PRESIDING JUSTICE HUTCHINSON delivered the opinion of the court:

Following a jury trial, respondent, Terry Hayes, was found to be a sexuallyviolent person. The trial court subsequently found that respondent was notappropriate for conditional release and ordered him committed to a securefacility. The commitment order contained a number of directives for theDepartment of Human Services (the Department) regarding respondent's treatment.In No. 2--00--0392, respondent appeals, contending (1) that the Sexually ViolentPersons Commitment Act (the Act) (725 ILCS 207/1 et seq. (West 1998)) isunconstitutional; and (2) the State failed to prove beyond a reasonable doubtthat he is a sexually violent person. Respondent does not contend that the trialcourt erred when it ordered him committed to a secure facility. In No.2--00--0339, the Department appeals, contending (1) the trial court lackedauthority to order the Department to retain a private physician or subject theDepartment to that physician's supervision; (2) the doctrine of sovereignimmunity barred the order as an action against the State; (3) constitutionalseparation of powers precluded a court order directing the manner in which theDepartment performed executive functions; and (4) the trial court lackedjurisdiction over the Department. On respondent's motion we have consolidatedthese two appeals. In No. 2--00--0392 we affirm. In No. 2--00--0339 we affirm inpart, vacate in part, and remand. In accordance with the criteria of SupremeCourt Rule 23(a) (166 Ill. 2d R. 23(a)) we have elected not to publish thoseportions of this opinion relevant to respondent's challenge to the sufficiencyof the evidence.

BACKGROUND

On January 13, 1998, the State filed a petition alleging that respondent wasa sexually violent person. On January 15, 1998, the trial court found thatprobable cause existed that respondent was a sexually violent person, orderedthe Department to detain him, and set the matter for a jury trial. The matterwas continued several times for reasons unrelated to this appeal.

On February 22, 1999, the trial court commenced a jury trial on the State'spetition.

The jury found that respondent was a sexually violent person. The trial courtentered judgment on the jury's verdict, ordered respondent committed to theDepartment, ordered a supplemental mental examination, and continued the matterfor status. The matter was continued several more times for reasons unrelated tothis appeal.

On January 4, 2000, the trial court conducted a dispositional hearing. CarlWahlstrom, a psychiatrist, testified on behalf of the State. Wahlstrom revieweda variety of written reports and examined respondent on September 14, 1999.Following the examination Wahlstrom reached a medical diagnosis of Crohn'sdisease, a chronic bowel inflammatory disease. Wahlstrom recommended thatrespondent's medical condition be monitored by a medical doctor, an internist,and that he be referred to a gastroenterologist if the disease did not remain inremission.

Wahlstrom further testified that he made a diagnosis of respondent's mentalcondition. Wahlstrom's diagnoses included major depression with psychoticfeatures; alcohol, marijuana, and cocaine dependence; a severe, childhood-onsettype of conduct disorder that had evolved into an antisocial personalitydisorder; and pedophilia. Wahlstrom formulated a treatment plan based on hisdiagnoses of respondent.

Wahlstrom testified that he believed respondent's depression required moreaggressive treatment. He recommended that the antidepressant he was receiving bereplaced with a different type of antidepressant and that an antipsychoticmedication be added. Wahlstrom also recommended testing respondent to determinewhether a thyroid disorder was contributing to his depression. Wahlstromrecommended that respondent's chemical dependence be treated with a treatmentprogram incorporating elements of the Alcoholics Anonymous and NarcoticsAnonymous programs. Wahlstrom further indicated that medication might be used inconjunction with a treatment program. Wahlstrom recommended that the antisocialpersonality disorder be treated in a structured program incorporating firmlimit-setting as an element. For treatment of respondent's pedophilia, Wahlstromrecommended a variety of techniques, including group therapy, arousal control,and cognitive behavioral therapy.

