dissenting:
I cannot join the majority’s disposition of this case. The majority decides this case entirely on issues the parties did not brief, and ignores the doctrine of stare decisis in doing so.
Much of the evidence against defendant in the civil commitment proceeding against him was based on “actuarial risk assessment.” Defendant filed a motion in limine arguing that this was a novel methodology, which the circuit court should not admit without holding a Frye hearing. The State maintained that no Frye hearing was required, because “actuarial principles” are not novel. Alternatively, the State argued that even if actuarial risk assessment was novel, it satisfied the Frye requirement of general acceptance. The circuit court agreed with the State that no Frye hearing was required and did not rule on the State’s alternate argument that actuarial risk assessment passed the Frye test. The appellate court reversed, holding that the circuit court erred in failing to hold a Frye hearing.
In reversing the appellate court, the majority forthrightly admits that the first issue discussed is one “not raised by the parties,” that is, “the appropriate standard of review for a trial court’s Frye rulings.” 213 Ill. 2d at 529. Initially, this court in general ought to be wary of addressing issues sua sponte, without the benefit of briefing by the parties. In the instant case the State affirmatively relies on the unquestioned assumption that the standard of review is “abuse of discretion,” and defendant does not dispute that this is the proper standard. Nor can one fault the parties for failing to argue the standard of review, given this court’s unambiguous recent statement that “We review Frye issues under an abuse of discretion standard.” Donaldson v. Central Illinois Public Service Co., 199 Ill. 2d 63, 76 (2002). See also People v. Miller, 173 Ill. 2d 167, 187-88 (1996) (“The decision of whether to admit expert testimony about a new scientific technique is committed to the sound discretion of the trial court *** the trial court did not abuse its discretion”).
Given the fact that the standard of review has not been put into issue by the parties, I am troubled by the court’s decision to interject the issue on its own. The majority does not explain its decision to do so, but certainly the importance of the issue cannot be the rationale, as a case is sure to come up in the future in which the parties actually address the subject. See People v. De La Paz, 204 Ill. 2d 426, 453 (2003) (Thomas, J., concurring) (“the majority is being disingenuous if it is suggesting that the importance of the issue mandates that we resolve it in this particular case”). And the doctrine of stare decisis compels an opposite approach. According to this doctrine, “ ‘absent powerful countervailing considerations, like cases ought to be decided alike.’ ” People v. Tisdel, 201 Ill. 2d 210, 228 (2002) (McMorrow, J., dissenting, joined by Freeman and Kilbride, JJ.), quoting 5 Am. Jur. 2d Appellate Review § 599 (1995). Not only do we address the standard of review without the parties even having mentioned it, we reverse our own recent precedent without even so much as an acknowledgment of stare decisis. This is perplexing, to say the least. It would be one thing if the majority and I differed on the question of whether there is cause to overcome the doctrine of stare decisis in this particular case. Certainly there are occasions on which there exists sufficient reason to overturn prior precedent, notwithstanding the doctrine (see, e.g., People v. Coleman, 183 Ill. 2d 366, 378-89 (1998) (changing standard of review of dismissals of petitions under Post-Conviction Hearing Act)), and whether sufficient reason exists for a departure from stare decisis in any given case is a question upon which reasonable minds might sometimes differ. But the majority fails even to admit that the doctrine exists.
This cannot be because the majority is unaware of the doctrine. Dissenting members of this court have taken pains to remind majorities of the doctrine’s existence in recent case law — including cases authored by the very justice who writes for the majority in the instant case. See, e.g., Tisdel, 201 Ill. 2d at 227 (McMorrow, J., dissenting, joined by Freeman and Kilbride, JJ.) (“the majority opinion is notable for its complete silence with respect to the application of the principle of stare decisis while overturning two recent and unanimous decisions of this court”). Thus, I confess, I find myself utterly perplexed by the majority’s failure even to acknowledge the doctrine’s existence in the instant case. The dissonance is especially striking, given that the author of the majority opinion in the instant case was a member of the Donaldson majority, and did not join the two specially concurring justices in that case who called for de novo review of Frye “general acceptance” determinations. See Donaldson, 199 Ill. 2d at 104 (McMorrow, J., concurring, joined by Garman, J.). Why does this case represent an exception to the principle, embodied in the doctrine of stare decisis, that the laws of Illinois ought not to change whenever individual justices of this court change their minds? See Tisdel, 201 Ill. 2d at 228 (McMorrow, J., dissenting, joined by Freeman and Kilbride, JJ.) {“stare decisis ‘is the means by which courts ensure that the law will not merely change erratically, but will develop in a principled and intelligible fashion *** [apart from] the proclivities of individuals’ ”), quoting Chicago Bar Ass’n v. Illinois State Board of Elections, 161 Ill. 2d 502, 510 (1994). The majority is silent on this subject. I am concerned that by failing to address the issue, the majority leaves this court open to the charge that Illinois is governed no longer by law, but by the vagaries of the day-to-day preferences of the members of this court.
After having changed Illinois law sua sponte, the majority goes on to frame the issue as “whether actuarial risk assessment *** is admissible under Frye.” 213 Ill. 2d at 533. With all due respect to the majority, that is not the question before us. The question is whether the circuit court erred in failing to hold any Frye hearing at all. The circuit court found that no Frye hearing was required, and the appellate court disagreed — but neither court ever determined whether actuarial risk assessment is admissible under the Frye test.
The majority sidesteps the question of whether actuarial risk assessment is subject to Frye, the only question decided by the lower courts. Instead, the majority implicitly determines that the answer to this question is irrelevant, because actuarial risk assessment satisfies the Frye test. I note that this ratio decendi is only possible because of the earlier change to the standard of review. If the standard of review is abuse of discretion, as the parties assume and as this court has held as recently as two years ago, we would have to determine whether actuarial risk assessment is subject to Frye. If it is not subject to Frye, we would affirm. But if it is subject to Frye, there would be no possible conclusion other than that circuit court abused its discretion in failing to hold a Frye hearing, as there is no Frye-related evidence we could review to affirm the circuit court’s conclusion — I note that in determining that actuarial risk assessment passes the Frye test, the majority relies wholly on materials which the circuit court never considered.
I state no opinion on whether actuarial risk assessment ought to pass the Frye test in an appropriate case. I simply believe that this is not the proper case to decide the issue, given the tortuous path down which the majority propels Illinois law in doing so.
JUSTICE KILBRIDE joins in this dissent.