*1 I believe separately because conviction, I write trial, and sentence. to counsel defendant’s did violate agents of the State actions of VI). (U.S. Const., amend. by the sixth amendment guaranteed [ajmendment [sjixth right privacy is essence of “[T]he Rosner, 485 F.2d v. counsel.” United States communication with 415(c) (2d 1973). Rule as author- Supreme Reliance on Court Cir. Constitution, does as the State the United States ity to contravene counsel, not here, rule is of admonition misplaced. That one This communicates. with whom counsel the criminal defendant memory of the experience that in the collective be the reason jail shakedown been made aware of a we have never before panel, from written communications taking prisoners from purpose lawyers. their if defense counsel had agreed
In the State that argument, oral form, including letter police report the contents of each reduced witnesses, rule no violation of the the names and addresses of even admission, easily one would wonder would have occurred. Given especially Rule security purpose what actual is served constitutionally compared potential infirmity. to its constitutional It is to advise their clients of the nature and extent required for counsel informed facing the evidence them in order for the client to make Bien, App. 277 Ill. concerning People decisions his or her case. v. in the most That counsel do so their clients expeditious subject manner should not them to sanction or to a shakedown search. (The S., Subject Involuntary a Person Found Admission LOUIS S., Illinois, Petitioner-Appellee, Respondent-
People v. Louis of the State of Appellant).
Fourth District No. 4 — 05—0085
Opinion filed October *2 MYERSCOUGH,J., part dissenting specially concurring part. Commission, Anna, Plesko, Guardianship Advocacy Jeff M. of & of Commission, Peoria, ap- Cynthia Tracy, Guardianship Advocacy of Z. & pellant. (Norbert Schmidt, Goetten, Attorney, Springfield P.
John State’s J. Biderman, Dodegge, Attorneys Appel Robert J. and Thomas R. all of State’s Office, counsel), People. late Prosecutor’s for the opinion JUSTICE TURNER delivered the of the court: *3 27, 2004, petition involuntary On December a for the admission S., respondent, pursuant was filed to section 3—701 of the Lpuis (Mental Developmental Mental Health and Disabilities Code) (405 (West 2004)). 21, 2005, January ILCS After a 5/3—701 hearing, the respondent hospitalized Depart- trial court ordered in a ment Developmental (Department) of Mental Health and Disabilities days. for 90 (1)
Respondent appeals, contending procedural due-process (2) violated, by were clear convinc- prove State failed and warranted, ing involuntary evidence that his admission was report required by section 3—810 of the Mental Health Code (West 2004)) (a) statutory comply require- did not 5/3—810 (b) court, ments and was not considered the trial and the court’s hospitalization manifestly order was erroneous. reverse. We
I. BACKGROUND S., Peggy guardian, signed wife and the December 27, 2004, mentally ill due to petition respondent and asserted and reasonably expected physical his mental to inflict serious illness was day in near future. The same upon harm himself or another filed, order, petition requiring the trial court entered an to an examination at Memorial Medical Center respondent submit (Memorial) day. peace The court also entered an order for a of- ficer to take to Memorial for the examination. The circuit compliance clerk entered a writ in with the court’s order. A of- Memorial, and was examined ficer did take 27, December 2004. on 28, 2004, December a medical certificate Dr. Turner was
On subject filed that stated he or she believed hospitalization. and in need of immediate On admission 29, 2004, Richard B. Alexander’s medical certificate that December Dr. day, filed. That the trial court reached the same conclusion was same 7, petition January 2005. hearing set a on for 6, 2005, filed, in January change On a notice of status was indicat- had been transferred to Andrew McFarland Mental ing respondent (McFarland) January 5, January on 2005. On Health Center order, hearing for Janu- setting respondent’s the trial court entered an 14, entry by agree- indicates the continuance was ary 2005. docket day, Dr. Juan Medina filed a medical parties. ment of the That same January Hughes On Dr. Brad filed a medical certificate. set- January On the trial court entered certificate. January 21, The record does not ting respondent’s hearing for 2005. why January was continued to indicate 21, 2005, hearing, Hughes Dr. testified he had January At the January 5 January on 5 and 2005. At the evaluated delu- evaluation, respondent paranoid grandiose demonstrated and sions, Some of the delusions Dr. signs which are of mental illness. (1) he worked for the secret noted were indicated Hughes Navy, Peggy daughter raped, had her service and during previous him admission. Besides raped McFarland staff had Hughes Peggy’s Dr. examined statements evaluating respondent, Memorial, a past medical records from petition her 19 to December stay at McFarland from November prior Based on all of the above Hospital. at St. John’s bipolar disorder. information, Hughes diagnosed respondent Dr. Peggy risk of harm to respondent posed significant opinion, In his Hughes Dr. involving delusions her. paranoid based on the level of plan and formulated a respondent to be need of treatment found alterna- the least-restrictive Hughes opined McFarland was him. Dr. *4 of 90 period a commitment and recommended respondent tive for days. admitted for testimony, the trial court
