Legal Memorandum: Standard of review for the evaluation of probable cause for a sexually violent person

Issue: Under Illinois law, what is the standard of review applicable to an evaluation of a trial court’s finding of probable cause in a sexually violent person (SVP) discharge proceeding?

The standard of review applicable to the evaluation of the trial court’s finding of no probable cause in a sexually violent person (SVP) discharge proceeding is not entirely clear. Historically, the appellate courts of this state have applied an abuse of discretion standard. See Cain, 402 Ill.App.3d at 396; In re Detention of Cain, 341 Ill.App.3d 480, 482 (2003); In re Ottinger, 333 Ill.App.3d 114, 120 (2002). However, in 2012, the Illinois supreme court applied de novo review to the related issue of whether an expert’s opinion is relevant to establish probable cause to believe that the petitioner is "no longer" or is not "still" a sexually violent person. (Internal quotation marks omitted.) In re Detention of Stanbridge, 2012 IL 112337, ¶ 70. To reach this issue, the supreme court was first required to determine the quantum of proof at a postcommitment probable cause hearing. Id. ¶ 56. The supreme court concluded that the postcommitment quantum of proof is the same as the precommitment standard expressed in In re Detention of Hardin, 238 Ill.2d 33, 44 (2010). Stanbridge, 2012 IL 112337, ¶ 64. In determining the precommitment probable cause quantum of proof, the Hardin court was influenced by the probable cause standard applied by the Wisconsin Supreme Court in State v. Watson, 595 N.W.2d 403 (Wis. 1999).^[2] Hardin, 238 Ill.2d at 47-48. The Watson court likened a precommitment probable cause hearing to a preliminary hearing in a felony case. Watson, 595 N.W.2d at 418. […]