*1 1088
age negligent Further, as self-defense. we cannot find that the reasonably injuries intended to insure Presswood for that he inflicted others upon during barroom scuffles. matter, a final are
As not aware of we Presswood’s financial situa tion, coverage the denial leave Leverton uncollect judgment. ible recognize public We policy compensating favors victims like Logan, 483, Leverton. Lincoln Ill. App. 309 3d at 722 However, N.E.2d at 242. it against is public policy permit insurance indemnity acts, for intentional facts, and under these policy this prevails. Lincoln 309 Ill. Logan, App. 3d at 242 N.E.2d (indemnity would, rule, intentional general misconduct as a be unenforceable). contrary to public policy III. CONCLUSION Based upon presented here, the facts it was reasonable to conclude expected that Presswood “either or intended” to cause Leverton’s injuries. The judgment circuit court’s in favor of State Farm was within its discretion.
Affirmed. GARMAN,JJ.,
STEIGMANN and concur. MAHER, Subject Involuntary re CHRISTOPHER a Person Found (The Illinois, People Admission of the State of Petitioner-Appellee, v. Maher,
Christopher Respondent-Appellant).
Fourth District No. 4 — 99—0241. Argued July 21, September Opinion filed 2000. 1999. *2 J., KNECHT, dissenting. Anna, Commission, of Plesko, Advocacy Guardianship & Jeff M. of Commission, Advocacy of Jr., (argued) Guardianship & Conroy, of
William J. Springfield, appellant. (Norbert Bloomington J. Goet- Attorney, Reynard, of
Charles G. State’s At- (argued), all of State’s ten, Biderman, and Denise M. Ambrose Robert J. counsel), Office, People. for the torneys Prosecutor’s Appellate of the court: opinion the COOK delivered JUSTICE PRESIDING Ma- Christopher 1999, respondent, found the trial court March her, subject involuntary facility. to admission to a mental health Re- (1) spondent appeals, arguing questioned that the trial court a witness in chambers ex and then parte testify, becoming called the to witness (2) an advocate for State and depriving trial, of a fair court misapplied the standard of proof placed proof burden of (3) respondent, prove State to by convincing failed clear and ev- (4) commitment, idence was subject involuntary his commitment was not compliance with the emergency-admission-by-certificate procedures of the Mental and Developmental Health Disabilities Code (Mental Code) (405 (West Health seq. 1998)), ILCS et 5/3—600 multiple procedural deficiencies occurred in transferring him the mental health We center. affirm.
I. BACKGROUND On petition March for emergency admission certifi- by cate was filed therapist pursuant a crisis section of the 3—601 (405 (West 1998)) Mental Health Code grounds ILCS on the 5/3—601 and, ill mentally illness, reasonably because himself expected physical inflict serious harm on another near future. Two certificates supporting petition were prepared filed day. The were prepared by emergency certificates physician room at BroMenn and Dr. Hamil- Hospital Robert Scott ton, psychiatrist. allegations The certificates contained had barricaded parents’ or “isolated” himself his room at his house *3 parents. and threatened his petition
A hearing place Maher, on the took 19. Stephen March father, respondent’s testified respondent began engaging in “aberrant behavior” as an adolescent. Respondent verbally physi- harassed and cally younger abused and “beyond might his brothers sister that which *** been of expected have Stephen adolescent.” and his counseling wife obtained for respondent family. and the The counselor diagnosed respondent with “passive-aggressive Counseling disorder.” was after respondent discontinued several months because was uncooperative.
