People v. Joseph P.

NOS. 4-10-0346, 4-10-0347 cons. Filed 12/22/10

IN THE APPELLATE COURT

OF ILLINOIS

FOURTH DISTRICT

In re: JOSEPH P., a Person Found ) Appeal from
Subject to Involuntary Admission, ) Circuit Court of
THE PEOPLE OF THE STATE OF ILLINOIS, ) Sangamon County
Petitioner-Appellee, ) No. 10MH329
v. (No. 4-10-0346) )
JOSEPH P., )
Respondent-Appellant. )
------------------------------------------)
In re: JOSEPH P., a Person Found ) No. 10MH364
Subject to Administration of )
Psychotropic Medication, )
THE PEOPLE OF THE STATE OF ILLINOIS, )
Petitioner-Appellee, )
v. (No. 4-10-0347) ) Honorable
JOSEPH P., ) Esteban F. Sanchez,
Respondent-Appellant. ) Judge Presiding.
_________________________________________________________________

PRESIDING JUSTICE KNECHT delivered the opinion of the

court:

Respondent, Joseph P., appeals from his involuntary

admission pursuant to section 3-600 of the Mental Health and

Developmental Disabilities Code (Code) (405 ILCS 5/3-600 (West

2008)) and the order he be involuntarily administered

psychotropic medication pursuant to section 2-107.1 of the Code

(405 ILCS 5/2-107.1 (West 2008). Respondent argues the court's

order should be reversed because (1) the petition to involun-

tarily admit him failed to strictly comply with sections 3-606,

3-610, and 3-611 of the Code; (2) no clear and convincing evi-

dence warranted his involuntary admission; and (3) the State

failed to prove each statutory element of section 2-107.1 of the

Code to justify involuntary administration of psychotropic
medication. We find there was not strict compliance with statu-

tory procedures and reverse.

I. BACKGROUND

On April 16, 2010, the State filed a petition for the

involuntary admission of respondent, age 18, under section 3-600

of the Code (405 ILCS 5/3-600 (West 2008)). The petition alleged

respondent was mentally ill and, by reason of the mental illness,

unable to provide for his basic physical needs so as to guard

himself from serious harm. In support of those allegations, the

petition included a factual basis provided by his mother. His

mother stated, "[respondent] talks continually about how he can

not do anything in life now because the government conspiracies,

the doctor's conspiracies against him and my conspiracies against

him." She also reported he has been found walking down the

highway asking for rides even though he has no money and nowhere

to go. He has become more aggressive with his mother and has

screamed at her she is a "psychotic bitch" and a criminal.

Respondent's mother is afraid he will harm her or his sister. He

stopped taking his medication and has dropped out of school.

Respondent does not sleep well and stays up most of the night.

He paces continuously, rubs his hands together until they are raw

and constantly twirls his hair. He hears noises outside and

thinks they are gunshots. When a police officer came to take him

from his mother's home to the hospital, respondent told the

officer he thinks about harming his mother or his sister.

Respondent arrived at the emergency room of Blessing

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Hospital (Blessing) in Quincy at 2:40 a.m. on Thursday, April 15,

2010. According to the signed affirmation of a registered nurse

at Blessing, she served the petition upon respondent at 3 a.m. on

April 15, 2010. However, the petition was not signed by respon-

dent's mother until 6:30 p.m. that same day. He was not examined

by a physician at Blessing until 8 p.m. on April 15. Sometime

during the night, respondent was transferred to McFarland Mental

Health Center (McFarland), where he was examined by another

physician at 3 a.m. on April 16, 2010.

The petition, when filed in the Sangamon County circuit

court at 10:30 a.m. on Friday morning, April 16, 2010, was

accompanied by the certificates of the two physicians. A psychi-

atrist examined respondent at McFarland at 2:10 p.m. on April 16.

The certificate of the psychiatrist was filed with the court the

following Monday, April 19, 2010.

