding. We
also adopt the Watson evidentiary standards for probable cause
hearings (Watson, 227 Wis. 2d 167, 595 N.W.2d at 403) and hold that
those standards were sufficiently met to uphold the appellate court’s
reversal of the trial court’s finding of no probable cause in this case.
Accordingly, we affirm the appellate court judgment, reversing the
judgment of the trial court and remanding the cause to the trial court
for further proceedings.

Appellate court judgment affirmed.

-16-

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/3135597. Public record. Not legal advice.