Stephen respondent behavior, stated continued to in violent engage items, doors, as breaking beating such and his and kicking brothers Stephen attempted sister. At one from pull respondent away time brother, eight his who re- years younger respondent, was than and spondent forehead, breaking struck a to Stephen’s eyeglasses. blow his occasion, Stephen’s daughter On another him at called work because and, respondent Stephen had been “violent to her” returned when home, he respondent found had cut his sister’s hand with a knife. alcohol, family’s
Respondent through drove his car abused and distasteful “loud family his with verbally abused yard and ag- of either convicted respondent was testified language.” Stephen store assaulting a video for battery aggravated gravated assault Re- merchandise. he stole some detain when clerk tried to who driving under incidents of multiple was also convicted spondent revoked, spending periods license driving while influence of alcohol unfit to stand found to be county jail. He was in the of incarceration he until months for several hospitalized in a criminal case at that respondent evaluated psychologist fit. A who found to be was drug abuse induced disorder organic brain diagnosed time with using can- time, was trauma. At that to head opposed as Respondent was (LSD), and cocaine. diethylamide nabis, lysergic acid facility at in the correctional years to four and sentenced convicted six months. only Dixon served but re- a substance-abuse and his wife enrolled
Stephen Hospital, but at Lutheran General program habilitation stop using He did later successfully complete did not treatment. years. for nine and had from alcohol cocaine on his own abstained 1998, re- through March living parents his from 1993 While with diagnosed in which he was psychiatric evaluation spondent obtained disorder) schizophrenia. (manic-depressive bipolar disorder employ- and obtained counseling and medication Respondent received he had improved although janitor. ment as a cook and a His behavior moved to 1998, respondent In March occasional “outbursts.” Bott, a psychia- with Dr. There he continued treatment Milwaukee. aware re- Cogentin. Stephen was prescribed trist Thorazine and who Bott quantity in the Dr. taking his medication spondent was for really diagnosis he did not have prescribed. Stephen Dr. Bott told according to his “basic treating him but was respondent’s disorder disorders. regimen” patient personality Blooming- 7, 1999, parents’ to his March returned On family dog died and wanted upset the ton residence. Stephen poisoned. if he had been dog had killed the to know who actually death, dog had natural dog died a told re- asked of March evening In the hours been euthanized. foul remarks directing the room because spondent to leave Re- arm. mother, pain from a broken great in a deal who was is Stephen, “Satan dog and warned began talking about spondent you folks.” going get him. counseling going get told he was *4 gun millimeter and his 9 threatened to load his 30-30
Respondent Stephen door. knew through the away” anyone that walked “blow pole support chained to a steel handgun and a 30-30 were .25-caliber 1092
in the thought respondent key basement. He had a to the lock. Ste- phen gun, never a 9 millimeter he receipt thought saw but had a he represented payment weapon. stated, a down he such a Then “It does not mean that one exist [sz'c].” bedroom,
With his wife locked in the Stephen master left for the crisis center telephone help because he was afraid to from his resi- dence. The crisis team suggested police intervention. When Stephen home, frightened returned his thought wife was because she she heard a gun cocked. being immediately. and his wife left the house Neither of them was physically during harmed the episode. Clay police negotiator
Detective Wheeler was called as a about p.m. on March for what he was told was a bar- subject ricaded possibly holding hostages. He telephoned the Maher residence, respondent initially would not phone. answer the Wheeler about eight messages left answering the machine before respondent called back about 30 minutes later. Wheeler talked respondent with for about an hour. Respondent told him to blame for the incident he because was intoxicated and had ridiculed
respondent. Respondent dog mentioned of 14 years his had died. He also parents stated if his dead were he “would tear apart.” [his sister] respondent face, Wheeler tried to convince to meet with him face to but respondent respondent refused. told Wheeler he knew about the parents threats made toward his police the needed to come into the house. Respondent guns admitted Wheeler were in the house. hour,
After about he said was tired and going to bed, hung and he up phone. get any Wheeler did not response to about telephone 27 more calls to the house.