On Friday, April 23, 2010, the trial court appointed

counsel, set a hearing for that date, and over respondent's

objection, continued the hearing for seven days to April 30. On

April 27, 2010, the State filed a petition for the administration

of authorized involuntary treatment of respondent. On April 30,

respondent was involuntarily committed to a mental-health facil-

ity and ordered he be subjected to involuntary treatment.

Respondent appealed both the involuntary commitment and

the authorization for involuntary treatment. The appeals were

consolidated.

II. ANALYSIS

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 On appeal, respondent argues the trial court's order

should be reversed because (1) the petition to involuntarily

admit him failed to strictly comply with section 3-606 of the

Code (405 ILCS 5/3-606 (West 2008)), which provides a police

officer who transports a person to a mental-health facility may

complete an involuntary-admission petition himself or shall

identify himself on the petition as a potential witness with

name, badge number, and employer; (2) the State failed to

strictly comply with section 3-610 of the Code (405 ILCS 5/3-610

(West 2008)), which provides a psychiatrist shall examine a

respondent within 24 hours after admission, otherwise the respon-

dent shall be released; (3) the State failed to strictly comply

with section 3-611 of the Code (405 ILCS 5/3-611 (West 2008)),

which provides a petition for involuntary admission and first

certificate shall be filed with the court within 24 hours after a

respondent's admission in the county where the facility is

located and a hearing shall be set and held within five business

days after the petition and certificate are filed; (4) the trial

court violated his constitutional and statutory rights to liberty

because no clear and convincing evidence warranted his admission

due to the inability to care for his basic physical needs without

assistance; and (5) the order authorizing involuntary medication

violated his liberty interests because the State failed to prove

the required statutory elements for forced medication in viola-

tion of section 2-107.1 of the Code (405 ILCS 5/2-107.1 (West

2008)).

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 A. Mootness

Both parties agree the issues raised by respondent are

moot. Respondent's commitment order, entered April 30, 2010, was

limited in duration to 90 days. In this case, as in In re

Barbara H., 183 Ill. 2d 482, 490, 702 N.E.2d 555, 559 (1998),

respondent could be held involuntarily only if a new petition

were filed and a new hearing conducted. Whether the commitment

order was valid or not, it no longer can serve as the basis for

adverse action against respondent. Barbara H., 183 Ill. 2d at

490, 702 N.E.2d at 559. Any decision on the merits would result

in an advisory opinion and Illinois courts of review do not

render advisory opinions or decide moot questions. Barbara H.,

183 Ill. 2d at 491, 702 N.E.2d at 559.

Respondent argues, however, any or all of these three

exceptions to the mootness doctrine apply and, therefore, this

court should hear his appeal: (1) capable of repetition but

avoiding review; (2) collateral consequences; and (3) public

interest. The State has conceded the public-interest exception

applies to respondent's assertions there was no strict compliance

with certain sections of the Code but disagrees this exception

applies to respondent's assertions regarding evidentiary ques-

tions.

1. Capable of Repetition but Avoiding Review

Where a case involves an event of short duration

"capable of repetition, yet evading review," Illinois courts have

held it may qualify for review even if otherwise moot. In re A

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Minor, 127 Ill. 2d 247, 258, 537 N.E.2d 292, 296-97 (1989). Two

criteria must be met in order to receive the benefit of this

exception: "(1) the challenged action is in its duration too

short to be fully litigated prior to its cessation and (2) there

is a reasonable expectation that the same complaining party would

be subjected to the same action again." Barbara H., 183 Ill. 2d

at 491, 702 N.E.2d at 559.

As noted earlier, the parties agree there is no ques-

tion the first criterion has been met. As for the second,

respondent argues in analyzing this exception, "same action" has

been interpreted to mean the same party could later be subjected

to cases based on the same statutory provision or similar orders.

