In re James W.

ILLINOIS OFFICIAL REPORTS
Appellate Court

In re James W., 2012 IL App (5th) 100422

Appellate Court In re JAMES W., Alleged to Be a Person Subject to Involuntary
Caption Admission (The People of the State of Illinois, Petitioner-Appellee, v.
James W., Respondent-Appellant).

District & No. Fifth District
Docket No. 5-10-0422

Filed May 18, 2012

Held Respondent’s commitment to a mental health facility following a jury
(Note: This syllabus hearing on the State’s petition for continued involuntary admission was
constitutes no part of reversed where the 97-day delay that occurred in accommodating
the opinion of the court respondent’s request for a jury violated the Mental Health Code and
but has been prepared resulted in prejudice to respondent, regardless of the fact that respondent
by the Reporter of agreed to the delay, since respondent could not have knowingly and
Decisions for the voluntarily agreed to the delay under the circumstances, especially when
convenience of the there was no attempt to comply with the statutory provisions and there
reader.)
was nothing in the record indicating that a delay of 97 days was
necessary.

Decision Under Appeal from the Circuit Court of Randolph County, No. 10-MH-55; the
Review Hon. Richard A. Brown, Judge, presiding.

Judgment Reversed.
Counsel on Barbara A. Goeben and Veronique Baker, both of Guardianship and
Appeal Advocacy Commission, of Alton, for appellant.

Randall Rodewald, State’s Attorney, of Chester (Patrick Delfino, Stephen
E. Norris, and Sharon Shanahan, all of State’s Attorneys Appellate
Prosecutor’s Office, of counsel), for the People.

Panel JUSTICE CHAPMAN delivered the judgment of the court, with opinion
Justices Welch and Spomer concurred in the judgment and opinion.

OPINION

¶1 The respondent, James W., appeals an order finding him to be subject to involuntary
admission. He argues that (1) the court failed to comply with the Mental Health and
Developmental Disabilities Code (Mental Health Code) (405 ILCS 5/1-100 to 6-107 (West
2010)) by delaying his hearing 97 days after he requested a jury hearing and (2) the petition
for involuntary admission did not comply with the statutory requirement that it list family
members or friends of the respondent. We reverse.
¶2 The respondent has a long history of mental illness. He has been admitted to mental
health facilities numerous times beginning in 1986. He has been continuously admitted at
Chester Mental Health Center (Chester) since December 2003, when he was transferred there
from the Illinois Department of Corrections.
¶3 On April 29, 2010, Dr. Kathryn Holt, a psychologist at Chester, filed a petition for
continued involuntary admission. The petition alleged that the respondent suffered from
schizophrenia, paranoid type, and antisocial personality disorder. The petition further alleged
that the respondent lacks awareness of his mental illness and that he has acted aggressively
due to his illness.
¶4 On May 5, 2010, the matter was called for a hearing. The respondent requested an
independent examination. The court granted his request and continued the hearing to allow
the examination to take place. The hearing was reset for May 19.
¶5 At the May 19 setting, the respondent’s attorney informed the court that the respondent
wanted to demand a hearing before a jury. The court asked the respondent if he wanted a
jury, to which he replied, “Yes, sir.” The court then stated: “Well, I can tell you that we don’t
have any other juries *** for mental health until August. Do you understand that?” The
respondent replied, “Yeah, I’ll wait.” The court asked if he understood that this meant he
would remain at Chester until August. The respondent indicated that he understood, and then
he stated, “I ain’t going nowhere noway.”

