                                  Illinois Official Reports

                                          Appellate Court



                       In re Commitment of Clark, 2014 IL App (1st) 133040



Appellate Court              In re COMMITMENT OF JOSEPH CLARK (The People of the State
Caption                      of Illinois, Petitioner-Appellee, v. Joseph Clark, Respondent-
                             Appellant).



District & No.               First District, Fourth Division
                             Docket No. 1-13-3040



Filed                        June 26, 2014



Held                         In proceedings under the Sexually Violent Persons Commitment Act,
(Note: This syllabus         where respondent was close to being released from the Department of
constitutes no part of the   Corrections and the State sought his commitment based on an
opinion of the court but     evaluation suggesting that it was substantially probable that he would
has been prepared by the     engage in acts of sexual violence without clinical intervention, the
Reporter of Decisions        appellate court, in response to a question certified by the trial court
for the convenience of       pursuant to Supreme Court Rule 308 after the State moved to quash
the reader.)                 respondent’s subpoena duces tecum asking for all notes, testing data,
                             and interview booklets used in his evaluation, stated that respondent
                             does have a statutory right to issue a subpoena duces tecum prior to a
                             probable cause hearing under the Act.




Decision Under               Appeal from the Circuit Court of Cook County, No. 13-CR-80004; the
Review                       Hon. Paul P. Biebel, Jr., Judge, presiding.



Judgment                     Certified question answered; remanded.
     Counsel on               Daniel T. Coyne, Matthew M. Daniels, and Michael R. Johnson, all of
     Appeal                   Law Offices of Chicago-Kent College of Law, of Chicago, for
                              appellant.

                              Lisa Madigan, Attorney General, of Chicago (Carolyn E. Shapiro,
                              Solicitor General, and Michael M. Glick and Stephen M. Soltanzadeh,
                              Assistant Attorneys General, of counsel), for the People.




     Panel                    PRESIDING JUSTICE HOWSE delivered the judgment of the court,
                              with opinion.
                              Justices Fitzgerald Smith and Epstein concurred in the judgment and
                              opinion.




                                               OPINION

¶1         In this interlocutory appeal we consider the question of whether an individual who is
       subject to the provisions of the Sexually Violent Persons Commitment Act (the SVP Act) (725
       ILCS 207/1 et seq. (West 2008)) has a right to issue a subpoena before a probable cause
       hearing under the SVP Act. The trial court certified the following question pursuant to Illinois
       Supreme Court Rule 308 (eff. Feb. 26, 2010): “Does the respondent under the Sexually Violent
       Persons Commitment Act, 725 ILCS 207 et seq., have a statutory or constitutional right to
       issue a subpoena duces tecum prior to a probable cause hearing held pursuant to Section 30 of
       the Act?”
¶2         We granted leave to appeal pursuant to Illinois Supreme Court Rule 308 (eff. Feb. 26,
       2010). For the reasons that follow, we answer the certified question in the affirmative because
       we find that under the SVP Act a respondent has a statutory right to issue a subpoena duces
       tecum prior to a probable cause hearing.

¶3                                         BACKGROUND
¶4         On May 9, 2013, the State filed a petition seeking respondent’s commitment pursuant to
       the SVP Act. Respondent had been serving a penitentiary sentence for crimes he committed in
       the mid-1990s, and he was eligible for release from the Illinois Department of Corrections
       (IDOC) on May 16, 2013. Attached to the State’s petition was an evaluation of respondent
       prepared by Dr. Deborah Nicolai. Dr. Nicolai recommended that respondent be committed as a
       sexually violent person (SVP) under the SVP Act based upon her determination that it was
       substantially probable that respondent would engage in future acts of sexual violence unless he
       received clinical intervention. Her recommendation was based upon her finding that
       respondent suffered paraphilia not otherwise specified (NOS), sexually attracted to
       nonconsenting females, and personality disorder NOS, antisocial features.


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¶5         A probable cause hearing was scheduled for May 10, 2013. At the hearing, respondent
       waived his right to have a hearing within 72 hours as provided by the SVP Act, and the hearing
       was thereafter continued on two occasions until August 23, 2013. On July 11, 2013,
       respondent served a subpoena duces tecum upon Dr. Nicolai and her employer requesting all
       notes, testing data, and interview booklets that were used by Dr. Nicolai when evaluating
       respondent. The requested material was to be returned to respondent by July 24, 2013 in
       advance of the probable cause hearing.
¶6         On July 17, 2013, the State filed a motion to quash respondent’s subpoena, arguing that
       respondent had no statutory or constitutional rights to issue a subpoena duces tecum prior to the
       probable cause hearing. On August 16, 2013, the trial court granted the State’s motion to quash
       because the court was not persuaded that respondent had either statutory or constitutional
       rights to issue a subpoena duces tecum prior to the probable cause hearing.
¶7         On motion of respondent, the trial court certified the above question pursuant to Illinois
       Supreme Court Rule 308 (eff. Feb. 26, 2010). We allowed the appeal.

