petition or more accurately what happens when the respondent in an s v p case during a probable cause hearing actually wins the probable cause hearing what has that in our situation the trial court to page county ruled that there was no probable cause to believe that tommy hardin wasn't as speak heat and dismissed the petition his appeal has now followed there are two chief issues to be addressed here one deals with jurisdiction the other if we get past the jurisdictional issues deals with the merits of the actual probable cause hearing and how much deference the appellate court was to have given the trial court in the trial court's ruling of no specifically says that civil rules shall apply except as otherwise provided in this act meaning that we have to read the act fully to determine the intent the legislature some parts of the   if we look at the actual text of the s v p act there were certain provisions in it that make us wonder make us believe that the legislature intended that no state appeal would be taken for example dealing probable cause hearings the text of the act points out that if the court were to find that the respondent that there was no probable cause to believe that the respondent isn't as v p the court shall dismiss the petition if the at the conclusion of the trial if the if the court where the curious found that the respondent is not in s p p again the court shall dismiss the petition and even emphasize shall maybe it is but the problem with this is that if the state wanted to go for a stay part of me the ax is nothing about stays and what it really comes down to bent is that the respondent in effect walks out the door the state can then ask a reviewing court to stay the lower court's ruling but in the meantime the respondent is out walking the streets certainly the reviewing court might not issue a stay and even if they do issue a stay it's at the conclusion of notice to me an opportunity to be heard and saw on through all this this person who was from the point of view of the state is sexually violent that is substantially will commit acts of sexual violence in the future he's just out doing his thing this is why i'm seeing something so extreme to be overlooked in the statute that can't be a coincidence if the legislature had intended simple rules to apply on this point we would expect some kind of a reference even in a peripheral peripheral like something to account for the possibility that presumably someone really dangerous would be out as describing there are two points in response to that first at least in our case when the attorney general is involved they get an extra thirty days they get the first thirty days of the m the prosecution filed the petition on day eighty nine of that ninety day window that is one day before the respond was to be released from ideal saying we had the s p p probable cause hearing some six weeks later c meant that because parole had been told the prosecution had another thirty days starting right then and there if they had chosen to file a new petition now they could not true so now i will concede the s court shell dismissed the petition isn't in order just missing the state's petition a final order i don't believe so in the situation justice thomas i think the state can just file a new petition this is the same thing with the criminal they can file something new it has to be based on good faith they have to be willing to present more evidence you know but as far as that is fair is that previous petition the state's claim has been thrown out on what if they have no good faith basis to file anything separate different than the petition that was dismissed how can that possibly not be a final order i respectfully disagree justice thomas in our case there was more evidence that could have been presented t court actually told the prosecution and in effect i've heard no evidence about mr harding's disciplinary infractions if any in jail is education things that you should have presented if you would known about them out in fact let me let me give you an analogy here please judge just because we've already determined that the the provisions says that the still practice act applies if you're in if you're in a typical civil case and there's a complaint has filed in that complaint is dismissed in the judge says i'll give you a chance to replete and he says no i'm going to stand on this complaint it's a dismissal order that's appealable right in it even though there is the potential to file an amended complaint the lickin can choose to stand on the complaint previously filed why would that be a man analogous to this case i think if they were to flat out say we will not file anything more maybe that maybe in such a situation maybe that does make a final i don't know but it's not necessarily what happened here in our situation the trial court and actually this  the actual language does not it's never said in the record i will dismiss the petition the judge just said i can make a finding of probable cause at this time mr harding can be remanded back to ide  we acted in that way but it was never said on the if we go past the curious fictional aspect of this however assuming that it's a final judgment jurisdiction is proper we still have the issue of how do we handle the quackenbush who testified on direct that he had evaluated mr harden and that in his opinion mr harden suffered from paraphilia not otherwise specified in personality disorder not otherwise trial court actually said on the record that the doctor's opinions as to mental disorder and as to future dangerousness those opinions crumbled that was the word crumbled  that the court in essence no longer credited the doctor's opinions and actually said on the record that the only basis remaining to arguably sustain  that that mr hardin suffered from some kind of a mental just mental disorder and that in light of that because of a mental disorder here it was substantially probable to commit acts of sexual violence in the future the court found that the doctor's opinions as to mental disorder and substantially probable were gone that as a result of cross examination she no longer credited what the doctor had to say on those points were just left with convictions and as the court ruled mere convictions just are not enough which actually weaves to another issue the section thirty five easy of the act says that at a trial which of course of middle