In re Torski C.

NO. 4-08-0952 Filed 11/17/09

IN THE APPELLATE COURT

OF ILLINOIS

FOURTH DISTRICT

In re: Torski C., a Person Found Subject to ) Appeal from
Involuntary Admission, ) Circuit Court of
THE PEOPLE OF THE STATE OF ILLINOIS, ) Sangamon County
Petitioner-Appellee, ) No. 08MH865
v. )
TORSKI C., ) Honorable
Respondent-Appellant. ) Esteban F. Sanchez,
) Judge Presiding.

JUSTICE APPLETON delivered the opinion of the court:

In November 2008, a petition was filed for the emergency involuntary

admission of respondent, Torski C., alleging he was mentally ill, unable to understand

his need for treatment because of the nature of his illness, and reasonably expected to

engage in dangerous conduct. In December 2008, the trial court conducted a hearing

and granted the petition. The court ordered respondent hospitalized for no more than

90 days.

Respondent appeals, claiming the applicable statutory sections are void for

vagueness, facially unconstitutional, and unconstitutional as applied. We hold the

definition of "dangerous conduct" set forth in section 1-104.5 of the Mental Health and

Developmental Disabilities Code (Mental Health Code) (405 ILCS 5/1-104.5 (West

2008)) void for vagueness. Further, we hold the application of that definition in section

1-119 of the Mental Health Code violates substantive due process. We vacate as void the

court's order temporarily committing respondent to a mental-health institution.

I. BACKGROUND
 On November 19, 2008, respondent's mother filed a petition seeking

respondent's involuntary admission to a mental-health facility pursuant to section 3-700

of the Mental Health Code (405 ILCS 5/3-700 (West 2008)). The petition sought

respondent's immediate hospitalization and alleged he was mentally ill and, because of

his illness, he was (1) reasonably expected to engage in dangerous conduct (see 405 ILCS

5/1-119(1) (West 2008)) and (2) unable to understand his need for treatment and, if he

was not treated, he would be expected to suffer mental or emotional deterioration to the

point that he would reasonably be expected to engage in dangerous conduct (see 405

ILCS 5/1-119(3) (West 2008)). The petition also alleged respondent had been experi-

encing paranoid delusions of people trying to break into his home to kill him.

The trial court ordered respondent detained at Memorial Medical Center

for examination. By the next day, respondent had been evaluated by three qualified

examiners, who all had determined that respondent was in need of inpatient mental-

health care due to his delusions and paranoia. All examiners were concerned that

defendant would harm himself, or someone else, with the firearm that he admittedly

carried for protection. A report of the examination performed by psychiatrist Stacey

Horstman indicated that respondent had been hospitalized between July 31, 2008, and

August 12, 2008, for psychiatric care. No other psychiatric history was indicated. On

December 2, 2008, Dr. Aura M. Eberhardt, a psychiatrist at McFarland Mental Health

Center (McFarland), examined respondent and formed the same opinion as the previous

examiners.

On December 5, 2008, the trial court conducted a hearing on the petition

for involuntary hospitalization. The State moved to strike the allegation filed pursuant

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to section 1-119(1) of the Mental Health Code (405 ILCS 5/1-119(1) (West 2008)) and

proceeded only on the allegation filed pursuant to section 1-119(3) (405 ILCS 5/1-119(3)

(West 2008) ("[a] person with mental illness who, because of the nature of his or her

illness, is unable to understand his or her need for treatment and who, if not treated, is

reasonably expected to suffer or continue to suffer mental deterioration or emotional

deterioration, or both, to the point that the person is reasonably expected to engage in

dangerous conduct")).

Respondent's mother, Cassie Elston, testified that respondent was 31 years

old and lived in his own apartment. She said in the past four or five months, respondent

had become delusional. He reported (1) seeing an angel sitting on a nearby power

station before it flew into his apartment, (2) he saw "[l]ittle bitty people," (3) he went to

heaven and laid on God's feet, and (4) God speaks directly to him. Elston said: "Since

[respondent] has been ill, he lives by that Bible." He had warned her that he will do

whatever God tells him to do, including killing his 15-month-old son. Elston said her

nephew, Barron Rice (a father figure to respondent), had been murdered three years

earlier. Initially, after the murder, respondent was very angry. However, in the past few

months, he had become delusional. Respondent told Elston that God had identified

those responsible for the murder. God told him he needed to leave town because either

someone was going to kill him or he was going to kill someone. For that reason,

according to Elston, respondent carried a gun on his person at all times.