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¶6 The matter was reset for a jury hearing on August 23, 2010. This was 97 days after the
respondent requested a jury hearing and 116 days after the petition was filed. The jury found
the respondent to be subject to involuntary admission. The court entered an order admitting
the respondent to Chester for 180 days beginning on August 23, 2010. This appeal followed.
¶7 We note at the outset that this appeal involves questions that are moot. The order
admitting the respondent to Chester expired in February 2011. Thus, our decision cannot
effectively give him relief from that order. Appeals courts do not generally have jurisdiction
over questions that are moot because considering such questions amounts to rendering an
advisory opinion. See In re Mark W., 348 Ill. App. 3d 1065, 1069, 811 N.E.2d 767, 770
(2004) (citing In re Mary Ann P., 202 Ill. 2d 393, 401, 781 N.E.2d 237, 242 (2002)).
However, both parties argue that this appeal falls within recognized exceptions to the
mootness doctrine, and we agree.
¶8 Under the public-interest exception, we may address an issue that is moot where (1) the
issue is a matter of public concern, (2) an authoritative determination is needed to guide
public officials and the courts, and (3) the issue is likely to recur in other cases. In re Alfred
H.H., 233 Ill. 2d 345, 355, 910 N.E.2d 74, 80 (2009). Both this court and our supreme court
have found questions related to the procedures to be followed in mental health cases to be
matters of great public concern. In re Mary Ann P., 202 Ill. 2d at 402, 781 N.E.2d at 243; In
re Evelyn S., 337 Ill. App. 3d 1096, 1102, 788 N.E.2d 310, 315 (2003). We have found only
one Illinois case addressing the precise question raised in this appeal, and that discussion
came in dicta. Thus, an authoritative determination is likely to be helpful. Finally, we agree
with the parties that the question is likely to recur. Therefore, we may consider this appeal
under the public-interest exception to the mootness doctrine.
¶9 The respondent first argues that the court failed to comply with the Mental Health Code’s
requirement of a timely hearing. Section 3-611 of the Mental Health Code provides that a
hearing must be held within five days after a petition for involuntary commitment is filed,
excluding Saturdays, Sundays, and holidays. 405 ILCS 5/3-611 (West 2010). Section 3-
800(b) expressly allows continuances; however, continuances requested by the State or
allowed sua sponte by the court are limited to 15 days. 405 ILCS 5/3-800(b) (West 2010).
Both statutes use the word “shall”; thus, these time limits are mandatory. See In re T.S., 402
Ill. App. 3d 1159, 1171-72, 932 N.E.2d 1103, 1113 (2010) (the word “shall” in a statute
indicates a “ ‘legislative intent to impose a mandatory obligation’ ” (quoting People v.
O’Brien, 197 Ill. 2d 88, 93, 754 N.E.2d 327, 330 (2001))). Moreover, because the provisions
of the Mental Health Code are designed to protect important liberty interests, they are to be
strictly construed. In re Hannah E., 376 Ill. App. 3d 648, 654, 877 N.E.2d 63, 70 (2007).
¶ 10 Here, as previously discussed, the hearing was continued for 97 days after the respondent
requested a jury. The respondent argues that his request for a jury cannot be deemed to be
a request for a continuance because he has a right to request a jury. See 405 ILCS 5/3-802
(West 2010) (providing that a respondent “is entitled to a jury on the question of whether he
is subject to involuntary admission” (emphasis added)). The State, however, contends that
the jury request was not timely. More precisely, the State contends that a respondent in a
mental health case “should make his jury request no later than his first appearance.”
(Emphasis added.) Because the respondent did not request a jury at his first court appearance,

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 the State argues that he was not entitled to a jury and therefore was not “prejudiced by the
delay in providing him with the jury to which he was not entitled.” We agree with the
respondent.
¶ 11 The relevant statutory provision does not expressly address the timeliness of a jury
request in a mental health proceeding, and only two prior Illinois decisions have addressed
the question. The Second District addressed the timeliness of a jury request in In re
Dryjanski, 282 Ill. App. 3d 161, 668 N.E.2d 616 (1996), and the First District considered the
question in In re M.A., 293 Ill. App. 3d 995, 689 N.E.2d 138 (1997). We note that neither of
these courts addressed the precise issue before us. Both cases involved a trial court’s refusal
to grant a respondent’s request for a jury. Nevertheless, we find the cases relevant to the
question. Neither case supports the State’s position.
¶ 12 In the Dryjanski case, the trial court denied the respondent’s request for a jury hearing,
and the respondent appealed. The State argued that the jury request did not comply with the
requirements of the general provision governing jury demands in civil trials (735 ILCS 5/2-
1105(a) (West 1994)). In re Dryjanski, 282 Ill. App. 3d at 164, 668 N.E.2d at 618. In relevant
part, the State argued that the demand there was not timely because it was made orally at the
outset of the respondent’s hearing. In re Dryjanski, 282 Ill. App. 3d at 164, 668 N.E.2d at
618. In rejecting this argument, the Second District noted that the general provision
governing jury demands in the Code of Civil Procedure (735 ILCS 5/2-1105 (West 1994))
is not applicable to mental health cases. That provision requires that a jury demand be filed
in writing no later than the answer in other types of civil cases; however, the Mental Health
Code does not require a respondent to file an answer. In re Dryjanski, 282 Ill. App. 3d at 164,
668 N.E.2d at 618.
¶ 13 In finding that the jury request at issue there was timely, the court first emphasized that
the respondent made her request before either party began presenting opening arguments and
before any witnesses had been sworn or called. In re Dryjanski, 282 Ill. App. 3d at 164, 668
N.E.2d at 618. The court also pointed out that the respondent made the request at her first
court appearance in the matter, which was only three days after the petition for involuntary
admission was filed. In re Dryjanski, 282 Ill. App. 3d at 164-65, 668 N.E.2d at 618. The
court concluded that, under the circumstances, the respondent’s request was timely and
should have been granted. In re Dryjanski, 282 Ill. App. 3d at 165, 668 N.E.2d at 618.
¶ 14 The First District followed In re Dryjanski in the case of In re M.A. In re M.A., 293 Ill.
App. 3d at 1000, 689 N.E.2d at 141. In finding the respondent’s request for a jury there to
be timely, the First District stated only that the request was timely because it was made
before either party presented opening arguments or called any witnesses. In re M.A., 293 Ill.
App. 3d at 999, 689 N.E.2d at 141.
¶ 15 The State does not address In re M.A. and attempts to distinguish In re Dryjanski on the
basis that here, unlike there, the respondent did not request a jury at his first court
appearance. Instead, he made the request after the hearing had been continued for two weeks
to allow him to obtain an independent examination. We are not persuaded. As noted, the In
re M.A. court based its decision solely on the fact that the respondent there requested a jury
before opening arguments began and before witnesses were sworn. Moreover, the statute

