People v. Botruff

PRESIDING JUSTICE LYTTON, dissenting:

I respectfully dissent. The majority finds that section 25 hearings are essentially the same as section 55 hearings and makes them indistinguishable, thus concluding that the trial judge was required to provide Botruff with an independent evaluator. The majority also believes that Botruff s exclusion from this limited hearing was unconstitutional. I disagree with both premises.

Section 25 of the Sexually Violent Persons Commitment Act (the Act) discusses the rights of a person subject to a State’s petition for commitment under the Act. 725 ILCS 207/25 (West 2000). Section 25(e) requires the trial court to appoint an independent evaluator “[wjhenever the person who is the subject of the petition is required to submit to an examination under [the] Act.” (Emphasis added.) 725 ILCS 207/25(e) (West 2000). Section 55 of the Act provides for a periodic reexamination of a “person who has been committed” under the Act. (Emphasis added.) 725 ILCS 207/55 (West 2000). Section 55(a) grants the court discretion to appoint an independent evaluator at the time of the reexamination of a “person who has been committed.” (Emphasis added.) 725 ILCS 207/55(a) (West 2000).

A

The majority interprets section 25 of the Act to mandate the appointment of an independent evaluator at hearings following reexamination under section 55 of the Act. In reaching this conclusion, the majority treats a “person who is the subject of the petition” and a “person who has been committed” identically. This is an error.

Section 25 is concerned with the respondent’s rights at the time of the original petition alleging that the respondent is a sexually violent person. 725 ILCS 207/25(a) (West 2000). Section 55 is concerned with the respondent’s rights upon reexamination, after the petition has been adjudicated and the court has determined that the respondent should be committed. 725 ILCS 207/55(a) (West 2000). Each section applies to a different proceeding and a different examination with a different purpose under the Act. We should not lump the same rights granted for precommitment proceedings under section 25 into the postcommitment proceedings of section 55.

Moreover, the cardinal rule of statutory construction is to ascertain and effectuate the intent of the legislature. Zunamon v. Zehnder, 308 Ill. App. 3d 69, 75 (1999). We should always interpret a statute, if possible, so that no clause or term is rendered superfluous. Zunamon, 308 Ill. App. 3d at 75 . The majority’s interpretation fails in this regard. Section 55(a) grants discretionary authority to appoint an independent evaluator; section 25 mandates one. The majority renders this distinction meaningless since there would be no need for a discretionary appointment of an independent evaluator if section 25 already required one. Again, the majority lumps section 25 rights into section 55 without regard to the differing purposes and intent of the two statutory provisions.

B

The majority rationalizes that its construction of the statute is necessary to avoid an equal protection violation because a respondent with sufficient funds can always obtain an independent evaluator while indigent respondents must rely on the court’s discretion.

The United States Supreme Court has held that equal protection “ ‘does not require absolute equality or precisely equal advantages,’ [citation]” but “[i]t does require *** that indigents have an adequate opportunity to present their claims fairly within the adversary system.” Ross v. Moffitt, 417 U.S. 600, 612 , 41 L. Ed. 2d 341, 352 , 94 S. Ct. 2437, 2444-45 (1974). The majority’s justifiable fear concerning unequal representation for indigents has also been stated more starkly as a due process issue. “[W]hen a State brings its judicial power to bear on an indigent defendant in a criminal proceeding, it must take steps to assure that the defendant has a fair opportunity to present his defense. This elementary principle, grounded in significant part on the fourteenth amendment’s due process guarantee of fundamental fairness, derives from the belief that justice cannot be equal where, simply as a result of his poverty, a defendant is denied the opportunity to participate meaningfully in a judicial proceeding in which his liberty is at stake.” Ake v. Oklahoma, 470 U.S. 68, 76 , 84 L. Ed. 2d 53, 61 , 105 S. Ct. 1087, 1092 (1985).

