                             2015 IL App (2d) 141245
                                  No. 2-14-1245
                         Opinion filed September 30, 2015
______________________________________________________________________________

                                           IN THE

                            APPELLATE COURT OF ILLINOIS

                              SECOND DISTRICT
______________________________________________________________________________

THE PEOPLE OF THE STATE                ) Appeal from the Circuit Court
OF ILLINOIS,                           ) of Lake County.
                                       )
       Plaintiff,                      )
                                       )
v.                                     ) No. 93-CM-4621
                                       )
RICHARD KASTMAN,                       )
                                       )
       Defendant-Appellee              )
                                       )
(Gladyse C. Taylor, Director,          ) Honorable
Department of Corrections,             ) David P. Brodsky,
Intervenor-Appellant).                 ) Judge, Presiding.
______________________________________________________________________________

       JUSTICE HUTCHINSON delivered the judgment of the court, with opinion.
       Presiding Justice Schostok and Justice Burke concurred in the judgment and opinion.

                                          OPINION

¶1     In 1993, Richard Kastman was charged with a misdemeanor sex offense and the State’s

Attorney sought his indefinite civil commitment under the Sexually Dangerous Persons Act (the

SDP Act) (725 ILCS 205/1.01 et seq. (West 2012)). Kastman has six prior convictions, all for

sex crimes. In 1994, he was found to be a sexually dangerous person and placed under the

guardianship of the Director of the Illinois Department of Corrections (the Department or DOC),

who must safely provide care and treatment “designed to effect recovery.” 725 ILCS 205/8
2015 IL App (2d) 141245


(West 2012). Kastman has resided at Big Muddy Correctional Center in Ina, a facility for sex

offenders, ever since.

¶2     During commitment, any person may file a petition “before the committing court”

alleging that the sexually dangerous person is no longer sexually dangerous, thereupon triggering

a recovery hearing to prove the point. 725 ILCS 205/9 (West 2012). If the applicant prevails at

the recovery hearing, the sexually dangerous person may be conditionally released or discharged;

if not, he or she will be remanded to the Director’s care for further treatment. Id.

¶3     In People v. McDougle, 303 Ill. App. 3d 509 (1999), this court held that it was implicit in

the SDP Act that sexually dangerous persons may “seek judicial review of the adequacy of the

care and treatment being provided to them by the DOC” in the circuit courts of this state. Id. at

517. A separate portion of the opinion concerning the burden of proof in recovery proceedings

(id. at 519) was abrogated in People v. Trainor, 196 Ill. 2d 318, 335 (2001), but our holding

concerning the judicial review of treatment was not affected.

¶4     In this case, the trial court certified a question for our review, essentially asking which

circuit court should conduct McDougle proceedings—the circuit court that committed the

offender or the circuit court in the county where the offender is committed. As we explain, such

proceedings should occur in the committing court.

¶5                                      I. BACKGROUND

¶6     Related to his commitment, Kastman has been diagnosed with pedophilia, antisocial

personality disorder, exhibitionism, and alcohol dependency. In 2012, after his bid for

conditional release was denied (which we affirmed in In re Detention of Kastman, 2015 IL App

(2d) 130314-U), Kastman filed a motion to compel the Director to provide him with treatment

for alcohol abuse. He alleged that his alcoholism had gone untreated since his commitment in



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2015 IL App (2d) 141245


1994, exacerbated his underlying psychosexual disorder, and prevented his recovery. Kastman

cited our decision in McDougle as authority. The Director intervened and represented to the

court that DOC did not have a program specifically for the treatment of alcohol abuse, but did

have a generic program for substance abuse (which Kastman had already completed). After a

hearing, at which the Director declined to present evidence, the trial court ordered the Director to

provide Kastman with an individualized assessment and further substance abuse treatment. The

Director appealed that decision to this court, but then moved to dismiss the appeal, which we

allowed. In re Detention of Kastman, No. 2-13-1235 (Feb. 5, 2014) (minute order).