In re Suzette D., 388 Ill. App. 3d 978, 983, 904 N.E.2d 1064,

1068-69 (2009). Respondent argues he has raised constitutional

and statutory-interpretation arguments which he contends the

supreme court in In re Alfred H.H. intimates would be sufficient

to overcome the mootness doctrine as "capable of repetition yet

avoiding review." See In re Alfred H.H., 233 Ill. 2d 345, 360,

910 N.E.2d 74, 83 (2009). Respondent argues he has raised issues

that challenge the trial court's compliance with his statutory

rights to proper, timely commitment pleadings, a timely hearing,

and treatment in the least-restrictive environment. He contends

at his young age (18) he could again face civil commitment and

forced medication, having been adjudged mentally ill and subject

to commitment and forced medication by the court and now having a

history of mental illness. He contends his challenges are

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partially statutory and, if not resolved, could confront him

again in the future. The court in Alfred H.H. intimates consti-

tutional and statutory arguments would be sufficient to overcome

the mootness doctrine as "capable of repetition yet avoiding

review." See Alfred H.H., 233 Ill. 2d at 360, 910 N.E.2d at 83.

Respondent argues the capable-of-repetition exception applies to

both appeals.

As noted in Alfred H.H., the respondent's burden when

arguing the capable-of-repetition-but-avoiding-review exception

is to show a substantial likelihood the issue presented by him,

and resolution thereof, would have some bearing on a similar

issue in a later case. Alfred H.H., 233 Ill. 2d at 360, 910

N.E.2d at 83. Respondent has not met that burden. The issues of

whether respondent was unable to care for his basic physical

needs without assistance and whether his liberty interests were

violated by authorizing involuntary treatment are clearly fact-

based determinations by the trial court. The orders entered in

this case were based on respondent's condition at the time of the

orders. Any future proceedings would entail a fresh evaluation

of his particular condition existing at that time. See Alfred

H.H., 233 Ill. 2d at 358, 910 N.E.2d at 82. Any determinations

as to the sufficiency of the evidence would not be likely to have

any impact on future litigation.

2. Collateral Consequences

This exception applies where the respondent could be

plagued in the future by the adjudication at issue. Alfred H.H.,

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233 Ill. 2d at 361, 910 N.E.2d at 83. Respondent argues if faced

with civil commitment again, having once been judged mentally ill

and in need of commitment, he would now have a history of mental

illness that would work against him. See In re Val Q., 396 Ill.

App. 3d 155, 159, 919 N.E.2d 976, 980 (2009) (Second District).

He notes the supreme court recognized in Alfred H.H. "a host of

potential legal benefits" accrue if his commitment is reversed.

Alfred H.H., 233 Ill. 2d at 362, 910 N.E.2d at 84. "For in-

stance, a reversal could provide a basis for a motion in limine

that would prohibit any mention of the hospitalization during the

course of another proceeding." Alfred H.H., 233 Ill. 2d at 362,

910 N.E.2d at 84.

The collateral-consequences exception applies to a

first involuntary-treatment order. Val Q., 396 Ill. App. 3d at

159, 919 N.E.2d at 980. If a respondent had previous involuntary

commitments or felony convictions, collateral consequences would

have already attached and are not attributable to the commitment

at issue. Thus, the collateral-consequences exception would not

apply. See Alfred H.H., 233 Ill. 2d at 362-63, 910 N.E.2d at 84.

Respondent's comprehensive psychiatric evaluation

references a previous hospitalization at Blessing which was

"dropped" during the hospitalization. The record does not show

whether this hospitalization was voluntary or involuntary and

what diagnosis of respondent may have been made. The record

fails to show respondent was previously subject to an order for

involuntary administration of medication.

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 As in In re Daryll C., 401 Ill. App. 3d 748, 753, 930

N.E.2d 1048, 1053 (2010), where respondent was never previously

involuntarily committed, forcibly medicated, or convicted of a

felony, collateral consequences have never previously attached.

If the commitment and medication orders stand, adverse conse-

quences will attach and can be used against Joseph P. in future

proceedings. Even greater adverse consequences may result for a

youthful respondent. Therefore, the collateral-consequences

exception to the mootness doctrine applies in this case to all

issues on review.

B. Strict Compliance With Sections of the Code

As the State points out, a respondent subject to

involuntary commitment should not be allowed to participate in a

hearing on the merits only to obtain a new hearing by complaining

of a procedural defect. Such a respondent forfeits any objection

when not made at trial. See In re Nau, 153 Ill. 2d 406, 419, 607

N.E.2d 134, 140 (1992). However, the forfeiture rule is a

limitation on the parties, not on the reviewing court. People v.

