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In re Bailey

December 06, 2000

IN RE DETENTION OF RICHARD W. BAILEY
THE PEOPLE OF THE STATE OF ILLINOIS, PETITIONER-APPELLEE,
V.
RICHARD W. BAILEY, RESPONDENT-APPELLANT)



The opinion of the court was delivered by: Justice Burke

Appeal from the Circuit Court of Cook County.

Honorable Thomas R. Fitzgerald, Judge Presiding.

Respondent Richard Bailey appeals from an order of the circuit court denying his motion to dismiss the State's petition to declare him a sexually violent person, contending that the Sexually Violent Persons Commitment Act (the Act) (725 ILCS 207/1 (West Supp. 2000)) *fn1 is unconstitutional. On appeal, respondent asks us to answer the five questions certified by the trial court in the affirmative. For the reasons set forth below, we answer each of the certified questions in the negative.

STATEMENT OF FACTS *fn2

In the Fall of 1989, the Chicago police department and the Cook County State's Attorney's office began investigating respondent for numerous sexual offenses directed at six boys between the ages of 5 and 10. Assistant State's Attorney Sandra Stavropoulous interviewed each victim during which they described sexual acts perpetrated upon them by respondent. Thereafter, the police discovered videotapes at respondent's home documenting some of the events. Respondent was indicted with respect to each victim and indicted on one count of child pornography.

On December 18, 1990, a Supreme Court Rule 402 (177 Ill. 2d R. 402) conference was conducted. The State recommended that respondent receive a sentence of at least 50 years' imprisonment. The judge, on the other hand, agreed to impose a sentence of 17 years if respondent would agree to a stipulated bench trial. This trial was conducted on December 26 and at the conclusion of the stipulated evidence, the trial court sentenced respondent to 17 years' imprisonment.

On January 1, 1998, the State filed a petition, alleging that respondent was a sexually violent person pursuant to the Act and sought his commitment to the Department of Human Services (the Department). Respondent was apparently the first individual petitioned for commitment under the Act. In its petition, the State alleged that respondent suffered from the mental disorders of pedophilea--same sex, and antisocial personality disorder. Respondent was 46 years old and had been attracted to prepubescent boys since he was a teenager. Respondent committed his first offense at the age of 19 when he assaulted a nine- year-old boy. Respondent was convicted in 1980 of five counts of indecent liberties with a child and sentenced to four years' imprisonment. The petition further alleged that respondent was not responsive to treatment provided to him by the Sex Offenders Program while incarcerated because he continued to have recurrent, intense urges to have sexual contact with young boys. His treatment was therefore terminated because he refused to follow the rules and continued to make written contact with young boys. Respondent further refused to recognize the inappropriateness of his obsessions.

The petition also alleged that respondent admitted to having sexually abused at least 400 boys--200 while acting as a camp counselor in five different states and another 200 in his neighborhood. Attached to the petition was a report from a psychologist, Dr. Gerald Burgener, who, after examining respondent, opined that respondent should be civilly committed.

In response to the petition, respondent filed a motion to dismiss, contending that the Act was unconstitutional in numerous respects. Following testimony and arguments of the parties, the trial court entered a written memorandum and order on October 6, 1998, concluding that the Act was constitutional except for section 65 which deprived respondent of the right to a jury trial at a discharge hearing. *fn3 The trial court found that this provision violated equal protection principles, but concluded it was severable from the remainder of the Act.

Respondent filed a notice of appeal on October 27, 1998. On October 6, 1999, we granted respondent's permissive interlocutory appeal to consider five questions certified by the trial court concerning the constitutionality of the Act and whether it violates the equal protection clauses of the state and federal constitutions, whether it constitutes an ex post facto law and violates the prohibition against double jeopardy, whether it violates substantive and procedural due process, and whether it violates the petition clause of the first amendment to the United States Constitution and article I, section 5, of the Illinois Constitution.

ANALYSIS

Our scope of review is strictly limited to the questions certified by the trial court. In re Detention of Anders, 304 Ill. App. 3d 117, 120, 710 N.E.2d 475 (1999). Our standard of review is de novo. Anders, 304 Ill. App. 3d at 120. All statutes carry a presumption of constitutionality and the party challenging a statute must clearly demonstrate it is unconstitutional. In re Detention of Samuelson, 189 Ill. 2d 548, 558, 727 N.E.2d 228 (2000). Any doubts are resolved in favor of a statute's validity and we will uphold a statute whenever reasonably possible. Samuelson, 189 Ill. 2d at 558.

Initially, we note that numerous cases have addressed the constitutionality of the Act. At least two of these cases were decided prior to the time respondent filed his brief in the instant case. However, respondent failed to mention either of those cases and, in his reply brief, respondent did not cite to and/or address all of the cases that had been decided at that time. Additionally, with the exception of one case, neither of the parties has sought to supplement the record with relevant authority.

In Samuelson, the Illinois Supreme Court addressed, in part, the constitutionality of the Act. The Samuelson respondent first contended that the Act violated double jeopardy and ex post facto principles. The court rejected these arguments, finding that the United States Supreme Court case of Kansas v. Hendricks, 521 U.S. 346, 138 L. Ed 2d 501, 117 S. Ct. 2072 (1997) was dispositive. In Hendricks, the Court held that a Kansas statute, very similar to the Act, was civil, not criminal, and that involuntary confinement pursuant to the statute was not punitive. Hendricks, 521 U.S. at 369, 138 L. Ed. 2d at 519, 117 S. Ct. at 2085. The Hendricks Court concluded that, for double jeopardy purposes, the initiation of commitment proceedings was not a second prosecution and, similarly, because punishment was not imposed, there were no ex post facto concerns. Hendricks, 521 U.S. at 369-71, 138 L. Ed. 2d at 519-21, 117 S. Ct. at 2085-86. The Samuelson court found the holdings of Hendricks to apply with equal force to the Act. In Illinois, proceedings under the Act are civil and there is no retroactive effect because a respondent cannot be committed based on past conduct but only where he or she presently suffers from a mental disorder and it is substantially probable that he or she will engage in future sexually violent acts. Samuelson, 189 Ill. 2d at 559. Therefore, our supreme court in Samuelson held that the Act was not subject to challenges on ex post facto or double jeopardy grounds. Samuelson, 189 Ill. 2d at 559.

