People v. Guthrie

2016 IL App (4th) 150617, 57 N.E.3d 621

• Court: Appellate Court of Illinois
• Decided: June 30, 2016
• Docket: 4-15-0617
• Status: Unpublished

Opinion

FILED 2016 IL App (4th) 150617 June 30, 2016 Carla Bender NO. 4-15-0617 4th District Appellate Court, IL IN THE APPELLATE COURT

OF ILLINOIS

FOURTH DISTRICT

THE PEOPLE OF THE STATE OF ILLINOIS, ) Appeal from Plaintiff-Appellant, ) Circuit Court of v. ) McLean County JOHN N. GUTHRIE, ) No. 93CF505 Defendant-Appellee. ) ) Honorable ) Rebecca Simmons Foley, ) Judge Presiding.

JUSTICE POPE delivered the judgment of the court, with opinion. Justice Harris specially concurred in the judgment, with opinion. Justice Steigmann dissented, with opinion.

OPINION

¶1 In February 1995, the trial court declared defendant, John N. Guthrie, a sexually

dangerous person (SDP) and committed him to the custody of the Director of Corrections pursu-

ant to the Sexually Dangerous Persons Act (Act) (725 ILCS 205/.01 to 12 (West 1994)).

¶2 In December 2013, defendant filed a motion the trial court construed as an appli-

cation for recovery. In January 2015, an evaluator filed a socio-psychiatric report, concluding

under the Diagnostic and Statistical Manual of Mental Health Disorders, Fifth Edition (DSM-V),

defendant no longer qualified for a diagnosis of pedophilic disorder and therefore was no longer

an SDP. After a May 2015 bench trial, the court found the State had failed to prove by clear and

convincing evidence defendant remained an SDP. The court therefore ordered defendant to be

discharged, rejecting the State's argument defendant should be conditionally released.

¶3 For the reasons that follow, we affirm the trial court's order discharging defend- ant.

¶4 I. BACKGROUND

¶5 A. Proceedings Prior to This Case

¶6 In June 1993, the State charged defendant with aggravated criminal sexual assault

(720 ILCS 5/12-14 (West 1992)), alleging, when defendant was 15 years old, he digitally pene-

trated the anus of his 5-year-old stepsister. In August 1994, the State filed a petition to declare

defendant an SDP under the Act. In a February 1995 written order, the trial court declared de-

fendant an SDP pursuant to section 1.01 of the Act (725 ILCS 205/1.01 (West 1994)) and or-

dered him committed to the custody of the Director of Corrections.

¶7 In the subsequent years, defendant filed several applications for recovery pursuant

to section 9(a) of the Act (725 ILCS 205/9(a) (West 2014)). We provide a brief synopsis of

those filings and their resolutions to place defendant's claims in their proper context.

¶8 In June 1995, defendant pro se filed his first application for recovery. The trial

court denied that application in July 1996. In January 1998, defendant pro se filed his second

application for recovery. Dr. Larry Davis testified defendant did not meet the criteria for pedo-

philia and had no propensity to reoffend. People v. Guthrie, No. 4-99-0226, slip order at 3 (Apr.

10, 2000) (unpublished order under Supreme Court Rule 23). In February 1999, the trial court

denied that application. On appeal, this court affirmed the trial court's judgment. Id. In July

1999, defendant pro se filed a third application for recovery, which was never addressed by the

trial court or the parties. In July 2000, defendant pro se filed a fourth application for recovery,

which the trial court dismissed without prejudice. In June 2001, defendant filed a fifth applica-

tion for recovery. Prior to trial, the State filed a motion in limine to exclude evidence defendant

had been misdiagnosed, which the trial court granted. In July 2002, a jury found defendant re-

-2- mained sexually dangerous. Defendant initially appealed that decision but later withdrew his

appeal. People v. Guthrie, No. 4-02-0860 (Jan. 16, 2003) (unpublished dispositional order dis-

missing the case on defendant's motion).

¶9 In October 2002, defendant pro se filed a sixth application for recovery. In April

2004, the trial court found the State had failed to meet its burden of proving defendant remained

an SDP.