Elston said that in addition to Rice's murder, respondent had endured

other personal traumatic experiences, such as his close friend having been sentenced to

prison, a breakup with his girlfriend, and the birth of his child. She said respondent had

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"so much on his plate" that "he kind of flipped out." Prior to these events, "[t]here was

never anything wrong with his mind." Elston believed "that with medication [respon-

dent's] mind would be different." Respondent had recognized his problem and asked to

see a doctor, but he was unable to get an appointment for several months.

Aura Eberhardt, a psychiatrist, testified that respondent was admitted to

McFarland on November 20, 2008, and examined by her on December 2, 2008. She

diagnosed respondent with psychosis, not otherwise specified, due to his paranoid

delusions and auditory hallucinations. According to respondent's medical records, he

had told another psychiatrist that he was "plotting to do evil to the guys that killed his

cousin." He believed his best friend had placed recording devices in his home to record

his prayers. Dr. Eberhardt feared that respondent would act on his paranoid delusions

and harm himself or others. In her opinion, if respondent did not receive treatment, he

would suffer or continue to suffer mental or emotional deterioration. She said respon-

dent denied having a psychiatric illness or needing treatment; however, she believed he

lacked the capacity to understand his need for treatment.

Dr. Eberhardt reported that on November 29, 2008, respondent slapped a

female patient's face. She again opined that respondent was in need of involuntary

hospitalization to prevent further harm to himself and others. She had formulated a

treatment plan, which she described as the least-restrictive alternative. She believed

that once respondent was stabilized with treatment, he would do well in a group home.

On cross-examination, Dr. Eberhardt denied that religious ideas were an

exception to the concept of a delusion. She said respondent had been attending group

sessions and she had not yet prescribed any medication for respondent. The State

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rested.

Respondent testified on his own behalf and stated that he had graduated

from high school and barber school. He had been a barber for nine years. He said he

did not intend to kill anyone and denied that God had told him to do so. Respondent

said he has talked to God and God talks to him, but in the context of prayer. He said he

did not recall the conversation with his mother about his son but, if they had the

conversation, it was most likely in the context of a Biblical story. He admitted that he

would do whatever God asked him to do because he wanted to "win favor in God's eyes."

When asked if he would kill his son if God asked him to, respondent stated:

"I'm pleading the [f]ifth [amendment] for that in the

court of law, and as I just stated, I would not want to kill my

son. I would want to teach my son values in life and why

would I want to kill my son? I just stated not long ago[,] I

would prefer to teach my son values. My aim is not to kill my

son or kill no man for that reason. I strive to be a righteous

man as I have told her before."

Respondent clarified that when he told his mother that he had seen angels,

he meant that he had seen "the light." He did not mean that he saw angels fly. He said

he has an angel watching over him at all times. He did not recall the conversation with

his mother about seeing "little people." He stated:

"No. I have never told my mother little people was

[sic] coming into my apartment. I told my mother that these

guys would--I have stated before--were out to kill me and

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 that they had plotted on coming into my home to kill me, to

even come into my home to kill me is what I told her."

Respondent said he was certain that some men "here in town" were trying

to kill him. He asked his mother for help to move away, saying that he feared that either

he would be killed or he would kill someone in self-defense. He denied carrying a gun

with him at all times but admitted carrying a knife. He kept his gun at his apartment.

He named for the court some of the men that he claimed wanted to kill him--those who

were responsible for Rice's murder.

Respondent testified that the altercation at McFarland started when the

female taunted him, calling him a "nigger" and cursing at him. He had warned her that

he would slap her if she continued. She continued, "so [he] went over there and [he]

slapped her as [he] told her [he] would." He said he felt that he was in control of

himself, although he could not deny that he could be involved in dangerous conduct. He

said that if the people that are "out for" him attack him, he would be involved in

dangerous conduct. He said his friend had placed recording devices in his home and had

stolen several copies of his house keys. He said the friend knew respondent "slept hard

and he could sneak around in [his] house." He said he has been in danger in the last few

months.

The trial court questioned respondent as follows:

"THE COURT: Now, you testified just a few moments

ago that you would get up in the middle of the night and

hit--what did you say you hit?

A. No. I testified that my friend would tell me I

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 should get up in the middle of the night and punch on my

punching bag. I never said that I did. I said that he said

that--he used to try to advise me and tell me, 'Man, you

should get up in the middle of the night and punch on that

punching bag', and it wouldn't be just me and him around a

lot of the times when he said this. Somebody may say or if I

said, 'Why that [sic]?' 'Man, you never know how a fight

might break out, somebody in your house when you're sleep-

ing', you know what I'm saying? 'You better change your

locks.' So he was prepping me in case I woke up and one of

his brothers or one of his associates was in my house, you

know what I'm saying?