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 entitling mental health respondents to a jury must be liberally construed in favor of granting
jury requests. In re M.A., 293 Ill. App. 3d at 999, 689 N.E.2d at 141; In re Dryjanski, 282 Ill.
App. 3d at 163-64, 668 N.E.2d at 617-18. Thus, we find that the respondent’s request for a
jury was timely.
¶ 16 This does not resolve the issue before us, however. As the respondent acknowledges,
failure to comply strictly with the requirements of the Mental Health Code does not always
require reversal. Rather, reversal is required only where the respondent suffered prejudice
as a result of the court’s failure to comply strictly with the statutory requirements. See In re
Hannah E., 376 Ill. App. 3d at 654, 877 N.E.2d at 70; In re Lisa G.C., 373 Ill. App. 3d 586,
590, 871 N.E.2d 794, 799 (2007). As we will discuss, courts have found that, under some
circumstances, continuances beyond those expressly permitted under the relevant provisions
of the Mental Health Code may be reasonable and not prejudicial.
¶ 17 The respondent argues that he was prejudiced by the 97-day delay because the order was
entered on August 23, 2010, and did not expire until February 2011. Had the hearing been
held earlier, the State would have been required to file a new petition for continued
admission much earlier. In essence, this meant that he remained in Chester without a hearing
for an additional period of 97 days–more than half the duration of an order authorizing
continued involuntary admission. See 405 ILCS 5/3-813(b) (West 2010) (providing that such
orders are limited in duration to 180 days). Although we agree, we note that this will always
be true when there is a delay in mental health proceedings. As previously mentioned,
prejudice is not always presumed from any failure to comply strictly with the provisions of
the Mental Health Code. Here, the State argues that at least some delay was necessary to
accommodate the respondent’s request for a jury hearing. The respondent acknowledges this
in his reply brief. He argues, however, that while some delay may have been warranted, the
lengthy delay that occurred here was not justified.
¶ 18 In support of his position, the respondent points to the Third District’s decision in In re
Williams, 140 Ill. App. 3d 708, 489 N.E.2d 347 (1986). There, the trial court continued a
hearing on a petition for involuntary admission for eight days on its own motion. When the
hearing commenced after this continuance, the respondent requested both a jury hearing and
an independent examination. In re Williams, 140 Ill. App. 3d at 709, 489 N.E.2d at 348. He
also requested a seven-day continuance, which the court granted. After that continuance, the
court denied the respondent’s request for an independent examination. In re Williams, 140
Ill. App. 3d at 709, 489 N.E.2d at 348. Several additional delays followed. In re Williams,
140 Ill. App. 3d at 709, 489 N.E.2d at 348-49. By the time the matter was finally called for
a jury hearing, 5½ months had elapsed since the petition for involuntary admission had been
filed. In re Williams, 140 Ill. App. 3d at 709, 489 N.E.2d at 349.
¶ 19 The Third District reversed on the basis that the trial court denied the respondent’s
request for an independent examination. In re Williams, 140 Ill. App. 3d at 710-11, 489
N.E.2d at 349. The court went on to state:
“We want to state clearly that we believe the lengthy delay in bringing this case to
trial was a serious abuse of Williams’ rights. The circuit court simply disregarded the
statutory mandate that involuntary commitment proceedings involving a person’s liberty