of the standard is beyond a reasonable doubt is not probable cause anymore at a trial convictions as a matter of law are not good enough to show the existence of a mental disorder beyond a reasonable cause now it's not obvious there's no case that says what exactly is probable cause in illinois for purposes of an s p t proceeding however definition of probable cause but they use in there as he acts and try to apply it here we still claim that there was no probable cause and that that there were no there was no error taking place in the trial court the wisconsin court holds people the state versus watson that for the state to sustain its petition at a probable cause hearing they must establish a plausible account on each of the must withstand cross i bring this up because the second district when it reverse the lower court's ruling said in effect probable cause is shown as a matter of law and it put forth all the evidence that trial court the trial judge had found the cross so compelling and so crucial in its analysis well that was our in our opinion it was error of the second district to do this just arguing that yes justice on that they should have been more deferential on that point and on other points to the trial court felton actually said on the record that she just didn't believe dr quackenbush the wisconsin court says that credibility that we're not supposed to delve that's the word delve into credibility during a probable cause hearing well we didn't delve into credibility his conclusions there's nothing wrong with us counsel if we were to agree with your argument in the trial or its argument we would be saying that they recognized experts in the field who base the review on documents reasonably relied upon by experts in the field i mean you'd agree with that so far i would or it formed an opinion that responded suffers from certain mental disorders that create a substantial likelihood of recent of his and that was his opinion right it was all right and responded offered no evidence in contradiction to that conclusion and we would have to say that they had evidence with no evidence counter to it is not probable cause in this particular cases and that the finding would have to make not necessarily because those findings but by the doctor number one and then as a matter of law secondly part of it must be subjective there are dynamic risk assessments in which the doctor is allowed to deviate from the objective test that he is given and this is where the court p emphasis that the doctor didn't know many things that the doctor should know such as disciplinary tickets how mr harnett done in the eight years in prison did he have a playboy magazines in his cell things like this how was he doing in school what was goals for the future doctor didn't know any of them and the court felt that this was really very important that the doctor done a good faith objective analysis of mr hart he should have known all these things the best give his opinion the court was thereby left with the conclusion that all that's left here are convictions which just aren't good enough so it's true i'm saying that the second district should have deferred more to the trial  at least on direct examination they say that the argument that we were making was in effect saying that there's no recent bad sexual acts over here that everything took place in the past and that's not good enough  so my time is up which is not the argument that we have been making at all but that's what the how the second district character section six of the illinois constitution and supreme court ruled three zero one both authorize the people to appeal a final judgment in a proceeding under the s p p act and second the people presented more than ample evidence to demonstrate probable cause that the respondent is a sexually violent person now turning to the jurisdictional issue respondent argues that by reading the act as a whole that demonstrates that the legislature intended to restrict the right to appeal  respondents but respondents argument mistakenly assumes that the general assembly's intent is a relevant consideration in determining whether the people have the right to appeal in an s t p proceeding this court need look no further than article six section the constitution and illinois supreme court ruled through one both of which authorize that every final judgment of a circuit court in a civil case is appealable as a matter of right the appellate court respond as it should we why should we applied unless otherwise specified so what the general assembly intended and this is in fact consistent with article six section six of the constitution and supreme court rule through one is that where the general assembly says nothing about the right to appeal or whether or not stays  provided that actually means that the general assembly intended for the rules of the civil practice law to apply and because there's nothing in the s p p act which talks about appeals that meant that the general assembly intended for the rules of the civil practice law to apply and the civil practice law stay it's that appeals are to be taken as provided for in civil cases which means that this court's rules governing civil appeals and this court's rules governing stays are going to govern proceedings under the s it is actually relevant that the general assembly did not say anything in the act because by not saying anything in the act they meant for the rules of the civil practice law to apply and respond agrees and it's well settled that proceedings under the act are to be civil in nature  constitution and supreme court rule three one and if this court doesn't even want to look to the intent of the general assembly it can look there and the intent of the general assembly is that the rules are to be applied as the civil practice law applies now respondent argues that there are certain sections of the act which demonstrates that the general simply intended to restrict the right to appeal to soley s v p respondents and he cites to the certain criminal procedural protections that are available  respondents and argues that by giving respondents these criminal procedural protections that means that the general assembly intended for criminal appeals rules to apply and that means that people would not be able to appeal  but the united states supreme court hendricks and this court in samuelson have held that the fact that