¶8                                               ANALYSIS
¶9         When reviewing certified questions of law pursuant to Illinois Supreme Court Rule 308
       (eff. Feb. 26, 2010), the appellate court applies the de novo standard of review. In re
       Commitment of Weekly, 2011 IL App (1st) 102276, ¶ 36. Here, we are asked to answer the
       following certified question: “Does the respondent under the Sexually Violent Persons
       Commitment Act, 725 ILCS 207 et seq., have a statutory or constitutional right to issue a
       subpoena duces tecum prior to a probable cause hearing held pursuant to Section 30 of the
       Act?”
¶ 10       Under the SVP Act, a sexually violent person may be committed to the custody of the
       Department of Human Services for control, care, and treatment until such time as the person is
       no longer a sexually violent person. 725 ILCS 207/40(a) (West 2008). 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 2008).
¶ 11       Section 30 of the SVP Act provides that a probable cause hearing must be held within 72
       hours after a petition is filed for those respondents in custody, and within “reasonable time
       after the filing of the petition” for those respondents released from custody:
                    “(b) Whenever a petition is filed under Section 15 of this Act, the court shall hold a
               hearing to determine whether there is probable cause to believe that the person named
               in the petition is a sexually violent person. If the person named in the petition is in
               custody, the court shall hold the probable cause hearing within 72 hours after the
               petition is filed, excluding Saturdays, Sundays and legal holidays. The court may grant
               a continuance of the probable cause hearing for no more than 7 additional days upon
               the motion of the respondent, for good cause. If the person named in the petition has
               been released, is on parole, is on mandatory supervised release, or otherwise is not in
               custody, the court shall hold the probable cause hearing within a reasonable time after
               the filing of the petition. At the probable cause hearing, the court shall admit and
               consider all relevant hearsay evidence.” 725 ILCS 207/30(b) (West 2008).

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¶ 12       Section 20 of the SVP Act provides that SVP proceedings are civil in nature and are
       controlled by provisions of the civil practice law unless the SVP Act provides otherwise: “The
       proceedings under this Act shall be 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 2008).
¶ 13       The Civil Practice Law allows subpoenas to be issued in pending cases (735 ILCS
       5/2-1101 (West 2008)) and discovery to be conducted as soon as all the defendants have
       appeared in the matter (Ill. S. Ct. R. 201(d) (eff. Jan. 1, 2013)).
¶ 14       Section 25 of the SVP Act guarantees respondents the right to an attorney, right to present
       witnesses, and right to cross-examine witnesses at all hearings under the SVP Act. See 725
       ILCS 207/25(c) (West 2008).
¶ 15       Respondent argues that he has an express statutory right to issue a subpoena prior to his
       probable cause hearing. SVP proceedings are civil in nature and follow the provisions of civil
       practice law. 725 ILCS 207/20 (West 2008). Respondent argues that because the Civil Practice
       Law allows subpoenas to be issued in pending cases (735 ILCS 5/2-1101 (West 2008)) and
       discovery to be conducted as soon as all defendants have appeared in the case (Ill. S. Ct. R.
       201(d) (eff. Jan. 1, 2013)), he is entitled to all the rights provided by the civil practice law,
       including the right to issue a subpoena in his pending case prior to the probable cause hearing.
       He further argues that there is no express contrary provision within the SVP Act.
¶ 16       The State argues that the legislature did not contemplate a respondent’s right to issue
       subpoenas duces tecum prior to the probable cause hearing since the probable cause hearing is
       to be held within 3 days, but no more than 10 days, of the petition being filed. Such a short time
       frame, the State argues, would not allow for the return of subpoenaed material. Therefore, the
       State argues that the legislature did not intend for respondent to have the right to issue a
       subpoena prior to the probable cause hearing.
¶ 17       At oral argument, the State conceded that a respondent has the right to call witnesses at the
       probable cause hearing pursuant to section 25 of the SVP Act, and that this may require the
       issuance of a subpoena in order to have an unwilling witness appear at the hearing.
       Nevertheless, the State argued that while the respondent may have a right to issue a subpoena
       before the probable cause hearing, he has no corresponding right to receive the subpoenaed
       materials due to the timing provisions in the SVP Act, which require a probable cause hearing
       to take place within 72 hours. According to the State, a subpoenaed party would not be able to
       comply with the subpoena and produce the requested documents within three days and before
       the probable cause hearing is held. Therefore, the State argued that the legislature did not
       contemplate that respondents would have a right to issue a subpoena and receive the requested
       documents prior to the probable cause hearing. We do not find this argument persuasive.
¶ 18       The fundamental rule of statutory construction is to ascertain and give effect to the intent of
       the legislature. People v. Dabbs, 239 Ill. 2d 277, 287 (2010). The most reliable indicator of that
       intent is the plain and ordinary meaning of the language of the statute itself. Id. “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.
¶ 19       Proceedings under the SVP Act are governed by the civil practice law unless a contrary
       provision is found in the SVP Act. 725 ILCS 207/20 (West 2008). Civil practice law provides
       parties with the right to issue subpoenas in pending cases. 735 ILCS 5/2-1101 (West 2008).

