# Petition for Writ of Certiorari — Joseph Coughlin v. Frank Stachulak > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385608_1913%3A1 ## Record - **Collection:** Supreme Court brief - **Document type:** Petition for Writ of Certiorari - **Published:** January 1, 1976 - **Citation:** 424 U.S. 947 ## Text gs aPREME GOURT: Ub. B IN THE oct 22 1975 Supreme Court of the United ‘States’ ° Octosper TEkM, 1975 N.—¥5-6(08 ‘ JOSEPIL COUGHLIN, et al, Petitioners, vs. FRANK STACHULAK, Respondeut, PETITION FOR A WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE SEVENTH CIRCUIT WILLIAM J. SCOTT, Attorney General, State of Illinois, JAMES B. ZAGEL, MELBOURNE A. NOEL, JR, Assistant Attorneys General, 188 West Randolph Street, Suite 2200, Chicago, Illinois 60601, (312) 793-2570, THOMAS EK. HOLUM, Special Assistant Attorney General, 11 South LaSalle Street, Chicago, Illinois 60603, (312) 332-0501, Counsel for Petitioner, BBResssoe oie torr nen err cargg ana REAR OE PC PT TO A I TIT ‘ te ' ' Die OR PDE RACK INE A > ~~ PaGE NI tica We nnnd it dasak a Ge R cc eked, 2 Jurisdiction .......... ie Wad 44 Vo vind Ged ao 2 II trate tar i ook et a | 2 Statutory provisions involved ...................... 3 posts cose fi 3 PE TEE POR en eee 4 Reasons for granting the writ: 1. The decision of the Seventh Circuit Court of Ap- peals below conflicts with the decisions of other Courts of Appeal in striking down a state sex of- fender statute for its failure to require proof be- yond a reasonable doubt ..................... i 2. The decision below renders the Illinois Sexually Dangerous Persons Act unenforceable ......... 11 3. The Seventh Circuit Court of Appeals errone- ously applied the doctrine of In re Winship as controlling the standard of proof in Illinois Sexu- ally Dangerous Persons Act proceedings ...... 13 CLINI ik ck va hy Kea ance 16 Appendix (Opinion and Judgment of Court of Ap- IIS Fos do Pia ee hick We GG bk RW eee A.1 CITATIONS: Denton v. Commonwealth, 383 S.W. 2d 681 (Ky. 1964) 7 Dizon v. Commonwealth, 325 F. Supp. 966 (D. Pa. a) OEE eS OP oer ae Ee pate gE 8 Ex Parte Perry, 43 A. 2d 885 (N.J. 1945) ........... 7 Hill v. Burke, 422 F. 2d 1195 (7 Cir. a eas 10 Humphrey v. Cady, 405 U.S. 504 (1972) ........ 8, 9, 15, 16 POOR COPY Ni ; : bd * 2 H 7 4} z = FE : & g t g RR IE Ronse niet ae seety LEE AMIS OATS RON RE tO oe ii. In re Alexander, 336 F. Supp. 1305 (D.C. 1972) ..... 10 In re Ballay, 482 F. 2d 648 (D.C. Cir. 1973) ......... 7 In re Levias, 517 P. 2d 588 (Wash. 1973; en banc) .... 8 In re Pickles, 170 So. 2d 603 (Fla. 1965) ............ 7 In re Winship, 397 U.S. 358 (1970) ............ 13, 14, 15 Kimmerer v. Benson, 165 F. 2d 702 (6 Cir. 1948) .... 10 Lessard v. Schmidt, 349 F. Supp. 1078 (E.D. Wis. 1972), vacated after remand, —— U.S. ——, 43 U.S.L.W. 3600 (U.S. May 12,,1975) ............... 7 Lynch v. Baxley, 386 F. Supp. 378 (D. Ala. 1974; 3- SE Cs bt GR eG re Kae CSS h seeks 8 Malone v. Overholser, 93 F. Supp. 647 (D.C. 1950) ... 10 Miller v. Overholser, 206 F. 2d 415 (D.C. Cir. 1958)... 10 O’Connor vy. Donaldson, US. —, 8 US.LW. Gee TU Se. PUM Be, TOTO): 66 Ss Seen Hoci ee bac ees’ 12 | Pearson v. Probate Court, 309 U.S. 270 (1940) ....... 10 | People v. Abney, 90 Tll. App. 2d 235, 232 N.E. 2d 784 | Re I PE Sa he Sa SARS ei Seabee eee ees 10 | People v. Beshears, 65 Ml. App. 2d 446, 213 N.B. 2d 55 CR Ree: NE oo 5s bab wee ke Tea RRR 9 People v. Breese, 34 Ill. 2d 61, 213 N.E. 2d 500 (1, | aoe aCe eae Ah Os OLE S Ube eae bbs Cee 9 People v. Burnick, 535 P. 2d 352 (Cal. 1975) ......... 7 People v. Capoldi, 10 Ml. 2d 261, 139 N.E. 2d 776 (Hl. ere re eee ote 9, 10 | People v. Haywood, 96 Ill. App. 2d 334, 239 N.E. 2d Pe a I HI i sintcas ck whens eS cath 4. woes > 10 People v. Holmstead, 32 Ill. 2d 306, 205 N.E. 2d 625 (i cece A re es 10 RES PP Re ee a LA CRD PCa RT I RT iii. People v. McDonald, 44 Ill. App. 2d 348, 194 N.E. 2d Dee. COUN EE SAC ESAS ChE Gs Eko bhaC Kasadces 9 People v. Nastasio, 19 I. 2d 524, 168 N.IE. 2d 728 (IN. MEE SAKS ei wee ARIE RCA LCE NEw uate cake Kew 9 People vy, Potter, 85 Ill. App. 2d 151, 228 N.E. 2d 238 ge 5 ERS Nn wore Cee e CETTE TeTeT ENTE 9 People v. Pygott, 64 Ill. App. 2d 284, 211 N.E. 2d 382 Ce MONO ED RE RA Che wd a vb ae NAR KAR ROS LANA 9 People v. Shiro, 52 Ill. 2d 279, 287 N.E. 2d 708 (Ill. PE CARERS ERENEN CN AHOR ORAS A OEV OAK hans ada ves 10 Peterson v. Gaughan, 404 F. 2d 1875 (1 Cir. 1968) ... 10 Potts v. People, 80 Ill, App. 2d 195, 224 N.E, 2d 281 NN ici sos nea sas cea 9 Specht v. Patterson, 386 U.S. 605 (1966) ............ 8, 15 Tippet v. Maryland, 436 F. 2d 1153 (4 Cir. 1971) af- firming 295 F. Supp. 389 (D. Md. 1969), cert. dis- missed sub nom. Murel et al. v. Baltimore City Crim- inal Court et al., 407 U.S. 355 (1972) ......... 8, 10, 12 United States v. Brown, 478 F. 2d 606 (D.C. Cir. 1973) 8, 12 MISCELLANEOUS: MOURA RIO, DE-Ue GE GBR oi on cnc c cnc cacacsccn 4 Beck, et al., Reliability of psychiatric diagnoses; a study of consistency of clinical judgments and rat- ings, American Journal of Psychiatry, vol. 119, p. PEMD CURE SiR 0k ca CAS baKd RAMA heb hao bee ce 11 Developments in the Law; Civil Commitment of the Mentally Ill, 87 Harvard L. Rev. 1190, 1298 (1974).. 8 S t ¥ © : Bs ‘ : $ LENA Ra a OSE POL eri Gy et ee epee TRAE ay ’ Glazer, et al., The Violent Offender; Parole Decision Making, Dept of Health, Education and Welfare, Office of Juvenile Delinquency and Youth Develop- ment, Government Printing Office, 1966 ........... 