In re Commitment of Bice

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Appellate Court Date: 2018.06.12
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In re Commitment of Bice, 2018 IL App (2d) 170148Appellate Court In re COMMITMENT OF JAMES BICE (The People of the State of
Caption Illinois, Petitioner-Appellee, v. James Bice, Respondent-Appellant).
District & No. Second District
Docket No. 2-17-0148
Filed March 13, 2018
Decision Under Appeal from the Circuit Court of Lake County, No. 00-MR-1076; the
Review Hon. Christopher R. Stride, Judge, presiding.
Judgment Affirmed.
Counsel on John Radosevich, of Waukegan, for appellant.
Appeal
Lisa Madigan, Attorney General, of Chicago (David L. Franklin,
Solicitor General, and Michael M. Glick and Daniel B. Lewin,
Assistant Attorneys General, of counsel), for the People.
Panel JUSTICE JORGENSEN delivered the judgment of the court, with
opinion.
Justices Schostok and Spence concurred in the judgment and opinion.
OPINION
¶1 In 2010, respondent, James Bice, was adjudicated a sexually violent person (SVP) under
the Sexually Violent Persons Commitment Act (Act) (725 ILCS 207/1 et seq. (West 2010))
and committed to the Department of Human Services (DHS). He now appeals a judgment
finding no probable cause to hold an evidentiary hearing on whether he is still an SVP (see 725
ILCS 207/65(b)(1) (West 2014)). We affirm.
¶2 On December 21, 2000, the State petitioned to have respondent committed as an SVP. The
petition alleged as follows. Respondent was 18 years old. In 1995, when he was 15, he
committed the aggravated criminal sexual abuse of his three-year-old half-sister. On January
29, 1996, he was adjudicated delinquent and committed to the juvenile division of the
Department of Corrections (DOC). Respondent had admitted to sexually fondling his younger
cousin when he was six and sexually abusing approximately 100 children before entering the
DOC. In January 1997, he was paroled to the Onarga Academy treatment facility, but, in
October 1997, he was returned to the DOC, based on his sexually deviant behavior. In May
1998, he was paroled to the Alternative Behavioral Treatment Center, but five months later, he
was returned to the DOC, based on his sexually deviant behavior.
¶3 The petition continued as follows. On October 5, 2000, Dr. Agnes R. Jonas, a clinical
psychologist, evaluated respondent. She diagnosed him with two mental disorders: (1)
pedophilia, sexually attracted to both sexes, R/O exclusive type and (2) borderline personality
disorder. In her report, Jonas noted the following. Respondent told Jonas that, when he was
three years old, his uncle sexually abused him. He started “doing ‘sexual stuff’ ” when he was
five and continued these behaviors intermittently. At about age 12 or 13, he started sexually
abusing very young children. He told Jonas that he had sexually abused approximately 100
children before he was incarcerated.
¶4 In her report, Jonas stated that, based on respondent’s mental disorders and criminal
history, it was substantially probable that he would commit sexual violence against minors in
the future. Jonas also cited respondent’s recurrent sexual fantasies, urges, and behaviors, his
apparent lack of remorse, and his lack of progress in therapy. Further, based on research
studies published in 1996 and 1998, numerous risk factors for reoffending applied to
respondent.
¶5 Jonas also cited several actuarial risk-assessment tools but conceded that “there are no
instruments as yet developed that can be reliably used for juvenile offenders in estimating their
risk levels.” According to the Rapid Risk Assessment for Sexual Offense Recidivism,
respondent was at a high risk of reoffending. According to the Minnesota Sex Offender
Screening Tool-Revised (MnSOST-R), respondent was at a moderate risk of reoffending.
According to the Static-99, respondent was in “the highest risk category on this instrument.”
Jonas had considered other factors validated by research studies and analyses, such as
respondent’s psychological instability, impulsivity, numerous sexually deviant fantasies, wide
range of victims, and failure to complete treatment successfully, in addition to his treatment
staff’s opinion that he was at a very high risk of reoffending. These factors raised him to a
“very high risk.”