THE COURT: Is that what you believed?

A. Yes, yes."

Respondent rested.

After considering the evidence and arguments of counsel, the trial court

held the State had proved the allegations in the petition by clear and convincing

evidence. The court ordered respondent involuntarily hospitalized for mental-health

treatment at McFarland for a period not to exceed 90 days. This appeal followed.

II. ANALYSIS

A. Mootness

Initially, we note this case is moot. The trial court's order of December 5,

2008, authorizing respondent's involuntary hospitalization was limited to a period of 90

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days. That period has since passed. However, a reviewing court may review otherwise

moot issues pursuant to the public-interest exception to the mootness doctrine. In re

Andrea F., 208 Ill. 2d 148, 156, 802 N.E.2d 782, 787 (2003). "The criteria for applica-

tion of the public[-]interest exception are: (1) the public nature of the question; (2) the

desirability of an authoritative determination for the purpose of guiding public officers;

and (3) the likelihood that the question will recur." Andrea F., 208 Ill. 2d at 156, 802

N.E.2d at 787.

The issue in this case falls within the public-interest exception as respon-

dent has raised constitutional questions concerning the construction of sections 1-119(3)

and 1-104.5 of the Mental Health Code (405 ILCS 5/1-119(3), 1-104.5 (West 2008)). See

In re Robert S., 213 Ill. 2d 30, 45-46, 820 N.E.2d 424, 433-34 (2004) (procedures to be

followed for the involuntary treatment of an individual involve matters of substantial

public concern and are oftentimes reviewable under the public-interest exception to the

mootness doctrine). Therefore, we will proceed to review the case on the merits. The

standard of review for constitutional questions, like other questions of law, is de novo.

People ex rel. Department of Corrections v. Millard, 335 Ill. App. 3d 1066, 1070, 782

N.E.2d 966, 969 (2003).

B. Involuntary-Commitment Standards

It is well established that the imposition of involuntary mental-health

services implicate an individual’s substantial liberty interests. Robert S., 213 Ill. 2d at

46, 820 N.E.2d at 434. The individual's liberty interests must be balanced against the

State’s interests (1) to provide care for persons unable to care for themselves and (2) to

protect society from dangerous mentally ill persons. In re Robinson, 151 Ill. 2d 126,

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130-31, 601 N.E.2d 712, 715 (1992). Civil commitment procedures implicate the State's

parens patriae powers and police powers. The State acts in the role of parens patriae

with the purpose of protecting the mentally ill individual by depriving him of his liberty,

not to punish him, but to treat him. The State also utilizes its police power to protect its

citizens against potentially dangerous acts of mentally ill persons. Lessard v. Schmidt,

349 F. Supp. 1078, 1084 (E.D. Wis. 1972), vacated on other grounds, 414 U.S. 473, 38

L. Ed. 2d 661, 94 S. Ct. 713 (1974). Under both of these powers, the State may, ulti-

mately, deprive a mentally ill individual of his or her fundamental right to liberty.

"Thus, the procedures set forth in the [Mental Health] Code are a legislative recognition

that civil commitment is a deprivation of personal liberty. The purpose of the proce-

dures is to provide adequate safeguards against unreasonable commitment." In re

James, 191 Ill. App. 3d 352, 356, 547 N.E.2d 759, 761 (1989).

Respondent claims that sections 1-119(3) and 1-104.5 of the Mental Health

Code (405 ILCS 5/1-119(3), 1-104.5 (West 2008)), effective June 1, 2008, violate the

due-process clause of the federal constitution. See U.S. Const., amends. V, XIV.

Specifically, respondent argues that these statutory sections allow the State to involun-

tarily commit a person who refuses treatment without first requiring proof that he (1) is

unable to make a rational decision to refuse treatment and (2) is considered a danger to

himself or others. Respondent contends that both sections are facially unconstitutional,

void for vagueness, and unconstitutional as applied.

"When analyzing the constitutionality of a statute on review, this court

begins with the assumption that the statute is constitutional. [Citation.] *** If reason-

ably possible, this court has an obligation to construe a statute in a manner that would

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uphold its constitutionality. [Citation.] *** The party challenging the validity of a

statute has the burden of establishing the statute's constitutional infirmity." People v.

