dissenting:
I respectfully dissent from the holding of the majority that the failure of the record to show that notice of the time and place of the involuntary admission hearing pursuant to section 3 — 706 of the Mental Health and Developmental Disabilities Code (Mental Health Code) (Ill. Rev. Stat. 1987, ch. 91V2, par. 3 — 706) was served on the respondent and his attorney requires reversal of the judgment of involuntary commitment even where respondent and his counsel appeared at the scheduled hearing and did not raise any issue of lack of proper notice. As the issue was not raised below and there is no showing of prejudice to respondent or his attorney in the record, I would find the question of formal compliance with section 3 — 706 to be waived. People v. Williams (1977), 47 Ill. App. 3d 861, 867, 365 N.E.2d 404.
There is an apparent conflict among the appellate court districts on this issue. The Appellate Court for the First District, in People v. Williams (1977), 47 Ill. App. 3d 861, 365 N.E.2d 704, applies a waiver rule where the record fails to show notice was served pursuant to section 3 — 706 and no issue of notice was raised in the trial court and no prejudice is shown. The Appellate Court for the Fourth District, in In re Plank (1988), 169 Ill. App. 3d 411, 523 N.E.2d 614, In re Price (1987), 152 Ill. App. 3d 960, 505 N.E.2d 37, and In re King (1986), 148 Ill. App. 3d 741, 499 N.E.2d 1032, applies a “plain error” doctrine and reverses a judgment of commitment where the record shows respondent was not properly served with notice of the hearing, even though the respondent and an appointed attorney appeared at the hearing and did not raise the issue of lack of notice.
While I agree generally with the proposition stated in the majority opinion that the need for strict compliance with the relevant statutory provisions in the Mental Health Code is compelling, as liberty interests are involved, the failure to comply formally with the notice requirement of section 3 — 706 does not implicate any violation of a liberty interest, as here, where respondent and his attorney appear at the hearing, voice no objection on the notice issue, and show no prejudice from the lack of notice served on them. I note, too, that the record does contain a notice of the hearing signed by an employee of the Elgin Mental Health Center with a return indicating service of notice on respondent and his attorney, although the return is not signed by the person serving the notice. Under these circumstances, the waiver doctrine is appropriate.
In an analogous situation in proceedings under the Juvenile Court Act (Act) (Ill. Rev. Stat. 1979, ch. 37, par. 701—1 et seq.), where the minor’s mother was not formally served with a delinquency petition pursuant to a requirement under the Act, but appeared at the hearing and actively participated in the proceedings without objection, our supreme court applied the waiver doctrine and rejected useless .formality in complying with the notice requirement, stating as follows:
“The minor’s argument before this court is that the mother had not been formally served either. But we do not read section 4 — 4 as demanding useless formality. The mother had actual notice of the charges against her son and the correlative threat to her own rights; she appeared in court and participated actively in the proceedings without objection. She thereby waived formal service of process and submitted to the jurisdiction of the court. The lack of formal service in no way prejudiced the minor or his mother. Considerations of fairness are all on the State’s side: the respondents should not be permitted to have an adjudicatory hearing, hoping for a finding in their favor, and if they lose get a second chance by complaining of formal defects in service of process that could and should have been objected to immediately, could have been easily cured if timely objected to, and made no difference anyway.” (In re J.W. (1981), 87 Ill. 2d 56, 62, 429 N.E.2d 501, 504.)
These comments are equally applicable to the notice issue presented here.
For the foregoing reasons, I would find a waiver of the notice issue. Although other issues were raised by respondent on appeal, the majority opinion addresses only this one issue, and, consequently, I do also.