Wahlstrom testified that he had reviewed the Act and was aware that itprovided for treatment either in a secure institutional setting or conditionalrelease. Wahlstrom opined that respondent should be treated in a secureinstitutional setting. Wahlstrom further opined that the treatment respondentwould receive at the Sheridan treatment facility would be adequate to treat hismental condition. Wahlstrom believed respondent would receive adequate medicalcare at the facility but was concerned that he was in obvious pain andrecommended that his medical condition be more fully evaluated for pain control.Wahlstrom opined that respondent would not be able to obtain the necessarytreatment outside a secure institutional setting such as the Sheridan treatmentcenter.

In response to questioning by the trial court, Wahlstrom opined that apsychiatrist who is not board certified in forensic psychiatry and did not havea great deal of experience would not be qualified to oversee the treatment planhe had outlined for respondent. Wahlstrom opined that an experiencedpsychiatrist should have oversight of the program.

Sadashiv Parwatikar, a psychiatrist, testified that he acts as a forensicconsultant under a contract with the State of Illinois. Parwatikar reviewedrespondent's records and interviewed him on September 20, 1998. Parwatikardiagnosed respondent with paraphilia, polysubstance dependence, antisocialpersonality, borderline personality, and Crohn's disease.

Parwatikar testified that he formulated a treatment plan for respondent'sCrohn's disease. The plan included treatment with antibiotics and surgicalintervention, if required.

Parwatikar further testified that he had formulated a treatment plan forrespondent's mental condition. Parwatikar recommended that respondent'spersonality and sexual problems be treated in a combined manner. Parwatikarrecommended drug treatment for depression and recommended the sexual problem betreated with group and individual psychotherapy. Parwatikar opined thatrespondent should be treated in a structured environment. Parwatikar testifiedthat he was not fully aware of the treatment available at the Sheridan facilitybut indicated that it was the type of program he would recommend.

Raymond Wood, clinical director of the sexually violent persons program,testified that his employer, Liberty Health Care, operated the Sheridan facilityunder a contract with the Department. The facility used a team approach totreatment, and a treatment team ordinarily included a psychologist, a nurse orpsychiatrist, a therapist, a security representative, and, if needed, asubstance abuse counselor or recreation therapist. Wood testified that treatmentteams often included additional members. Woods described a five-phase programused to treat sex offenders.

Timothy Budz, a licensed clinical social worker, testified that he wasemployed as the facility director at the Sheridan facility. Budz testified thathe was in charge of day-to-day operations at the facility. Budz supervised Woodand his staff but was not directly involved with the treatment of individuals.Budz described the physical layout of the Sheridan facility and the Department'splans to remodel a Department of Corrections facility in Joliet and relocate theprogram.

Hollida Wakefield, a psychologist, testified on behalf of respondent.Wakefield examined respondent on November 4, 1999. Wakefield used a variety oftechniques to analyze respondent's risk level. Wakefield diagnosed respondentwith polysubstance abuse, depressive disorder, antisocial personality disorder,and borderline personality disorder. Wakefield concluded that respondentpresented a moderate to high risk of recidivism. After assessing respondent,Wakefield collaborated with Ralph Underwager to develop a treatment plan.

Ralph Underwager, a psychologist, testified that he collaborated withWakefield to develop a treatment plan for respondent. Wakefield believed thatrespondent presented a situation of comorbidity, the presence of more than onemental illness, that was fundamental in developing a treatment plan. Underwageropined that respondent would not likely respond to sex offender treatment untilhis antecedent conditions were treated. After the other conditions were treated,respondent would be able to be effectively involved in a sex offender treatmentprogram. Underwager concluded that respondent could not be effectively treatedat the Sheridan facility. Underwager recommended treatment in a secure generalpsychiatric facility, such as the Elgin Mental Health facility.

Respondent testified on his own behalf. Respondent testified that he had beenprescribed medication to treat his Crohn's disease but that he was not currentlyreceiving the medication. Respondent had spoken with nurses at the Sheridanfacility but had been unable to learn why he was not receiving the medication.Respondent testified that he believed the treatment plans proposed by Underwagerand Wahlstrom would benefit him but he did not believe he would receive theproposed treatment from the Department.