Molnar, 222 Ill. 2d 495, 508-09, 857 N.E.2d 209, 217 (2006). In any case, the burden is

great, but it is especially great when the challenged statute addresses an issue in which

the State has clearly defined powers, as is the case here. The State has a well-estab-

lished, legitimate interest under its parens patriae power in providing care to persons

unable to care for themselves and also has the authority under its police power to

protect the community from mentally ill persons determined to be dangerous. Heller v.

Doe, 509 U.S. 312, 332, 125 L. Ed. 2d 257, 278, 113 S. Ct. 2637, 2649 (1993).

Public Act 95-602 (Pub. Act 95-602, §5, eff. June 1, 2008 (2007 Ill. Laws

7839)), effective June 1, 2008, amended section 1-119 to provide as follows:

"'Person subject to involuntary admission' means:

(1) A person with mental illness and who because of

his or her illness is reasonably expected to engage in danger-

ous conduct which may include threatening behavior or

conduct that places that person or another individual in

reasonable expectation of being harmed;

(2) A person with mental illness and who because of

his or her illness is unable to provide for his or her basic

physical needs so as to guard himself or herself from serious

harm without the assistance of family or outside help; or

(3) A person with mental illness who, because of the

nature of his or her illness, is unable to understand his or her

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 need for treatment and who, if not treated, is reasonably

expected to suffer or continue to suffer mental deterioration

or emotional deterioration, or both, to the point that the

person is reasonably expected to engage in dangerous con-

duct.

In determining whether a person meets the criteria

specified in paragraph (1), (2), or (3), the court may consider

evidence of the person's repeated past pattern of specific

behavior and actions related to the person's illness." 405

ILCS 5/1-119 (West 2008).

The same public act also added section 1-104.5, which provides the

following definition:

"'Dangerous conduct' means threatening behavior or

conduct that places another individual in reasonable expecta-

tion of being harmed, or a person's inability to provide,

without the assistance of family or outside help, for his or her

basic physical needs so as to guard himself or herself from

serious harm." 405 ILCS 5/1-104.5 (West 2008) (as adopted

by Pub. Act 95-602, §5, eff. June 1, 2008 (2007 Ill. Laws

7839)).

Respondent argues that these amendments to the Mental Health Code are

constitutionally infirm because they (1) lack a requirement of imminent dangerousness

to self or others; (2) allow commitment upon a finding of the possibility of something

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less than physical harm, such as financial, mental, or emotional harm; and (3) assume

both the respondent's need for treatment and his refusal of treatment due to his

incapacity to refuse treatment. Respondent was involuntarily committed under the

third prong of section 1-119 (405 ILCS 5/1-119(3) (West 2008)); therefore, that is the

only subsection of section 1-119 at issue in this case. We note that the State dismissed

the count of its petition filed under section 1-119(1), which arguably could have been

sustained at trial.

The United States Supreme Court has declined to prescribe strict bound-

aries for legislative determinations of what degree of dangerousness is necessary for

involuntary commitment. See Developments in the Law: Civil Commitment of the

Mentally Ill, 87 Harv. L. Rev. 1190, 1206 (1974) (hereinafter Developments). Those

decisions have been left to the states. The highest court has set forth only that our

constitution prohibits the involuntary confinement of any person who is not mentally ill

and not a danger to himself, others, or society. O'Connor v. Donaldson, 422 U.S. 563,

575, 45 L. Ed. 2d 396, 406-07, 95 S. Ct. 2486, 2493 (1975); Addington v. Texas, 441 U.S.

418, 429, 60 L. Ed. 2d 323, 333, 99 S. Ct. 1804, 1811 (1979). It is left to the states'

legislatures to prescribe procedures and substance to this general standard.

"There may be factual issues to resolve in a commitment proceeding, but

the factual aspects represent only the beginning of the inquiry. Whether the individual

is mentally ill and dangerous to either himself or others and is in need of confined

therapy turns on the meaning of the facts which must be interpreted by expert psychia-

trists and psychologists." (Emphasis in original.) Addington, 441 U.S. at 429, 60 L. Ed.

2d at 333, 99 S. Ct. at 1811. It is testimony from this imprecise science of psychiatry and

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psychology, together with a trial court's interpretation of that testimony, that will

ultimately determine whether an individual loses his freedom, at least temporarily.

Because the science is so imprecise, it is of the utmost importance that the legislature

provide strict guidance and precise definitions, to the extent reasonably possible, for the

characteristics of those subject to involuntary treatment.

The due-process clause may be considered violated if the statute contains

no clear standard for determining who may be treated against their will. See Kolender v.

