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People v. Botruff

June 6, 2002


Appeal from the Circuit Court of the 9th Judicial Circuit, Warren County, Illinois No. 99-MR-3 Honorable Ronald C. Tenold Judge, Presiding

The opinion of the court was delivered by: Justice Holdridge

Paul E. Botruff pled guilty to a charge of criminal sexual assault and was sentenced to four years in prison. At the end of his imprisonment term, he was further committed to the Department of Human Services (the Department) under the Sexually Violent Persons Commitment Act (the Act) (725 ILCS 207/1 et seq. (West 2000)). Subsequently, in connection with a mandatory reexamination under the Act, the circuit court conducted a probable cause hearing which Botruff was statutorily prohibited from attending. An attorney appeared for him and requested appointment of an independent evaluator. The judge denied the request, and Botruff filed this appeal challenging the denial. He also challenges the constitutionality of the statute that prohibited him from attending the probable cause hearing. For the following reasons, we reverse and remand for further proceedings.


The Act authorizes civil commitment of a person who is deemed sexually violent upon release from imprisonment for a sexually violent offense. The State initiates the commitment process by filing a petition in the circuit court. 725 ILCS 207/15 (West 2000). The court then conducts a hearing "to determine whether there is probable cause to believe that the [respondent] is a sexually violent person." 725 ILCS 207/30(b) (West 2000). If the court finds probable cause, the respondent is taken into custody and transferred to an "appropriate facility" for an evaluation regarding whether he is sexually violent. 725 ILCS 207/30(c) (West 2000). Then the issue is adjudicated at a trial. 725 ILCS 207/35 (West 2000). If the court or a jury finds that the respondent is sexually violent, he is committed to the Department "until such time as [he] is no longer a sexually violent person." 725 ILCS 207/40(a) (West 2000).

The Department must conduct a reexamination of the respondent's mental condition within six months, and additional reexaminations must occur in at least 12-month intervals. 725 ILCS 207/55(a) (West 2000). The purpose of these reexaminations is to determine whether the respondent has progressed enough to be conditionally released or discharged. 725 ILCS 207/55(a) (West 2000). At the time of each reexamination, the respondent receives written notice of his right to petition the court for discharge. The notice must contain a waiver of rights. 725 ILCS 207/65(b)(1) (West 2000). If the respondent does not waive his right to petition for discharge, the court conducts a probable cause hearing to determine if facts exist that warrant a hearing on the issue of whether he remains a sexually violent person. 725 ILCS 207/65(b)(1) (West 2000). "The committed person has a right to have an attorney represent him or her at the probable cause hearing, but the person is not entitled to be present at the probable cause hearing." 725 ILCS 207/65(b)(1) (West 2000).

Botruff's initial reexamination occurred in August of 1999. Based on the examining doctor's report, the State moved for a directed finding against Botruff on the issue of probable cause. Botruff then moved for appointment of an independent evaluator, which motion was granted. He ultimately stipulated to the examining doctor's report and the independent evaluator's report. Based on those reports, the judge granted the State's motion for a directed finding.

The next reexamination occurred in September of 2000. Botruff did not waive his right to petition for discharge, and the court thus conducted a probable cause hearing. Botruff was indigent and did not attend the hearing because his attendance was statutorily prohibited. An attorney appeared for him and requested appointment of an independent evaluator. The judge denied the request, stating:

"I think in order for Mr. Botruff to be independently [evaluated] there must be at least some basis for the Court to order such an independent [evaluation] other than just that he would like to be [evaluated] by another party; that there is something in the report of the [examiner] that indicates to me he is perhaps somehow biased or skewed or not accurately reporting the results of the examination, or that there are some other factors that the [examiner] has not considered in the report."

Based on the examining doctor's report, the judge found that Botruff remained a sexually violent person and that no probable cause existed to warrant a hearing on the issue. The judge thus ordered continued commitment of Botruff under the Act. This appeal followed.


I. Appointment of Independent Evaluator

Botruff first claims the judge erred in denying his request for appointment of an independent evaluator during his reexamination proceedings. This claim turns on construction of two provisions in the Act--subsections 25(e) and 55(a). Subsection 25(e) reads:

"Whenever the person who is the subject of the petition is required to submit to an examination under this Act, he or she may retain experts or professional persons to perform an examination. *** If the person is indigent, the court shall, upon the person's request, appoint a qualified and available expert or professional person to perform an examination." (Emphasis added.) 725 ILCS 207/25(e) (West 2000). Subsection 55(a), which deals with post-commitment examinations, reads: "At the time of a reexamination under this Section, the person who has been committed may retain or, if he or she is indigent and so requests, the court may appoint a qualified expert or a professional person to examine him or her." (Emphasis added.) 725 ILCS 207/55(a) (West 2000).

Under subsection 25(e), the word "shall" requires appointment of an independent expert if an indigent respondent requests one. Under subsection 55(a), however, the word "may" places such appointment within the court's discretion despite a request from an indigent respondent. See Anderson v. Financial Matters, Inc., 285 Ill. App. 3d 123 (1996) (noting that the word "may" signals discretional rather than mandatory action). Botruff argues that these provisions conflict and that we should interpret subsection 55(a) as subject to the rights conferred in subsection 25(e). The State argues that no conflict exists because subsection 25(e) applies only to pre-commitment examinations, thus excluding it from the post-commitment realm of subsection 55(a).

The fundamental cannon of statutory construction is to ascertain and effectuate the legislature's intent. Nottage v. Jeka, 172 Ill. 2d 386 (1996). The best indicator of such intent is the language the legislature used in the statute. Nottage, 172 Ill. 2d 386. Courts cannot use construction as a guise for supplying omissions, remedying defects, adding limitations, or otherwise departing from the plain meaning of a statute's language. Toys "R" Us, Inc. v. Adelman, 215 Ill. App. 3d 561 (1991). Questions of statutory construction invoke de novo review. In re Application for Tax Deed, 285 Ill. App. 3d 930 (1997).

We cannot adopt the State's view that subsection 25(e) applies only to pre-commitment examinations. First, we note that section 25 as a whole is not limited to such application. For example, one provision of the section enumerates certain rights that apply "at any hearing conducted under [the] Act" with only two exceptions. 725 ILCS 207/25(c) (West 2000). Although both exceptions involve post-commitment hearings, the Act provides for several other post-commitment hearings that are not excepted. See 725 ILCS 207/60(d), 65(a)(2), 65(b)(2), ...

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