While I am greatly troubled by the potential for unequal treatment of indigent committed persons, I am not ultimately convinced that the statute must fall because of this objection. The court in People v. Finkle, 214 Ill. App. 3d 290 (1991), 4 found that the failure of the Sexually Dangerous Persons Act (725 ILCS 205/0.01 et seq. (West 2000)) to require the appointment of independent evaluators for indigents in postcommitment proceedings did not violate the constitution. Finkle, 214 Ill. App. 3d at 296 . The court noted that the State must only identify and supply indigent defendants with the “ ‘ “basic tools of an adequate defense or appeal.” ’ ” Finkle, 214 Ill. App. 3d at 294 , quoting Ake v. Oklahoma, 470 U.S. 68, 77 , 84 L. Ed. 2d 53, 62 , 105 S. Ct. 1087, 1093 (1985), quoting Britt v. North Carolina, 404 U.S. 226, 227 , 30 L. Ed. 2d 400, 403 , 92 S. Ct. 431, 433 (1971). The court determined that treating doctors at a confined individual’s institution are adequate experts for postcommitment proceedings, unless that individual presents particular facts which indicate that those doctors would not fairly and objectively render assistance. Finkle, 214 Ill. App. 3d at 295-96 . Therefore, allowing the trial court discretion to deny an independent evaluator in the absence of such facts is not unconstitutional. See Finkle, 214 Ill. App. 3d at 296 . Finkle requires that we find that this provision of the statute is not constitutionally deficient. We must hold this provision of the statute constitutional, though it may fall short of the laudatory and preferred goal of absolute equality for all committed persons.

C

The majority also concludes that the provision barring Botruff s attendance at his probable cause hearing violated his due process rights.

After his yearly reexamination, Botruff had three options. He could have waived his right to a hearing, essentially assenting to further commitment. See 725 ILCS 207/65(b)(l) (West 2000). He could also have petitioned for release and would have received a full probable cause hearing. See 725 ILCS 207/65(b)(l) (West 2000). His third option was to do nothing, that is, neither waive the right to petition nor petition for discharge. Botruff chose this third option. Because of his inaction, the court was required to conduct a limited probable cause hearing, consisting only of a review of the reexamination reports and arguments by counsel, a hearing at which his attendance was prohibited. No testimony is heard at this type of hearing. 725 ILCS 207/65(b)(l) (West 2000).

In such a limited review, the majority’s concerns regarding Botruff s absence are unfounded. Botruff had ample opportunity to communicate to his counsel any concerns he had regarding the reexamination report or other matters pertaining to probable cause. Even if he had attended the hearing, the judge would have had no occasion to assess his credibility, since he would not have had an opportunity to testify. Finally, there was no other testimony regarding his reexamination that he could have “corrected.” His presence at such a limited review would have added nothing.

Had Botruff petitioned for discharge under section 60 or section 65 of the Act, the case might be different. If he were barred from a hearing under those sections, or denied the right to testify or confront witnesses, his exclusion might well implicate constitutional problems. However, in this very limited hearing his absence causes little risk of error. In this context, I would find this provision constitutional.

For the above stated reasons, I would affirm the trial court’s decision.

While the Finkle decision was couched in due process terms, its rationale deals with an issue at the heart of equal protection, i.e., whether an indigent defendant has an adequate opportunity to present his claim. Compare Finkle, 214 Ill. App. 3d at 294 (due process requires that indigent defendants be given the “ ‘ “basic tools of an adequate defense or appeal” ’ [Citations.]”), with Ross, 417 U.S. at 612 , 41 L. Ed. 2d at 352 , 94 S. Ct. at 2444-45 (equal protection requires provision of the advantages necessary to ensure that indigent defendants have “an adequate opportunity to present their claims fairly within the adversary system”). The concern in Finkle was identical to ours, that is, a committed person with adequate funds can always obtain an independent evaluator, while an indigent person who wants one is subject to the judge’s discretion. See Finkle, 214 Ill. App. 3d at 292 . Thus, I find Finkle instructive in this case.