12 Rubin, Prediction of Dangerousness in Mentally Lil Criminals, Archives of General Psychiatry, XXVII, IS perenne ire yar Ae Pee Cag, aaa 11 IN THE Supreme Court of the United States Octoser Term, 1975 { Fa * SUSE IMT LF SL PRN LE ERE IY Bie ROUT SE AI a | werewen No. —— ' JOSEPH COUGHLIN, et al., Petitioners, vs. FRANK STACHULAK, Respondent. PETITION FOR A WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE SEVENTH CIRCUIT a SELENE FeO A PRAYER The petitioners, Joseph Coughlin, Ezra Brantley and Terry Brelje, respectfully pray that a writ of certiorari issue to review the judgment and opinion of the United States Court uf Appeals for the Seventh Circuit entered in this proceeding on August 6, 1975. OPINION BELOW The opinion of the Court of Appeals, not yet reported, appears in the Appendix hereto. The opinion rendered by the District Court for the Northern District of Illinois, Kastern Division, is reported at 369 F. Supp. 628. JURISDICTION The judgment of the Court of Appeals for the Sev- enth Circuit was entered on August 6, 1975, and this pe- tition for certiorari was filed within 90 days of that date. This Court’s juris) ‘ion is invoked under 28 U.S.C. § 1254(1). QUESTION PRESENTED Whether due process requires that the standard of proof bevond a reasonable doubt be employed for commitment under the Illinois Sexually Dangerous Persons Act. STATUTORY PROVISIONS INVOLVED Illinois Revised Statutes, Chapter 38: § 105-1.01 Sexually Dangerous Persons — Definition. All persons suffering from a mental disorder, which mental disorder has existed for a period of not less than one year, immediately prior to the filing of the petition hereinafter provided for, coupled with crim- inal propensities to the commission of sex offenses, and who have demonstrated propensities towards acts of sexual assault or acts of sexual molestation of chil- dren, are hereby declared sexually dangerous persons. § 105-3.01 Civil Nature of Proceedings — Procedure. The proceedings under this Act shall be civil in nature. The provisions of the Civil Practice Act, in- cluding the provisions for appeal, and all existing and future amendments of said Act and modifications thereof and the rules now or hereafter adopted pur- suant to said Act shall apply to all proceedings here- under except as otherwise provided in this Act. z NA E ENS TNS LIES ERE OY RIE SEMAN EI EIT LE a | STATEMENT OF THE CASE The Illinois Sexually Dangerous Persons Act, Ill. Rev. Stat. Chap. 38, § 105-1.01 through 105-12 (hereinafter re- ferred to as the ISDPA), is a civil statute enacted for the protection of society and the treatment of the serious sexual offender. It is similar to sex offender statutes en- acted by the majority of the States. Annotation, 34 ALR 3d 652. The ISDPA provides that when a person has been charged with a crime, the State’s Attorney or Attorney General may file a petition stating that such person is sexually dangerous; case law requires that the crime charged be a serious sexual offense involving sexual as- sault or the sexual molestation of children, not a mere sexual nuisance offense. The ISDPA further provides for an examination by two psychiatrists, representation by appointed counsel, and the right to a jury trial. If found to be sexually dangerous, the person is committed to the custody of the Director of Corrections, and has the stat- utory right to treatment geared to effect recovery. He re- tains the right to appeal, and may at any time petition for release on the basis of recovery, and has the right to a jury trial on the issue of his recovery. Respondent, Frank Stachulak, brought this action pur- suant to the Federal Civil Rights Act, 42 U.S.C. § 1983 and the Federal Habeas Corpus Act, 28 U.S.C. § 2254 to challenge his commitment under the ISDPA. Respond- ent filed this action against the Acting Director of the De- partment of Corrections, the Warden of the Illinois State ES SINS EGIL PHN RE NT LISI ANS DOLE I AIEEE DEAE FOE OLS LLL NOE ROTI I RE I 5 Penitentiary at Menard, and the Administrator of the Menard Psychiatric Division.’ Prior to his commitment on November 25, 1969, the respondent had been convicted of Public Indecency, Possession of Lewd Drawings, Contrib- uting to the Delinquency of a Child, and had heen arrested on three charges of Indecent Solicitation of a Chi'd. After the three arrests involving Indecent Solicitation, the State’s Attorney of Cook County, Illinois filed a petition before the Cirenit Court of Cook County charging the respondent with being a sexually dangerous persons as defined in Tll. Rev. Stat. Chap. 38, § 105-1.01. A jury trial on the petition was held on October 9, 1969. Although the ISDPA does not explicitly state what standard of proof is to be applied by the finder of fact for commitment, pro- ceedings under the ISDPA are denominated as civil in nature (§105-3.01), and thus the jury was instructed that in order to find the respondent to be sexually dan- gerous the State must prove the facts in issue by a pre- ponderance of the evidence. The jury found the respond- ent to be sexually dangerous, and the court remanded the respondent to the custody of the Ilinois Director of Cor- rections, who confined the respondent at the Menard Psy- chiatric Division of the Illinois Department of Correc- tions for care and treatment designed to effect recovery. 1. Since the inception of this action, the original pe- titioners have left their respective offices. The persons now serving in the abovementioned capacities are: Allyn R. Sielaff, Director of the Illinois Department of Cor- rections: Thomas Isreal, Warden of the Illinois State Penitentiary at Menard; and William H. Crane, M.D., Administrator of the Menard Psychiatric Division. ciinainds 6 On December 11, 1973, the District Court for the North- ern District of Illinois, Judge Abraham Lincoln Maro- vitz presiding, issued a Writ of Habeas Corpus pursuant to respondent’s complaint for relief under the federal Civil Rights and Habeas Corpus Acts. The Court found the ISDPA to be constitutional except for the standard of proof applied, and held that procedural due process re- quired that the respondent’s propensity to commit further sexual acts must be proved beyond a reasonable doubt, relying upon this Court’s decision in Jn re Winship, 397 U.S. 358 (1970). On appeal, the Seventh Circuit Court of Appeals agreed with the District Court that Winship was controlling, and held that due process required that the reasonable doubt standard be applied to proceedings under the ISDPA, despite the difficulties inherent in pre- dicting whether the respondent might commit criminal sexual assaults in the future. Dare wae TE HRCI BISTRO E SORT YET SES SRE EE REESE NT NAME? NS ATES | ea ot SVL APRS EEA TL TY LTT ALGAE I IEICE LN TT a BABE SIN TS REASONS FOR GRANTING THE WRIT I. THE DECISION OF THE SEVENTH CIRCUIT COURT OF APPEALS BELOW CONFLICTS WITH THE DE- CISIONS OF OTHER COURTS OF APPEAL IN STRIK- ING DOWN A STATE SEX OFFENDER STATUTE FOR ITS FAILURE TO REQUIRE PROOF BEYOND A REASONABLE DOUBT. The decision below represents the first occasion when a federal Court of Appeals has struck down an otherwise valid state sex offender statute on a federal habeas cor- pus proceeding for its failure to require proof beyond a reasonable doubt.? While four other states have imposed the standard of beyond a reasonable doubt by judicial de- cision,’ the great majority of jurisdictions hold that the 2. Lessard v. Schmidt, 349 F. Supp. 1078 (E.D. Wis. 1972), requiring proof beyond a reasonable doubt in a civil involuntary commitment proceedings, has been vacated by this Court on other grounds after remand. US. , 43 U.S.L.W. 3600 (U.S. May 12, 1975) ; In re Ballay, 482 F. 2d 648 (D.C. Cir. 1973), requiring proof beyond a reasonable doubt in a civil involuntary commitment proceeding, was a decision by the District of Columbia Circuit Court acting in its supervisory capacity in construing a District of Co- lumbia statute. 