¶ 10 At the hearing on this petition, Dr. Robert Chapman, who had originally diag-

nosed defendant as an SDP, testified he had since examined defendant in 2003 and 2004. Dr.

Chapman opined defendant did not currently meet the criteria for being an SDP. He diagnosed

defendant with a personality disorder, not otherwise specified, with antisocial features. Dr.

Chapman further testified his original diagnosis of pedophilia was in error, and defendant did not

suffer from a mental disorder, but was antisocial and opportunistic when he committed the as-

saults. The trial court found it was impossible to determine with certainty under conditions of

institutional care if defendant had fully recovered. As a result, the court ordered defendant's

conditional release. 725 ILCS 205/9 (West 2002). In September 2004, the State filed a petition

to revoke defendant's conditional release, alleging defendant had violated various conditions of

his release, including (1) failing to comply with sex offender treatment rules, (2) failing to regis-

ter as a sex offender, and (3) entering the pornography section of a video store. Defendant ad-

mitted the allegations of the petition and agreed to have his conditional release revoked and be

remanded to the Department of Corrections (DOC).

¶ 11 In March 2006, defendant pro se filed a seventh application for recovery. In June

2009, a jury found defendant was still sexually dangerous. Defendant initially appealed that de-

cision but later withdrew his appeal. People v. Guthrie, No. 4-09-0646 (July 22, 2010) (un-

-3- published dispositional order dismissing the case on defendant's motion). At the trial, the State's

witnesses, Dr. Angeline Stanislaus and Dr. Mark Carich, testified defendant remained an SDP.

Dr. Terry Killian, an expert for defendant, testified he evaluated defendant in December 2008.

Dr. Killian stated defendant was not sexually dangerous and there was no evidence defendant

had a substantial probability of reoffending.

¶ 12 B. Proceedings on the Current Application for Recovery

¶ 13 In June 2010, defendant pro se filed an eighth application for recovery. The ap-

plication asked the trial court to either find defendant (1) was not "sexually dangerous" and order

defendant's discharge from DOC or (2) "appears no longer sexually dangerous *** but that it is

impossible to determine with certainty under conditions of institutional care that he has fully re-

covered" and order defendant's conditional release.

¶ 14 In September 2012, a jury found defendant was still an SDP. In July 2013, this

court reversed that judgment and remanded for a new trial because the trial court had improperly

barred the testimony of defendant's expert witness, Dr. Killian. People v. Guthrie, 2013 IL App

(4th) 130066-U. We found, under amendments to the Act, the State had the burden of proving

by clear and convincing evidence defendant was still an SDP. Id. ¶ 38; 725 ILCS 205/9(b) (West

2010). See also People v. Grant, 2016 IL 119162, ¶ 22.

¶ 15 On remand, in December 2013, defendant filed a motion for a mental health eval-

uation. In May 2014, the trial court construed that motion as an application for recovery and or-

dered the State to prepare a socio-psychiatric report.

¶ 16 1. The State's Socio-Psychiatric Report

¶ 17 In January 2015, the State filed the socio-psychiatric report prepared by a licensed

clinical psychologist, Melissa Weldon-Padera. (In the interest of brevity and in keeping with the

-4- State's brief, we refer to Weldon-Padera simply as Padera.) In preparing her report, Padera con-

ducted a five-hour interview with defendant and considered the prior evaluations and reports

conducted in his case. Padera diagnosed defendant with the following: (1) insomnia disorder,

recurrent; (2) adjustment disorder, with mixed anxiety and depressed mood; and (3) other speci-

fied personality disorder, antisocial and narcissistic traits.

¶ 18 However, Padera concluded defendant "does not qualify for a continued diagnosis

of a mental disorder related to a propensity to sexually offend." Padera explained defendant no

longer met the criteria for a diagnosis of pedophilic disorder under the DSM-V. Padera stated a

diagnosis of pedophilic disorder requires the following three criteria:

"(a) over a period of at least six months, recurrent, intense sexually

arousing fantasies, sexual urges, or behaviors involving sexual ac-

tivity with a prepubescent child or children (generally age 13 years

or younger); (b) the individual has acted on these sexual urges, or

the sexual urges or fantasies cause marked distress or interpersonal

difficulty; and (c) the individual is at least age 16 years and at least

five years older than the child or children."