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 must be heard within 20 days. A special jury could have been called in order to give
Williams a trial much sooner than was possible under the regular procedure. On the other
hand, we are cognizant of the fact that the statutory timeline requiring a hearing (possibly
before a jury) within 20 days presents serious problems for the judicial system in those
counties having mental health facilities.” In re Williams, 140 Ill. App. 3d at 712, 489
N.E.2d at 351.
¶ 20 The State correctly points out that these comments were dicta because the court reversed
on another basis. However, we find them persuasive. We acknowledge, as did the In re
Williams court, that the statutes as written pose practical problems for counties with mental
health centers. However, we cannot eviscerate the requirements of the Mental Health Code
by carving out judicial exceptions in order to accommodate the courts in those counties. That
is a matter for the legislature, not the courts. See In re Williams, 140 Ill. App. 3d at 713, 489
N.E.2d at 351. Instead, we may affirm the court’s ruling only if we find that the delay was
not prejudicial to the respondent.
¶ 21 In that regard, the State argues that In re Williams is distinguishable for two reasons.
First, the State contends, the respondent there filed motions to dismiss his case for lack of
a timely hearing. See In re Williams, 140 Ill. App. 3d at 709, 489 N.E.2d at 348-49. Second,
the State points out that the delay in that case was lengthier than the delay here and involved
multiple continuances rather than one lengthy continuance, as occurred here. We are not
persuaded. The statutes setting out time limits for holding hearings are applicable whether
or not a respondent files a motion to dismiss or takes any other action to invoke them.
Additionally, we see no meaningful distinction between multiple short continuances and a
single lengthy continuance. The State is correct, however, in noting that the delay involved
in the Williams case was significantly longer than the delay involved here. However, for the
reasons that follow, we find the delay in the instant case significant enough to demonstrate
prejudice to the respondent. This point is best illustrated by considering cases in which a
delay was found not to be prejudicial.
¶ 22 In support of its contention that the delay did not prejudice the respondent, the State cites
In re Hannah E. and In re Lisa G.C. In re Hannah E. involved an unusual set of
circumstances that ultimately led to the court rendering its decision 42 days after the petition
for involuntary admission was filed. In re Hannah E., 376 Ill. App. 3d at 655, 877 N.E.2d
at 70. There, the court granted three short continuances (a three-day continuance requested
by the respondent, a seven-day continuance requested by the State, and another seven-day
continuance requested by both parties). In re Hannah E., 376 Ill. App. 3d at 655, 877 N.E.2d
at 70-71. After these continuances, the hearing began.
¶ 23 The respondent acknowledged that when the hearing began, it was timely under the
Mental Health Code. In re Hannah E., 376 Ill. App. 3d at 655-56, 877 N.E.2d at 71.
However, on appeal she challenged two delays that occurred after the hearing started. At the
hearing, counsel for the respondent sought to cross-examine her treating psychiatrist about
a proposed arrangement for alternative outpatient care that had been discussed prior to the
hearing. In re Hannah E., 376 Ill. App. 3d at 656, 877 N.E.2d at 71. The State objected, and
the court held a conference in chambers to allow the parties to argue the admissibility of the
testimony. Because the court found the issue to be complex, it continued the hearing 20

