specially concurring:
While I reluctantly concur in the majority’s holding that we lack jurisdiction over this appeal, I write separately to voice my concerns with this result.
At issue here substantively was the State’s contention that the trial court did not properly or sufficiently consider the factors governing whether a sexually violent person (SVP) should be committed to institutional care in a secure facility or whether he should receive conditional release back into the community upon which he has preyed. See 725 ILCS 207/40(b)(2) (West 2006). Thus, the State’s position was that respondent should not be released into the community under any conditions; that is the sole issue on which the State seeks review.
Evidence in the record shows that respondent has a history of sexual violence beginning in 1990, when he was 14 years of age, when he struck a 7-year-old girl and asked her, “Do you want to get humped?” No charges resulted from that incident.
A year later, respondent touched a nine-year-old girl’s genitals and, while both were clothed, simulated sex with her while she was held down by another boy. When the victim began screaming and crying, respondent got up and allowed the victim to run away. When this incident was investigated, the police uncovered evidence that respondent had been making repeated, inappropriate sexual comments to young girls and inappropriate sexual comments involving young girls.
In 1996, when respondent was 20 years old, he was convicted of a battery that had sexual components. The incident began when respondent reached through a chain-link fence at a public pool and pinched the buttocks of an 11-year-old girl. The girl’s 14-year-old brother confronted respondent, and respondent punched the boy in the face.
In 1998, respondent was convicted of two separate incidents of aggravated criminal sexual abuse stemming from incidents that occurred in 1997. In one case, respondent’s 15-year-old girlfriend reported that respondent had sexual intercourse with her on two occasions. On one of the occasions, the victim was unwilling to participate in sexual intercourse, but respondent “badgered” and “forced” her to have intercourse. Respondent also told the victim that he was 16 years of age, even though he was 21 years old at the time. In the second incident, respondent forced intercourse with his 13-year-old neighbor.
Respondent also had convictions of other crimes. One incident involved respondent, who was 20 years old, grabbing the buttocks of a 14-year-old girl, backing her against a wall, and trying to put his hand into her shorts. In addition to the other crimes, respondent has continued to demonstrate an inability to control his urges. For example, while respondent was on parole, he would hang around the local library seeking to establish relationships with young girls. Respondent even had a neighbor write a letter for him (respondent appears to be functionally illiterate) to a 12-year-old girl whom he was apparently grooming to be another victim.
This recitation of respondent’s history is designed to show that the State had a substantial and legitimate interest in seeking review of the merits of the trial court’s decision to place respondent into an out-patient conditional release setting rather than placing him in a custodial secure facility where he might be able to receive treatment and where he would not endanger young girls. Further, the State presented evidence that supported the contention that respondent was an SVP who was a distinct danger to relapse into his predatory ways unless he received treatment. The State also presented evidence showing that respondent would not undertake treatment on his own, having refused to seek treatment while on parole, even though enrolling in and receiving sexual offender treatment was a condition of his parole.
The stakes in this case, then, are high. If we could reach the merits, we should, but we are constrained to follow the law as it exists, and not to rewrite the law to allow us to reach a desired outcome. For example, an argument could be made that Illinois Supreme Court Rule 303(a)(2) (eff. May 1, 2007) affords us an avenue by which to claim jurisdiction. For this argument to succeed, we would have to characterize the July 3, 2007, judgment as a final judgment, ignoring the fact that the conditions of the conditional release had to be approved by the court. Further, we would have to characterize the conditions to be approved by the court as a pending claim in the action. If we take those steps, then Rule 303(a)(2) would give us jurisdiction as follows. If the July 3, 2007, order were deemed a final judgment, then the State’s July 19, 2007, motion to reconsider would be a postjudgment motion. On July 20, 2007, the trial court denied the motion to reconsider. On August 20, 2007, the State filed its notice of appeal. On September 21, 2007, the trial court resolved the “remaining claim,” namely, approving the conditions of respondent’s conditional release. By application of Rule 303(a)(2), the premature notice of appeal would be made valid. Ill. S. Ct. R. 303(a)(2) (eff. May 1, 2007) (“a notice of appeal filed before the *** final disposition of any separate claim[ ] becomes effective when the order disposing of said *** claim is entered).
