                              2014 IL App (1st) 123105
                                   No. 1-12-3105
                           Opinion Filed September 5, 2014
                                                                           Sixth Division


______________________________________________________________________________
                                    IN THE

                        APPELLATE COURT OF ILLINOIS

                                  FIRST DISTRICT

__________________________________________________________________________



THE PEOPLE OF THE STATE OF ILLINOIS, )            Appeal from the Circuit Court of
                                     )            Cook County.
     Plaintiff-Appellee,             )
                                     )            No. ACC 120187
     v.                              )
                                     )
DANIEL T. COYNE,                     )
                                     )            Honorable
     Defendant-Appellant.            )            Michael B. McHale,
                                     )            Judge Presiding.


______________________________________________________________________________

           JUSTICE HALL delivered the judgment of the court, with opinion.
           Justices Rochford and Lampkin concurred in the judgment and opinion.

                                     OPINION
     No. 1-12-3105


¶1         This is an interlocutory appeal pursuant to Illinois Supreme Court Rule 304(b)(5) (eff.

        Feb. 26, 2010). The defendant, attorney Daniel T. Coyne (attorney Coyne), was held in direct

        civil contempt for refusing to comply with the discovery orders of the circuit court of Cook

        County, which required him to turn over to the State his nontestifying expert witness's

        reports. On appeal, attorney Coyne contends that: (1) the civil discovery rules do not require

        disclosure of a nontestifying expert's report; (2) the attorney-client privilege bars the

        disclosure of the expert's report; (3) the work-product privilege bars the disclosure of the

        expert's report; (4) requiring disclosure of the expert's report violates the due process clause

        of the United States Constitution; (5) requiring disclosure of the expert's report violates the

        equal protection clause of the United States Constitution; and (6) even if this court affirms

        the circuit court's decision, the finding of contempt and the $100 fine imposed on attorney

        Coyne should be vacated.

¶2         In separate cases, attorney Coyne was appointed to represent respondent Percy Dixon and

        respondent Derrick Moody. The State was seeking to have the respondents involuntarily

        committed under the Sexually Violent Persons Commitment Act (the Act) (725 ILCS 207/15

        (West 2010)). In each case, attorney Coyne filed a motion to have Dr. Lesley Kane, a

        forensic psychologist, appointed to conduct an examination of the respondent. The circuit

        court granted the motion in each case.

¶3         Following the completion of Dr. Kane's examination of respondent Dixon, she prepared a

        report. Attorney Coyne filed a motion seeking to have Dr. Kane designated as a consultant

        under Illinois Supreme Court Rule 201(b)(3) (eff. July 1, 2002) since she would not be a

        witness at respondent Dixon's hearing. The State responded that the Act did not provide for

        the appointment of consultants. Following a hearing, the circuit court denied the motion and


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        ordered attorney Coyne to turn over Dr. Kane's report on respondent Dixon to the State. The

        court also denied attorney Coyne's motion to have Dr. Kane designated as a consulting expert

        in respondent Moody's case and ordered attorney Coyne to turn over Dr. Kane's report on

        respondent Moody to the State.

¶4         Attorney Coyne refused to comply with the court's orders. The court found him in direct

        civil contempt of court and imposed a fine of $100. This appeal followed. During the

        pendency of this appeal, we granted attorney Coyne leave to cite In re Commitment of Clark,

        2014 IL App (1st) 133040, as additional authority.

¶5                                              ANALYSIS

¶6         The dispositive issue in this case is whether section 25(e) of the Act provides for the

        appointment of experts or professional persons as consultants as provided for in Rule

        201(b)(3). We hold that it does. We vacate the circuit court's orders as to discovery and

        findings of contempt, and remand for further proceedings.

¶7                                          I. Standard of Review

¶8         The correctness of a discovery order may be tested through contempt proceedings. Payne

        v. Hall, 2013 IL App (1st) 113519, ¶ 10. Normally, the standard of review of contempt

        orders in such cases is an abuse of discretion. Payne, 2013 IL App (1st) 113519, ¶ 10. Our

        resolution of this issue requires that we construe pertinent portions of the Act. Since the

        construction of a statute presents a question of law, our review is de novo. In re Application

        of the County Treasurer & ex officio County Collector, 403 Ill. App. 3d 985, 990 (2010); see

        also In re Marriage of Newton, 2011 IL App (1st) 090683, ¶ 10 (when the facts of a

        contempt order are not in dispute and the court is presented with a question of law, the de

        novo standard of review applies).