Based on Padera's review of defendant's case history, Padera explained defendant had engaged in

sexual activity one time with his five-year-old stepsister and for a period of five months with his

nine-year-old half-sister. The entirety of that activity occurred when defendant was 15 years old.

In addition, Padera found defendant reported having sexual fantasies about his nine-year-old

half-sister from when defendant was 15 years old until he was 23 years old. However, defendant

denied having any significant distress or interpersonal difficulty as a result of his fantasies. De-

fendant is currently 38 years old.

-5- ¶ 19 Based on the criteria established by the DSM-V, Padera concluded defendant did

not qualify for a diagnosis of pedophilic disorder. Padera explained defendant's sexual activity

with children lasted only five months, falling short of the six-month period required by the

DSM-V. In addition, although defendant experienced sexual fantasies involving children for a

period of at least six months, those fantasies did not cause defendant marked distress or interper-

sonal difficulty. As a result, Padera concluded a diagnosis of pedophilic disorder was not appro-

priate.

¶ 20 Padera concluded, because defendant no longer suffered from a mental disorder

related to a propensity to commit sex offenses, defendant "is considered to be no longer sexually

dangerous as defined in [the Act] and, therefore, does not need to remain in an institutional set-

ting." Padera recommended defendant be conditionally released from DOC.

¶ 21 2. The Bench Trial

¶ 22 In May 2015, a bench trial was held on defendant's application for recovery. Pri-

or to the start of trial, the State explained it agreed with Padera's opinion defendant "fits recov-

ery" and, therefore, the trial should be limited to determining what conditions to place on de-

fendant's conditional release under section 10 of the Act (725 ILCS 205/10 (West 2014)). (In

actuality, section 10 of the Act applies to cases where the Director petitions for conditional re-

lease of an SDP. Here, defendant petitioned for recovery; thus, section 10 does not apply.) In

response, defendant argued the purpose of the trial was to first determine whether he was still an

SDP. According to defendant, if the State failed to prove he was still an SDP, the Act mandated

outright discharge, and the issue of conditional release was irrelevant. The trial court did not re-

solve this dispute between the parties before starting the trial.

¶ 23 The parties stipulated to the admission of Padera's report, and the trial court ad-

-6- mitted it into evidence.

¶ 24 Padera testified the three diagnoses she gave defendant did not relate to sexual

urges, fantasies, or behavior and therefore were not paraphilic disorders. Padera explained, alt-

hough defendant may have received a pedophilic disorder diagnosis in the past, the criteria had

changed in the DSM-V, and defendant no longer met the applicable criteria. Padera went on to

state, while incarcerated, defendant made good insight into his condition but had a poor history

of participating in treatment. She testified:

"[S]pecifically that he's no longer sexually dangerous within the

institutional parameters, so, specifically, that he's a low risk; that

he presented information during the evaluation with good insight

into offending behavior that might trigger recidivism and that he

has no diagnosis that he would need to recover from in the first

place, so there's nothing for me to justify that he remain in a se-

cured environment at this time."

Padera further testified, "And so, right now, he doesn't meet any of the criteria for having a dis-

order, according to DSM-V."

¶ 25 The State asked Padera whether she thought defendant was fully recovered.

Padera responded with the following:

"Well, it's hard to say whether he's recovered, because it's a

moot point in my opinion. He doesn't meet any of the DSM-V cri-

teria for a diagnosis or a condition for him to recover from, so re-

covery in this case is—it doesn’t apply. It's my opinion that he's

done everything he can in the intensive institutional program ***

-7- and that there's nothing else that he can do there. So that's why I

recommend the conditional release with continued sex offender

treatment ***."

Further, Padera testified:

"[H]e has made sufficient progress in treatment to where he's done

well enough and he's done all that he can in the program within the

institution, that further confinement is no longer warranted or justi-

fied. So I can't say he's recovered from something that I don't be-

lieve he has a diagnosis to recover from."