By twisting the concepts of “final order” and “pending claim” in the action, we could manufacture jurisdiction here. While that course might pass a “straight face” test, it does not bear up under dispassionate consideration. The July 3, 2007, order is nonfinal because it both required and contemplated further action by the trial court. 392 Ill. App. 3d at 530. Likewise, the conditions necessary to implement the conditional release are not a separate claim; rather, they are intertwined with the adjudication of conditional release. 725 ILCS 207/40(b)(3) (West 2006). This remains true even though the State was opposed to respondent’s release under any conditions. Thus, the State’s motion to reconsider cannot reasonably be construed, at least not by the appellate court, to be a postjudgment motion, and Rule 303(a)(2) does not apply.
Our jurisdiction in this case is not engaged, because the August 20, 2007, notice of appeal was premature and the State did not file another notice of appeal following the September 21, 2007, final judgment that approved the conditions of respondent’s conditional release. This is an unfortunate and unconscionable result due to the hazards and intricacies of appellate jurisdiction. Appellate jurisdiction is rather like taking a stroll in a minefield. People v. Marker, 382 Ill. App. 3d 464, 485 (2008) (O’Malley, J., dissenting), rev’d, 233 Ill. 2d 158 (2009); Physicians Insurance Exchange v. Jennings, 316 Ill. App. 3d 443, 446 (2000). Here, the State stepped on the landmine of a premature notice of appeal — a problem that persists notwithstanding our supreme court’s effort to eradicate this pitfall by amending Rule 303 (Ill. S. Ct. R. 303 (eff. May 1, 2007)). It is noteworthy that neither party recognized the lack of jurisdiction initially, recognized it after we ordered a supplemental statement of jurisdiction, or recognized it even when we later ordered additional briefing on the issue. Rather, we followed the supreme court’s admonition regarding the appellate court’s most important tasks: “the ascertainment of its own jurisdiction is one of the two most important tasks of an appellate court panel when beginning the review of a case. The other is to determine which issue or issues, if any, have been forfeited.” People v. Smith, 228 Ill. 2d 95, 106 (2008). While we are constrained to follow this supreme court admonition, it nevertheless remains true that, however important jurisdiction may be, it is, at the appellate level, quite arbitrary. Appellate review of a decision to release a habitual child molester into the community is manifestly important and our system urgently needs a little tweaking so that this equally important concern is not hindered by arbitrary rules governing the important concern of appellate jurisdiction. For example, why cannot all premature notices of appeal be treated like the select ones covered by the recent amendment to Rule 303? If that were the case, we would have jurisdiction over this very important matter, just as the parties thought, quite persistently, we had.
Many times the issue of appellate jurisdiction is nothing more than a question of how to count to 30. The cases are legion that discuss the art of counting to 30 — whether to count certain holidays, how to treat weekends, when to start counting, etc. And equally arbitrary is the number 30 itself. The period in which to file a notice of appeal could just as logically be 35 days or 28 days or whatever number of days reasonably would allow a party to make the weighty decision to launch an appeal.
Another significant issue I see is using the word “jurisdiction” in this context. The notion of whether and when we ought to be reviewing the work of the trial court is important, but it is nowhere nearly as fundamental to our system of justice as is in personam jurisdiction or subject matter jurisdiction in the trial court. In the context of in personam or subject matter jurisdiction, the issue is not just important, but fundamental. In the context of how to count to 30, it is something quite a bit less portentous.
It is my sincere hope that the quirks of the law of appellate jurisdiction can be removed so that other important cases like this one do not evade our review on the merits through a technical error on the part of one of the parties.