During Hughes’ Dr. psychiatric, and only comprehensive physical, a purposes dispositional investigation report respondent. social
767 day that before years, of 24 testified the Peggy, respondent’s wife 2004, her 27, petition, respondent informed signed she December him himself. When she asked controlling trouble having that he was par- got up got meant, He then and he stated “murder.” what stated Peggy toward her. walking slowly ing began knife her, “like a pointed knife at but he was did not have eyes. thing the same rage almost” in his He did zombi at her. called the fireplace poker knife and then held a She butcher she statement. police because felt threatened his her. paranoid against Peggy further testified that was affairs, having murdering “girlfriend,” her of his and hav- He accused daughter According stopped had ing raped. Peggy, her anymore. he did he taking his medication because not believe needed it home, be fearful to return home. If returned she would “unpredictable.” She described as he Respondent Peggy. he did not He admitted testified threaten “scratching past had kicked her but that because she was eyes his out.” (1) evidence,
After trial hearing all of court found (2) illness, respondent suffered from a mental he was a risk of harm treatment, Peggy, he the least- hospitalization needed restrictive alternative at that time. The court then committed days. appeal for 90 This followed.
II. ANALYSIS A. Mootness respondent’s arguments The State asserts are moot since the days days expired. Respondent agrees 90 of commitment have the 90 arguments excep over but should under an are asserts we consider tion to the mootness doctrine. supreme recognized exception
Our
court has
the mootness
when
involves an
of short duration that
doctrine
the case
event
”
“
evading
H.,
183
‘capable
repetition, yet
review.’
In Barbara
(1998),
Minor,
quoting
re A
Ill.
702 N.E.2d
Ill. 2d
To
for this
qualify
action
too short in its duration
exception,
challenged
must be
must
fully litigated prior
becoming
to be
moot and
the cause
expectation
party
the same complaining
demonstrate
reasonable
H.,
Barbara
Ill. 2d at
subjected
again.
to the same action
would
491,
For an initial filed, a days, petition commitment is 90 after which a new must be held, 405 ILCS a new order entered court. See new *5 768 (West 813(a) 2004). Here, respondent’s 90-day commitment order
5/3 — expired prior Further, to our review. respondent does long have a his tory of mental illness and a history prior involuntary hospitaliza tions, and thus it is reasonable expect the same action that was taken against him here might Thus, be again. undertaken we will ad dress those issues that are susceptible Maher, to repetition. See In re 1088, 1096, (2000) (where 314 App. Ill. 3d 734 N.E.2d 102 this applied court the probable-repetition exception in an case).
B. Statutory Violations Respondent, through the Guardianship Advocacy and Commission (GAC), right (1) asserts his process” to “due was violated because he given was not 36 hours’ notice before his psychiatric initial examina- tion, he improperly McFarland, transferred to his commit- ment hearing held, was not timely guardian did not receive notice of his commitment hearing. We do not ap- address the GAC’s parent position any instance of statutory noncompliance due-process constitutes a violation. note the We GAC cites no author- ity for position, its and we analysis limit our to determining whether statutory requiring violations reversal occurred.
In involuntary proceedings, commitment compliance strict statutory procedures is required since such proceedings affect important liberty However, interests. reversal is not required unless the respondent is in some way prejudiced by comply the failure to statutory requirements. Watts, App. 250 Ill. 3d 620 N.E.2d
Citing Luttrell, In re 261 Ill. App. 3d 633 N.E.2d (1994), the State asserts respondent has by forfeited these issues fail ing to However, raise them in the trial court. this court is ad dressing these issues under exception doctrine, to the mootness and thus it illogical would be for us to apply now forfeiture and refuse Construction, address claims. See Smith v. Menold Inc., App. 348 Ill. (noting the rule of forfeiture is a limitation on the parties, reviewing not the court).
