Can an Illinois trial court appoint the public defender to represent an indigent person facing civil commitment as a sexually violent person?

Plain-English summary

Illinois Attorney General Lisa Madigan was asked by the Chief Judge of the Cook County Circuit Court whether trial courts could appoint the public defender to represent indigent respondents facing civil commitment proceedings under the Sexually Violent Persons Commitment Act, 725 ILCS 207/1 et seq. (the SVP Act). She concluded the trial court has discretion to do so.

The reasoning hinged on the public defender statute itself, section 3-4006 of the Counties Code (55 ILCS 5/3-4006). That statute directs the public defender, "as directed by the court," to represent "all persons who are held in custody or who are charged with the commission of any criminal offense, and who the court finds are unable to employ counsel." The AG read "held in custody" disjunctively, separate from "charged with the commission of any criminal offense", so the public defender's duty is not limited to representation in ordinary criminal cases. Because a respondent under the SVP Act is ordinarily in the custody of the Department of Corrections or the Department of Human Services when the petition is filed, that respondent fits within the "held in custody" branch of the public defender statute. The trial court therefore has discretion (but is not required) to appoint the public defender; it may also appoint other counsel.

Currency note

This opinion was issued in 2012. Subsequent statutory amendments, court decisions, or later AG opinions may have changed the analysis. Public Act 97-1075 (effective August 24, 2012) repealed section 70 of the SVP Act and consolidated its language into subsection 65(b)(1), as the opinion itself flags in a footnote. Treat this page as historical context, not current legal advice. Verify current law before relying on any specific rule, deadline, or remedy mentioned here.

Background and statutory framework

The SVP Act creates a civil commitment scheme for individuals who have been convicted of, adjudicated delinquent for, or found not guilty by reason of insanity of a "sexually violent offense" and who suffer from a mental disorder making future acts of sexual violence substantially probable (725 ILCS 207/5(f)). Petitions are filed by the Attorney General or the State's Attorney, ordinarily before the person's release from prison or shortly after the start of mandatory supervised release (725 ILCS 207/15). The Act characterizes the proceedings as civil (725 ILCS 207/20), but the respondent has a statutory right to be represented by counsel; if indigent, "the court shall appoint counsel" (725 ILCS 207/25(c)(1)). Procedurally, the court orders detention upon filing if there is cause to believe commitment is appropriate, holds a probable cause hearing within 72 hours if the respondent is in custody, and conducts trial within 120 days of probable cause (725 ILCS 207/30, 35).

The opinion observes that other Illinois statutes name the public defender expressly: the involuntary civil commitment statute (405 ILCS 5/3-805(2)), the Juvenile Court Act (705 ILCS 405/1-5), and the Adoption Act unfit-parent provisions (750 ILCS 50/13(B)(c)) all direct the trial court to appoint the public defender (or specified alternatives) for the indigent respondent. The SVP Act does not. The right to appointed counsel under section 25(c)(1) is therefore not by itself a directive to the public defender; the question turns on whether the public defender's own statutory charter authorizes the appointment.

The AG's analysis

The AG's reasoning had three moves.

First, a statutory officer like the public defender has only those powers the General Assembly grants by statute, plus those necessarily implied (citing Euziere, 346 Ill. 131). And courts making appointments under a statute may make only the appointments the statute allows (citing Maloney, 113 Ill. 2d 473). So the question is not what the SVP Act authorizes, but what 55 ILCS 5/3-4006 authorizes.

Second, section 3-4006's text reads in the disjunctive: the public defender represents indigent persons who are "held in custody" or who are "charged with the commission of any criminal offense." Citing People v. Vraniak, 5 Ill. 2d 384 (1955), the AG read "or" to mean the two categories are alternatives, not cumulative. "Held in custody" is therefore not limited to persons held on criminal charges.