Lawson, 461 U.S. 352, 357-58, 75 L. Ed. 2d 903, 909, 103 S. Ct. 1855, 1858 (1983); City

of Chicago v. Morales, 177 Ill. 2d 440, 449, 687 N.E.2d 53, 60 (1997), aff'd, 527 U.S. 41,

52, 144 L. Ed. 2d 67, 78, 119 S. Ct. 1849, 1857 (1999) (addressing the constitutionality of

loitering statutes). A statute must be narrowly enough drawn that its terms can be given

a reasonably precise content and those persons it encompasses can be identified with

reasonable accuracy. O'Connor, 422 U.S. at 575, 45 L. Ed. 2d at 407, 95 S. Ct. at 2493.

We will analyze the statutes at issue pursuant to these standards.

C. State's Parens Patriae Powers

Under its parens patriae power, each state inherently has the duty to

protect its citizens who cannot protect themselves. See Late Corp. of the Church of

Jesus Christ of Latter Day Saints v. United States, 136 U.S. 1, 57, 34 L. Ed. 478, 496, 10

S. Ct. 792, 808 (1890). However, this power is not without limit and must satisfy due-

process requirements. O'Connor, 422 U.S. at 580, 45 L. Ed. 2d at 410, 95 S. Ct. at 2496.

Substantive due process demands that all state actions that affect fundamental liberty

interests must be necessary to promote a compelling state interest. Roe v. Wade, 410

U.S. 113, 155, 35 L. Ed. 2d 147, 178, 93 S. Ct. 705, 728 (1973). To determine whether the

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amended statutes satisfy due process in the context of the exercise of the State's police

powers, we must analyze the individual factors or elements of the statutes that would

ultimately trigger those powers.

1. Decisional Capacity

First, we address the individual's capacity to make his or her own treat-

ment decisions. To satisfy due process, it is understood that the State's powers cannot

be extended to those individuals capable of making their own treatment decisions. The

State has no interest or authority to assert its parens patriae power over those who can

protect themselves. Diminished capacity, erratic behavior, or a mental illness does not

necessarily render a person incapable of making rational decisions. O'Connor, 422 U.S.

at 575, 45 L. Ed. 2d at 407, 95 S. Ct. at 2493-94. The statute, therefore, must recognize

the possibility that some mentally ill patients are capable of making decisions regarding

their treatment. Indeed, many forms of mental illness have a specific impact on

sufferers, leaving decision-making capacity and the ability to reason unimpaired. See

Developments, 87 Harv. L. Rev. at 1214. Thus, it is the nature of the mental illness that

becomes pivotal in determining whether a respondent is capable of making his own

treatment decisions.

In this regard, we find the amended statute satisfies the due-process

requirement by specifically requiring proof of the nature of the mental illness and its

effect on the decision-making process. See Lessard, 349 F. Supp. at 1094 (a mentally ill

patient could have similar capacity to make treatment decisions as a physically ill

patient). Thus, as a prerequisite to the exercise of the State's parens patriae powers, the

courts must find that a respondent lacks the ability to make reasonable treatment

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decisions. This finding can be based upon the mental-health professional's subjective

testimony regarding the particular mental illness from which a respondent suffers.

In proceedings to involuntarily commit an individual, the State must prove

the necessary allegations, including the nature of the mental illness and its effect on the

individual's decision-making capacity, by clear and convincing evidence. In re Stephen-

son, 67 Ill. 2d 544, 556, 367 N.E.2d 1273, 1278 (1977). "A factual basis for the medical

opinion upon which the decision to commit is based must be judged by a similar

standard." In re Orr, 176 Ill. App. 3d 498, 505, 531 N.E.2d 64, 69 (1988); see also In re

Slaughter, 253 Ill. App. 3d 718, 723, 625 N.E.2d 832, 835 (1993) (a medical opinion with

a sufficient factual basis may alone constitute clear and convincing evidence).

Given these standards, we find section 1-119(3) provides sufficient

safeguards so as to satisfy due process with regard to addressing only those mentally ill

individuals who are incapable of making their own rational treatment decisions. The

mental-health professional must provide his or her subjective opinion as to the nature of

the respondent's mental illness and the effect that particular mental illness has on the

respondent's ability to make his or her own treatment decisions. Should the court

determine, after considering this testimony, that the respondent is not incompetent,

then he or she remains free to refuse treatment.