¶7     Following the partial success of his motion concerning substance abuse treatment,

Kastman filed a motion asking the court to review his sex offender treatment. According to the

motion, there had been an “exodus” of Big Muddy’s treatment staff, leaving only three therapists

to tend to the approximately 175 sexually dangerous persons at the facility. Kastman alleged that

the Director failed to maintain an appropriate ratio of treatment providers to offenders in sex

offender group therapy sessions and, further, failed to provide him with treatment designed to

address arousal control and victim empathy in conformance with the Department’s guidelines.

See 20 Ill. Adm. Code 1905.300(e), (g) (2009).

¶8     The Director filed a response asking the trial court to strike or deny Kastman’s motion

concerning sex offender treatment. According to the Director, this court’s decision in McDougle

was inapplicable to her because her office was not made a party in McDougle. The Director

further argued that, because she was not “bound” by our decision in McDougle, “venue” was not

proper in the circuit court of Lake County. Instead, she asserted, Kastman’s only avenue of relief

in state court was to commence a separate mandamus action or federal civil rights action (42




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2015 IL App (2d) 141245


U.S.C. § 1983 (2012)) in the circuit court of the county where he is confined (in this case,

Jefferson County).

¶9     The trial court rejected the Director’s arguments and refused to dismiss Kastman’s

motion. The court found that it was obliged to follow McDougle as a decision of the appellate

court and that, pursuant to McDougle, it could review the adequacy of Kastman’s treatment

under the Director’s guardianship. The Director then presented the following question of law,

which the trial court certified for our review:

               Per McDougle: “Is the proper method of obtaining [judicial] review to file a

       motion in the commitment proceedings—in which the Director of the IDOC is not a

       named party—or to file a separate action against the Director in the circuit court located

       in the county where the SDP resides?”

We granted leave to appeal. Ill. S. Ct. R. 308 (eff. Jan. 1, 2015).

¶ 10                                       II. ANALYSIS

¶ 11   Certified questions present issues of law, which we review de novo. De Bouse v. Bayer

AG, 235 Ill. 2d 544, 550 (2009). On the certified question, the Director presents the same

arguments to this court that were considered and rejected by the trial court. Although in this

appeal we are not directly reviewing the trial court’s ruling on the Director’s motion to dismiss,

as we explain, the Director’s arguments fare no better here.


¶ 12   Our analysis begins with McDougle. There, McDougle, a sexually dangerous person at a

DOC facility, filed a recovery petition in the committing court. McDougle, 303 Ill. App. 3d at

511. The petition sought McDougle’s conditional release or discharge; in the alternative, it

sought to have McDougle transferred to a facility run by the forebear to the Department of

Human Services (DHS) (which oversees the treatment of those committed under the Sexually


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2015 IL App (2d) 141245


Violent Persons Commitment Act (725 ILCS 207/1 et seq. (West 1996))), which he alleged was

more conducive to his psychiatric treatment and recovery. McDougle, 303 Ill. App. 3d at 511,

515. The petition was opposed by the county State’s Attorney. Id. at 511. The trial court found

that it did not have the authority to review McDougle’s treatment or to order the Director of

DOC to transfer McDougle to a DHS facility. Id. at 514. It also found that McDougle had failed

to establish his recovery. Id.

¶ 13   On McDougle’s appeal, this court found that the trial court was incorrect concerning the

scope of its authority. We held the following:

               “In light of the significant liberty interest at stake, we believe that due process

       requires that sexually dangerous persons must be provided the opportunity to seek

       judicial review of the adequacy of the care and treatment being provided to them by the

       DOC. We believe that such review is necessary in order to ensure that the DOC fulfills its

       statutory obligation to provide treatment designed to effect recovery. To hold otherwise

       would deprive the defendant of his only means to challenge the propriety of the treatment

       decisions being made by the DOC.” Id. at 517.

¶ 14   We further stated that “without the power of [judicial] review, there is no way to

guarantee that the defendant will receive any treatment from the DOC.” (Emphasis in original.)