¶6 The petition alleged that respondent was an SVP because his mental disorders made it
substantially probable that he would engage in future acts of sexual violence (see 725 ILCS
207/5(f) (West 2000)). It requested that he be committed (see id. § 35(f)).
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¶7 On January 23, 2001, at a hearing, Jonas testified consistently with her report. The trial
court found probable cause to believe that respondent was subject to commitment. It ordered
an evaluation by the DHS.
¶8 The cause was continued numerous times over several years. On March 9, 2010, the parties
stipulated to the following. Respondent had been adjudicated delinquent based on his 1995
offense. He had committed several other sexually violent acts before being committed to the
DOC in 1996. He had been paroled to residential facilities in 1997 and 1998 but was
discharged unsuccessfully both times. If called at a hearing, Jonas and Dr. Paul Heaton, two
experts in clinical psychology and the evaluation and treatment of sex offenders, would testify
that, to a reasonable degree of psychological certainty, respondent suffered from mental
disorders that made it substantially probable that he would engage in future acts of sexual
violence. At a hearing, the State would produce sufficient evidence to prove beyond a
reasonable doubt that he was an SVP.
¶9 The parties agreed that respondent would have a dispositional hearing but that first he
would be examined by the DHS and a mental-health professional of his choosing; they further
agreed that he would be committed to the DHS until he was no longer sexually violent.
¶ 10 On January 20, 2012, Dr. Joseph W. Proctor submitted his final reexamination report,
based in part on his interview of respondent on January 6, 2012. Proctor’s report noted the
following. Respondent initially consented to treatment in 2002, but he participated only briefly
before dropping out. He reentered the core treatment program in 2008. After engaging in
behavior that interfered with treatment, he was referred to another program, but he did not
make sufficient progress; in 2009, he was removed from the core program while still in the
second of five phases. He participated in ancillary treatment groups, with relatively positive
results. In April 2010, the DHS facility’s behavior committee ruled that he had committed a
major violation by possessing flash drives containing child pornography. As of his interview,
respondent was still trying to reenter the core treatment program.
¶ 11 Proctor stated his opinion that, to a reasonable degree of psychiatric certainty, respondent
met the criteria for (1) pedophilia, sexually attracted to both sexes, exclusive type and (2)
personality disorder, not otherwise specified, with antisocial and borderline traits. As to the
first diagnosis, Proctor noted that, although respondent had committed all of his sexual acts
with children before he turned 16, his sexual attraction to children had continued to the present,
as shown in part by his interest in child pornography. As to the second diagnosis, Proctor noted
respondent’s history of sexual violence and institutional-rule violations. He opined that
respondent needed the intense treatment that could be provided only in a DHS facility.
¶ 12 On March 7, 2012, respondent’s chosen evaluator, Dr. Kirk Witherspoon, submitted his
report to the court. Witherspoon’s report stated as follows. No reliable risk-measurement tools
had been developed for persons, such as respondent, whose sexual misconduct is limited to
childhood and early adolescence. The reports of Jonas and Proctor thus were flawed by their
use of actuarial tools that are reliable only for adults. Respondent did not currently exhibit
“sexual psychopathology.” The prior diagnosis of pedophilia was false, because none of
respondent’s acts with younger children occurred when he was 16 or older. Witherspoon
recommended that respondent be discharged from the DHS and “stripped of the ‘SVP’ label.”
Alternatively, he recommended conditional release with treatment and oversight in an
outpatient setting.
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¶ 13 On October 22, 2012, the trial court held a dispositional hearing. Proctor and Witherspoon
testified consistently with their reports. Noting respondent’s admissions in the 2010
stipulation, as well as his difficulties with treatment, the court continued his confinement.
¶ 14 On October 24, 2013, the State moved for a finding of no probable cause, based on
Proctor’s reexamination report, which was dated October 21, 2013. In his report, Proctor stated
in part as follows. For the period under review, respondent had had two treatment plans. The
first was developed on November 1, 2012; on March 27, 2013, his treatment team stated that
his attendance had been poor and that he had been cited for fighting, a major rule violation. The
second plan was developed on September 20, 2013. Respondent had completed two ancillary
treatment groups since the previous treatment-team report. He was still in phase two of the core
program.