2. Mental or Emotional Deterioration

The State's powers of parens patriae are also triggered in the statute's

second factor--if the mentally ill person is not treated, he or she is reasonably expected

to suffer or continue to suffer mental or emotional deterioration. This factor calls for

foresight and, again, depends on the subjective testimony of the petitioner and/or a

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medical professional to explain the consequences of the risks of foregoing treatment.

This factor is merely an adjunct to the next factor (the dangerousness of the individual)

and is not, in and of itself, needed to satisfy the due-process requirements that are

necessary before commitment.

As we have previously stated, the Supreme Court has repeatedly held that

due process is satisfied if the State proves by clear and convincing evidence that the

individual is mentally ill and that he or she requires hospitalization or involuntary

treatment for his own welfare and the safety of others. See O'Connor, 422 U.S. at 575,

45 L. Ed. 2d at 407, 95 S. Ct. at 2493; Addington, 441 U.S. at 429, 60 L. Ed. 2d at 333, 99

S. Ct. at 1811. Thus, we need not decide whether the phrase "and who, if not treated, is

reasonably expected to suffer or continue to suffer mental deterioration or emotional

deterioration, or both, to the point that the person is reasonably expected to engage in

dangerous conduct" (405 ILCS 5/1-119(3) (West 2008)) is vague, overbroad, or violative

of due-process requirements.

This "deterioration" factor is nothing more than part of the court's analysis

of whether a mentally ill individual poses a sufficient danger in order to be constitution-

ally confined. The analysis of whether the individual is deteriorating, either mentally or

emotionally, should take into account the severity of his or her symptoms, past patterns

of behavior, and whether known risk factors exist. As it is part of the analysis of

predicting a respondent's future dangerousness, it is not, in and of itself, a standard

subject to constitutional scrutiny. The trial court must determine, based on the testi-

mony provided, whether the respondent is decompensating to the extent that he or she

requires involuntary hospitalization and treatment to prevent foreseeable harm.

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 This factor aids the trial court in making a prediction regarding the

anticipated risk of harm. "If predictions could be made with sufficient accuracy [cita-

tion] and if the allegedly dangerous individual were accorded the safeguards required by

procedural due process, [citation], it would seem difficult to argue that society could not

act to avoid a serious harm." Developments, 87 Harv. L. Rev. at 1229 n.150. It is the

determination of the degree of harm and the extent of the respondent's dangerousness

that requires significant scrutiny. We discuss those issues below.

D. State's Police Powers

Once a mentally ill individual meets the threshold requirement of dimin-

ished decisional capacity, the State's police-power authority to commit him depends on

whether the magnitude of the threat he poses to its citizens exceeds the deprivations

imposed by involuntary commitment. Generally, a valid exercise of the State's police

power must promote public interests, which require the State's interference; and the

means must be reasonably necessary to accomplish the purpose and not unduly oppres-

sive on the individual. Goldblatt v. Town of Hempstead, 369 U.S. 590, 594-95, 8 L. Ed.

2d 130, 134, 82 S. Ct. 987, 990 (1962). However, when the State's police-power action

infringes fundamental liberties, the public interests advanced must be “compelling” and

the action taken must be the least-restrictive alternative to serve those interests. Bates

v. City of Little Rock, 361 U.S. 516, 524, 4 L. Ed. 2d 480, 486, 80 S. Ct. 412, 417 (1960).

Although the State's goal in protecting society from harm certainly justifies

police-power action, whether the State's interest is great enough to support imposition

of the deprivations associated with civil commitment depends on the nature of the

threat posed by the mentally ill individual.

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 "The exercise of the police power to confine persons in antici-

pation of future criminal behavior has been challenged as a

denial of the fundamental fairness guaranteed by the due[-]

process clause and as an impermissible punishment for

status. Nevertheless, society's interest in reducing harmful

conduct might make preventive detention of dangerous

persons constitutionally acceptable." Developments, 87

Harv. L. Rev. at 1228-29.

See also Williamson v. United States, 184 F. 2d 280, 282 (2nd Cir. 1950) ("Imprison-

ment to protect society from predicted but unconsummated offenses is so unprece-

dented in this country and so fraught with danger of excesses and injustice").

Unlike other members of society, the mentally ill may be confined for the

protection of the community because of their potential for doing harm, rather than

because of the harm they have caused. Whether the State's interest is compelling

depends on the varying degrees of dangerousness presented. It is most likely not

compelling enough to hospitalize a mentally ill individual with the hope of preventing

behavior that is difficult or somehow outside the normative expectations of society.