3. People v. Burnick, 535 P. 2d 452 (Cal. 1975) ; Ex Par- te Perry, 43 A. 2d 885 (N.J. 1945); In re Pickles, 170 So. 2d 603 (Fla. 1965); Denton v. Commonwealth, 383 S.W. 2d 681 (Ky. 1964). oewe St ad dk te oh ll | 8 proper standard of evidence in sex offender statutes and involuntary civil mental illness commitment statutes is proof by a preponderance of the evidence. Developments in the Law; Civil Commitment of the Mentally Ill, 87 Har- vard L. Rev. 1190, 1298 (1974). All of the other federal courts which have considered the issue of standard of proof for state sex offender statutes on federal habeas corpus proceedings have held that the civil standard of proof by the preponderance of the evidence, or the slightly higher standard of proof by ‘‘clear and convincing evi- dence,’’ is consistent with the requirements of procedural due process. Tippett v. State of Maryland, 436 F. 2d 1153 (4 Cir. 1971), affirming 295 F. Supp. 389 (D. Md. 1969), cert. dismissed sub. nom. Murel et al. v. Baltimore City Criminal Court et al., 407 U.S. 355 (1972); Dixon v. Com- monwealth, 325 F. Supp. 966 (D. Pa. 1971); Lynch v. Baz- ley, 386 F. Supp. 378 (D. Ala. 1974; 3-judge court); see also United States v. Brown, 478 F. 2d 606 (D.C. Cir. 1973) ; In re Levias, 517 P. 2d 588 (Wash. 1973; en banc). These conflicts justify the grant of certiorari to review the judgment below. The conflict between the Seventh Circuit’s ruling and those of other federal courts in considering this issue is heightened by the fact that the Seventh Circuit’s decision struck down a statute containing all the procedural safe- guards required by this Court and other federal Circuit Courts of Appeal. In Specht v. Patterson, 386 U.S. 605 (1966), this Court held that due process requires that an accused sex offender be given the right to be present with counsel, have an opportunity to be heard, be con- fronted with witnesses against him, have the right to cross-examine, and to offer evidence of his own. In Humph- rey v. Cady, 405 U.S. 705 (1972), this Court held that the Ta ARREST AR OE ROIS 1 IMTS Equal Protection Clause required that an accused sex offender be afforded the right to trial by jury where such a right is granted to prospective committees under the state’s mental health code. In construing the ISDPA, the Illinois state courts have demanded the application of pro- cedural standards that meet and surpass the requirements of this Court.‘ The same or similar sex offender statutes 4. The Illinois state courts have held that, even though the Act is civil, the strictest standards of due proces must be observed, since deprivations of personal liberty are involved. People v. Capoldi, 10 Ill. 2d 261, 139 N.B. 2d 776 (1957) The petition filed by the prosecutor must be strictly construed as to its legal sufficiency. People v. McDonald, 44 Ill. App. 2d 348, 194 N.E. 2d 541 (2nd Dist. 1963). A defendant under the Act retains his privilege against self-incrimination, his right to a speedy trial (People v. Beshears, 65 Ill. App. 2d 446, 213 N.E. 2d 55 (5th Dist. 1965)), and his right to confront state wit- nesses. People v. Nastasio, 19 Ill. 2d 524, 168 N.E. 2d 728 (1960). An accused retains his constitutional right to ap- pear and defend in person, and to meet the witnesses face to face; he may not be found sexually dangerous based merely upon affidavits and records. Potts v. People, 80 Ill. App. 2d 195, 224 N.E. 2d 281 (Ill. App. 1967). An accused must be fully advised of his right to the assistance of coun- sel both prior to his psychiatric examination (People v. Potter, 85 Ill. App. 2d 151, 228 N.E. 2d 238) and at trial (People v. Breese, 34 Ill. 2d 61, 213 N.E. 2d 500 (Ill. 1966), and of his right to trial by jury (People v. Pygott, 64 Ill. App. 2d 284, 211 N.E. 2d 382 (1965). He also has the right to contest at a preliminary hearing the voluntariness of all statements to be introduced at trial. (People v. Capoldi, 10 Ill. 2d 261, 139 N.E. 2d 776 (Ill. 1957) In addition to his right to a jury trial on the question of his sexual danger- ousness, the accused must be granted a jury trial upon 10 have been upheld as constitutional by this Court and by every Federal Circuit which has considered the issue. Pearson v. Probate Court, 309 U.S. 270 (1940); Tippett v. State of Maryland, 436 F. 2d 1153 (4th Cir. 1971), af- firming Sas v. State of Maryland, 295 F. Supp. 389 (D. Md. 1969), cert. dismissed, 92 8. Ct. 2091; Peterson v. Gaughan, 404 F. 2d 1375 (1 Cir. 1968); Hill v. Burke, 422 F. 2d 1195 (7 Cir. 1970) (upholding the Wisconsin Sex Deviate Act); Kimmerer v. Benson, 165 F. 2d 702 (6 Cir. 1948) (uphold- ing Michigan Sexual Psycopath Act); Malone v. Overhol- ser, 93 F. Supp. 647 (D.C. 1950), followed in Willer v. Overholser, 206 F. 2d 415 (D.C. Cir. 1958), and Jn re Alex- ander, 336 F. Supp. 13805 (D.C. 1972) (upholding the Dis- trict of Columbia Sexual Psychopath Act). request each time he files a petition for release. People v. Shiro, 52 Ill. 2d 279, 287 N.E. 2d 708 (Ill. 1972). The ac- cused has a right to a speedy trial within 120 days upon filing such a petition for a writ of recovery. People v. Abney, 90 Ill. App. 2d 235, 232 N.E. 2d 784 (Ill. App. 1967) There is no limit to the number or frequency of petitions for writs of recovery that a person committed under the Illinois Sexually Dangerous Persons Act may file. People v. Haywood, 96 Til. App. 2d 334, 239 N.E. 2d 321 (5th Dist. 1968). The fact that an adjudicated sex offender has not supplied the trial court with a psychi- atric report accompanying his petition for writ of recov- ery, as required by statute, is not a sufficient reason for denying a trial upon the writ. People v. Capoldi, supra. Finally, the