dissenting:
In the present case, the majority finds a conflict between the requirements of the statute and the terms of our rule and concludes that the statute is unconstitutional. I respectfully dissent, for I believe that the two provisions may be reconciled easily, and the constitutional question therefore avoided.
A separation of governmental powers is implicit in our familiar tripartite system of State government (County of Kane v. Carlson (1987), 116 Ill. 2d 186, 206); the same principle is stated explicitly in article II, section 1, of the Illinois Constitution (Ill. Const. 1970, art. II, §1 (“The legislative, executive and judicial branches are separate. No branch shall exercise powers properly belonging to another”)). The doctrine does not contemplate the division of governmental power into rigid compartments (City of Waukegan v. Pollution Control Board (1974), 57 Ill. 2d 170, 173-74), and I do not believe that the present statute unconstitutionally intrudes on judicial authority.
Supreme Court Rule 609(b) states that a convicted defendant “may be admitted to bail and the sentence or condition of imprisonment or periodic imprisonment stayed, with or without bond, by a judge of the trial or reviewing court.” (134 Ill. 2d R. 609(b).) Section 110— 6.2(b) of the Code of Criminal Procedure of 1963 provides that a convicted defendant may be released on bond pending appeal if he establishes, by clear and convincing evidence, that he “is not likely to flee or pose a danger to the safety of any other person or the community if released” and that “the appeal is not for purpose of delay and raises a substantial question of law or fact likely to result in reversal or an order for a new trial.” (Ill. Rev. Stat. 1989, ch. 38, par. 110 — 6.2(b).) The majority concludes that section 110 — 6.2(b) violates the separation of powers doctrine because the statute purports to limit the authority of a court, as expressed in the rule, to admit defendants to bail pending appeal. I do not agree.
The statute and the rule are easily reconciled. Rule 609(b) provides that a court may release a convicted defendant pending appeal. The rule is silent, however, on what criteria and standard of proof govern that decision. These are now supplied by section 110 — 6.2(b), which specifies the relevant considerations. In substance, the statute simply codifies the circumstances normally considered by a court in deciding whether to release a convicted defendant pending appeal. Indeed, the same criteria and standard of proof are also found in the corresponding Federal statute. (See 18 U.S.C. §3143 (1988).) Though section 110 — 6.2(b) is now invalid, I am sure that our courts will continue to apply the same considerations in the future.
Today’s decision affords preemptive effect not only to what Rule 609(b) says, but also to what it does not say. Unlike the statute invalidated in People ex rel. Stamos v. Jones (1968), 40 Ill. 2d 62, however, section 110 — 6.2(b) does not impinge on this court’s authority over appeals by rendering an entire class of offenders ineligible for release. Rather, the present statute merely standardizes the criteria and proof required for release, matters on which the rule is entirely silent. Thus, I would conclude that section 110 — 6.2(b) falls within the legislature’s traditional power to enact laws complementing the authority of the judicial branch. See People v. Walker (1988), 119 Ill. 2d 465, 475; O’Connell v. St. Francis Hospital (1986), 112 Ill. 2d 273, 281.
Finding no conflict between the statute and the rule, I would uphold the statute. I express no view on the extent of the legislature’s independent authority to enact guidelines governing release, a question that is not necessary to the resolution of the present case and thus one that need not be answered here (see Schoeberlein v. Purdue University (1989), 129 Ill. 2d 372, 377).