Officers tried to talk over a megaphone until re- spondent time, talked to Wheeler second time on the This phone. re- spondent housing said “would take care of Dad” if he lost his his police income and “next came time” out “it would be a lot more problem get of a him out of the house.” Wheeler convinced re- spondent to at 4:25 a.m. on March 16. did surrender police resist the when he out officers walked of the house. The entered house and found the still guns secured basement. Dr. Hamilton testified he was called in team. Members crisis respondent’s parents the crisis team as him respondent well as told “had physical they respon- threatened were concerned violence” dent might gun. have access to a Dr. Hamilton first talked to dent custody, about 1 a.m. on March 16. After Dr. armed, police Hamilton learned had not been but the negotiator had threatened to “be with his told violent from discharged he was when particular,” parents family, *5 hospital. March morning later in the examined Dr. Hamilton He pre- by police. Hospital to BroMenn brought 16 after he was a upon relied and report of history physical and a pared by report prepared dispositional and investigative report social service respon- report revealed Roberts’ Calene Roberts. clinical social worker schizophrenia a history diagnosis with long psychiatric a dent had hospitalized had been once. He also hospitalized at least and had been at the state correctional had incarcerated abuse and been for substance treatment receiving outpatient Respondent in Dixon. had been facility filing pe- of this that caused the to the incident Chicagojust prior near tition. he Hamilton, reported history gathered
In the Dr. he alcoholic, occasionally marijuana, used and he recovering is a lived. Re- Milwaukee, currently in where he care psychiatric received following a car ac- he head trauma also stated sustained spondent gets paranoid.” and “somewhat cident and at times he hears voices medication, taking prescribed his stated he had not been Respondent pre- he could not afford the Trifluoperazine, past for the week because scription. family, everybody, particularly Hamilton his
Respondent told Dr. March 15 him an account of the anybody providing told lies about contrary lying. Respondent “people incident to his was believed were “set off” the incident following him.” He told Dr. Hamilton his father family “always him harassed him.” by demeaning on March 15 and his he Bloomington Hamilton he came to because Respondent told Dr. apartment to into a new parents help wanted his move Milwaukee. treating respondent’s psy- confer attempted
Dr. Hamilton with told Dr. Ham- chiatrist, Bott, Respondent could not reach him. Dr. but committed, Dr. Hamilton “go nuts” if he were which ilton would disruptive.” “violent and to mean would be interpreted syndrome organic personality diagnosis Dr. initial Hamilton’s developmental psychosis possible to a head trauma due closed psychiatric long-term delay. dispositional report His recommended supportive supervised to a or hospitalization, followed admission a living psychiatrist treatment with outpatient situation paranoid changed diagnosis Hamilton his mental health clinic. Dr. nurse family and conferring respondent’s after schizophrenia Tyler. Char problems mental respondent’s Maher told Dr. Hamilton had been accident and long
started before his automobile diagnosed by professionals other with passive-aggressive behavior dis- paranoid order and had schizophrenia, engaged physical violence past, previously had been admitted to mental Ste- hospital. phen also him a a 9 receipt gun. showed for millimeter
Dr. Tyler Hamilton obtained information from nurse dent stated he “get” would his if parents they give money did not and take care police of him and the could not watch him 24 hours days day, explained a week. later he was not going physically parents harm “get way. his but would them” some other
Dr. paranoid Hamilton stated a schizophrenic necessarily does not paranoid delusions, have but He explained did. also most schizophrenics are not violent several factors increase risk of violence, such abuse, noncompliance as substance with taking medica- tion, and a history engaging threats violent All of behavior. applied respondent. these factors
Dr. original Hamilton stated both diagnosis and his current di- agnosis would respondent’s account behavior. He believed *6 respondent’s schizophrenic.” mental condition was “more Hamil- Dr. opined respondent mentally and, illness, ton ill was because of his he reasonably physical was expected inflict harm himself or another in long-term the future. He recommended hospitalization because of respondent’s noncompliance taking medication and his potential Anything hospitalization violence. less than would a potential be danger society respondent. and
Dr. Hamilton admitted on cross-examination that respondent’s verbal, guns house, threats were and in although were located re- spondent never one in had his hand. Dr. Hamilton admitted he have assumed respondent gun.' threatened someone with a He also hostile, admitted respondent appear violent, did not to him to or be aggressive signed the time Dr. Hamilton the certificate. only
The by respondent evidence offered a written letter to was judge, which was admitted into evidence. in question argument described incident as an between himself got proportion by police and father that blown out of later media. they He stated he told the come police could into the house any time they parents. Respon- wanted and he would never harm his right wrong making dent stated he knew from a life for new Wisconsin, just in apartment. himself where he had obtained new Arguments by expressed counsel followed. The trial court then its he un- hospitalizing simply concern about someone because or she was reasonable, threatening the court belligerent, even unless believed The likely the threatened to occur in the near future. behavior was testimony problems court found the indicated had mental contradictory it and unclear on whether he had a but found to be personality expressed mental illness or a disorder. The trial court its only options ordering hospitaliza- frustration the available were two go. judge tion or The wished someone could look af- letting respondent if go queried ter he let where would ifgo he were free.