court is required to liberally construe the facts stated in a sex offender’s writ of recovery. People v. Holm- stead, 32 Ill. 2d 306, 205 N.E. 2d 625 (Tl. 1965) Pek Be IRR OS ORL LE NG For eR ET EE PEA IER EPI ANS PR WML BRON ey. ae ¥ 11 II. THE DECISION BELOW RENDERS THE ILLINOIS SEXUALLY DANGEROUS PERSONS ACT UNEN- FORCEABLE. Because of the nature of the issues to be determined by the trier of fact in ISDPA proceedings, the evidentiary standard of beyond a reasonable doubt is peculiarly in- applicable. In determining whether a person is sexually dangerous as defined by §105-1.01 of the ISDPA, the trier of fact must make three discreet determinations. The first determination is that the defendant committed past acts of sexual assault or sexual molestation of children. The second determination is in the nature of a medical conclusion, that the person is suffering from a mental disorder that has existed for a period of not less than one year. Each of these determinations, since they are matters of past or present historical fact which are empirically determinable through the testimony of witnesses, are sus- ceptible of proof beyond a reasonable doubt. The third determination to be made by the trier of fact, however, is a predictive one: whether, in light of the person’s mental state and past behavior, he is likely to commit acts of sexual assault or sexual molestation of children in the future. Given the present knowledge of human behavior and the uncertainty inherent in psychiatric diagnosis of dangerousness, predictions of future behavior cannot be made with the certainty required by the standard of be- yond a reasonable doubt.’ For while it can be proved be- 5. See Rubin, Prediction of Dangerousness in Mentally Til Criminals, Archives of General Psychiatry, XXVII, 397 (1972); and Beck et al., Reliability of psychiatric diag- noses; a study of consistency of clinical judgments and ratings, American Journal of Psychiatry, vol. 119, p. 351- 356 (1962). PTA utero ieee tea | SANTA BS AL ITO ENTLY SEARO EM 12 yond a reasonable doubt that a person committed certain acts in the past, it cannot be proved beyond a reasonable doubt that he is therefore bound to commit similar acts in the future. As stated by Judge Sobeloff in his concur- rence in Tippett v. Maryland, 436 F. 2d 1153, 1165 (4th Cir. 1971), such a subjective judgment cannot attain the same ‘‘state of certitude’’ demanded in criminal cases. The People of the State of Illinois have a great inter- est in maintaining the enforceability of the ISDPA. Cer- tainly, the State has a great interest in protecting its members from persons who have demonstrated their dan- gerousness by the commission of serious offenses in the past, even though their future behavior cannot be pre- dicted beyond a reasonable doubt. O’Connor v. Donaldson, US. , 43 U.S.L.W. 4929 (U.S. June 24, 1975); concurring opinion by Chief Justice Burger, 43 U.S.L.W. at 4933; United States v. Brown, 478 F. 2d 606 (D.C. Cir. 1973). This is especially true of sexual psychopaths, who of all categories of the mentally ill are the most likely recidivists.° If the criminal law standard of proof is to be strictly applied, the Illinois Sexually Dangerous Persons Act will have been declared unconstitutional in fact if not by the Court’s explicit holding, since the effect of its decision is to render the Act unenforceable. 6. Glazer, et al., The Violent Offender: Parole Decision Making, Dept. of Health, Education and Welfare, Office of Juvenile Delinquency and Youth Development, Govern- ment Printing Office, 1966. 6 ny GEE ELIE IO OIE ENS IIS OL PINT TIL EEL EL ETE BOE SS ee ag 13 III. THE SEVENTH CIRCUIT COURT OF APPEALS ERRO- NEOUSLY APPLIED THE DOCTRINE OF /N RE WINSHIP AS CONTROLLING THE STANDARD OF PROOF IN ILLINOIS SEXUALLY DANGEROUS PERSON ACT PROCEEDINGS. In ruling that due process required the employment of the standard of proof beyond a reasonable doubt in ISDPA proceedings, the Court below held that this Court’s decision in In re Winship, 397 U.S. 358 (1970), was con- trolling. This application of the Winship doctrine to ISDPA proceedings was clearly erroneous, however, since the nature of the ISDPA proceedings and the type of determinations required thereunder make this case plainly distinguishable from the facts in Winshiy, and make the ‘ reasonable doubt standard required by Winship particu- larly unworkable. First of all, unlike the criminal or juvenile proceedings considered in Winship, where the factual issue of prior guilt or innocence must be resolved,’ the issue to be re- solved by the trier of fact in ISDPA proceedings is es- sentially predictive in nature, aimed at forecasting whether a person who has committed past sexual offenses, and is afflicted with a mental disorder, is likely to be dangerous to others in the future by reason of a propensity to com- mit sexual assaults or acts of molestation of children. In 7. As stated in In re Winship, 397 U.S. at 363: ‘‘The reasonable-doubt standard plays a vital role in the Amer- ican scheme of criminal procedure. It is a prime instru- ment for reducing the risk of convictions resting on factual error.’’ (Italics added.) 14 performing this predictive function, the trier of fact must necessarily be guided by psychiatric opinion which, by its very nature, cannot be conclusive in predicting future dan- gerousness beyond a reasonable doubt. { The fact that imposition of the reasonable doubt stand- ard would render the ISDPA unenforceable also serves to distinguish this case from In re Winship. In Winship, this Court based its decision, in part, on the fact that the use of the reasonable doubt standard would not have a distruptive effect on juvenile proceedings: ‘‘Use of the reasonable-doubt standard will not dis- turb New York’s policies that a finding that a child has violated a criminal law does not constitute a crim- inal conviction, that such a finding does not deprive the child of his civil rights, and that juvenile proceedings are confidential. Nor will there be any effect on the informality, flexibility, or speed of the hearing at which the fact-finding takes place.’’ (397 U.S. at 366.) Use of the reasonable-doubt standard in this case would have an effect not only on the hearing itself, but on the number of persons who could receive treatment under the ISDPA. Likewise, it would have a disruptive effect on the ‘‘fact-finding’’ that takes place in a hearing. The purpose of commitment is to confine and treat persons found to have the propensity for committing sexual as- saults and sexual molestation of children in the future; requiring a jury to determine a defendant’s propensity for future acts beyond a reasonable doubt is an impos- | sible burden. Unlike the juvenile hearing in Winship, the jury here is being asked to predict the future based on the past. Such an undertaking is fraught with uncertainties and is certainly not determinable beyond a_ reasonable doubt. ea i: Cnet ad ore as SRA PURO WPL OT RG evr EHO NRG GES OE ALKALOSIS, OEE SOSA ERSTE + TARR PRLS EIN LOI i IT AAR ENE PAI POLIT OCIS OILS GF 15 Furthermore, the ISDPA provides that the proceeding for commitment is completely civil in nature, and that the provisions of the Illinois Civil Practice Act are to apply in all respects. Jl. Rev. Staty Chap. 38, § 105-3.01. In a proceeding under the Act the defendant is not charged with a crime nor, should he be found sexually dangerous, will he be committed on the basis of guilt of any crime. Nor is there any inference of moral blameworthiness, since a finding of sexual dangerousness indicates that a defendant’s inability to conform to the dictates of the law is a product of his mental illness. Thus commitment un- der the ISDPA, unlike criminal inearceration, is not in- tended as punishment. On the contrary, the purpose of the proceeding is to determine the defendant’s propen- sitv to commit sexual assaults in the future, and to de- termine if he is in need of treatment designed to effect recovery from his condition. These differences make any analogy to proceedings under the Juvenile Court Act, as in Winship, completely improper, since a conviction of delinquency nevertheless results in a guilty finding on a criminal offense, and he is committed to custody for the commission of a criminal offense no less than is an adult. Finally, the decision below was erroneous in requiring adherence to the Winship doctrine in ISDPA proceedings, even though this Court’s decisions in Specht v. Patterson, 386 U.S. 605 (1966) and Humphrey v. Cady, 405 U.S. 504 (1972) had not required proof beyond a reasonable doubt in sex offender cases. The Seventh Circuit reasoned that Specht was not determinative of the issue, since that de- cision was rendered prior to the decision in Winship de- claring the reasonable-doubt standard to be of constitu- tional stature. However, this Court’s decision in Humph- rey v. Cady, supra, was issued some two years after Win- TEAR EEE ET, RT MEA 3 es | 16 ship, Significantly, this Court acknowledged that under the procedure in issue in Humphrey. ‘‘If the State establishes the need for treatment by a preponderance of the evidence, the court must commit the defendant for treatment... .”’ (405 U.S. at 507.) This Court made no suggestion that this procedure would be invalid, or that the jury should be held to a higher standard of proof, For all of these reasons, the correctness of the decision below is open to serious ques- tion. CONCLUSION For these reasons, a writ of certiorari should issue to review the judgment and opinion of the Seventh Circuit. Respectfully submitted, WituraM J. Scorr, Attorney General, State of Illinois, JAMEs B. ZacEL, Mexpourne A. Noe, Jr., Assistant Attorneys General, 188 West Randolph Street, Suite 2200, Chicago, Illinois 60601, (312) 793-2570, Tuomas F, Hotum, Special Assistant Attorney General, 11 South LaSalle Street, Chicago, Illinois 60603, (312) 332-0501, Counsel for Petitioner. APPENDIX PULTE AD AE MME ORRIN EAI EABLET IN IS BE BE NSM NORE D F 51 maT Al APPENDIX Copy of opinion and judgment of Court of Appeals. IN THE UNITED STATES COURT OF APPEALS FOR THE SEVENTH CIRCUIT No. 74-1155 UNITED STATES OF AMERICA ex rel. FRANK STACHULAK, Petitioner-A ppellee, v. JOSEPH COUGHLIN, et al., Respondent-Appellant. Appeal from the United States District Court for the Northern District of Illinois, Eastern Division, No. 73 C 861 ABRAHAM L. MAROVITZ, Judge Argued January 6, 1975 — Decided August 6, 1975 Before FAIRCHILD, Chief Judge, STEVENS and SPRECHER, Circuit Judges. FAIRCHILD, Chief Judge. Petitioner Frank Stachulak was committed to the custody of the Illinois Director of Corrections pursuant to the Illinois Sexually Dangerous Seu ee, a? tals Te acd ts 2) ie eee Sia), Sea Poe oo a” aa, an on a @ Es ee) OD eae Je (Retr eT ARMIN i GEN (I Oe te ee Oe RE eS ok ae tr. ae RTE « a = i A2 Persons Act, Ill. Ann. Stat., ch. 38, § 105-1.01 (Smith-Hurd 1970) et seq., and confined at the Psychiatric Division of the Illinois State Penitentiary at Menard in 1969. Four vears later he brought this action under the federal habeas corpus statutes, 28 U.S.C. § 2241 et seq., and Civil Rights Act, 42 U.S.C. § 1983, challenging both the lawfulness of his detention and the conditions of his confinement. The district court granted habeas corpus relief, Stachulak v. Coughlin, 369 F. Supp. 628 (N.D. Il. 1973), and respond- ents, Illinois correctional officials, appeal. We affirm. I Under the Illinois Sexually Dangerous Persons Act, the state may seek an involuntary indeterminate institutional commitment in lieu of a criminal prosecution if a person is charged with a criminal offense and believed to be sexually dangerous. Ill. Ann. Stat., ch. 38, § 105-3. By the Act’s terms, 7d. § 105-1.01, All persons suffering from a mental disorder, which mental disorder has existed for a period of not less than one year, immediately prior to the filing of the petition hereinafter provided for, coupled with crim- inal propensities to the commission of sex offenses, and who have demonstrated propensities toward acts of sexual assault or acts of sexual molestation of chil- dren, are hereby declared sexually dangerous persons. Upon receipt of a petition alleging sexual dangerousness, a state circuit court appoints two psychiatrists to examine the person so charged. 7d. § 105-4. The defendant is en- titled to counsel and may demand a jury trial. Jd. § 105-5. If, after a hearing, he is found to be sexually dangerous, he is committed to the custody of the Director of Corree- tions for care and treatment. 