Third, the Illinois Supreme Court had already reached this construction in Tedder v. Fairman, 92 Ill. 2d 216 (1982). Tedder approved the appointment of public defenders to represent inmates in civil suits about prison medical care, even though those suits were not criminal. Tedder rejected the narrower reading that "held in custody" is confined to pretrial criminal-charge custody, and the SVP Act simply produces another setting in which "held in custody" is met without a criminal charge.

The AG then walked through the SVP Act's custody framework. Under section 30(a), if the respondent is already serving a sentence in DOC custody when the petition is filed, the court orders the respondent transferred to a DHS-approved facility and detained there until disposition. Under section 30(c), if the respondent is on parole or mandatory supervised release at the time of the petition, "custody" is still satisfied (730 ILCS 5/3-14-2 retains DOC custody during parole; People ex rel. Gibson v. Cannon, 65 Ill. 2d 366 (1976), confirms this is the legal sense of "custody"). And if the court finds probable cause and the respondent is not yet in custody, section 30(c) requires the court to order the respondent taken into custody. So in every routine path through the SVP Act, the respondent is "in custody" by the time appointment is needed.

Putting these together, the AG concluded:

• 55 ILCS 5/3-4006 covers indigent persons "held in custody," which is broader than persons charged with crimes (Tedder).
• A respondent under the SVP Act is "held in custody" within the meaning of section 3-4006 once the petition is filed.
• Therefore the public defender's duties include representing indigent SVP respondents, and the trial court has discretion (but is not obligated) to appoint the public defender. The court may instead appoint other counsel, as section 25(c)(1) permits.

Common questions

Q: Did this opinion require the trial court to appoint the public defender in every SVP case?
A: No. The opinion concluded the trial court has discretion. Under section 25(c)(1) the court must appoint counsel for an indigent respondent, but it can choose either the public defender or other counsel. The opinion confirms the public defender is an eligible choice; it does not displace the court's discretion to appoint someone else.

Q: Why did the AG focus on the Counties Code, not the SVP Act?
A: Because the SVP Act says "the court shall appoint counsel" without naming the public defender. The question presented was whether a Cook County trial court could direct that a particular existing officer, the public defender, accept the appointment. That depended on the public defender's own enabling statute, 55 ILCS 5/3-4006, not on the SVP Act.

Q: What did Tedder v. Fairman do for this analysis?
A: Tedder, 92 Ill. 2d 216 (1982), confronted the same statutory text. There, an inmate filed a civil rights petition complaining about prison medical care, and the trial court appointed the public defender. The Illinois Supreme Court approved the appointment, expressly reading "held in custody" to extend beyond criminal-charge custody. Once Tedder settled that reading, the only remaining question for the 2012 opinion was whether SVP respondents are likewise "held in custody," and the SVP Act's detention provisions answer yes.

Q: Can a trial court refuse to appoint the public defender and instead appoint private counsel?
A: Yes. Section 25(c)(1) entitles the indigent respondent to appointed counsel, not to a particular appointee. The opinion notes that other Illinois statutes (the involuntary civil commitment statute, the Juvenile Court Act, and the Adoption Act) name the public defender first with named alternatives if no public defender is available. The SVP Act does not. The opinion preserves the trial court's traditional discretion under the SVP Act to choose the appointee.

Q: Was the AG's reading consistent with prior AG practice?
A: Yes. The opinion cites Ill. Att'y Gen. Op. No. 95-008 (1995) and 1980 Ill. Att'y Gen. Op. 114, both of which had earlier construed the public defender's statutory duties.