Respondent’s counsel then stated told her had employment landscaping recently with a firm in Milwaukee and had been accepted subsidized-living apartment. into The trial court then if parties objected respondent’s father, asked the if he “talked” to Ste- phen, sir,” replied, “No, chambers. Counsel for the State respondent’s said, counsel “I don’t care.” judge
The trial then Stephen took into his chambers for an ex parte conversation that was not recorded or transcribed. After the Stephen, judge court’s conversation with Stephen called back to judge the witness stand. The made a record that he. chambers inquired Stephen, what would if he happen gave respondent a bus ticket back to Milwaukee. He asked Stephen to tell the what he told the According court chambers. to Stephen, respondent did apartment have an because he had been evicted. He stated dent had applied housing, for subsidized Stephen proof had no re- spondent get would housing. job, such As for a Stephen stated there promise “no absolute present work at this time.” There was “an indication” Stephen that, could start work. stated al- though respondent did not a place go Wisconsin, have he was not parents’ welcome at his home.
Stephen also told the trial receipt court about a for a a 9 mil- gun, Rugen limeter The trial court asked to tell the parties what he had told the court. stated he had the which did receipt, not state the purchaser’s name but noted a payment down had $25 been February made on 3. He stated he did not receipt have the represented but it purchase made in Wisconsin.
On by respondent’s counsel, cross-examination Stephen admitted *7 he did not know whether contacted Lutheran Social Ser- Agency vice in Wisconsin in placement housing. about subsidized Ste- phen did not know had a card agency business from an representative indicating respondent’s dealings agency. with the Ste- phen thought respondent could not steps take such on his own but would need Stephen’s help, as he had in the past. Stephen stated re- spondent worked for the landscaping company temporary, on a as- needed previous basis the receipt gun purchase summer. The for the only payment indicated a down had gun been made and not that the was actually received.
1096 State,
When cross-examined stated had repeatedly gun talked about the and that he needed it to protect Further, people might apartment. respon- himself from who enter his dent would the gun stop stated he use to the “authorities” from or, got him if harassing really tough, up times he would use it to hold places. Stephen helped past at times in the to move to new apartments housing. or obtain new He had been to Milwaukee a few help respondent weeks before this incident to obtain subsidized hous- ing to as was about be evicted. When came to Bloom- ington, personal he left all his property Milwaukee. He told appointment he had an in Milwaukee on day hearing. set of the judge The trial indicated this it was borderline case where was hard for to know what to do. The court indicated its preference sending respondent long for for further evaluation to see if he had a history, psychiatric really schizophrenic, whether he whether he others, danger report was a to himself or with the court to receive a a couple judge of weeks. The noted he had nowhere to send and, therefore, dent to have this evaluation found him to meet the statutory criteria and ordered him involuntarily admitted to the Zeller Mental Health Center. The judge required then stated Zeller was to him in provide report days concerning patient’s needs. At time, the trial court him a keep would decide whether lon- ger period of time or “turn him loose.” finding respondent
The trial court entered a written order was a person subject involuntary hospitalizing up admission and days to 180 in the Mental Department Developmental Health and Disabilities, finding that was the environment cur- least-restrictive rently appropriate and available. timely appeal April filed a notice of on March 23. On 1999,
15, change a notice of status was filed with the court Center, facility informing director of Zeller Mental Health the court discharged facility had been from the 12. April
II. ANALYSIS moot, despite respondent’s Both contend this case is Center, exception release from the Zeller Mental Health based on an recognized supreme to the rule of mootness. Our court has where “capable repetition, an event of short duration that is case involves review,” yet evading despite review be had the issue otherwise 555, H., 2d being moot. re Barbara 183 Ill. 702 N.E.2d (1998). action must qualify challenged To for this exception, litigated fully prior be too short its duration to be cessation expectation complain- the cause must a reasonable the same present
1097
H.,
ing party
subjected
again.