7d. § 105-8. Once committed, a defendant can only secure his release by proving to the Dok BEATS tRNA Re CAIUS REY COREL HEMET RA AE AGRE NCTA ed Dee wr “A3 committing court that he is no longer sexually dangerous. Td. § 105-9. The Act is silent as to what burden the state must meet to establish that a defendant is sexually dangerous. In accordance with the statute’s designation that proceedings under the Act are ‘‘civil in nature,’’ 7d. § 105-3.01, the state trial judge instructed the jury that they could find Stachu- lak to be a sexually dangerous person if the state had proved its case by a preponderance of the evidence. Relying primarily on Jn Re Winship, 397 U.S. 358 (1970), the dis- trict court held that the Due Process Clause of the Four- teenth Amendment requires that the state’s case for com- mitment must be proven by the more stringent beyond-a- reasonable-doubt standard applied in criminal actions. The court then ordered Stachulak enlarged unless within 60 days the state sought a renewed commitment order in pro- ceedings in conformity to this holding. Respondents contend on appeal that the reasonable doubt burden of proof is not constitutionally mandated for proceedings under the Sexually Dangerous Persons Act. II Although neither of the parties questioned our appellate jurisdiction, it is incumbent upon us to address this issue, for it concerns our power to hear the case. See Carson v. Allied News Co., 511 F. 2d 22, 23 (7th Cir. 1975). The habeas corpus statutes follow the general rule that only final orders are subject to appellate review. 28 U.S.C. § 2253. Stachulak’s complaint sought relief simultaneously under the habeas statutes, 28 U.S.C. § 2241 et seg. and the Civil Rights Act, 42 U.S.C. $1983. The district court granted the habeas relief, but reserved ruling on the sec- <2 RUN pc ae POE GE OER BI AEST TU ‘ SHI MERRIER AT PSTD REE TE AERA RT” Ucn EU rant ELAR TREE AS 2 A4 tion 1983 claim pending further proceedings. The state appealed from the habeas order, but did not request and receive from the district judge an express determination, pursuant to Rule 54(b), Fed. R. Civ. P.,’ that there was ‘‘no just reason for delay’’ and that final judgment should be entered. In the ordinary civil action involving multiple claims such a determination would be required for finality and appellate jurisdiction. Through Rule 81(a)(2), Fed. R. Civ. P., the Federal Rules of Civil Procedure are applicable to habeas corpus proceedings ‘‘to the extent that such practice is not set forth in statutes of the United States and has heretofore conformed to the practice in civil actions.’ The drafts- 1. Rule 54(b) reads: Judgment Upon Multiple Claims or Involving Multiple Parties. When more than one claim for relief is presented in an action, whether as a claim, counterclaim, cross-claim, or third-party claim, or when multiple parties are involved, the court may direct the entry of a final judgment as to one or more but fewer than all of the claims or parties only upon an ex} ress determination that there is no just rea- son for relay and upon an express direction for the entry of judgment. In the absence of such determination and di- rection, any erder or other form of decision, however des- ignated, which adjudicates fewer than all the claims or the rights and liabilities of fewer than all the parties shall not terminate the action as to any of the claims or parties, and the order or other form of decision is subject to revision at any time before the entry of judgment adjudicating all the claims and the rights and liabilities of all the parties. 2. Our research revealed only two cases in which Rule 54(b) was mentioned in a habeas corpus proceeding, Stew- art v. Bishop, 403 F. 2d 674 (8th Cir. 1968) and Gray v. POET a A5 men of the rule plainly did not intend that ipso jure all the civil rules were operative in habeas actions. ‘‘Such specific evidence as there is with respect to the intent of the draftsmen of the rules indicates nothing more than a general and nonspecific understanding that the rules would have very limitéd” application to habeas corpus proceedings.’’ Harris v. Nelson, 394 U.S. 286, 295 (1969). Thus, our court has not applied the rules of civil proce- dure as a matter of course in habeas corpus cases. See Bijeol v. Benson, 513 F. 2d 965 (7th Cir. 1975) (Rule 23 in- applicable). The Supreme Court in Harris v. Nelson, supra, suggested that the central considerations in determining the reach of Rule 81(a)(2) are the intended seope of the Federal Rules of Civil Procedure and the history of habeas corpus pro- ceedings. There, the Court read Rule 81(a)(2) to exclude application of Rule 33 in habeas corpus actions because the discovery rules ‘‘are ill-suited to the special problems and character of such proceedings.’’ 394 U.S. at 296. Although an amendment to Rule 81(a)(2) had changed the language, the Court apparently deemed that there was no change of substance. 394 U.S. at 394, footnote 3. A similar analysis compels a like result in this case. The essence of habeas corpus is that it provides ‘‘a prompt and efficacious remedy for whatever society deems to be Swenson, 430 F. 2d 9 (8th Cir. 1970). Stewart was decided prior to Harris v. Nelson, 394 U.S. 286 (1969), discussed in the text infra, and Gray accepted Stewart’s application of the rule without reference to the analysis found in Harris. Moreover, these decisions dealt with cases in which there were more than one habeas claim, rather than a case like ours where habeas and non-habeas claims were joined. Se EID SE PET ANE PNT TT en | RRR REPL cee Ee INE RSC TO OT EE REY SSS MSE TAF Fe * A6 intolerable restraints.’’ Fay v. Nota, 372 U.S. 391, 401-02 (1963), See also Preiser v. Rodriguez, 411 U.S. 475, 495- 96 (1973) and 28 U.S.C. § 2243. To delay an appeal from an order granting or denying such relief pending disposi- tion of another claim, such as the civil rights claim here, conflicts with the emphasis on prompt decision. Since application of Rule 54(b) would necessarily result in de- lay in any case where the district court refused to enter a 54(b) order, the draftsmen of the civil rules must not have contemplated the rule’s application in habeas cor- pus proceedings like the present one, where claims for non-habeas relief were joined and accepted along with claims for habeas relief. We have also noted that an Illinois appellate court, relying on the decision of the district court in this case, recently held that the standard of proof for commitment under the Illinois Sexually Dangerous Persons Act is proof beyond a reasonable doubt, rather than preponder- ance of the evidence. People v. Pembrock, 23 Ill. App. 3d 991, 320 N.E. 2d 470 (1974), leave to appeal granted, ——Ill. 2d——. This decision does not directly affect petitioner Stachulak nor moot his case, although it adopts the rule he secks. The decision has not yet become final, and does not appear to be a construction of state law, but appears to rest on federal constitutional grounds. It does not fore- close or excuse us from independently examining the fed- eral question presented. IT] We have no doubt that the principles of due process in general must govern proceedings brought under the Sex- ually Dangerous Persons Act. Individuals who are com- mitted pursuant to its terms most surely suffer a ‘‘griev-, A7 ous loss.’’