1. 36-Hour Notice (405 Section 3—705 of the Mental Health Code ILCS 5/3—705 (West 2004)) provides as follows:
“At least 36 hours before the time of the examination fixed court, examination, copy petition, of the the order for and a [sjection statement provided person- as 3—205 shall be ally person given personally delivered to the and shall be or sent any. is admit- attorney guardian, if If the mail to his under facility [s]ection to a mental health for examination ted may of the 704, such notices be delivered at the time of service 3— order for admission.” 704(a) 704(a) the Mental Section Health Code ILCS 5/3 — 3— (West 2004)) pending residence person allows a to remain his or her However, necessary any examination. if the trial court determines it is examination, complete the court order the admitted order a pending to a mental-health there. 405 ILCS officer another individual 704(a) (West 2004). 704(a), person may Under no section 5/3 — detained for examination for more than 24 hours. 405 ILCS 5/3— 704(a) (West 2004). apply respon-
The State asserts section 3—705 does not because *6 dent admitted to facility pending a mental-health under section 3—704.
Here, the trial court the directing ordered clerk to issue a writ transport respondent 27, officer to to Memorial on December 2004, for an provide respondent’s examination. order did not admission or detention pending compliance the examination. In the court’s the clerk of prepared only the court a writ that directed the peace officer to respondent to Memorial for examination. Since the court did not order admitted or Memorial, detained for the examination at was entitled to notice of the examination at least 36 hours before the time of examina- pursuant case, tion to section 3—705. In this was received examined at Memorial on December which was the day same the examination order was entered.
Accordingly, we find requirement the 36-hour-notice of section (405 (West 2004)) 3—705 of the Mental Health Code ILCS 5/3—705 However, complied was not with. respondent does not assert how he prejudiced by the noncompliance. 2. to McFarland Transfer January change filed, On a notice of in status was indicating respondent January had been transferred to McFarland on 5, 2005. The record does not indicate the reason for the transfer. (405 Mental through
Sections 3—908 3—910 of the Health Code (West 2004)) through ILCS 3—910 address the transfer 5/3—908 receiving treatment or Department between facilities of a However, supreme private habilitation. our court has found a institu the Mental provisions tion not invoke the above Health Code. 98, (1984); 101 see Hays, See In 102 Ill. 2d E., also Ill. N.E.2d 626 In re James 207 797 Thus, appears it means which could have been dispositional to McFarland in a order after he was transferred (see person subject involuntary commitment found to be a (West 2004)) (2) by discharge from Memorial and ILCS 5/3—811 emergency involuntary proceedings institution of commitment (405 under article VI of the Mental Code ILCS 5/3—600 (West 2004)) (see E., through 3—611 James 207 Ill. 2d at (addressing at 626 the transfer of a who was voluntar N.E.2d admitted)). by either ily Since transfer was not means, improper. above his transfer McFarland was any prejudice did not suffer because The State asserts prior proceeding. agreed he had to a transfer to McFarland since it Respondent responds presumably prejudicial his transfer was facility hearing. and before his need was to a more restrictive state We prejudiced respondent since the next not address whether this issue prejudicial. error was Hearing Date (405 section 3—706 of the Mental Health Code
Under (West 2004)), hearing peti court must hold a on a trial 5/3—706 days, excluding Saturdays, admission within five tion for holidays, receipt after its of the second medical Sundays, and facil certificate or admission to a mental-health 800(b) Under section of the Mental Health ity, whichever is earlier. 800(b) (West 2004)), the trial court continue ILCS 5/3 — detained, respondent continuing with the to be but extent that beyond days except “extend to the continuance cannot requested respondent.” are continuances case, was admitted to a mental-health In this *7 27, 2004, Thus, excluding holiday the examination. after his December to hold a five-day period, the the trial court had weekend from 4, 2005, 3—706. January pursuant to section hearing on or before 29, 2004, date of However, hearing the trial court set a on December Thus, comply with find the trial court failed to January 2005. we untimely. The 706, resulting respondent’s hearing being in section 3— January on does not agreed to a continuance fact already passed had hearing timely, statutory period as the render his time of the continuance. at the because, any prejudice did not suffer argues respondent
The State to, agreed he seven-day that excluding the continuance as allowed section days of his admission tried within was 800(b). day of unlawful However, on his third respondent was 3— 800(b) of section were provisions continuance when the detention 3— noncompliance with by the prejudiced Thus, respondent was invoked. section 3—706. Guardian Notice to (405 ILCS the Health of Mental Code
Section 3—706 5/3—706 2004)) (West place of the time and requires that notice the also if the guardian, upon the hearing must be served the orders that set the case, In this none of three respondent has one. Thus, guardian. sec Peggy,respondent’s dates served on were However, we with the that again agree State tion 3—706 was violated. Peggy was at present not warrant reversal since this violation would 231-32, Splett, 143 Ill. 2d January hearing. the See In despite reversal not warranted (finding 572 N.E.2d was since actual notice of formal notice to the lack 706). of section proceedings purposes of the satisfied the C. Section 3—810 of the Mental Health Code report comply sec Respondent argues the State’s failed with (West 3—810 of the Mental tion 5/3 — 810 2004)) report the considering and the trial court erred not before ordering respondent hospitalized days. for 90 provides
Section 3—810 as follows: determined, disposition “Before the director or such report prepare other as the court direct shall written availability of including appropriateness information on the ***. If the is found settings alternative treatment admission, subject report shall considerthe court determining appropriate disposition.” 405 ILCS 5/3—810 (West2004). case, indicated no report,
In this the State submitted which setting appropriate for at that alternative-treatment was not require This court has found section 3—810 does time. Meek, report” In re 131 Ill. “detailed on treatment alternatives. See App. 3d
Moreover,
no
report
entirety
the conclusion
supported
its
comprehensive
setting
appropriate.