¶ 15 Proctor’s diagnoses of respondent were unchanged from the 2012 report. He also stated
that respondent’s scores on the Static-99 and the Static-99R placed him in the low-to-moderate
category for risk of reoffending; his score on the MnSOST-R placed him in the moderate risk
category; he had several nonactuarial factors that increased his risk of recidivism; and none of
the protective factors—age, medical condition, and progress in treatment—applied to him.
Proctor concluded that respondent remained an SVP and had made insufficient progress to be
conditionally released.
¶ 16 On December 17, 2013, respondent petitioned for (1) conditional release (see 725 ILCS
207/60 (West 2012)) and (2) the appointment of Witherspoon as his expert. The court
continued all proceedings so that Witherspoon could conduct his evaluation.
¶ 17 On November 19, 2014, the State moved for a finding of no probable cause. The State
relied on Proctor’s reexamination report, dated October 20, 2014. Proctor’s report stated that,
for the period under review, respondent’s treatment team reported that he had made limited
progress. He had displayed numerous behaviors that interfered with treatment, and his levels of
commitment and motivation had fluctuated. Proctor’s diagnoses were unchanged from the last
report. Respondent’s score on the Static-99R placed him in the moderate-to-high risk category
for reoffending; his score on the Static-2002R placed him in the moderate risk category.
Numerous risk factors not used in these tools were also present, and no protective factors
applied. Proctor’s opinions and recommendations were also unchanged from his prior report.
¶ 18 Witherspoon’s report was dated April 5, 2014, and based in part on his interview of
respondent on February 28, 2014. It stated in pertinent part as follows. Respondent told him
that he had completed various ancillary treatment groups in preparation for participating in the
core treatment program. A battery of personality tests administered on respondent for the 2014
evaluation “evidenced no indications toward child molestation,” “sexual compulsivity,
preoccupation, or hypersexuality,” or “noncontact sexual deviancy.”
¶ 19 Witherspoon’s report reiterated his disapproval of using actuarial tools such as the
Static-99 and its successors and the MnSOST-R on persons with no adult records of sexual
offending. Witherspoon diagnosed respondent with attention deficit/hyperactivity disorder but
not with pedophilia or paraphilia. His treatment had not been “particularly successful,” but this
was likely because it was based on the false assumption that he was suffering from sexual
psychopathology. Witherspoon cautioned that sexual misconduct committed during childhood
or adolescence does not predict adult offending. As before, he recommended discharge.
Alternatively, he stated, respondent should receive treatment and oversight in an outpatient
setting.
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¶ 20 On January 28, 2015, after a hearing, the trial court stated as follows. In formulating his
diagnoses and recommendations, Proctor had used a wide variety of evidence, including
respondent’s admissions about prior acts, reports of other acts, respondent’s treatment history,
actuarial test results, and risk factors that the actuarial tests did not consider. The court denied
respondent’s petition for conditional release and granted the State’s motion for a finding of no
probable cause.
¶ 21 On October 29, 2015, the State moved for a finding of no probable cause, based on
Proctor’s reexamination report of October 19, 2015. The State noted that Proctor had reported
that respondent was still in the second phase of the five-phase treatment program. In his report,
Proctor also stated as follows. For the period at issue, respondent’s treatment team had
developed two plans. The first was dated September 18, 2014. The team reported that, since
that date, respondent had shown numerous “treatment-interfering” attitudes and behaviors,
resulting in his removal from one treatment group. In his other groups, he had fluctuated
between positive behavior and negative behavior. The second plan was dated September 3,
2015. The treatment team reported that respondent had continued to fluctuate between positive
and negative behaviors.
¶ 22 Proctor’s diagnoses of respondent’s mental disorders were the same as in his prior report.