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¶9                                                II. The Act

¶ 10          Under the Act, the State may file a petition alleging that an individual is a sexually

          violent person (725 ILCS 207/15 (West 2010)) and seek commitment of the individual to the

          custody of the Department of Human Services for control, care, and treatment until such time

          as he or she is no longer a sexually violent person (725 ILCS 207/40(a) (West 2010)). A

          sexually violent person is "a person who has been convicted of a sexually violent offense, has

          been adjudicated delinquent for a sexually violent offense, or has been found not guilty of a

          sexually violent offense by reason of insanity and who is dangerous because he or she suffers

          from a mental disorder that makes it substantially probable that the person will engage in acts

          of sexual violence." 725 ILCS 207/5(f) (West 2010).

¶ 11         Proceedings under the Act are civil in nature. "The provisions of the Civil Practice Law

          and all existing and future amendments of that Law shall apply to all proceedings hereunder

          except as otherwise provided in this Act." 725 ILCS 207/20 (West 2010). Section 25 of the

          Act sets forth the rights of the person subject to the petition, including the following:

                 "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. The State has the right to have the person evaluated by an

                 expert chosen by the State. All examiners retained by or appointed for any party shall

                 have reasonable access to the person for the purpose of the examination, as well as to

                 the person's past and present treatment records and patient health care records. 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. Upon the order of

                 the circuit court, the county shall pay, as part of the costs of the action, the costs of a


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                 court-appointed expert or professional person to perform an examination and

                 participate in the trial on behalf of the indigent person." 725 ILCS 207/25(e) (West

                 2010).

¶ 12                                            III. Discussion

¶ 13         Our main objective in construing a statute is to ascertain and give effect to the legislative

          intent. In re Application of the County Treasurer, 403 Ill. App. 3d at 990. "Where the

          language is clear and unambiguous, the statute must be given its plain, ordinary, and

          popularly understood meaning without resort to further aids of statutory construction." In re

          Application of the County Treasurer, 403 Ill. App. 3d at 990.

¶ 14         The proceedings under the Act are governed by the Civil Practice Law, unless a contrary

          provision is found in the Act. 725 ILCS 207/20 (West 2010). The Civil Practice Law (735

          ILCS 5/2-101 et seq. (West 2010)) is part of the Code of Civil Procedure (the Code) (735

          ILCS 5/1-101 et seq. (West 2010)). The Code incorporates the Illinois Supreme Court Rules.

          See 735 ILCS 5/1-105 (West 2010) (our supreme court may provide by rule for the

          administration and enforcement of the Code); see also In re Marriage of Ricard, 2012 IL

          App (1st) 111757, ¶¶ 34-35 (the doctrine of forum non conveniens set forth in Illinois

          Supreme Court Rule 187 (eff. Aug. 1, 1986) applied to a dissolution action where the Illinois

          Marriage and Dissolution of Marriage Act (750 ILCS 5/105(a) (West 2008)) provided that it

          was governed by the Civil Practice Law).

¶ 15         In the present case, Rule 201(b)(3), which governs discovery procedures, provides as

          follows:

                 "A consultant is a person who has been retained or specially employed in anticipation

                 of litigation or preparation for trial but who is not to be called at trial. The identity,


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       No. 1-12-3105


                 opinions, and work product of a consultant are discoverable only upon a showing of

                 exceptional circumstances under which it is impracticable for the party seeking

                 discovery to obtain facts or opinions on the same subject matter by other means." Ill.

                 S. Ct. R. 201(b)(3) (eff. July 1, 2002).

¶ 16         We find nothing in the Act restricting a court-appointed expert or professional person

          from serving as a consultant under Rule 201(b)(3). Section 25(e) requires the county to pay

          for both the examination by and the participation of the appointed expert at a hearing. It does

          not state that the court-appointed expert or professional expert must then testify at the

          hearing, only that the expert will be compensated if he or she participates at the hearing. "A

          court may not depart from the plain language of the statute and read into it exceptions,

          limitations, or conditions that are not consistent with the express legislative intent." In re

          Commitment of Trulock, 2012 IL App (3d) 110550, ¶ 37. While section 30(c) of the Act (725

          ILCS 207/30(c) (West 2010)) provides for the admissibility of all evaluations under the Act,

          admissibility does not automatically mean that Dr. Kane's reports are discoverable. See

          Wilson v. Norfolk & Western Ry. Co., 109 Ill. App. 3d 79, 85 (1982) (the trial court erred in

          denying a motion to compel a witness to answer questions; the information was admissible

          and there was no suggestion of privilege or other facts rendering the information exempt

          from discovery). Pursuant to Rule 201(b)(3), a consultant's identity, opinions and work

          product are not subject to discovery absent exceptional circumstances.