alterative-treatment
was
report
indicated
psychiatric
portion
evaluation
medication,
noncompliant
Peggy
threatened
had
Ad-
paranoid
and a
and delusional.
fireplace poker,
a knife
lived,
safety.
feared
her
The State’s
ditionally, Peggy,with whom he
Accordingly,
hearing supported
at
the above statements.
evidence
complied
with section 3—810.
report sufficiently
we find
respondent cannot
assuming
report
noncompliant,
Even
question
adequacy
not
prejudice where he did
establish
*8
report
in the trial court and offered no suggestion as to a less-
restrictive alternative than that made by the State both in the report
and at the hearing. Meek,
See
131 Ill. App.
3d at
Respondent also contends the trial court did not consider the report before disposition as required by section 3—810 of the Mental (West 2004)). Here, the record 5/3 —810 indicates the trial court admitted report for dispositional purposes at hearing, and the record on appeal contains the report. Moreover, respondent does any not cite pages of the record indicating the court failed to consider report. Thus, we find respondent has failed to show the trial court did not consider the report mandated section 3—810.
Last, we have examined the other by respondent issues raised them, decline to address finding an exception to the mootness doctrine does not apply.
III. CONCLUSION For stated, the reasons we reverse the judgment. trial court’s However, remand is not necessary since respondent’s 90-day admis- sion expired. has
Reversed.
STEIGMANN, J., concurs. MYERSCOUGH, JUSTICE specially concurring in part and dis- senting part:
I respectfully specially concur in part and part. dissent in I strongly suspect documents docket missing entries are from the record and/or worst, but, this case at procedural technical mistakes occurred due holiday to a weekend and perhaps agreements of defense counsel. Regardless, I concur in part with the majority, but I disagree with the majority’s finding a violation of the provision. 36-hour notice
Perhaps the chief judge signed who the order was unfamiliar with the form and arguably checked wrong provision. However, order did provide for detention and examination. The very order’s title Detention, is Examination, “Order for Diagnostic Evaluation.” The court also ordered be taken by police to Memorial officer as set forth in the Respondent statute. must facility be admitted to the to be examined: “(a) If, however,the court it necessary finds that in order complete examination[,] the court order that the person facility health pending admitted to a mental examination order a or other the officer
there. The shall be at a local mental health conducted or, possible, if hospital place in the own *9 may person residence. No be detained for examination under this -704(a)(West [slection for more than 24 hours.” 5/3— 2004). circumstances, any be Under must released unless the necessary findings are made. “(a) upon completion shall be of the released physician, examiner[,] qualified unless or clinical
psychologist stating person subject executes certificate is admission and in need of immediate to protect such physical Upon others from harm. admis- [s]ection[,] sion may under given pursuant this treatment 704(a)(West2004). [slection 3—608.” 405 ILCS 5/3— To find a this applying violation of 36-hour notice is hypertechni- cal to the rules mental-health arena. Logically, police how can a officer physician and a detaining examine without the person pursuant to section 3—704?
The 36-hour provision notice is to apply intended to situations where remains his home prior ap- to examination and pears voluntarily, necessity provision seldom utilized in commit- proceedings. ment a respondent Whether is admitted under VI section Code, of the emergency by certification, admission or under section VII, admission court the respondent be detained without hours examination. This is emergency situation, which permits examination, service of the notice of the petition, statement of same at the time as the service admission: “If admitted to a mental health examination under [slection such notices be delivered at the time of service the order for admission.” 405 ILCS 5/3— (West2004). fact, these notices of examination and admission are on included the same form in Sangamon County. reasons,
For these I provi- would find no violation of the 36-hour sion, I and concur in part part. dissent in