¶ 23 Proctor noted that the instructions for the Static-99R and the Static-2002R stated that “they
should be used with caution with Males [sic] whose most recent sex offense was committed
while age 17 [or younger] and who is [sic] currently 18 years or more of age.” This category
included respondent. Further, however, he noted that “[r]esearch has demonstrated that there is
meaningful variation in the sexual recidivism rates based on factors not measured by [the]
Static-99R.” In respondent’s case, these factors included respondent’s “demonstrated
sexualized violence; sexual preoccupation; general self-regulation problems; and *** sense of
entitlement.”
¶ 24 Proctor then noted the following. On the Static-2002R, respondent scored 6, which is in the
moderate risk category; the recidivism rate for offenders with this score was 2.63 times that of
the “typical sexual offender (defined as a median score of 3).” Proctor noted that studies had
identified other factors, both static and dynamic, associated with recidivism. Respondent had
several risk factors “based on these additional sources.” These were “Any Personality
Disorder,” “Child molester attitudes,” “Substance abuse,” “Any deviant sexual interest,” “Sees
self at no risk to recidivate,” “Sexual abuse,” “Low motivation for treatment,”
“Impulsiveness/recklessness,” “Anger problems,” and “Intimacy problems.” The three
recognized protective factors—age, medical condition, and progress in sex-offender-specific
treatment—did not apply to respondent. Proctor’s recommendations were the same as in his
previous report.
¶ 25 The trial court continued the cause several times, in part so that respondent could obtain
new counsel. On March 9, 2016, respondent filed a response to the State’s motion. The
response attacked Proctor’s report in numerous respects, including the validity of the actuarial
risk-assessment tools. According to respondent, the instructions for the Static-99 stated that it
should be used with caution in assessing juvenile offenders, and the instructions for the
Static-2002R stated that it was not recommended for use on persons who had committed all of
their sexual offenses when they were under 17.
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¶ 26 On September 14, 2016, the trial court heard arguments on the State’s motion for a finding
of no probable cause. The court continued the cause to October 5, 2016, for a ruling. On
October 5, 2016, the court continued the cause to November 8, 2016.
¶ 27 On November 7, 2016, respondent filed a motion to reopen the proofs. The motion stated
as follows. On September 27, 2016, Dr. Amy Louck Davis reexamined respondent per the Act.
On October 12, 2016, she prepared her report for the DHS; on October 19, 2016, a copy of the
report was mailed to respondent. Louck Davis’s report had been unavailable to respondent at
the time of the hearing on the State’s 2015 motion, but it was highly relevant to determining
probable cause. It cast doubt on Proctor’s report in two respects. First, Proctor had diagnosed
respondent with pedophilic disorder, but Louck Davis stated that respondent had not met the
criteria for this diagnosis, as he had not engaged in sexual behavior with children at least 5
years younger when he was 16 or older. Second, although Proctor’s report spent several pages
discussing the results of the Static-99R and Static-2002R assessments of respondent, Louck
Davis’s report stated that no actuarial risk-assessment tools should be used on persons who
have committed sexual offenses only before age 17.