Lowe, 153 Ill. 2d 195, 199, 606 N.E.2d 1167, 1170 (1992).

When a bevy of procedural irregularities occur, as in

this case, the State should not always be allowed to prevail with

the argument respondent failed to raise objections to these

irregularities in the trial court. Errors and irregularities

that would not be tolerated in other civil proceedings and

criminal cases are too often overlooked in mental-health proceed-

ings. When the State subjects an individual to the potential

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loss of liberty inherent in involuntary-commitment proceedings,

it should be required to follow the rules.

We will review the procedural irregularities here under

a theory analogous to the plain-error exception to forfeiture.

See In re Franklin, 186 Ill. App. 3d 245, 248, 541 N.E.2d 168,

170 (1989). Courts may address an otherwise forfeited issue

under the plain-error exception to the forfeiture rule when the

evidence is closely balanced or when an error is so fundamental a

defendant may have been deprived of a fair hearing. People v.

Nesbit, 398 Ill. App. 3d 200, 212, 924 N.E.2d 517, 527 (2010).

An accumulation of procedural irregularities in an involuntary-

commitment proceeding affects the integrity of the judicial

process and satisfies the second prong of the plain-error rule.

Instead of being sidestepped, procedural technicalities in the

Code should be strictly construed to protect individuals from

deprivation of their liberty interests. In re Demir, 322 Ill.

App. 3d 989, 992, 996, 751 N.E.2d 616, 618, 621 (2001).

1. Failure To Comply With Section 3-606

This emergency commitment proceeding began when uniden-

tified police officers transported respondent to Blessing Hospi-

tal in Quincy. Section 3-606 of the Code authorizes a peace

officer to take someone into custody and transport him to a

mental-health facility when he reasonably believes the person is

subject to involuntary admission and in need of immediate hospi-

talization to protect himself or others from physical harm. The

officer then may either complete an involuntary-admission peti-

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tion himself or, if not, shall identify himself on the petition

as a potential witness by name, badge number, and employer. 405

ILCS 5/3-606 (West 2008).

Liberty interests are involved, and strict compliance

with statutory procedures is required. In re Robin C., 385 Ill.

App. 3d 523, 527, 898 N.E.2d 689, 692 (2008). In determining

whether a respondent's statutory and constitutional rights have

been violated, review is de novo. In re Shirley M., 368 Ill.

App. 3d 1187, 1190, 860 N.E.2d 353, 356 (2006).

The State contends although strict compliance is

generally required in involuntary-commitment proceedings, rever-

sal is not required for failure to strictly comply with statutory

procedures unless a respondent suffered prejudice. In re Louis

S., 361 Ill. App. 3d 763, 768, 838 N.E.2d 218, 222 (2005). In

this case, the petition was filed by respondent's mother.

The State argues the fact the officer's name, badge

number, and employer were not on the petition as section 3-606

requires, as a potential witness, was not prejudicial to respon-

dent. The petition was based on the knowledge of respondent's

mother. No information from police officers was relied on or

included in the petition or the comprehensive physical, psychiat-

ric, and social investigation presented to the court. Thus, the

absence of the officer's information caused no prejudice to

respondent and should be deemed harmless error. See Robin C.,

385 Ill. App. 3d at 527-28, 898 N.E.2d at 693.

The State may not have relied on any evidence from the

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police officer involved. Failing to provide contact information

about the officer in the petition as required by section 3-606

deprived respondent of using testimony by the officer that may

have been beneficial to him. The failure to comply with section

3-606 resulted in potential prejudice to respondent.

2. Failure To Comply With Section 3-610

Section 3-610 of the Code requires a psychiatrist to

examine a respondent within 24 hours after admission. Otherwise,

the respondent shall be released. 405 ILCS 5/3-610 (West 2008).