Instead, a valid exercise of the State's police power shall be taken only in the interest of

preventing behavior likely to result in injury to one's self or others. Thus, the State's

authority depends on whether the magnitude of the threat the mentally ill person poses

to society, when balanced, exceeds the deprivations imposed on the individual by

involuntary commitment.

Since the dangerousness of an individual is the product of the magnitude

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of the harm he or she is predicted to cause and the probability that he or she will cause

it, an assessment of both factors is necessary to calculate society's interest in the

preventive detention of a particular person. See Cross v. Harris, 418 F.2d 1095, 1099

(D.C. Cir. 1969) (determination of a person's "dangerousness" depends on the likely act

and the harm it will cause). However, some types of behavior, even if certain to occur,

may present too minimal a threat to society to justify confinement.

To satisfy due process, the exercise of the State's police power must be

directed to prevent harm greater than a minor physical injury or a form of mental upset.

Not all unpleasant personal experiences (such as fright, repulsion, or annoyance) are of

sufficient magnitude to justify confinement to protect society therefrom. See Cross, 418

F. 2d at 1100. The legislature must ultimately determine the type of harm required

before an individual can be deprived of his liberty.

Our legislature, in enacting section 1-104.5, determined that "threatening

behavior" or "conduct that places another individual in reasonable expectation of being

harmed" was of sufficient magnitude to deprive a mentally ill individual of his freedom.

We hold those terms are impermissibly vague. "With regard to vagueness, then, due

process is satisfied if *** the statute provides sufficiently definite standards for law

enforcement and triers of fact that its applications do not depend merely on their private

conceptions." Molnar, 222 Ill. 2d at 524, 857 N.E.2d at 226.

The plain language of section 1-104.5 arguably applies to the types of less

serious harm described above--the type of harm that does not justify the deprivation of a

fundamental liberty interest. See In re Dennis H., 2002 WI 104, ¶28, 255 Wis. 2d 359,

379, ¶28, 647 N.W.2d 851, 860, ¶28 (2002) ("A mental commitment provision is overly

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broad only if by its terms it could reasonably be applied to commit mentally ill persons

who are not in any way dangerous to themselves or others"). Under section 1-119(3), the

State could reasonably petition to commit a mentally ill individual who stood on a public

street and shouted racial slurs at a passerby. The State could feasibly argue, under

section 1-104.5, that this conduct placed the passerby "in reasonable expectation of

being harmed," albeit only psychologically harmed. Should the respondent satisfy the

other requirements of section 1-119, he or she could be confined to a mental-health

hospital against his or her will for such conduct. Although this may seem an extreme

example, it tends to demonstrate that the magnitude of harm should be more narrowly

defined. This statute, as written, does not preclude the entire gamut of psychological,

emotional, or financial harm, regardless of severity. If the benefit to society of involun-

tarily committing this hypothetical individual is weighed against the severity of the loss

of liberty, confinement, in this instance, seems unduly oppressive and unreasonable.

Applying this vague definition of "dangerous conduct" to various acts of a

mentally ill individual impermissibly affords the State too much discretion. See

Papachristou v. City of Jacksonville, 405 U.S. 156, 165-71, 31 L. Ed. 2d 110, 117-21, 92 S.

Ct. 839, 844-48 (1972) (use of imprecise terms in vagrancy ordinance resulted in the

finding that the ordinance was unconstitutional as it lacked sufficient standards that

could result in arbitrary enforcement). Further, it poses a risk of arbitrary application to

mentally ill individuals engaging in merely unusual or annoying behavior. Develop-

ments, 87 Harv. L. Rev. at 1257. What is considered unusual, annoying, harmful, or

threatening behavior may vary from individual to individual, yet it all could satisfy the

definition of "dangerous conduct" as currently provided by the amended statute. Given

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the lack of sufficient guidance in the definition, the foreseeable result of arbitrary

interpretation and application by the governmental authorities leads this court to

conclude that the definition set forth in section 1-104.5 of the Mental Health Code (405

ILCS 5/1-104.5 (West 2008)) does not satisfy constitutional standards and must be

declared void.

In addition, the new relaxed standard set forth in section 1-119(3), after

applying the definition of "dangerous conduct" set forth in section 1-104.5, creates a

problematic legal quagmire when analyzed in light of the procedural standards for the

involuntary administration of psychotropic medications. It is widely understood that

involuntary admission is completely independent from involuntary administration of

medication. A patient, even after being involuntarily admitted to a hospital, retains the

right to refuse medication. The trial court must, in a separate proceeding, decide

whether to involuntarily administer psychotropic medications. See 405 ILCS 5/2-107.1

(West 2008). Such a decision rests upon whether treatment is "necessary to prevent the

recipient from causing serious and imminent physical harm to the recipient or others."