¶ 28 Louck Davis’s reexamination report was attached to respondent’s motion. The report noted
the following. On September 7, 2016, respondent’s treatment team reported that he had
participated well in phase two of the treatment program; he was attentive and showed a strong
commitment to treatment. Throughout the period, he “was regarded as having made significant
improvements in his group behavior and participation.” In his disclosure group, respondent
admitted that he had had consensual sexual partners while he was in juvenile detention and had
engaged in problematic behaviors while in the DHS treatment facility. He acknowledged
making and distributing “ ‘child pornography.’ ” However, he was no longer sexually aroused
by children; his arousal had “ ‘matured.’ ”
¶ 29 Louck Davis’s report stated as follows on the “Issue of Mental Disorder.” Over time,
respondent had been diagnosed with a variety of sexual disorders, showing that examiners had
difficulties in coming to conclusions about him. Based on respondent’s record and his clinical
interview, Louck Davis opined that to a reasonable degree of psychological certainty he met
the criteria for (1) unspecified paraphilic disorder, in a controlled environment, and (2) other
specified personality disorder, borderline, schizoid, and antisocial traits. As to the first
diagnosis, respondent had perpetrated sexual offenses against younger peers when he was
under 16 years old; he had violated rules relating to sexual behavior in secure settings and
“engaged in voyeurism and exhibitionistic behaviors and described problematic sexual
attitudes and beliefs”; and his behavior had historically been hypersexual, although
decreasingly so as he had aged. Since turning 16, respondent had not demonstrated sexual
behavior with people at least 5 years younger, so he did not meet the criteria for pedophilic
disorder, and he had not demonstrated a pattern of sexual arousal to nonconsenting individuals,
thus barring a diagnosis of “Other Specified Paraphilic Disorder due to arousal to
non-consent.” “Nonetheless,” the report continued, respondent’s “problematic, illegal, and
rule-violating sexual behaviors” had “culminated in decades of special needs, negative impact
on his functioning, and institutionalization.” Louck Davis’s diagnosis took into account that
respondent had been living in “an institution or under close surveillance where opportunities to
engage in paraphilic sexual behaviors [were] restricted.”
¶ 30 As to the second diagnosis, Louck Davis noted that respondent had displayed most of the
features of borderline personality disorder: identity disturbance with an unstable sense of self,
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impulsivity, and recurrent suicidal or self-injurious behavior. He had also displayed several
characteristics of schizotypal personality disorder: odd beliefs and distorted cognitions that
influenced his behavior, odd thinking and speech, constricted affect, and odd behavior that
drew attention to himself. And he had manifested several aspects of antisocial personality
disorder: unlawful acts, deceitfulness, and lack of remorse.
¶ 31 Louck Davis’s report turned to the “Issue of Risk.” This section of the report began:
“[Respondent] was 13 years old when he committed a criminal sexual assault for which
he was adjudicated [delinquent] and there [are] currently no actuarial risk assessment
instruments appropriate and ethical for use with individuals who were charged or
convicted/adjudicated only of sexual assaults that occurred prior to age 17. Thus, a
structured clinical judgment approach was used to estimate [his] risk for recidivism.”
(Emphasis in original.)
¶ 32 Louck Davis explained that, in using this approach, she reviewed recent research on
recidivism in sex offenders who offended only before turning age 17, she consulted members
of the Association for the Treatment of Sexual Abusers and its guidelines for adolescent
practice, and she reviewed respondent’s historical records, interview results, and
treatment-team reports. Structured clinical judgment was preferable to actuarial measures,
which were not reliable. Among the instruments used in structured clinical judgment are the
Sexual Violence Risk-20 (SVR-20) and the STABLE 2007.
¶ 33 Louck Davis then summarized the application of her chosen methodology to respondent’s
case. The SVR-20 is a checklist of 20 risk factors; the level of risk in a given case depends on
the combination of factors, not merely the number. For respondent, the following risk factors
were present “to a high degree”: he had been a victim of sexual abuse, he had committed
nonsexual-violent-offense and multiple-sex-offense types, and he lacked a realistic living plan.
Applying the STABLE 2007, which “focuses on long-term emotional vulnerabilities as
dynamic risk factors,” disclosed that 11 such factors raised concerns. Two raised “Serious
concern”: “the lack of Capacity for Relationship Stability” and “Emotional Identification with
Children.”
¶ 34 Three protective factors were considered. The first, sex-offender-specific treatment, did
not warrant any risk reduction; although respondent had made some progress in therapy, he
was still early in the process, his attitudes and behaviors were problematic, and his description
of his plans for avoiding reoffending was “undeveloped, non-specific, and minimally related to
preventing re-offense [sic].” The second factor, a serious and debilitating medical condition,
was not present and thus did not warrant any risk reduction. The third factor, age, did not
warrant any risk reduction: respondent was only 34.