Respondent contends he was admitted to Blessing at 2:40

a.m. on April 15, 2010. On April 16 at 2:10 p.m., Dr. Aura

Eberhardt, a psychiatrist, examined him at McFarland and com-

pleted a medical certificate. This was the first such certifi-

cate by a psychiatrist. This was more than 35 hours after his

"detention" began.

The time element of section 3-610 only becomes signifi-

cant after a respondent is admitted to a mental-health facility,

either freestanding or a unit in a general hospital, not when he

is taken to an emergency room of a general hospital. In re

Moore, 301 Ill. App. 3d 759, 765-66, 704 N.E.2d 442, 445-46

(1998). The State argues respondent was admitted to McFarland at

least by 3 a.m. on April 16 and the psychiatric exam was con-

ducted at 2:10 p.m., well within 24 hours of his admission to a

mental-health facility.

The procedural history of respondent's confinement

begins with his admission to Blessing at 2:40 a.m. on April 15

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and service upon him at 3 a.m. with a petition, apparently

unsigned as his mother did not sign the petition until 6:30 p.m.

that same day. He was examined in the Blessing emergency depart-

ment by a physician at 8 p.m., 17 hours after service of the

petition, if not admission to Blessing. Approximately 24 hours

after service with the petition, he was moved to McFarland, where

he was again examined by a physician at 3 a.m. on April 16, 2010.

He was not examined by a psychiatrist until 2:10 p.m. on April

16.

Respondent contends the nurse who signed a form at

Blessing that stated "within 12 hours of admission to the facil-

ity under this status I gave the respondent a copy of this

Petition," also stated it was at 2:40 a.m. on April 15, starting

the time running under section 3-610. The same nurse signed a

"Proof of Service for Involuntary Admission," which stated

"Patient was admitted 4/15/10 at 0240." Thus, Dr. Eberhardt's

examination occurred over 35 hours after his admission.

We cannot tell from this record whether respondent was

admitted to the section of Blessing, a licensed private hospital,

which treated persons with mental illness. If he was not so

admitted, was he "admitted" to the emergency room of the hospi-

tal, where he remained there for 17 hours after he was brought to

Blessing by the police officer?

3. Failure To Comply With Section 3-611

Section 3-611 of the Code mandates an emergency

involuntary-admission petition and first certificate be filed

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within 24 hours after respondent's admission in the county where

the facility is located. A hearing on the petition shall be set

and held within five business days after petition and certificate

are filed. 405 ILCS 5/3-611 (West 2008).

Respondent was admitted to Blessing at 2:40 a.m. on

April 15, 2010. At 6:30 p.m. his mother signed the petition.

The petition, along with both physicians' medical certificates,

was filed with the court at 10:30 a.m. on April 16. Respondent

argues the petition and both physicians' certificates were filed

in Sangamon County more than 24 hours after his admission to

Blessing in Adams County.

Disregarding the filing requirement of the Code should

not be condoned. In re O.C., 338 Ill. App. 3d 292, 298, 788

N.E.2d 1163, 1168 (2003). Respondent contends the timeliness of

the mandate's filing cannot be forfeited or considered harmless.

Failure to file these documents within 24 hours is error. Demir,

322 Ill. App. 3d at 994-96, 751 N.E.2d at 620-21. These filing

defects cannot be easily cured even with prompt objections since

the statutory mandate has already has been abused. In re Stone,

249 Ill. App. 3d 861, 866, 619 N.E.2d 1345, 1348 (1993).

Respondent's argument presumes his admission began at

Blessing at 2:40 a.m. on April 15, 2010. We cannot be sure from

this record whether this is a correct calculation. We cannot be

sure whether the petition in this case was timely filed. We

decline to hold this lack of clarity against respondent.

Another provision of section 3-611 requires a hearing

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shall be set and held on a timely petition within five business

days after the petition and first certificate have been filed.

405 ILCS 5/3-611 (West 2008). A trial court's failure to hold a

hearing within five days as required by section 3-611 renders the

commitment order erroneous. In re Lanter, 216 Ill. App. 3d 972,

974, 576 N.E.2d 1219, 1220 (1991).