¶ 17         Contrary to the State's argument below, the Act does provide for the appointment of

          experts to serve as consultants. Section 20 of the Act directs the court to consider the civil

          law rules which include the applicable supreme court rules. See In re Detention of Hardin,




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          238 Ill. 2d 33, 41 (2010) (the Act was not silent about the appellate rules since the applicable

          civil rules provided for an appeal).

¶ 18         Our decision in this case is supported by Clark. In that case, an interlocutory appeal

          pursuant to Illinois Supreme Court Rule 308 (eff. Feb. 26, 2010)), this court considered

          whether a respondent, subject to the provisions of the Act, had the right to issue subpoenas

          before a probable cause hearing under the Act. Clark, 2014 IL App (1st) 133040, ¶ 1. The

          court held that since proceedings under the Act are governed by the Civil Practice Law,

          which provided for the issuance of subpoenas, and in the absence of any contrary provision

          in the Act, the respondent had a statutory right to issue a subpoena prior to the probable cause

          hearing. Clark, 2014 IL App (1st) 133040, ¶ 23.

¶ 19         Contrary to the position it took in the circuit court, on appeal, the State now agrees that

          an expert appointed pursuant to section 25(e) of the Act may be a consultant under Rule

          201(b)(3). The State contends now that Dr. Kane's reports are discoverable to the extent that

          they do not contain privileged material. The State asserts that Dr. Kane's reports must be

          disclosed after the privileged material has been redacted and a privilege log prepared to

          justify the redactions.

¶ 20         An appellee may raise any argument in support of the trial court's judgment, even if the

          argument was not raised before the trial court, provided the argument has a sufficient factual

          basis in the record. People v. Pinkonsly, 207 Ill. 2d 555, 563 (2003). In the present case, the

          State's argument on appeal is not in support of the circuit court's judgment. The State's

          argument requires that the court's order, that Dr. Kane's reports in their entirety must be

          turned over to the State, be modified to allow any privileged provisions to be redacted.

          Assuming the State's argument was in support of the judgment, the State failed to establish in


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          the circuit court any exceptional circumstances allowing it to seek discovery from a Rule

          201(b)(3) consultant. Finally, the State's opposition to attorney Coyne's motion to have Dr.

          Kane designated a consultant under Rule 201(b)(3) led to the circuit court's turnover order

          and the direct civil contempt finding against attorney Coyne. See Pinkonsly, 207 Ill. 2d at

          564 (although it had a basis in the record, the State forfeited its timeliness argument by

          raising it for the first time on appeal; the defendant could have amended his petition pursuant

          to section 2-1401 of the Code (735 ILCS 5/2-1401 (West 2002)) and any factual issues could

          have been resolved in the circuit court). The State's argument raised for the first time on

          appeal is forfeited.

¶ 21          We determine that respondents under the Act have a right to have experts or professional

          persons appointed in accordance with Rule 201(b)(3). The State forfeited its argument that

          Dr. Kane's reports are subject to discovery after any privileged material is redacted by raising

          it for the first time on appeal. While our review is de novo, to confirm the contempt finding

          and fine in this case for a reason not presented in the circuit court runs contrary to the

          purpose of our discovery rules. See Illinois Emcasco Insurance Co. v. Nationwide Mutual

          Insurance Co., 393 Ill. App. 3d 782, 790 (2009) (in vacating a contempt finding for failing to

          comply with discovery, the reviewing court declined to address other arguments in favor of

          affirming the contempt finding that were raised by the appellee for the first time on appeal).

¶ 22          In proceedings under the Act, respondents have a right to the appointment of consulting

          experts or professional persons whose identity, opinions and work product are not

          discoverable absent exceptional circumstances. Ill. S. Ct. R. 201(b)(3) (eff. July 1, 2002).

          Therefore, the circuit court erred in ordering attorney Coyne to turn over Dr. Kane's reports




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          to the State. In light of our finding that the respondents have a statutory right to a consultant,

          we need not address the remaining arguments raised on appeal.

¶ 23         We vacate the circuit court's orders compelling attorney Coyne to turn over Dr. Kane's

          reports evaluating respondents Dixon and Moody. We also vacate the order finding attorney

          Coyne in direct civil contempt and the $100 fine imposed. This case is remanded to the

          circuit court for further proceedings consistent with this opinion.

¶ 24         Vacated and remanded.




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