Citations and references

Statutes:
- 55 ILCS 5/3-4006, Public defender duties (Counties Code)
- 725 ILCS 207/1 et seq., Sexually Violent Persons Commitment Act
- 405 ILCS 5/3-805, Counsel in involuntary civil commitment
- 705 ILCS 405/1-5, Counsel under the Juvenile Court Act
- 750 ILCS 50/13: Counsel for unfit-parent finding in adoption

Cases:
- Maloney v. Bower, 113 Ill. 2d 473 (1986), courts may make only the appointments a statute allows
- Tedder v. Fairman, 92 Ill. 2d 216 (1982), public defender may represent inmates in civil custody-related litigation
- Euziere v. Highway Comm'r of Town of Rockville, 346 Ill. 131 (1931), statutory officer's powers limited to those granted by statute and necessarily implied
- DeLuna v. Burciaga, 223 Ill. 2d 49 (2006), clear and unambiguous statutory text controls
- People v. Vraniak, 5 Ill. 2d 384 (1955), "or" as a disjunctive in statutory construction
- Phoenix Bond & Indem. Co. v. Pappas, 309 Ill. App. 3d 779 (1999), aff'd, 194 Ill. 2d 99 (2000), statutory officer authority

Source

• Index page: https://illinoisattorneygeneral.gov/opinions/
• Original PDF: https://illinoisattorneygeneral.gov/dA/6ab8b2afce/2012%2012-004%20JUDICIAL%20SYSTEM%20Public%20Defender%27s%20Representation%20of%20Indigent%20Persons%20of%20Sexually%20Violent%20Persons%20Commitment%20Act%20Proceedings.pdf

Original opinion text

Best-effort transcription from a scanned PDF. Minor errors may remain — the linked PDF is authoritative.

OFFICE OF THE ATTORNEY GENERAL
STATE OF ILLINOIS

Lisa Madigan

ATTORNEY GENERAL December 31, 2012

FILE NO. 12-004

JUDICIAL SYSTEM:

Public Defender's Representation
of Indigent Persons Who are the
Subject of Sexually Violent Persons
Commitment Act Proceedings

The Honorable Timothy C. Evans

Chief Judge, Circuit Court of Cook County

2600 Richard J. Daley Center
Chicago, Illinois 60602

Dear Chief Judge:

You have asked for an opinion regarding the duties of the public defender with respect to the representation of indigent persons who are the subject of commitment proceedings under the Sexually Violent Persons Commitment Act (the Act) (725 ILCS 207/1 et seq. (West 2010)). For the reasons stated below, it is my opinion that the public defender's duties include the representation of indigent persons who are held in custody and subject to proceedings initiated under the Act. Therefore, it is within the discretion of the trial court to determine whether to appoint the public defender or to appoint other counsel to represent a respondent under the Act.

500 South Second Street, Springfield, Illinois 62706 © (217) 782-1090 © TTY: (217) 785-2771 © Fax: (217) 782-7046
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The Honorable Timothy C. Evans - 2

BACKGROUND

A sexually violent person is a person who has been: (1) convicted of committing a sexually violent offense; (2) adjudicated delinquent for a sexually violent offense; or (3) 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 he or she will engage in future acts of sexual violence. 725 ILCS 207/5(f) (West 2010). Beginning three months prior to the anticipated date upon which a person who "may meet the criteria for commitment as a sexually violent person" is: (1) to be released from imprisonment; (2) to enter into mandatory supervised release; (3) to be released from a correctional facility as a result of being adjudicated delinquent; or (4) to be discharged or conditionally released, as the case may be, the agency with jurisdiction and custody and control over that person must notify the Attorney General and the State's Attorney of the county in which the underlying offense was committed of the anticipated release or discharge. 725 ILCS 207/10 (West 2010). The Attorney General or the State's Attorney, either individually or acting jointly, may file a petition alleging that the person is sexually violent. 725 ILCS 207/15 (West 2010). A person who is determined to be sexually violent is committed to the custody of the Department of Human Services (DHS) until he or she is found to no longer be sexually violent. 725 ILCS 207/40 (West 2010).