? Morrissey v. Brewer, 408 U.S. 471, 481 (1972). The crux of this case is determining what process is due.* Recognizing that proceedings under the Act closely re- semble criminal prosecutions, the Illinois courts have ac- corded some of the safeguards applicable in a criminal trial to individuals charged with sexual dangerousness. People v. Studdard, 51 Til. 2d 190, 195-97, 281 N.E. 2d 678, 681 (1972). For example, in addition to statntory rights to a hearing, jury trial, and counsel, I'l. Ann. Stat., ch. 38, § 105-5, a de- fendant is entitled to the right to confront and cross- examine witnesses, People v. Nastasio, 19 Ill. 2d 524, 529-30, 168 N.E. 2d 728, 731 (1960), the right against self-inerim- ination, People v. English, 31 Il. 2d 301, 307, 201 N.E. 2d 455, 459 (1964) and the right to speedy trial, People v. Beshears, 65 Ill. App. 2d 446, 459, 213 N.E. 2d 55, 62 (1965). Respondents, citing Specht v. Patterson, 386 U.S. 605 (1967), contend that these rights and procedures are all that due process requires. In Specht the Court held that an individual could not be sentenced under the Colorado Sex Offenders Act, a statute similar in purpose to the one before us, unless he was accorded the fundamental pro- tections of due process. Among these safeguards only the rights to be present with counsel, to be heard and offer evidence, and to confront and cross-examine witnesses 3. The question of the appropriate standard of proof in civil commitment proceedings under the Illinois Mental Health Code, Ill. Ann. Stat., ch. 9114, § 1-1 et seq. (Smith- Hurd 1974), is not before us. We do note, however, that an Illinois appellate court has recently held that the need for mental treatment in such proceedings need only be proved by clear and convincing evidence. People v. Sansone, 18 Ill. App. 3d 315, 309 N.E. 2d 733 (1974), leave to appeal denied, 56 Ill. 2d 584. 1 ONY SE ESE TRE AL NII. i A8 were mentioned; no reference was made to the requisite burden of proof. 386 U.S. at 610. However, the burden of proof question was not presented in Specht, and it was not until several years later that the constitutional stature of the reasonable-doubt standard was explicitly affirmed. In re Winship, 397 U.S. 358, 364 (1970). In consequence, Specht’s failure to mention the reasonable-doubt standard as a due process requirement is not dispositive. We agree with the district court that Jn re Winship, supra, is controlling. Winship held that the reasonable- doubt standard was an ‘‘essential of due process and fair treatment’’ and thus applicable in adjudicatory juvenile delinquency hearings. The holding Yas grounded on the fact that, just as in a criminal prosecution, an adverse judgment raised the possibility of a loss of liberty and the certainty of stigmatization as a violator of the criminal law. 397 U .S. at 366-67. Here, the loss of liberty is as great, if not greater, than the loss in Winship. The violator of the criminal law — be he an adult or juvenile — is imprisoned, if at all, in almost all cases for a definite term. The person found to be sex- ually dangerous, in stark contrast, is committed for an indeterminate period and is unable to attain his freedom until he can prove that he is no longer sexually danger- ous.* Likewise with respect to stigma an involuntary com- 4. The instant case illustrates the potential disparity in the magnitude of the loss. Stachulak was originally charged with Indecent Solicitation of a Child in violation of Il. Ann. Stat., ch. 38, §11-6 (Smith-Hurd 1969). That offense carried a maximum penalty of a $500 fine and less than one year imprisonment in a penal institution other than a penitentiary. Instead of prosecuting him on that charge, VON AI EDEN RSENS Un Mets Ag mitment for sexual dangerousness presents an a fortiori ease: Unlike the delinquency proceedings in Winship, these actions are not confidential, and an adjudication of sexual dangerousness is certainly more damning than a finding of juvenile delinquency. Respondents nevertheless assert that the gravity of the incarcerated individual’s loss is mitigated by the fact that the purpose of the commitment is to treat and cure the dangerous sexual deviant.® But this assertion is archaic. the state brought a proceeding, which culminated in an indeterminate commitment, under the Sexually Dangerous Persons Act. For the last five years, Stachulak has been confined at the Psychiatric Division of the Illinois State Penitentiary at Menard, a maximum-security penal insti- tution. 5. Commitment of the mentally ill has been convention- ally justified on two bases: the state’s parens patriae au- thority to protect and care for the mentally ill and the state’s police power to protect members of society against threat to their persons and property. O’Connor v. Donald- son, 43 U.S. L.W. 4929, 4933 (U.S. June 26, 1975); Humph- rey v. Cady, 405 U.S. 504, 509 (1972). See Developments in the Law—Civil Commitments of the Mentally Ill, 87 Harv. L. Rev. 1190, 1207-28 (1974). While the Sexually Dangerous Persons Act specifies that the commitment is for treatment, Ill. Ann. Stat., ch. 38, § 105-8 (Smith-Hurd 1975), the Act’s concern with dangerousness makes it clear that it rests on both these justifications. Nevertheless, since the Act is an alternative to a criminal prosecution, it is also in a very real sense a penal measure. Although in our view this factor has no bearing on the nature of the in- dividual’s potential deprivation of liberty, it fortifies our conclusion that due process requires proof of sexual dan- gerousness beyond a reasonable doubt. n SFA AS NIE BW NSE NT DORR AL eg PATRON NET ETO nS SOT 9S te A10 All too often the ‘‘ promise of treatment has served only to bring an illusion of benevolence to what is essentially a warehousing operation for social misfits.’’ Cross v. Harris, 418 F. 2d 1095, 1107 (D.C. Cir. 1969). It is well settled that realities rather than benign motives or noncriminal labels determine the relevance of constitutional policies. In re Winship, supra, 397 U.S. at 365-66. See In re Gault, 387 U.S. 1, 21, 27, 50 (1967); Breed v. Jones, 43 U.S.L.W. 4644, 4647 (U.S. May 27, 1975). Respondents and the State’s Attorney of Cook County as Amicus Curiae also assail the reasonable-doubt stand- ard as unworkable. Given the uncertainties inherent in the present state of psychiatric diagnosis and prediction, it is impossible, they argue, to prove beyond a reasonable doubt that a person is suffering from a mental disorder with a propensity to commit criminal sexual assaults. We are not unaware of the limitations of psychiatric diag- nosis. Proof of mental state, however, is a commonplace in the law, and despite the difficulty of establishing many controverted facts in a criminal trial, we steadfastly ad- here to the reasonable-doubt burden of proof. Mullaney v. Wilbur, 43 U.S.L.W. 4695, 4700-01 (U.S. June 9, 1975). If the disparate opinions of psychiatrists and the vagaries of proof and prediction suggest anything, it is the desir- ability of the utmost care in reaching the commitment de- cision. See, e.g., Livermore, Malmquist & Meehl, On the Justifications for Civil Commitment, 117 U. Pa. L. Rev. 75 (1968). Burdens of proof serve to allocate the risk of an erro- neous decision between the parties in a lawsuit, and the reasonable-doubt standard reflects society’s judgment ‘‘that it is far worse to convict an innocent man than to let a guilty man go free.’’ In re Winship, supra, 397 U.S. All at 372. (Harlan, J., concurring). We recognize that society has a substantial interest in the protection of its members from dangerous deviant sexual behavior. But when the stakes are so great for the individual facing commitment, proof of sexual dangerousness must be sufficient to produce the highest recognized degree of certitude, In re Ballay, 482 F. 2d 648, 667 (D.C. Cir. 1973); Lessard v. Schmidt, 349 I. Supp. 1078, 1095 (E.D. Wis. 1972) (three-judge court), vacated on other grounds, 414 U.S. 473 (1974), on remand, 379 F. Supp. 1376 (E.D. Wis. 1974), vacated on other grounds, 43 U.S.L.W. 3600 (U.S. May 12, 1975); People v. Burnick, 43 U.S.L.W. 2478 (Cal. Sup. Ct. May 15, 1975). But see Tippett v. State of Maryland, 436 F. 2d 1153 (4th Cir. 1971), cert. dismissed as improvidently granted sub nom., Murel vy. Baltimore City Criminal Court, 407 U.S. 355; Lynch v. Baxley, 386 F. Supp. 378, 393 (M.D. Ala. 1974) (three-judge court). See generally, Develop- ments in the Law — Civil Commitment of the Mentally TH, 87 Harv. L. Rev. 1190, 1295-1302 (1974). Accordingly, we hold that due process requires that the reasonable-doubt standard be applied in proceedings under the Illinois Sexually Dangerous Persons Act. IV Stachulak also challenges the Sexually Dangerous Per- sons Act as void for vagueness and overbreadth in viola- tion of the Fourteenth Amendment’s Due Process and Equal Protection Clauses. This attack was rejected by the district court, and respondents contend that Stachulak is barred from raising the issue in this court due to his failure to maintain a cross-appeal. Initially, Stachulak had filed a cross-appeal, but on his own motion this was dis- missed pursuant to Rule 42(b), F.R.A.P. Now, he relies ae) a | Al2 on the rule that an appellee may urge any ground of rec- ord of the lower court’s judgment. Dandridge v. Williams, 397 U.S. 471, 475-76. n. 6 (1970). Whether a cross-appeal must be taken depends upon the position an appellee seeks to advance and its effect on the lower court’s judgment. Without a cross-appeal, an appellee may ‘‘urge in support of a decree any matter appearing in the rec- ord although his argument may involve an attack upon the reasoning of the lower court or an insist- ence upon matter overlooked or ignored by it.’’ United States v. American Railway Express Co., 265 U.S. 425, 435. What he may not do in the absence of a cross- appeal is to ‘‘attack the decree with a view either to enlarging his own rights thereunder or of lessening the rights of his adversary, whether what he seeks is to correct an error or to supplement the decree with respect to a matter not dealt with below.’’ [bid. The rule is inveterate and certain. Morley Co. v. MD. Casualty Co., 300 U.S. 185, 191 (1937). The judgment of the district court ordered that if the state did not bring a renewed commitment proceeding within 60 days, Stachulak was to be enlarged. If Stachulak were to prevail on his contention that the statute is un- constitutional he would be entitled to his freedom instanter and could not be subject to a renewed commitment pro- ceeding. It is plain therefore that he is not merely at- tempting to support the judgment but rather to expand Al13 his rights under the decree. Accordingly, in the absence of a properly maintained cross-appeal, the statute’s constitu- tionality is not before us.° For the reasons set forth above, the judgment appealed from is AFFIRMED. A true Copy: Teste: Clerk of the United States Court of Appeals for the Seventh Circuit. 6. Although Rule 3(c), F.R.A.P., does not require a specification of error, filing a cross-appeal places the ap- pellant on notice that an appellee is attacking the judg- ment. In the instant case, for example, appellants, gauged by their initial brief, apparently thought that the question of the statute’s validity was no longer contested after Stachulak dismissed his cross-appeal. While our application of the rule may be considered technical, the rule nonetheless has continuing vitality and must be followed. Swarb v. Lennox, 405 U.S. 191, 201 (1972). See generally Stern, When to Cross-Appeal or Cross-Petition — Certainty or Confusion? 87 Harv. L. Rev. 763 (1974); 9 J. Moore & B. Ward, Moore’s Federal Prac- tice §204.11[3] (2nd ed. 1973). See also Practitioner’s Handbook for Appeals to the United States Court of Ap- peals for the Seventh Cireuit 34 (1973). --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385608_1913%3A1. Public record. Not legal advice.