¶ 35 Louck Davis’s report stated as follows under “Risk Summary.” Risk levels are customarily
set at “Very Low Risk, Below Average Risk, Average Risk, Above Average Risk, and Well
Above Average Risk” (emphasis in original). Louck Davis considered respondent’s level as
“Above Average level of risk,” based on the “preponderance of risk factors present” and the
lack of risk reduction based on any protective factors. Louck Davis noted, “No specific
actuarial data is available or appropriate to provide a more specific estimate.”
¶ 36 Louck Davis’s report stated that, based on his above-average level of risk and his mental
disorders, respondent was an SVP. He had “not yet made sufficient progress in treatment to
substantially lower his level of risk to be considered for conditional release.”
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¶ 37 On November 9, 2016, the trial court continued the cause to December 7, 2016. On that
date, the State filed a response to respondent’s motion to reopen the proofs. The State argued
that respondent had two separate “review periods” pending: while the case was continued for
the 2015 “review period,” the State filed Louck Davis’s report for the 2016 “review period.”
According to the State, the Act sets forth separate and distinct yearly review periods, so the
report for the 2016 period was irrelevant to the 2015 period’s probable-cause hearing.
¶ 38 The State argued alternatively that the introduction of Louck Davis’s report would make no
difference to the outcome of the 2015 probable-cause hearing because it would not help
respondent any more than had Proctor’s report. Both examiners had opined that respondent
was still an SVP and required commitment. Proctor had relied partly on actuarial
risk-prediction tools and Louck Davis had used other risk-prediction measures, but they
ultimately reached similar conclusions and made identical recommendations. Further, their
recommendations were based on solid evidence that respondent’s condition had not changed,
in either review period, as he was still in phase two of the five-phase treatment program, had
displayed problematic attitudes and behaviors, and had developed no serious
relapse-prevention strategy.
¶ 39 On January 4, 2017, the trial court heard arguments on respondent’s motion to reopen the
proofs, and it continued the cause. On January 25, 2017, the court denied respondent’s motion.
The court was “not comfortable taking reports *** that would not have been germane to the
2015 motion and making them germane to the 2015 motion.”
¶ 40 On February 8, 2017, after hearing arguments, the trial court granted the State’s
no-probable-cause motion. Respondent timely appealed.
¶ 41 On appeal, respondent contends first that the trial court erred in refusing to grant his motion
to reopen the proofs. Respondent contends that, under section 65(b)(1) of the Act, the court
was required to consider the 2016 reexamination report, which was available before it ruled on
the no-probable-cause motion. The State argues that the Act did not require the court to
consider a report that was filed for a separate review period.
¶ 42 Because respondent’s argument is based on statutory construction, which raises an issue of
law, our review is de novo. See In re Detention of Stanbridge, 2012 IL 112337, ¶ 70. Our goal
is to effectuate the intent of the legislature and, to do so, we must give the statutory language its
plain and ordinary meaning. Id.¶ 43 Respondent initially notes that, under section 55(a) of the Act, if a person has been
committed and not discharged, the DHS shall submit a written report to the trial court on the
person’s mental condition “at least once every 12 months after an initial commitment *** for
the purpose of determining whether *** the person has made sufficient progress in treatment to
be conditionally released and *** the person’s condition has so changed since the most recent
periodic reexamination *** that he or she is no longer a sexually violent person.” 725 ILCS
207/55(a) (West 2014).
¶ 44 Respondent then turns to section 65(b)(1) of the Act, which, in pertinent part, reads:
“A person may petition the committing court for discharge from custody or supervision
without the Secretary [of Human Services’] approval. At the time of an examination
under subsection (a) of Section 55 of this Act, the Secretary shall provide the
committed person with a written notice of the person’s right to petition the court for
discharge over the Secretary’s objection. *** If the person does not affirmatively waive
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the right to petition, the court shall set a probable cause hearing to determine whether
facts exist to believe that since the most recent periodic reexamination ***, the
condition of the committed person has so changed that he or she is no longer a[n]
[SVP]. *** The probable cause hearing under this Section must be held as soon as
practical after the filing of the reexamination report under Section 55 of this Act.”
(Emphasis added.) Id. § 65(b)(1).