When asked whether discharging defendant would be a danger, Padera responded, "I wouldn't

say it's a danger, but it's obviously sort of irresponsible."

¶ 26 On cross-examination, Padera testified as follows:

"Q. *** [J]ust to clarify this, it is your opinion, based on a

reasonable degree of psychologic [sic] certainty, based on all the

things you examined in preparing your report, including your ex-

amination of [defendant], that he does not meet any of the diagno-

ses under DSM-V that would then fit into the statutory definition

of [an SDP]?

A. Right.

Q. And, therefore, there's nothing from which to recover,

since he doesn't fall into a diagnosis?

A. Right."

¶ 27 In July 2015, the trial court entered a thorough written order. Based on the testi-

-8- mony of Padera, the court found the State had failed to meet its burden to prove defendant was

still an SDP, noting Padera's report specifically stated, " 'At this time [defendant] does not quali-

fy for a continued diagnosis of a mental disorder related to a propensity to offend' and 'there is no

evidence to suggest that [defendant] has a sexual interest in or sexual preference for prepubes-

cent children.' " The court further found the following:

"While [Padera] has recommended that [defendant] be released

from [DOC] to conditional release, the court does not reach this

part of the analysis[,] as [Padera] has acknowledged that [defend-

ant] no longer meets the criteria for the [SDP] definition. She has

not testified that it is impossible to determine with certainty under

conditions of institutional care that such person has fully recov-

ered. Rather, she testified that the issue of his recovery is moot, or

does not apply, as he does not meet the relevant diagnosis criteria."

As a result, the court determined conditional discharge was not an available remedy. The court

granted defendant's application for recovery and ordered defendant discharged from DOC, point-

ing out Padera never testified it was impossible to determine with certainty under conditions of

institutional care that such a person was fully recovered.

¶ 28 The State appeals.

¶ 29 II. ANALYSIS

¶ 30 The State argues the trial court erred by ordering defendant discharged instead of

conditionally released. We disagree.

¶ 31 A. The Lack of an Appellee's Brief

¶ 32 We note defendant has not filed an appellee's brief. In First Capitol Mortgage

-9- Corp. v. Talandis Construction Corp., 63 Ill. 2d 128, 133, 345 N.E.2d 493, 495 (1976), our su-

preme court laid out the following rule for situations in which an appellee has not filed a brief:

"We do not feel that a court of review should be compelled

to serve as an advocate for the appellee or that it should be re-

quired to search the record for the purpose of sustaining the judg-

ment of the trial court. It may, however, if justice requires, do so.

Also, it seems that if the record is simple and the claimed errors are

such that the court can easily decide them without the aid of an ap-

pellee's brief, the court of review should decide the merits of the

appeal. In other cases if the appellant's brief demonstrates prima

facie reversible error and the contentions of the brief find support

in the record[,] the judgment of the trial court may be reversed."

In this case, we reach the merits of the appeal because the record is simple and we can decide the

claimed error easily without the aid of an appellee's brief.

¶ 33 B. Statutory Construction and the Standard of Review

¶ 34 The resolution of the issue before us requires us, in part, to engage in statutory

construction of the Act. The cardinal rule of statutory construction is to determine and give ef-

fect to the intent of the legislature. People v. Fiveash, 2015 IL 117669, ¶ 11, 39 N.E.3d 924.

The most reliable indicator of legislative intent is the language of the statute, given its plain and

ordinary meaning. Id. When interpreting a statute, "we consider the statute in its entirety, keep-

ing in mind the subject it addresses and the apparent intent of the legislature in enacting it."