Following argument, the trial court ordered that respondent be committed to asecure facility for treatment and adopted the findings of Wahlstrom's report.The written commitment order provided in pertinent part:

"1. That [respondent] is hereby committed pursuant to 725 ILCS 207/40 for institutional care in the Sheridan facility for Sexually Violent Persons or, once it is completed, the Joliet facility for Sexually Violent Persons.

2. That as an integral part of this commitment order, the Department of Human Services is to arrange for the control, care and treatment of [respondent] in accordance with the plan of treatment presented in Dr. Carl M. Wahlstrom's report ***.

3. That the Court has adopted the findings of Dr. Wahlstrom in his report as its own findings.

4. That in addition, the Department of Human Services shall employ Dr. Wahlstrom to oversee the execution of said plan.

5. That the Department of Human Services shall authorize Dr. Wahlstrom to consult with any medical provider or psychologist he believes is necessary for the treatment required to implement said plan.

6. That Dr. Wahlstrom shall provide this Court with a written report of the staffing and treatment involving the Respondent. ***

7. That the staffing referred herein shall include consultation with the Respondent's internist for his Crohn's Disease, since it is the Court's finding that the current treatment of Respondent requires that his physical and mental illness by [sic] treated concurrently.

8. That the Department of Human Services shall authorize and pay Dr. Wahlstrom to supervise and direct all of the treatment provided to respondent. *** The Department of Human Services shall comply with all orders of Dr. Wahlstrom including providing the Respondent with all medications prescribed by Dr. Wahlstrom and/or the Respondent's internist."

On February 16, 2000, respondent filed a notice of appeal from the trialcourt's order of February 24, 1999, finding him a sexually violent person andits order of January 28, 2000, committing him to a secure facility.

On February 28, 2000, the Department filed a motion to vacate, modify,dissolve, and/or reconsider the trial court's January 2000 commitment order. Themotion alleged, inter alia, the order exceeded the trial court'sstatutory authority, the order was overly broad, the order improperly requiredthe employment of Dr. Wahlstrom, the order violates the separation of powersclause, and the trial court lacked jurisdiction over the Department.

On March 2, 2000, the Department filed a special and limited appearance and amotion to stay enforcement of the January 2000 commitment order. On March 6,2000, counsel for the Department appeared before the trial court. The trialcourt refused to hear argument on the Department's motion because the Departmenthad not filed a general appearance in the case. In response the Departmentagreed to file a general appearance. The trial court denied the Department'smotion to stay the January 2000 order, but clarified the order, holding that itapplied only to the treatment of respondent and that the Department was notrequired to treat Dr. Wahlstrom as an employee. The trial court continued thematter for hearing on the Department's motion to vacate.

On March 21, 2000, the trial court conducted a hearing on the Department'smotion. The trial court denied the motion, explaining that it recognized thelimits imposed by the doctrine of separation of powers but that it did notbelieve its order interfered with the day-to-day operations of the Department.The Department timely appeals the trial court's order denying its motion tovacate the January 2000 order.

ANALYSIS

No. 2--00--0392

Constitutionality of the Act

Respondent first contends that the Act is unconstitutional on it face.Respondent argues that the Act's definition of "sexually violentperson" violates the guarantees of substantive due process because the useof the phrase "substantially probable" in the Act creates a lowerstandard than the "likely" standard approved by the United StatesSupreme Court in Kansas v. Hendricks, 521 U.S. 346, 138 L. Ed. 2d 501,117 S. Ct. 2072 (1997). The State responds that the "substantiallyprobable" language creates a higher standard than the one approved in Hendricks.A challenge to the constitutionality of a statute is a matter of law that wereview de novo. In re Detention of Samuelson, 189 Ill. 2d 548, 558(2000).