¶ 45 Respondent cites In re Commitment of Rendon, 2017 IL App (1st) 153201, but we cannot
say that it addresses the issue here. There, in 2010, the respondent was granted conditional
release, which, after some complications, the appellate court restored in 2014. In 2015, the
State moved for a finding of no probable cause, based on a January 2015 report issued by the
reexamining expert, Dr. Smith. In February 2015, the respondent’s appointed expert, Dr.
Wood, issued a report recommending that the respondent’s conditional release be continued.
Id. ¶¶ 5-8. In June 2015, Smith conducted “another annual reexamination” (id. ¶ 9) (the date of
the previous one is not given in the opinion but was sometime in 2014). Smith recommended a
finding of no probable cause to believe that the respondent was no longer an SVP, but he did
recommend conditional release. Id. ¶ 13. The trial court held a hearing at which the respondent
contended that he was no longer an SVP and was thus entitled to a discharge hearing. Id. ¶ 14.
The trial court granted the State’s motion. Id. ¶ 16.
¶ 46 On appeal, the respondent contended in part that the 2012 amendment to section 65 that
added the phrase “since ‘the most recent periodic reexamination’ ” was unduly restrictive
because it required him to rely only on facts occurring since the most recent reexamination
(essentially the facts that had occurred within the previous year) on the matter of whether he
was still an SVP; in his view, the preamendment statute had not been so restrictive. Id. ¶ 21
(quoting Pub. Act 97-1075, § 5 (eff. Aug. 24, 2012) (amending 725 ILCS 207/65)).
¶ 47 The appellate court first held that the amendment applied to what it held was a petition for
discharge filed by the operation of law in 2015. Id. ¶ 22. The court then stated:
“Moreover, [the] respondent’s reading of the statute is itself unduly restrictive since
review of a reexamination report does not preclude consideration of a respondent’s full
mental health and sexual history or relevant historical facts. Indeed, in Dr. Smith’s June
2015 report itself, he reviewed the other annual reexamination reports from 2008 to
2014, thus taking them into account. Construing the statute logically, it simply means
the court must consider the professional conclusions as to a respondent’s status in the
most recent report and any changed circumstances. See [Stanbridge], 2012 IL 112337,
¶ 72. We agree with the State that the amendment is simply a clarification of what the
circuit court was already tasked with determining in any case involving application for
discharge or conditional release—i.e.[,] whether the respondent’s current status
reflects a mental disorder or that he is still a danger to society such that he is
substantially probable to reoffend. [Citation.] Even absent the amendment, it is
common sense that a court would turn to the most recent professional examination of a
respondent to answer this very important public safety question.” (Emphases in
original.) Id. ¶ 23.
¶ 48 Respondent seizes on this passage, especially the emphasized language, to argue that, in
his case, the trial court was required to consider the 2016 reexamination report. We do not read
Rendon so broadly. The trial court there had not delayed a hearing on a no-probable-cause
motion or a discharge petition to the point where a new reexamination report had been filed in
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the interim between the motion or petition and the decision on it. The issue in Rendon was how
far back in time from the filing of the motion or petition to go, not whether to go forward in
time. The court was not concerned with whether the most recent report is the one that is most
recent at the time of the filing of the motion or petition or the one that is most recent at the time
of the decision on the motion or petition.
¶ 49 We return to the issue raised by the unusual facts of this case. We do not agree completely
with either party’s construction of section 65(b)(1). We conclude that the most reasonable
construction that is consistent with fairness to both parties and the orderly administration of the
Act is that section 65(b)(1) does not require the trial court to consider a superseding
reexamination report that is issued only after the parties have rested, so that all that remains is
the trial court’s decision. In this event, a request to consider newly generated evidence is
subject to the sound discretion that the trial court possesses in deciding a motion to reopen the
proofs.