Id. Thus, we cautioned, there is a very real danger that SDP Act commitment could become a

pre-trial “warehousing operation for social misfits.” (Internal quotation marks omitted.) Id. at

518.

¶ 15   Following our conclusion concerning judicial review, we noted that the State conceded at

oral argument that it was implicit in the recovery-hearing process in section 9 of the SDP Act

(725 ILCS 207/9 (West 2012)) that a sexually dangerous person had the right to petition the



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2015 IL App (2d) 141245


circuit court to review the adequacy of his or her treatment. McDougle, 303 Ill. App. 3d at 517.

In the concluding paragraph of this section, we emphasized that at any review “the sexually

dangerous person bears the burden of demonstrating that he is not being afforded treatment

designed to effect his recovery as required under [the SDP] Act.” Id. at 518. (We also affirmed

the trial court’s decision to deny McDougle’s recovery petition (id. at 519), though, as noted

earlier, that decision was made under the recovery-hearing framework that was abrogated in

Trainor.)

¶ 16   The Director concedes that McDougle “correctly” holds that sexually dangerous persons

have the right to seek judicial review. But she argues that she is not “bound” by “that part of

McDougle holding that the proper route to seek such review is by means of a motion filed within

the commitment proceedings.” The Director makes several points in support of her position, but

we need not consider them.

¶ 17   The problem with the Director’s argument is that our decision in McDougle did not

address what “route” a sexually dangerous person should take to seek judicial review, or where

“venue” is most appropriate to conduct a McDougle proceeding. That is, in McDougle, we held

that “the circuit courts of this state have the power to review the care and treatment administered

by the DOC” (id. at 516), but we did not directly state where that review should occur. We

granted leave to appeal in this case to clarify that a McDougle proceeding should take place in

the circuit court that committed the offender.

¶ 18   Under the SDP Act, which has not been materially amended since our decision in

McDougle, both commitment and recovery proceedings take place in the committing court. 725

ILCS 205/5, 8 (West 2012); see also 725 ILCS 205/9 (West 2012) (stating that a recovery

petition must be filed “before the committing court”). Although not cited in McDougle, we find



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2015 IL App (2d) 141245


instructive our supreme court’s decision in People v. Cooper, 132 Ill. 2d 347 (1989). There the

court held that the expiration of a sexually dangerous person’s conditional release order did not

terminate his commitment. Id. at 354. Rather, the supreme court said, “a sexually dangerous

person remains under the jurisdiction of the court which initially committed him until that court

expressly finds that he is not sexually dangerous.” Id. at 355. Given that, under the SDP Act,

commitment and recovery proceedings occur in the committing court, and that, under Cooper, a

sexually dangerous person remains under the jurisdiction of the committing court until

recovered, we believe that the committing court is in the best position to review the adequacy of

the Director’s treatment of a sexually dangerous person.

¶ 19    It is also significant that, as in this case, recovery proceedings may go on for years at a

time. The committing court is, therefore, apt to be familiar with the parties and the issues in ways

that no other court would be. Accordingly, given that every significant legal event in the

commitment, recovery, and discharge of a sexually dangerous person occurs in the committing

court, we believe that it would be a tremendous waste of judicial resources to conduct a

McDougle proceeding anywhere else. See De Bouse, 235 Ill. 2d at 558 (when answering a

certified question, courts should consider “judicial economy and the need to reach an equitable

result”).

¶ 20    Furthermore, we note that the legal relationship between the Director and a sexually

dangerous person is created in the committing court’s initial commitment order. See 725 ILCS

205/8 (West 2012). Thus, while the Director may be a sexually dangerous person’s guardian, a

sexually dangerous person remains, until recovered (Cooper, 132 Ill. 2d at 355), a ward of the

committing court. It is axiomatic that the committing court may enter any order necessary to

enforce its commitment order. See In re Baker, 71 Ill. 2d 480, 484 (1978) (courts are vested with



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2015 IL App (2d) 141245


the inherent power to enforce orders through contempt proceedings). Courts also have an

independent duty “not limited to express statutory terms” to supervise appointed guardians and

“to judicially interfere and protect the ward if the guardian is about to do anything that would

cause harm.” In re Mark W., 228 Ill. 2d 365, 375 (2008). If, as Kastman alleged, his treatment

was not adequately designed to effect his recovery, then the harm to him is manifest. See Allen v.