People v. Perry, 224 Ill. 2d 312, 323, 864 N.E.2d 196, 204 (2007). Relevant parts of a statute

should be construed as a whole so that no term is rendered superfluous or meaningless. In re

- 10 - Marriage of Kates, 198 Ill. 2d 156, 163, 761 N.E.2d 153, 157 (2001). Courts should presume the

legislature did not intend to create absurdity, inconvenience, or injustice. In re D.D., 196 Ill. 2d

405, 418-19, 752 N.E.2d 1112, 1120 (2001). Issues of statutory construction are reviewed de

novo. Home Star Bank & Financial Services v. Emergency Care & Health Organization, Ltd.,

2014 IL 115526, ¶ 22, 6 N.E.3d 128.

¶ 35 Once we construe the statute de novo, we review the trial court's decision to dis-

charge defendant under a manifest-weight-of-the-evidence standard. People v. Donath, 2013 IL

App (3d) 120251, ¶ 38, 986 N.E.2d 1222. "A decision is against the manifest weight of the evi-

dence only if an opposite conclusion is clearly apparent." Id.

¶ 36 C. The Language of the Act at Issue

¶ 37 A person who has been found sexually dangerous under the Act may file an appli-

cation for recovery, seeking either discharge or conditional release from DOC (725 ILCS 205/9

(West 2014)). Such an application for recovery proceeds to a hearing, at which the State has the

burden of proving by clear and convincing evidence that the applicant is still dangerous (725

ILCS 205/9(b) (West 2014)). Section 9(e) of the Act describes the possible remedies that might

apply after a recovery hearing:

"If the person is found to be no longer dangerous, the court shall

order that he or she be discharged. If the court finds that the per-

son appears no longer to be dangerous but that it is impossible to

determine with certainty under conditions of institutional care that

the person has fully recovered, the court shall enter an order per-

mitting the person to go at large subject to the conditions and su-

pervision by the Director as in the opinion of the court will ade-

- 11 - quately protect the public." 725 ILCS 205/9(e) (West 2014).

¶ 38 D. The State's Argument

¶ 39 The State argues the trial court should have ordered defendant be conditionally

released instead of discharged. In support of that argument, the State notes subsection 9(e) uses

the term "dangerous" instead of "sexually dangerous." The State concludes the legislature's use

of "dangerous" instead of "sexually dangerous" was intentional and subsection 9(e) must be con-

strued according to the meaning of "dangerous." Under that interpretation of the Act, discharge

is not appropriate if the applicant is found merely to be no longer sexually dangerous. Instead

the applicant must be found to be no longer "dangerous" before the court can order discharge.

¶ 40 We reject the State's argument, as it would lead to absurd results. For example, a

person committed under the Act might be an alcoholic or a thief. If released from confinement, a

person could be dangerous, because he might commit a theft or drive under the influence of al-

cohol. This is not the type of danger the State may consider in determining to keep a person con-

fined under the Act or in determining whether conditional release is appropriate.

¶ 41 Further, the language of the statute must be given its contextual meaning. When

section 9(e) of the Act says, "If the person is found to be no longer dangerous, the court shall or-

der that he or she be discharged" (id.) it means no longer sexually dangerous. After all, this is

the Sexually Dangerous Persons Act, not the "Dangerous Persons Act." There is no definition of

"dangerous" in the Act.

¶ 42 In this case, the trial court determined discharge was required because the court

found defendant was no longer sexually dangerous. The only evidence before the court was

Padera's report and her testimony.

¶ 43 Padera testified defendant's diagnoses no longer qualified him as sexually danger-

- 12 - ous. She testified he did not suffer from a mental disorder that predisposed him to sexually of-

fend, i.e., he was not sexually dangerous. The Act addresses present, not past, mental conditions

and considers whether a person is sexually dangerous on the date of the decision. People v. Bai-

ley, 265 Ill. App. 3d 758, 763, 639 N.E.2d 1313, 1317 (1994); People v. Sly, 82 Ill. App. 3d 742,

747, 403 N.E.2d 72, 75 (1980). A recovery application focuses on current conditions and exam-

ines whether the applicant meets the definition of "sexually dangerous person" at the time the

recovery application is decided. There was absolutely no evidence before the court that would

support a finding it was impossible to determine with certainty under conditions of institutional

care that the person has fully recovered. The trial court correctly determined it should discharge

defendant without conditions. In other words, the court's findings were not against the manifest

weight of the evidence.