                                                    -4-
       Therefore, to answer the question before us, we must look to the SVP Act to determine if there
       are any provisions restricting the right of respondents to issue subpoenas prior to the probable
       cause hearing. We have examined the statute and find no provisions restricting the right of
       respondents to issue a subpoena pursuant to civil practice law, and the State has not cited any
       authority to suggest otherwise. Here, the plain language of the SVP Act gives a respondent the
       right to issue a subpoena in the pending case pursuant to civil practice law.
¶ 20       We find the case of In re Detention of Hardin, 238 Ill. 2d 33, 41 (2010), instructive. There,
       the issue was whether the State had a right to appeal a finding of no probable cause under the
       SVP Act. Hardin, 238 Ill. 2d at 39. The parties acknowledged that there was no provision for
       an appeal by the State expressly provided for in the SVP Act. Id. However, our supreme court
       found that where the SVP Act does not provide otherwise, we must look to the civil practice
       law. Id. at 41 (“Thus, the Act is not silent about the applicable appellate rules ***, but rather
       directs us to consider the applicable civil provisions.”). Pursuant to civil practice law, the
       supreme court determined that the State did have a right to appeal a finding of no probable
       cause. Id. at 43 (“[W]e hold that the appellate court has jurisdiction to decide the merits of
       State appeals from findings of no probable cause in SVP proceedings.”).
¶ 21       Similar to Hardin, here there is no provision in the SVP Act concerning the issuance of
       subpoenas. Since the statute itself provides that civil practice law governs unless there is a
       contrary provision contained in the SVP Act, we find that the civil practice law governs and
       respondent has a right to issue his subpoena. Trulock, 2012 IL App (3d) 110550, ¶ 37 (“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.”). Therefore, we conclude
       that respondents subject to proceedings under the SVP Act have a right to issue subpoenas
       prior to the probable cause hearing.
¶ 22       In regard to the State’s argument that production of documents responsive to a subpoena
       duces tecum would prove difficult given the time frame in which a probable cause hearing
       must be held under the SVP Act, we note that pursuant to the SVP Act and the Civil Practice
       Law, the subpoenaed party may raise an objection to the subpoena duces tecum before the trial
       court. At that time, the trial court, based on the facts of the case before it and civil practice law,
       may decide whether it will enforce the subpoena or proceed with the probable cause hearing
       without the subpoenaed material. 735 ILCS 5/2-1101 (West 2008) (“For good cause shown,
       the court on motion may quash or modify any subpoena or, in the case of a subpoena duces
       tecum, condition the denial of the motion upon payment in advance by the person in whose
       behalf the subpoena is issued of the reasonable expense of producing any item therein
       specified.”); People v. Mitchell, 297 Ill. App. 3d 206, 209 (1998) (“A court should grant a
       motion to quash a subpoena if a request is oppressive, unreasonable, or overbroad.”).
¶ 23       In this case, the subpoenaed party raised no objection to the subpoena before the trial court.
       The sole basis for the trial court’s order quashing the subpoena duces tecum was based upon
       the State’s assertion and the court’s finding that a respondent has no statutory or constitutional
       right to issue a subpoena before the probable cause hearing. We have found a respondent does
       have a statutory right under the SVP Act to issue a subpoena before the probable cause hearing.
       Accordingly, the issue of whether a particular subpoena request should be quashed is governed
       by the civil practice law and those issues can be resolved by the trial court based on the facts of
       each case.


                                                     -5-
¶ 24       Given our finding that respondents have a statutory right to issue a subpoena duces tecum
       prior to a probable cause hearing, we need not address the parties’ arguments regarding a
       constitutional right to issue a subpoena prior to the probable cause hearing.

¶ 25                                        CONCLUSION
¶ 26       For the above reasons, we answer the certified question in the affirmative and find that a
       respondent has a statutory right to issue a subpoena duces tecum prior to a probable cause
       hearing under the SVP Act, and we remand this matter for further proceedings consistent with
       this opinion.

¶ 27      Certified question answered; remanded.




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