The Act allows the State to extend the incarceration of criminal defendantsbeyond the time they would otherwise be entitled to release if they are found tobe "sexually violent persons." Samuelson, 189 Ill. 2d at 552.The Act defines a "sexually violent person" as:

"a person who has been convicted of a sexually violent offense, has been adjudicated delinquent for a sexually violent offense, or has been found not guilty of a sexually violent offense by reason of insanity and who is dangerous because he or she suffers from a mental disorder that makes it substantially probable that the person will engage in acts of sexual violence." 725 ILCS 207/5(f) (West 1998).

In Hendricks, the United States Supreme Court examined a similarcommitment statute in Kansas that allowed civil commitment of individuals whowere "likely" to engage in acts of sexual violence. Hendricks,521 U.S. at 357, 138 L. Ed. 2d at 512, 117 S. Ct. at 2080. The Supreme Courtupheld the statute against a due process challenge, observing that it"cannot be said that the involuntary civil confinement of a limitedsubclass of dangerous persons is contrary to our understanding of orderedliberty." Hendricks, 521 U.S. at 357, 138 L. Ed. 2d at 512, 117 S.Ct. at 2080. A mere predisposition to violence is insufficient; rather, civilcommitment is appropriate when there exists "evidence of past sexuallyviolent behavior and a present mental condition that creates a likelihood ofsuch conduct in the future if the person is not incapacitated." Hendricks,521 U.S. at 357-58, 138 L. Ed. 2d at 512, 117 S. Ct. at 2080. The Supreme Courtalso rejected double jeopardy and ex post facto challenges to the Kansasstatute. Hendricks, 521 U.S. at 371, 138 L. Ed. 2d at 521, 117 S. Ct. at2086.

In Samuelson, our supreme court reversed a circuit court ruling thatthe Act was unconstitutional. Samuelson, 189 Ill. 2d at 552. Respondentacknowledges the Samuelson ruling but argues that the supreme court leftunresolved the issue of whether the "substantially probable" standardof the Act met the minimum requirements for due process identified in Hendricks.Respondent further argues that the word "probable" in the Act has thesame meaning as the word "likely" used in the Kansas statute and thatthe addition of the word "substantially" creates a standard below the"likely" standard approved in Hendricks. We disagree.

We decline to read Samuelson as narrowly as respondent suggests. Thesupreme court indicated that it was "reluctant to issue a blanketpronouncement that the postcommitment discharge procedures present no dueprocess problems." (Emphasis added.) Samuelson, 189 Ill. 2d at 565.However, respondent's arguments are addressed solely to the Act's commitmentprocedures, and we do not view this dicta as an invitation to reconsiderthe supreme court's determination that the Act is constitutional.

More importantly, we determine that the Act's "substantiallyprobable" standard does not violate substantive due process. We appreciatethe subtle grammatical distinction between "substantially probable"and "substantial probability" that respondent illuminates in hisargument. However, this is a distinction without difference. The Act, as do allstatutes, carries a strong presumption of constitutionality. Samuelson,189 Ill. 2d at 558. The objective of statutory construction is to give effect tothe legislature's intent, and when presented with conflicting interpretationscourts will avoid a construction that creates constitutional difficulties,absurdity, inconvenience, or injustice. People v. Berg, 277 Ill. App. 3d549, 552 (1996).

Respondent argues that under Hendricks a person may be committed as asexually violent person only if she or he is more likely than not to commit anact of sexual violence in the future. Recast in mathematical terms, respondent'sargument requires a probability of reoffense greater than .5 or 50%. We do notbelieve that the Supreme Court identified a mathematical standard when it heldthat the "likely" standard used in the Kansas legislation compliedwith due process. The question of substantial probability under the Act cannotbe reduced to mere percentages. In re Detention of Walker, 314 Ill. App.3d 282, 294 (2000). Instead, the combination of a "likely" standardwith evidence of mental illness complied with due process because the statutoryrequirements served to "limit involuntary civil confinement to those whosuffer from a volitional impairment rendering them dangerous beyond theircontrol." Hendricks, 521 U.S. at 358, 138 L. Ed. 2d at 513, 117 S.Ct. at 2080. Similarly, we determine that the definition of "sexuallyviolent person" contained in the Act serves to limit the class ofindividuals subject to involuntary civil confinement, without defining preciselythe level of dangerousness.