¶ 44 III. CONCLUSION

¶ 45 We affirm the trial court's judgment as it was not against the manifest weight of

the evidence.

¶ 46 Affirmed.

- 13 - ¶ 47 JUSTICE HARRIS, specially concurring.

¶ 48 I concur in this decision and agree we should reject the argument that "dangerous"

in section 9(e) does not mean "sexually dangerous." I write separately to point out that a person's

discharge from DOC pursuant to section 9(e) depends on more than just whether the experts say

he is no longer sexually dangerous. Section 9(e) provides for two possible results in the event of

such testimony. The person could be discharged or he could be conditionally released if "it is

impossible to determine with certainty under conditions of institutional care that such person has

fully recovered." 725 ILCS 205/9(e) (West 2014).

¶ 49 Here, Padera testified defendant was no longer sexually dangerous. However, she

also recommended he be conditionally released. Defendant's attorney argued at the conclusion

of the May 26, 2015, hearing as follows: "Under [s]ection 9, you have to be a sexually danger-

ous person before release can be conditioned. If you are not a sexually dangerous person, you

are discharged. Those are the alternatives." Counsel's statement that conditional release is avail-

able to a person found to be still sexually dangerous is incorrect. If, at the conclusion of the

hearing, the fact finder determines the person is still sexually dangerous, his petition for dis-

charge or conditional release must be denied. Counsel's second statement, "[i]f you are not a

sexually dangerous person, you are discharged" is correct as far as it goes. However, whether

the person is no longer sexually dangerous is determined by the fact finder, not a witness. Simp-

ly because an expert opines that the person is no longer sexually dangerous does not dictate the

same conclusion must be reached by the fact finder, even if the opinion is unrebutted. Instead,

the fact finder is required to evaluate the entirety of the evidence and decide whether it is with a

sense of assuredness (or as the statute reads, "with certainty"(id.)) that it can find the person is no

longer sexually dangerous and thus should be discharged without restrictions, or rather if it ap-

- 14 - pears he is no longer sexually dangerous but there remains a question whether he has fully re-

covered, and thus he should be released with conditions attached.

¶ 50 Here, the trial court stated in its decision: "While [Padera] has recommended that

[defendant] be released from [DOC] to conditional release, the court does not reach this part of

the analysis[,] as [Padera] has acknowledged that [defendant] no longer meets the criteria for the

[SDP] definition." (Emphasis added.) In my view, simply because Padera opined defendant was

no longer an SDP did not ipso facto dictate the court's conclusion he was no longer sexually dan-

gerous such that he should be discharged from DOC. It appears the trial court considered its on-

ly option was to discharge defendant. Instead, as the fact finder, the trial court was required to

decide, based on the evidence presented, whether it was satisfied that defendant was most assur-

edly no longer sexually dangerous, or whether a question remained as to whether he had not yet

fully recovered. If the former, the court shall order discharge. If the latter, the court shall order

conditional release.

¶ 51 In this case, there was no evidence that defendant had not "fully recovered." The

trial court noted Padera did not testify that it is impossible to determine with certainty under con-

ditions of institutional care that such person has fully recovered. Therefore, I agree discharge

was appropriate. However, if evidence had been presented that defendant had not yet fully re-

covered, the trial court would have been required to consider the alternative of conditional re-

lease, notwithstanding Padera's opinion he was no longer sexually dangerous.

- 15 - ¶ 52 JUSTICE STEIGMANN, dissenting.

¶ 53 Because the statute at issue is arguably ambiguous, I sympathize with my distin-

guished colleagues who have tried to figure out what it means in the context of this case. None-

theless, because I disagree with their ultimate conclusion, I respectfully dissent.

¶ 54 Given the evidence before the trial court, the only issue the court had to address

was whether the defendant should be conditionally released or fully discharged. Padera, the ex-

amining clinical psychologist and the only expert to testify, concluded that defendant did not

qualify for a continued diagnosis of a mental disorder related to a propensity to sexually offend.