The Samuelson respondent next contended that the Act violated article I, section 13, of the Illinois Constitution (Ill. Const. 1970, art. I, §13) because the Act did not afford a respondent the right to have his case decided by the court. According to him, the Act, in fact, forces a respondent to proceed to a jury if the State requests a jury. While the Samuelson court stated this may be true, it held that such an argument relates to criminal cases and proceedings under the Act are not criminal, but rather civil and, therefore, a respondent does not have a right to waive a jury trial. Samuelson, 189 Ill. 2d at 560.

Lastly, the Samuelson respondent contended that the Act violated the equal protection clauses of the federal and state constitutions. According to him, the law was invalid because it did not afford respondents under the Act the same rights and privileges afforded to individuals facing involuntary commitment under the Mental Health and Developmental Disabilities Code (the Code) (405 ILCS 5/1--100 et seq. (West 1998)). Samuelson, 189 Ill. 2d at 562. In applying a rational basis analysis, the court rejected this argument, comparing this challenge to a similar challenge under the Sexually Dangerous Persons Act (725 ILCS 205/1.01 et seq. (West 1998)) in People v. Pembrock, 62 Ill. 2d 317 342 N.E.2d 28 (1978). In Pembrock, the court concluded that persons under the Sexually Dangerous Persons Act possess characteristics that set them apart from the larger class of individuals who fall within the Code, and such persons present different societal problems. Pembrock, 62 Ill. 2d at 322. The Samuelson court reasoned that the same considerations applied to the case before it, since there were far more specific criteria necessary to meet the qualification as a sexually violent person under the Act than the criteria under the Sexually Dangerous Persons Act. Samuelson, 189 Ill. 2d at 563. The Samuelson court further reasoned that if sexually dangerous individuals present different societal problems, the same is "surely true" of individuals who qualify as sexually violent persons. Samuelson, 189 Ill. 2d at 563- 64.

I. Equal Protection Clauses

In the case at bar, the first certified question we are asked to consider is:

"Whether the SVP [Sexually Violent Persons] Act violates the equal protection clauses of the federal and state constitutions because it treats persons committed under the Act differently from other civilly committed persons, and there is no compelling interest narrowly tailored to justify the discriminatory treatment?" *fn4

The trial court concluded that individuals under the Act were not similarly situated to individuals under the Sexually Dangerous Persons Act, but they were similarly situated to those individuals under the Code.

Initially, respondent contends that the strict scrutiny analysis is applicable to equal protection challenges involving involuntary commitment classifications as in the instant case. This contention has been foreclosed by the Samuelson court, which held that the rational basis test applied to the Act. Samuelson, 189 Ill. 2d at 562.

A. Persons Under the Code

Respondent contends that individuals under the Act are similarly situated to those individuals who are involuntarily committed under the Code and that individuals under the Code are given more rights than individuals under the Act. Respondent maintains, therefore, that the Act violates equal protection of the law.

Although the trial court found that individuals under the Act were similarly situated to those individuals under the Code, this finding was rejected by Samuelson, 189 Ill. 2d at 563-64. See also In re Detention of Varner, 315 Ill. App. 3d 626, 734 N.E.2d 226 (2d Dist. 2000). Accordingly, we must conclude that individuals under the Act are not similarly situated to individuals under the Code.

B. Persons Under the Sexually Dangerous Persons Act

Respondent next contends that persons under the Act are similarly situated to those persons under the Sexually Dangerous Persons Act. He contends there is no compelling difference between the two groups to warrant a difference in treatment, including the fact that a jury trial can be forced upon an individual under the Act, the Act withholds timely periodic reexaminations of an individual's mental condition, *fn5 and the Act limits a respondent's ability to petition the court for discharge.

Several cases, most of which are from the Second District, have addressed this precise issue and all have held that individuals under the Act are not similarly situated to those individuals under the Sexually Dangerous Persons Act. See In re Detention of Varner, 315 Ill. App. 3d at 634; People v. Winterhalter, 313 Ill. App. 3d 972, 976-77, 730 N.E.2d 1158 (3d Dist. 2000); People v. Coan, 311 Ill. App. 3d 296, 298-99, 724 N.E.2d 1049 (2d Dist. 2000); People v. McDougle, 303 Ill. App. 3d 509, 523, 708 N.E.2d 482 (2d Dist. 1999); People v. McVeay, 302 Ill. App. 3d 960, 967-68, 706 N.E.2d 539 (2d Dist. 1999).

Although the court in Samuelson did not specifically address the issue, we believe it is reasonable to conclude that the supreme court would have reached the same conclusion as the two districts of this court in light of the Samuelson court's statements that there were far more specific criteria necessary to qualify as a sexually violent person under the Act than the criteria necessary to meet to qualify as a sexually dangerous person, and that if sexually dangerous individuals present different societal problems, the same is "surely true" of individuals who qualify as sexually violent persons. Samuelson, 189 Ill. 2d at 563-64.

While we are not bound by decisions of other districts, we find the analysis and rationale of the above cases instructive and hold that individuals under the Act are not similarly situated to ...


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