However, even if we assume, as respondent argues, that Hendricksestablished a minimum threshold of danger to justify commitment, we determinethat the Act's definition of sexually violent person meets or exceeds thisrequirement. We find persuasive the Wisconsin Supreme Court's interpretation ofa similar statute. See In re Commitment of Curiel, 227 Wis. 2d 389, 597N.W.2d 697 (1999). The Wisconsin court held that under commonly accepted usagesthe phrase "substantially probable" means "much more likely thannot." Curiel, 227 Wis. 2d at 406, 597 N.W.2d at 704. We determinethat the phrase "substantially probable" in the Act also means"much more likely than not," a standard higher than or equal to the"likely" standard found constitutional in Hendricks. However,we emphasize that this definition cannot be reduced to a mere mathematicalformula or statistical analysis. Instead the jury must consider all factors thateither increase or decrease the risk of reoffending, and make a commonsensejudgment as to whether a respondent falls within the class of individuals whopresent a danger to society sufficient to outweigh their interest in individualfreedom. See Walker, 314 Ill. App. 3d at 294; see also Hendricks,521 U.S. at 356-57, 138 L. Ed. 2d at 511-12, 117 S. Ct. at 2079.

Illinois courts have not recognized the distinction between "substantialprobability" and "substantially probable" upon which respondentrelies. Instead Illinois courts have used the terms synonymously. See Samuelson,189 Ill. 2d at 559; Walker, 314 Ill. App. 3d at 293-94. The Supreme Courtof Wisconsin expressly found the equivalency implicit in the Illinois cases. SeeCuriel, 227 Wis. 2d at 402-03, 597 N.W.2d at 703 ("We explicitlynote this difference in the phrasing of the term to emphasize that ourinterpretation of 'substantially probable' serves equally as an interpretationof 'substantial probability' "). The Act itself also uses both phrasesinterchangeably. Compare 725 ILCS 207/5(f) (West 1998) ("he or she suffersfrom a mental disorder that makes it substantially probable that the person willengage in acts of sexual violence") with 725 ILCS 207/15(b)(5) ("theperson's mental disorder creates a substantial probability that he or she willengage in acts of sexual violence").

The "substantially probable" standard was recently examined in Inre Detention of Bailey, 317 Ill. App. 3d 1072 (2000). In Bailey, thereviewing court was presented with a certified question asking whether the Actviolated substantive due process because the phrase "substantialprobability" was vague. Bailey, 317 Ill. App. 3d at 1081. As wehave, the Bailey court found the Wisconsin Supreme Court's analysis in Curielpersuasive. Bailey, 317 Ill. App. 3d at 1086. The Bailey courtconcluded that "substantially probable" is not vague and defined thephrase as "much more likely than not." Bailey, 317 Ill. App. 3dat 1086. Although the certified question presented to the Bailey courtraised a narrower and distinct challenge to the constitutionality of the Act, wefind that the reasoning expressed therein is consistent with, and supportive of,our analysis of respondent's challenge to the Act. Therefore, we conclude thatthe "substantially probable" definition used in the Act does notviolate due process and is not unconstitutional.

No. 2--00--339

The Department challenges the trial court's commitment order on severalbases. We will address first those jurisdictional and constitutional contentionsthat would be dispositive of this appeal.

Personal Jurisdiction over the Department

The Department contends that the trial court's order was void because itlacked personal jurisdiction over the Department. We disagree. Under fundamentalprinciples of due process, a court is without jurisdiction to enter an order orjudgment affecting a right or interest of someone not before the court. Emalfarbv. Krater, 266 Ill. App. 3d 243, 247 (1994). Whether a court had personaljurisdiction is a matter of law that we review de novo. Mugavero v.Kenzler, 317 Ill. App. 3d 162, 164 (2000).