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 additional days to allow the parties to brief the issue and to give the State time to prepare its
case after the court’s ruling. In re Hannah E., 376 Ill. App. 3d at 656, 877 N.E.2d at 71.
¶ 24 When the hearing resumed, 15 witnesses testified over two days. In re Hannah E., 376
Ill. App. 3d at 656, 877 N.E.2d at 71. The parties finished presenting their cases at the end
of the day on a Thursday. At this point, the parties had not yet made closing arguments, and
the court informed them that it needed at least an hour to review the evidence. Taking into
account these facts and the respondent’s counsel’s availability, the court continued the matter
over the weekend and issued its decision on a Monday morning. In re Hannah E., 376 Ill.
App. 3d at 657, 877 N.E.2d at 72.
¶ 25 On appeal, the First District found these delays to be reasonable and not prejudicial under
the unique circumstances presented. The court explained that the first delay allowed the
respondent to present evidence which, while not typical in a mental health case, was “of vital
importance” to her on the question of whether less restrictive alternatives to admission were
available. In re Hannah E., 376 Ill. App. 3d at 657, 877 N.E.2d at 72. The appeals court also
noted that the trial court worked out a briefing schedule with the attorneys for both parties.
In re Hannah E., 376 Ill. App. 3d at 657, 877 N.E.2d at 72. The appeals court then explained
that the short continuance to allow the trial court time to review the evidence and hear
closing arguments was warranted where the trial court “noted that rushing its judgment
would not benefit [the respondent] or anyone else.” In re Hannah E., 376 Ill. App. 3d at 657,
877 N.E.2d at 72.
¶ 26 In In re Lisa G.C., the hearing was initially set one day after the petition for involuntary
admission was filed. In re Lisa G.C., 373 Ill. App. 3d at 592, 871 N.E.2d at 800. However,
the court allowed three seven-day continuances. The second continuance was requested by
the respondent; the other two were requested by the State. A total of 22 days elapsed between
the filing of the petition and the hearing. In re Lisa G.C., 373 Ill. App. 3d at 593, 871 N.E.2d
at 801. On appeal, the Fourth District did not determine the length of delay permitted by
section 3-800(b) of the Mental Health Code (405 ILCS 5/3-800(b) (West 2004) (allowing the
court to grant a continuance of up to 15 days)). In re Lisa G.C., 373 Ill. App. 3d at 593, 871
N.E.2d at 801. Instead, the court noted that the hearing in the case before it was held 15 days
after the deadline established for an initial hearing setting under section 3-611 of the Mental
Health Code (405 ILCS 5/3-611 (West 2004)) and that the second 7-day continuance was
requested by the respondent herself. In re Lisa G.C., 373 Ill. App. 3d at 593, 871 N.E.2d at
801. Under these circumstances, the court found that “prejudice cannot be presumed from
a delay of 22 days.” In re Lisa G.C., 373 Ill. App. 3d at 593, 871 N.E.2d at 801.
¶ 27 Here, the delay was much longer than that involved in either In re Lisa G.C. or In re
Hannah E., and the unusual circumstances in In re Hannah E. were not present here. The
State contends that the respondent’s request for a jury here is similar to what occurred in In
re Hannah E. As previously discussed, the In re Hannah E. court found that the delay was
caused by the respondent’s desire to present evidence, the admissibility of which involved
a difficult legal question. Here, the State contends, the delay was caused by the timing of the
respondent’s jury request. As mentioned earlier, the respondent requested a jury at the
beginning of the second hearing setting, which took place after a 14-day continuance. In
order to comply strictly with the timing provisions in the Mental Health Code, the court

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 would have needed to call the matter for a jury hearing the following day. Thus, we agree
with the State that at least some amount of delay was necessary in order to accommodate the
respondent’s request.
¶ 28 However, this does not mean that a delay of 97 days was warranted. This delay of more
than three months was significantly longer than the delays of less than one month found not
to be prejudicial in In re Hannah E. and In re Lisa G.C. Orders for continued involuntary
admission are effective for up to 180 days. 405 ILCS 5/3-813(b) (West 2010). In light of the
short duration of these orders, we find that the prejudice to a respondent from a 97-day delay
is self-evident. Moreover, there is nothing in the record to indicate that 97 days was
necessary to accommodate the respondent’s request for a jury hearing. The procedures
followed here would mean that any respondent requesting a jury hearing would have to wait
up to three months for the next scheduled mental health jury setting, even if he requested a
jury at the first opportunity. There was no attempt here to comply with the statutory
provisions. We thus conclude that the 97-day delay violated important provisions of the
Mental Health Code meant to protect the respondent’s rights, and we find that the violation
resulted in prejudice to the respondent.
¶ 29 The State argues, however, that the respondent agreed to the 97-day delay. We disagree.
As previously discussed, the court offered the respondent a choice of foregoing his statutory
right to ask for a jury or waiting 97 days for a hearing. As he argues on appeal, this was a
“Hobson’s choice” between foregoing two important rights. We cannot agree that the
respondent knowingly and voluntarily agreed to a delay of 97 days under the circumstances.
We find that the order admitting the respondent to Chester must be reversed.
¶ 30 The respondent also contends that the petition for involuntary admission failed to comply
with a requirement that it include the names and addresses of any close relatives or known
friends of the respondent. See 405 ILCS 5/3-601(b)(2) (West 2010). We note that the
treatment plan attached to the petition does include the first names and phone numbers of
three of the respondent’s relatives (two of his sisters and his cousin). We need not resolve
the parties’ arguments on this issue, however, because we reverse on other grounds.
¶ 31 For the reasons stated, we reverse the order of the trial court.

¶ 32 Reversed.

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