Nonetheless, she recommended that he be conditionally released with continued sex offender

treatment. Her conclusion was apparently based upon her assessment, when asked whether dis-

charging defendant would be a danger, that "I wouldn't say it's a danger, but it's obviously sort of

irresponsible."

¶ 55 The State argues that the trial court should have ordered defendant to be condi-

tionally released instead of discharged. In support of that argument, the State notes that subsec-

tion 9(e) of the Act uses the term "dangerous" instead of "sexually dangerous." 725 ILCS

205/9(e) (West 2014). The State concludes that the legislature's use of "dangerous" instead of

"sexually dangerous" was intentional and that subsection 9(e) must be construed according to the

meaning of "dangerous." Under that interpretation of the Act, discharge is not appropriate if the

applicant is found merely to be no longer sexually dangerous. Instead, the applicant must be

found to be no longer "dangerous" before the court can order discharge.

¶ 56 The State is correct that by its plain language, section 9(e) of the Act contem-

plates whether the applicant is "dangerous" and not whether he is sexually dangerous. Section

9(e) provides that the trial court shall order discharge if "the person is found to be no longer dan-

- 16 - gerous." Id. Compare that language to the following other subsections of section 9 that refer to

whether a person is "sexually dangerous": sections 9(a), 9(b), and 9(d) all refer to a "sexually

dangerous person," and section 9(d) refers further to "a finding that the person is still sexually

dangerous." 725 ILCS 205/9(a), (b), (d) (West 2014). Principles of statutory construction pro-

vide that "when the legislature includes particular language in one section of a statute but omits it

in another section of the same act, courts presume that the legislature has acted intentionally and

purposely in the inclusion or exclusion." National City Mortgage v. Bergman, 405 Ill. App. 3d

102, 109, 939 N.E.2d 1, 7 (2010). Under that principle of statutory construction, this court

should presume that the legislature acted intentionally when it wrote section 9(e) to provide that

a court shall order discharge only if the person is found to be no longer "dangerous."

¶ 57 Padera's testimony and the results of her report track closely the language of sec-

tion 9(e), which provides that conditional release is mandated when the trial "court finds that the

person appears no longer to be dangerous but that it is impossible to determine with certainty un-

der conditions of institutional care that the person has fully recovered." 725 ILCS 205/9(e)

(West 2014). In that situation, the Act instructs that the court "shall enter an order permitting the

person to go at large subject to the conditions and supervision by the Director as in the opinion of

the court will adequately protect the public." Id.

¶ 58 The question before this court is whether section 9(e), when it uses the term "dan-

gerous," really means sexually dangerous. The majority concludes that "dangerous" in the con-

text of this case surely means "sexually dangerous," not generally dangerous. Supra ¶¶ 39-41.

The majority may be right as to what the legislature meant, but that is not what it wrote. Further,

it strikes me as entirely reasonable for the legislature to authorize conditional release, instead of

- 17 - outright discharge, for a defendant who might be "dangerous" in any fashion, not just sexually

dangerous.

¶ 59 When construing statutes, as opposed to constitutional provisions, it is almost al-

ways a better practice to take the legislative language as written and not to assume that the legis-

lature somehow overlooked something or meant something else. This is almost always the better

practice because the legislature, if we are wrong in construing the statute, can easily revisit the

matter and fix the statute so it says what the legislature meant. In fact, this is hardly hypothet-

ical; over the last decade, the legislature in several instances has disagreed with a statutory inter-

pretation by some court and then revised the statute accordingly. One such instance was dis-

cussed in Larsen v. Provena Hospitals, 2015 IL App (4th) 140255, ¶ 33, 27 N.E.3d 1033 (ana-

lyzing Szczerbaniuk v. Memorial Hospital for McHenry County, 180 Ill. App. 3d 706, 536

N.E.2d 138 (1989), a case in which the legislature responded to an appellate court decision by

amending the statute).

¶ 60 A court possesses greater flexibility when construing constitutional provisions

because they are exponentially more difficult to revise if the construing court gets their meanings

wrong. Given that in this case we are construing a statute, we should hold the legislature to what

it wrote.

- 18 -