certain procedural protections are given to criminal defendants are also given to s p p respondent that does not transform what is a civil commitment proceeding into a criminal prosecution moreover the sections to which respondent cites don't actually show any intent from the legislature that the legislature intended for criminal appeals rules to apply respondent first sight section thirty five but with the plain language of section thirty five g actually states is that a finding that an individual is an s t p is interlocutory to the disposition order that's entered under section forty but is nevertheless a reviewable issue on appeal once a proper appeal has been taken from that this position in order so what that section is saying is that the disposition order is the final order from which an appeal can be taken but that in s b p respond while the state is parties appealing and also provides that you know while a say is granted a form of appeal bond or other form of security could be required but that a stay could be granted so in this case after the trial court dismissed the petition the trial cord essentially ordered that the respondent be released from the custody of v h s into the custody of release from v h s into the custody of d o c so he was essentially free to go and then effectively dismiss  can't appeal the dismissal of an f p p petition because that finding can never be a final order a final order is one that terminating the litigation between the parties on the merits and fixes the rights of the parties so that there's essentially nothing placed on m s r at that point if people do not seek leave to amend the titian and the trial court did not grant the full leave to amend the petition so effectively there was nothing left for the trucker to do in this case but execute the judgement so that was a final and appealed the order because it was dismissal with prejudice now respondent argues that these types of orders can never be final because because the people could simply refile the petition and analogizes the s v p act to a provision in the code of criminal procedure and that's an in app comparison for a couple of reasons first as respondent agrees this is a civil case so the rules of the civil practice law apply and so a reference to the code of criminal procedure is not helpful comparison and second the code of criminal procedure in that provision has a statute of limitations that is told when information has been obtained and an indictment has been filed here there is no similar statute of limitations that would be told the s v p act is different is a different type of statute than what was created in the criminal rules what the legislature created it was a one hundred twenty day window in which the people could file an s p people titian as your honour's noted the people can file the petition ninety days before the respondent is set to be released on the m s r or thirty days within the respondents placement on to m s r and while there is a tolling provision there is a section in the sat sheet that says the filing of the s p p petition tolls the running of the respondents emmis are period with that means is the respondent cannot serve his m s r period while the s v p proceeding is pending but that does not necessarily mean it that the filing of the petition atolls responde placement on to m s r so for example in this case for example if the people have one hundred twenty days in which to file the petition if we were to file the petition on day one hundred nineteen which is twenty nine days after the respondent was placed petition three days later the petition would now have been and the people wanted to refile the people would not be able to refile because it would be filed on one hundred twenty two the one hundred twenty second day after the petition was filed and in this case contrary to what the would put respondent past his thirty day placement on to the sar so once the trial court dismissed the petition and dismissed with prejudice of the people would not have been able to refile anyway but assuming it had been dismissed without prejudice people would not have been able to refile because we wouldn't we would have an outside that one hundred twenty days statutory window and as your honour's noted another consideration is also that the people may simply have no further evidence that we want to present in support of the successive petition and in this case the evidence that we presented we felt the sufficient to satisfy probable cause to believe that the respondent was a sexually violent person and when the trial court dismissed the petition with prejudice we believe that it was a final order and took an appeal from that order because that was precise standard that should be applied in s p p case but looking to the wisconsin state supreme court's decision in state vs watson is instructive and applying that standard the people presented more than ample evidence demonstrating that the respondent here was demonstrating probable cause to believe that the respondent was a sexually violent person as the watching court held the probable cause hearing is not to act as a full preliminary trial or a full evidentiary hearing rather the people resent a plausible account on each of the required elements to assure the trial court that there is a sense substantial basis for proceeding with the petition therefore at the hearing the people are wired to establish reasonable grounds to believe the following three elements that the respondent has been sexually convicted of a sexually violent offense to that he suffers from a mental disorder and three that he's dangerous to others because that mental disorder creates a substantial probability that he will which contained documents reasonably relied upon by experts in the field he relied on his two hour interview that he conducted with the respondent that was conducted just recently before the probable cause hearing in which the respondent was still attempting to displace culpability for his offenses onto the victims in which the respondent was still refusing to acknowledge his own criminal responsibility in the actions the doctor also considered the conduct that was underlying his prior sexually violent offenses and that demonstrated that the respondent experienced current sexual deviant edges towards fifteen year old girls and based on all of this evidence the doctor concluded that the respondent