In this case, the issues before the trial court were whether respondent was asexually violent person and whether he should be committed to a secure facilityor conditionally released. See 725 ILCS 207/35, 40 (West 1998). Resolution ofthese issues directly affected only the rights of respondent. The Department'sinterests were not affected directly but instead were implicated because the Actimposes a duty on the Department to arrange for the control, care, and treatmentof sexually violent persons after they are so adjudicated. See 725 ILCS207/40(b)(2) (West 1998). The trial court's judgment is a binding determinationof respondent's rights whether or not the Department is joined as a party. See Emalfarb,266 Ill. App. 3d at 249. Therefore, we conclude that the trial court did notlack jurisdiction to enter a commitment order merely because the Department hadnot been named as a party or served with process.

We note, however, that the Department does have nonparty standing to appealthe trial court's commitment order if it believes the order exceeds the trialcourt's authority under the Act. See People v. Szypcio, 307 Ill. App. 3d609, 611 (1999) (recognizing the standing of the Secretary of State to appeal anorder directing the issuance of a judicial driving permit); In re R.V.,288 Ill. App. 3d 860, 864-65 (1997) (recognizing the standing of the Departmentof Children and Family Services (DCFS) to appeal an order requiring DCFS tovideotape interviews with children alleging sexual abuse). We address infrathe issue of whether the trial court's commitment order exceeded its statutoryauthority.

Sovereign Immunity

The Department also contends that sovereign immunity precluded entry of thetrial court's commitment order. The Department argues that, because the orderrequired the expenditure of State funds, it constituted a suit against the Stateover which the Court of Claims has exclusive jurisdiction. See 745 ILCS 5/1(West 1998). We disagree.

While sovereign immunity dictates that the State can be sued only in theCourt of Claims, the determination of whether an action is, in fact, a suitagainst the State turns upon the relief sought rather than the formaldesignation of the parties. In re Lawrence M., 172 Ill. 2d 523, 527(1996). A suit against state officials that seeks to compel them to performtheir duty is not a suit against the State even though the duty to be performedarises under a certain statute and the payment of State funds may be compelled. LawrenceM., 172 Ill. 2d at 527; R.V., 288 Ill. App. 3d at 867. In LawrenceM., the supreme court held that a court order requiring DCFS to provide andpay for in-patient drug treatment was not a suit against the State because thetrial court believed that the Juvenile Court Act of 1987 (705 ILCS 405/1--1 etseq. (West 1996)) imposed a duty to do so on DCFS. Lawrence M, 172Ill. 2d at 527. Similarly, in In re Rami M., 285 Ill. App. 3d 267 (1996),the reviewing court held that an order requiring DCFS to provide service to aminor and his family was an order compelling DCFS administrators to performtheir duty and was not barred by sovereign immunity. Rami M., 285 Ill.App. 3d at 272.

In this case, neither party directly sued the Department. The "reliefsought" to which the Department objects was the conditions imposed onrespondent's commitment by the trial court. The Act requires the Department toprovide for the "control, care and treatment" of respondent. 725 ILCS207/40 (West 1998). The trial court's order attempts to direct the manner inwhich the Department does so. Whether or not the Act authorizes the trial courtto enter such an order, the trial court believed that the Act imposed a duty onthe Department to follow the commitment order. Accordingly, we find that thetrial court's order is in the nature of a suit compelling a state official toperform her or his duty and is not barred by sovereign immunity. See R.V.,288 Ill. App. 3d at 867.

Separation of Powers

The Department also contends that the trial court's order violates thedoctrine of separation of powers because it unduly encroaches on the sphere ofauthority granted the Department, a division of the executive branch of thegovernment. The Illinois Constitution provides, "The legislative, executiveand judicial branches are separate. No branch shall exercise powers properlybelonging to another." Ill. Const. 1970, art. II,