Proceedings on the petition are characterized as civil in nature. 725 ILCS 207/20 (West 2010). The person who is the subject of the petition, however, has certain enumerated rights, including the right to be represented by counsel:

(c) Except as provided in paragraph (b)(1) of Section 65 and Section 70 of this Act, at any hearing conducted under this Act, the person who is the subject of the petition has the right:

(1) To be present and to be represented by counsel. If the person is indigent, the court shall appoint counsel.

(2) To remain silent.

(3) To present and cross-examine witnesses.

(4) To have the hearing recorded by a court reporter.

(d) The person who is the subject of the petition may request that a trial under Section 35 of this Act be to a jury.
(Emphasis added.) 725 ILCS 207/25 (West 2010).

The Honorable Timothy C. Evans - 3

Section 30 of the Act (725 ILCS 207/30 (West 2010)) provides, in pertinent part:

Detention; probable cause hearing; transfer for examination.

(a) Upon the filing of a petition under Section 15 of this Act, the court shall review the petition to determine whether to issue an order for detention of the person who is the subject of the petition. The person shall be detained only if there is cause to believe that the person is eligible for commitment under subsection (f) of Section 35 of this Act. A person detained under this Section shall be held in a facility approved by the Department. If the person is serving a sentence of imprisonment, is in a Department of Corrections correctional facility or juvenile correctional facility or is committed to institutional care, and the court orders detention under this Section, the court shall order that the person be transferred to a detention facility approved by the Department. A detention order under this Section remains in effect until the person is discharged after a trial under Section 35 of this Act or until the effective date of a commitment order under Section 40 of this Act, whichever is applicable.

(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.

(c) If the court determines after a hearing that there is probable cause to believe that the person named in the petition is a sexually violent person, the court shall order that the person be taken into custody if he or she is not in custody and shall order the person to be transferred within a reasonable time to an appropriate facility for an evaluation as to whether the person is a sexually violent person.

The Honorable Timothy C. Evans - 4

The respondent is entitled to a trial to determine whether he or she is a sexually violent person within 120 days after the date of the probable cause hearing. 725 ILCS 207/35(a) (West 2010). At the trial, the petitioner has the burden of proving the allegations in the petition beyond a reasonable doubt. 725 ILCS 207/35(d) (West 2010). If the court or the jury finds that the person who is the subject of the petition is a sexually violent person, the court shall order the person to be committed to the custody of DHS for control, care, and treatment until such time as it is determined that the person is no longer sexually violent. 725 ILCS 207/40 (West 2010).

ANALYSIS

The Act requires a court to appoint counsel for an indigent person who is the subject of a sexually violent persons commitment petition. It does not, however, specifically provide that the court is to appoint the public defender. Therefore, although the respondent is entitled to the appointment of counsel if he or she is indigent, the right to appointed counsel does not necessarily require the appointment of the public defender. See Maloney v. Bower, 113 Ill. 2d 473, 479 (1986). The issue, then, is whether the duties of the public defender include the representation of indigent persons in proceedings under the Act. Maloney, 113 Ill. 2d at 477-78 (in determining whether a chief judge exceeded his authority in entering an administrative order directing circuit court judges to appoint the public defender to represent indigent defendants in civil contempt proceedings in which the defendants might be subject to incarceration, the pivotal inquiry is whether the public defender is authorized to be appointed under such circumstances).

It has long been recognized that a statutory officer, such as the public defender, possesses only those powers that the General Assembly has expressly granted by statute, together with those powers which are necessarily implied therefrom to effectuate the expressly granted powers. Euziere v. Highway Commissioner of the Town of Rockville, 346 Ill. 131, 134 (1931); Phoenix Bond & Indemnity Co. v. Pappas, 309 Ill. App. 3d 779, 784 (1999), aff'd, 194 Ill. 2d 99 (2000); Ill. Att'y Gen. Op. No. 95-008, issued July 14, 1995. Further, when making appointments pursuant to a statute, courts are limited to making only the appointments allowed by the statute. Maloney, 113 Ill. 2d at 478. Here, section 3-4006 of the Counties Code (55 ILCS 5/3-4006 (West 2010)) sets out the duties of the public defender, providing, in pertinent part:

The Public Defender, as directed by the court, shall act as attorney, without fee, before any court within any county for all persons who are held in custody or who are charged with the commission of any criminal offense, and who the court finds are unable to employ counsel. (Emphasis added.)