Illinois, 478 U.S. 364, 370 (1986) (rejecting constitutional challenge to the SDP Act, based in

part on the State’s assertion that sexually dangerous persons would be “released after the briefest

time [possible] in confinement”). We therefore hold that, under McDougle, “the proper method

of obtaining judicial review [is] to file a motion in the commitment proceedings” in the

committing court.

¶ 21   Before concluding, we briefly note and reject some of the Director’s assertions. The

Director states that filing a separate action in the circuit court in the county of confinement

would: (1) likely be more time- and cost-effective for transporting sexually dangerous persons

and treatment staff as witnesses; (2) “reduce[ ] the chances of an SDP escaping en route or upon

his return”; and (3) ensure that the Director would receive notice as a “named party,” making the

case more consistent with the way such cases are often captioned in the circuit court (e.g.,

Kastman v. Taylor, as opposed to People v. Kastman). Our task, however, is not to determine

what is most convenient for the Director; it is to answer the trial court’s certified question

consistent with the law.

¶ 22   It suffices to say that the trial court (here, the committing court) is in the best position to

determine whether and how the presence of witnesses should be secured in a McDougle

proceeding. See 735 ILCS 5/10-135 (West 2012); People v. Collins, 249 Ill. App. 3d 924, 927

(1993). We are also ill-suited to address the Director’s concerns regarding transportation costs.



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2015 IL App (2d) 141245


See, e.g., Trainor, 196 Ill. 2d at 342 (“Although we recognize the impact of the [SDP] Act on the

State’s resources, this is a legislative matter that we must leave for the General Assembly to

address.”). Nothing, however, precludes the appropriate use of alternative methods of receiving

evidence to minimize transportation time and costs, such as the use of affidavits in place of live

testimony, or the use of video conferencing.

¶ 23       As to security in the event of transportation, we note that the Director’s last annual report to

the General Assembly states that during fiscal year 2014 the Department securely transported

43,289 offenders and 3,877 officers, or an average of 832 offenders and 75 officers each week.

Illinois     Department     of Corrections,     Fiscal    Year   2014    Annual    Report,    17   (2014),

https://www.illinois.gov/idoc/reportsandstatistics/Documents/FY2014%20Annual%20Report.pdf.

Meanwhile, during that same year, sexually dangerous persons accounted for only 180 prisoners,

or less than 0.4% of the DOC’s 48,921 total prisoners. Id. at 64. We further note that in the trial

court the Director offered no evidence that sexually dangerous persons in general, or Kastman in

particular, present a heightened risk of escape.

¶ 24       Finally, the Director’s concerns regarding notice and the case caption are overstated.

From what we can tell from the limited record before us, the Director was able to successfully

intervene in the alcohol-treatment portion of this case despite not having initially been a “named

party,” and has remained involved ever since. Neither party, however, has addressed whether the

Director was a necessary party below, nor whether the State’s Attorney, who may prosecute a

sexually dangerous person’s commitment and defend against his or her release, is in privity with

the Director in an action to review the adequacy of the Director’s treatment. This is an issue on

which reasonable minds could differ (see, e.g., People v. Keys, 324 Ill. App. 3d 630, 638 (2001);




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id. at 638-39 (Steigmann, P.J., dissenting)) and on which, in the absence of developed

arguments, we express no opinion.

¶ 25                                   III. CONCLUSION

¶ 26   In light of the foregoing, we determine that, under McDougle, the judicial review of the

adequacy of a sexually dangerous person’s treatment should occur in the committing court. This

cause is remanded to the trial court for further proceedings consistent with this opinion.

¶ 27   Certified question answered; cause remanded.




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