405 ILCS 5/2-107(a) (West 2008). This standard remains unchanged. Therefore, a

patient could conceivably be involuntarily admitted if he has deteriorated to the point

that there is a possibility of future harm but, if he refuses medication, he is in the

hospital unable to be treated.

This potential problem can be further demonstrated applying the example

mentioned above. The mentally ill person standing on the street corner shouting racial

slurs may have stopped taking his medication. His family has noticed his mental

deterioration and has petitioned the court to involuntarily admit him for treatment

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because they fear, and as a mental-health professional will testify, he will continue to

suffer mental deterioration "to the point that [he] is reasonably expected to engage in

dangerous conduct." Because "dangerous conduct" is defined as "threatening behavior

or conduct that places another individual in reasonable expectation of being harmed,"

those passing by on the street have the potential of being harmed by the respondent's

conduct. At the hearing, the trial court finds the standard of section 1-119(3), applying

the definition set forth in 1-104.5, has been met and orders the respondent to be

involuntarily admitted for treatment. However, under these facts, the State cannot

prove that medication is necessary to prevent "serious and imminent physical harm" to

the respondent or others in order to involuntarily treat this respondent. Under the less-

stringent standards of the amended Mental Health Code, this respondent is ill enough to

admit him against his will, but not ill enough to treat him against his will. Therein lies

the problem.

This court recognizes the difficulty in creating a definition that sufficiently

addresses the delicate balance between the State's interests and the individual's inter-

ests. The threshold must be narrowly tailored to ensure the commitment of only those

individuals who are considered dangerous, yet broad enough to ensure that those who

desperately need treatment can get it before his or her condition becomes significantly

worse and treatment may be less successful. See A. Pfeffer, Note: "Imminent Danger"

and Inconsistency: The Need for National Reform of the "Imminent Danger" Standard

for Involuntary Civil Commitment in the Wake of the Virginia Tech Tragedy, 30 Cardozo

L. Rev. 277, 297-98 (2008) (discussion of "imminent danger" versus "substantial risk"

standards of dangerousness in commitment statutes; favoring the broader "substantial

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risk" or "substantial likelihood" standards rather than narrower "imminent danger"

standard).

We note that the Supreme Court has indicated that it is better for society

to commit a non-mentally ill individual than allow a dangerous mentally ill individual to

have freedom. Addington, 441 U.S. at 429, 60 L. Ed. 2d at 333, 99 S. Ct. at 1811 ("It

cannot be said, therefore, that it is much better for a mentally ill person to 'go free' than

for a mentally normal person to be committed"). However, the statutory definition of

"dangerous conduct" as it currently provides would allow the involuntary commitment

of individuals who pose no real threat to society.

Therefore, we hold that the definition of "dangerous conduct," as set forth

in section 1-104.5 and referenced in section 1-119(3) of the Mental Health Code (405

ILCS 5/1-104.5, 1-119(3) (West 2008)), does not provide a sufficient standard to justify

the involuntary hospitalization of a mentally ill individual. A more definite statutory

categorization of anticipated danger is required to justify the State's action in involun-

tarily committing its citizens. As a result, we declare section 1-104.5 of the Mental

Health Code (405 ILCS 5/1-104.5 (West 2008)) unconstitutionally vague and violative

of the guarantees of substantive due process. To the extent that the judgment ordering

respondent's involuntary commitment relied upon the definition of dangerous conduct

in section 1-104.5, we vacate it as void.

In compliance with Supreme Court Rule 18 (210 Ill. 2d R. 18), we make

clear the following: (1) the definition of "dangerous conduct" set forth in section 1-104.5

(405 ILCS 5/1-104.5 (West 2008)) is unconstitutional, (2) the statute violates the

guarantees of due process set forth in the fifth and fourteenth amendments of the

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United States Constitution, (3) we declare the statute unconstitutional on its face, (4)

the statute cannot be reasonably construed in a manner that would preserve its validity,

(5) the finding of unconstitutionality is necessary to the decision rendered herein, (6) we

find no nonconstitutional grounds upon which the trial court's judgment could rest, and

(7) the notice provisions of Supreme Court Rule 19 (210 Ill. 2d R. 19) have been

satisfied, as the State has responded in these proceedings to respondent's constitutional

challenge.

Vacated.

KNECHT and POPE, JJ., concur.

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