The Honorable Timothy C. Evans - 5

Where statutory language is clear and unambiguous, it must be given effect as written. DeLuna v. Burciaga, 223 Ill. 2d 49, 59 (2006). Pursuant to section 3-4006 of the Counties Code, the public defender's duties include representing indigent persons: (1) who are "held in custody," or (2) who are "charged with the commission of any criminal offense[.]" This section uses the word "or" in describing the two circumstances in which the public defender shall represent indigent persons. "As used in its ordinary sense, the word 'or' marks an alternative indicating that the various members of the sentence which it connects are to be taken separately." People v. Vraniak, 5 Ill. 2d 384, 389 (1955), cert. denied, 349 U.S. 963, 75 S. Ct. 895 (1955). The phrase "held in custody," therefore, is not limited to persons who are in custody in connection with the commission of a crime.

In Tedder v. Fairman, 92 Ill. 2d 216, 226-27 (1982), two inmates filed petitions for writs of mandamus and habeas corpus related to the deprivation of needed medical assistance and the circuit court appointed the public defender to represent them. On appeal, the Illinois Supreme Court stated, with respect to the representation of convicted prisoners challenging the conditions of their imprisonment:

Public defenders are expressly authorized by the statute to represent indigent persons "held in custody." The public defender acts as a legal representative "as directed by the court." There is no legislative mandate that a public defender be appointed to represent an indigent prisoner in a case alleging deprivation of a prisoner's civil rights in Illinois. However, the statutory language does not preclude such an appointment.

The Tedder majority rejected the interpretation of "held in custody" as limited to persons who are held in custody and awaiting criminal charges.

The Honorable Timothy C. Evans - 6

Thus, the issue here is whether the respondent in a proceeding under the Act is "in custody" as that term is used in section 3-4006 of the Counties Code. Section 15 of the Act provides that a petition alleging that a person is sexually violent is generally to be filed before the release or discharge of the subject or within 30 days of his or her placement into parole or mandatory supervised release. In the case of a respondent who is serving a sentence of imprisonment in a Department of Corrections correctional facility or juvenile correctional facility, or is committed to institutional care, if the court determines from the allegations of the petition that there is cause to believe that the respondent is eligible for commitment, it shall order the respondent to be transferred to a facility approved by DHS and detained until the effective date of the commitment order or until the respondent is discharged under the Act. 725 ILCS 207/30(a) (West 2010). In the case of a respondent who is not in a correctional facility or committed to institutional care, if the court determines at the initial hearing that probable cause exists to believe that he is sexually violent, the court "shall order that the person be taken into custody" and transferred to an appropriate facility for evaluation. 725 ILCS 207/30(c) (West 2010).

Under the Act, the respondent is ordinarily in the custody of the Department of Corrections when the petition is filed or is taken into DHS custody immediately following the court's determination that there is cause to believe that the respondent is eligible for commitment as a sexually violent person. Because the public defender's duties include representing indigent persons who are "held in custody," the trial court has the discretion to appoint the public defender to represent a respondent who is in custody and subject to proceedings under the Act.

CONCLUSION

Courts are required to appoint counsel to represent indigent persons who are the subject of proceedings under the Sexually Violent Persons Commitment Act. The public defender's duty to represent indigent persons is not limited to persons who are charged with the commission of a crime, but may extend to persons who are held in custody. As a result, it is my opinion that, when determining whether to appoint counsel to represent an indigent respondent who is in custody and subject to proceedings under the Act, the trial court has the discretion to appoint the public defender.

Very truly yours,

LISA MADIGAN
ATTORNEY GENERAL