suffered from the mental disorder paraphilia the doctor also considered the respondents scores on the actuarial testing and on the psychological testing and the respondents deviant sexual urges and his and his personality disorder and that caused the doctor to believe that the respondent there is one it's mental disorder made it substantially likely that he would sexually reoffend but despite all this evidence the trial court dismissed the people's petition sating that the facts that the doctor had testified to were not sufficient to establish probable cause and the basis of that finding was that the trial court believed that section thirty five each of the act which its plain language demonstrates is only a political at the trial phase was also political at the probable cause  then also misunderstood the people's evidence as to whether or not the people relied soley on the respondent prior sexually violent offenses to arrive at its conclusion that the respondent suffered from a mental disorder and both of these the mis credibility finding but the issue here is not one of credibility the issues actually the purely legal issue of whether or not the facts to which dr quackenbush testified were sufficient to establish probable cause the appellate court did recount the probable cause standard in its opinion and did recounts the evidence that it considered in cross examination evidence it recounted this in when it was talking about the facts of the case and that demonstrates that the appellate court was fully aware of all of the evidence that was elicited  both on direct and cross examination but simply disagreed with the trial court's decision that all that evidence in its totality was insufficient or was sufficient to establish probable cause in the trial court held otherwise and the appellate court looking at the facts to determine whether or not that legal determination was eric can do that to novo so the issue here is not one of credibility it's a purely legal issue in addition the trial court's factual finding that the doctor simply relied on the fact of respondent prior convictions was against the manifest where the evidence the doctor did not simply rely on respondents prior convictions to determine that he suffered from a mental disorder the people it's the people do not simply present certified copies of the convictions they presented the testimony of an expert who testified that he relied on his two hour interview with the respondent which demonstrated all these facts that the respondent was refusing to take responsibility for his actions that responded had not participated in a treatment since you've been incarcerated and it since continued to refuse to participate in treatment since you've been incarcerated the doctor relied on the conduct underlying the convictions and then also relied on the fact that respondent urges were essentially undeterminable responded converted in minute his second sexually violent offense when he was on probation from his first and committed his third sexually violent offense when he was on parole from his second so these are all the factors that the doctor relied on in arriving at his diagnosis and the trial court's factual finding that he relied solely on the past convictions was against the manifest w it's wrong just to say that s p p petitions are meant to be civil and because of that civil rules must apply so the state can appeal the section that i pointed out section twenty emphasizes the parts of this act are meant to be done under criminal rules we just don't know which one some it's kind of obvious discomfort and says he's a criminal rules but in other parts we have to read the whole act and infer what the legislature had intended this is what i pointed out certain aspects of beata to suggest that the legislature intended that criminal rules were to apply on the question of whether the state could appeal mean that the think that they could not appeal even though the act is supposed are you suggesting that is it every couple jeopardy usually not a constant not a constitutional double jeopardy issue with the case not vast so to speak but the net result would be the same yes that the legislature has not in effect given dismissed period the respondent shall be released from custody period well put together i claimed that the state was not meant to appeal this that the respondent was to just leave and that would be the end of it almost a kin to a constitutional double effect the same thing as the second district that they presented tons of evidence and respectfully it's all bad just isn't the point it's not what gets presented it's it's what gets found by the trial court we take an extreme example and i know that this is this is very extreme but it but it makes the point suppose the doctor the stated presented tons of evidence on direct on the doctor going on and on saying yes i think that mr harden meaningless compared to what comes out at the end and in our situation it's plain that the court just didn't buy the doctor's opinions as a result of what came out on cross  now we're left then with just convictions and the issue of whether mere conviction standing alone isn't are enough to sustain the state's burden at the probable cause hearing we say one paragraph possibly so to what came out on cross earlier on in the opinion and never referred back to what again just said when it came time for its analysis said bad in effect this evidence was presented and that's it's radical for them to to overlook the fact of that the state conceivably can ask for a stay of the trial court's order and not make mention of the fact that this dangerous man will be walking the streets while this motion is pending so i  one that's one aspect i'm also saying that it's not obvious that for one should apply at all but that through one presupposes that this was a civil case the question of whether this is meant to be civil or criminal of course that's a matter of seconds for construction on this point of law so it's really two problems that i'm saying that it wasn't on this point was meant to be civil if it was meant to be civil it's not final so the state still  appeal in any event the jurisdictional question i believe a substantial and the question on the merits as well is also substantial should the second district deferred more to the trial court i'd be pleased to answer any additional questions that the court might have