¶ 50 Section 65(b)(1) of the Act requires that, in a case such as this one, the trial court “set a
probable cause hearing to determine whether facts exist to believe” that the person is no longer
an SVP. (Emphases added.) 725 ILCS 207/65(b)(1) (West 2014). Similarly, section 65(b)(2)
begins, “If the court determines at the probable cause hearing *** that probable cause exists
***.” (Emphases added.) Id. § 65(b)(2). The natural construction of this phraseology is that the
court must decide whether the requisite facts exist at the time of the hearing. The quoted
passages do not tell the court that it must decide whether “probable cause existed” when the
State filed its motion. Thus, we do not adopt any rule that the evidentiary basis of the court’s
decision is locked in on the date that the State files its motion for a finding of no probable
cause.
¶ 51 We also do not adopt the State’s theory that the Act sets up “review periods” so rigid that
they require the trial court to exclude new evidence that arises before the parties have rested at
a hearing on a no-probable-cause motion. The Act does not use the term “review period” or any
comparable language to create such a limitation.
¶ 52 However, what the Act would have required the trial court here to do in such a situation is
not before us. By the time that respondent moved to introduce Louck Davis’s report, both he
and the State had rested their cases. Thus, the motion was one to reopen the proofs, which, as
the State notes, is committed to the sound discretion of the trial court. See, e.g., General
Motors Acceptance Corp. v. Stoval, 374 Ill. App. 3d 1064, 1077 (2007); People v. Berrier, 362
Ill. App. 3d 1153, 1163 (2006).
¶ 53 Because section 65(b)(1) did not impose a legal duty on the trial court to admit the 2016
report, the court did not violate it by excluding the 2016 report. We note that, in his opening
appellate brief, respondent does not contend that the court abused its discretion in denying his
motion to reopen the proofs. Indeed, he does not contend that his motion was addressed to the
court’s discretion. Instead, respondent contends that the court erred as a matter of law because
it violated a statutory requirement to admit the report. This argument is consistent with the
substance of the motion; despite its title, it relied on the argument that section 65(b)(1) required
the court to admit the report.
¶ 54 As, at the trial level, respondent did not treat the motion as one committed to the court’s
discretion, and as, in this court, he does not do so in his initial brief, we conclude that
respondent has forfeited any argument that the trial court abused its discretion under case law
such as Stoval and Berrier. See Ill. S. Ct. R. 341(h)(7) (eff. Jan. 1, 2016) (arguments not raised
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in initial brief are forfeited); Haudrich v. Howmedica, Inc., 169 Ill. 2d 525, 536 (1996)
(appellant may not obtain reversal on basis not raised in trial court).
¶ 55 In any event, we would not be able to say that the trial court’s refusal to admit the 2016
report was an abuse of discretion. We note that the report became available only because of the
extraordinary delay in resolving the State’s motion for a finding of no probable cause—and
this delay was attributable almost entirely to respondent, who sought substantial continuances
in order to obtain new counsel and prepare for the hearing. Further, the 2016 report was not
rendered ineffectual or ultimately beyond the trial court’s consideration. Instead, it was
available for the next hearing, as it would have been had the hearing at issue been held more
promptly. Finally, our examination of Louck Davis’s report, which reached similar diagnoses
and recommendations as did Proctor’s, albeit with different methodologies, persuades us that
the admission of the report was not crucial, because the result of the hearing likely would not
have been different had the report been admitted.
¶ 56 We hold that section 65(b)(1) of the Act did not require the trial court to consider Louck
Davis’s 2016 reexamination report, which became available only after the parties had rested
and the trial court had closed the hearing on the State’s no-probable-cause motion.
¶ 57 We recognize that the Act is not altogether clear on the issue that we have addressed.
Certainly, policy arguments can be made for either party’s position. The consideration of a
report that has come out after the parties have rested could enable the court to base its decision
on more up-to-date information about the respondent’s condition. However, restricting the
hearing to whatever reports have been filed by the close of the evidence provides a more
orderly procedure, preventing a pileup of reports that must be considered at a single
probable-cause hearing. In any event, these policy considerations are for the legislature, which
might wish to reexamine the procedures under scrutiny here.
¶ 58 For the foregoing reasons, the judgment of the circuit court of Lake County is affirmed.
¶ 59 Affirmed.
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