The petition here was filed on April 16, 2010, a

Friday. On Friday, April 23, the trial court appointed counsel,

set a hearing for that date, and over respondent's objection,

continued the hearing for seven days to April 30. On April 30,

respondent was involuntarily committed to a mental-health facil-

ity.

Although section 3-611 requires a hearing within five

days of the filing of a petition, under section 3-800(b), the

trial court may grant a continuance on its own motion or of one

of the parties not to exceed 15 days. 405 ILCS 5/3-800(b) (West

2008). The continuance granted to the State in this case of

seven days is within the time frame provided in the statute.

Thus, respondent cannot complain about the granting of the

continuance, if the petition was timely filed.

4. Service of Unsigned Petition

A petition for involuntary commitment must be served

upon a respondent within 12 hours of his admission. 405 ILCS

5/3-609 (West 2008). According to the record, respondent was

served with the petition within 20 minutes of his admission to

Blessing, 3 a.m. on April 15, 2010. On the face of the petition,

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however, respondent's mother did not sign the petition until 6:30

p.m. on April 15. Because respondent was handed an unsigned

petition at 3 a.m., we do not know if the petition was blank or

whether it included the factual statement provided to support his

mother's assertions he was a mentally ill person unable to

provide for his basic needs so as to guard himself from serious

harm without assistance of another. It is doubtful his mother

filled out the paragraph on the petition and the full-page

attachment within 20 minutes of respondent's arrival at Blessing.

This is an important procedural irregularity as the record does

not indicate respondent received a copy of the petition after it

was signed and filed until it was later served upon him on April

23, 2010.

Each of the enumerated procedural irregularities by

itself would not necessarily support reversal of respondent's

commitment. However, taken together, they show the statutory

purpose of the Code was violated.

"Involuntary admission procedures repre-

sent the legislature's attempt to balance the

individual's interest in liberty against

society's dual interests in protecting itself

from dangerous mentally ill persons and car-

ing for those who are unable to care for

themselves. [Citation.] The Code's proce-

dural safeguard's are not mere technicali-

ties. [Citation.] Rather, they are essen-

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 tial tools to safeguard the liberty interests

of respondents in mental health cases." In

re Robert D., 345 Ill. App. 3d 769, 770-71,

803 N.E.2d 1067, 1069 (2004).

A total disregard for the requisite procedures should not be

condoned.

We find the totality of the procedural irregularities

in this case requires reversal of respondent's involuntary

commitment. Because he was wrongly committed, he was also

wrongly ordered to submit to involuntary treatment, and we

reverse that order also.

Because we have found the procedural violations alleged

by respondent require reversal, we do not address respondent's

remaining issues.

This case is another in a series of mental-health cases

from Sangamon County where procedural deficiencies permeate the

record. This reversal should not be viewed as criticism of the

trial judge, the assistant State's Attorney, or the respondent's

attorney. It is commentary on the failure of a system. Mental-

health services in Illinois are underfunded or unavailable.

There are fewer state-run facilities. The caseload in Sangamon

County continues to rise as respondents are transferred to

McFarland for hearings and treatment. The assistant State's

Attorneys and public defenders assigned to mental-health cases

are often inexperienced. Some of the errors and deficiencies

occur before the case ever reaches Sangamon County. The capable

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and diligent trial judge has an impossible caseload given the

procedural requirements of the Code, the number of cases, the

inexperience of counsel, and the behavior of the respondents.

We once again point to the special concurrence in In re

Dorothy J.N., 373 Ill. App. 3d 332, 338, 869 N.E.2d 413, 418

(2007) (Steigmann, P.J., specially concurring). See generally In

re Andrew B., 237 Ill. 2d 340, 354-55, 930 N.E.2d 934, 942-43

(2010) (citing Presiding Justice Steigmann's special concurrence

and collecting other cases). We conclude the Sangamon County

State's Attorney, the public defender, and the Guardianship and

Advocacy Commission should work collaboratively to provide

training, develop a flowchart, and improve the process.

III. CONCLUSION

For the foregoing reasons, we reverse the trial court's

judgment.

Reversed.

STEIGMANN and POPE, JJ., concur.

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