would be
to the same action
Barbara
491,
parties
brief of prior hospitalization, so it is reasonable expect against the same action that was taken him here be un- might again. dertaken elect to appeal We address this on the merits. Respondent argues the trial ex parte court’s conversation with a witness in recalling testify chambers and then him to to information gained conversation, in that supplying thus additional evidence State, requiring was error of the reversal trial court’s order. argues
The State respondent has forfeited this issue due to his object during counsel’s failure to hearing and failure to raise this issue in a posttrial Barnard, 234, motion. See In re App. 247 Ill. 3d (1993). 252, 714, 616 N.E.2d 727 Application of the forfeiture rule is rigid less objection where the of the basis is the trial court’s own Davis, conduct. People 317, 343, v. 185 Ill. 2d 473, 706 N.E.2d 485 (1998). Specifically, where the departs trial court from its role and becomes an advocate for position, objection the State’s no by opposing counsel necessary preserve is the issue for review. People Rega, v. 17, 24, 271 Ill. App. 130, (1995); 3d 648 People McGrath, N.E.2d 134 v. (1967). App. 229, 236,
80 Ill. 2d 660, 224 N.E.2d 664 A discretion, trial court inmay, question its witnesses to elicit clarify truth or material issues that seem long obscure as as it does so in a impartial Smith, fair and People manner. v. 299 App. Ill. (1998). 1056, 1062, 3d 218, However, 702 N.E.2d 222 the trial court must depart from its function judge as a not assume the role of an Smith, advocate for the App. 1064, State. 299 Ill. 3d at 702 223; McGrath, N.E.2d at 236, 80 Ill. 224 App. 2d at at 664. The N.E.2d propriety of an examination of a witness the trial court must be determined of each circumstances case and rests within the Gallo, discretion of the trial People 1032, court. v. Ill. App. 260 3d (1994). 1039, 99, 632 N.E.2d 104 63(A)(4)(c)
Supreme Court Rule provides judge may, consent of the parties, confer separately with the and their lawyers in an effort to mediate or settle matters pending before the 63(A)(4)(c). judge. 155 Ill. 2d Generally, R. private conversations with judge concerning a pending improper. Taylor, case are People See v. 1098 (1997). 21, 27, 847, App. judge
288 Ill. 3d 679 851 A trial has N.E.2d obligation public justice fairly to assure the is administered Bradshaw, the appearance impropriety. People and must avoid v. (1988). 971, 975-76, App. 171 Ill. 3d 525 N.E.2d noWhile reported dealing judge having case has been found with a trial exparte trial, during communications with a witness it has been held an judge parte administrative law should avoid ex communications with a testifying and reversal required prejudice witness is where actual complainant Department is shown. Korunka v. Children & Fam (1994). Services, 527, 530-31, ily App. 259 Ill. 3d 631 N.E.2d right thing respon
The court acted out of a desire to do the *9 family problem presented dent. It was concerned with the the case a grasping practical Stephen and was solution. Whether here fell 63(A)(4)(c), court, language within the of Rule which allows the with consent, separately attorneys, to confer with and their is Nevertheless, unclear. respondent separate because consented to the matter, conference in perceive prejudice. this we no We recommend that the court not engage such conferences the future absent compelling circumstances. held, the parte ap-
Once ex conference was the court could call propriately Stephen to the stand to make a record of what had been discussed. Likewise the court could appropriately question Ste- phen purpose educating fully regarding for the itself the circum- case, although questions stances of this a court that a witness must be if appear acting careful not to as it is as an advocate. The fact that the judge’s brought damaging out information to questions judge acting does not mean the was as an advocate. have
We examined the other issues advanced them, decline to as are they address moot. judgment
We affirm the of the trial court.
Affirmed.
MYERSCOUGH, J., concurs. KNECHT, dissenting:
JUSTICE
I respectfully dissent. case, overstepped the trial its discretion and this court abused parte. Maher ex The error was by conversing its bounds with reporter present. speaking court Prior to exacerbated because no chambers, parte ex the court was frustrated with to yet it was not convinced as which disposition opined choices of way it should rule. are A sin- frustrating. judge
Mental health cases often trial with a sorely cere desire to human problem solve ameliorate a be However, to tempted parte become a counselor or mediator. ex com- improper munication such that which here no as occurred is matter especially damaging benevolent motivation the trial court. It is major it occurs and a inter- complaining liberty when with the witness my est stake. this judge’s is at While view of the effort resolve charitable, case thought is what must the have when against being private saw the chief witness him ushered a audience court? An parte ex conversation with chief in a witness health akin judge having private mental case is to a trial a conversa- tion with victim in criminal parte case. Such ex conversations only should occur on television or in films. communication,
After the ex parte compounded the trial court error recalling Stephen only as a questioning witness concerning whether place place had a live and to work Milwaukee, but also questioning about the actual existence of the 9 millimeter gun which he had ad- previously referred. The ditional cross-examination of Stephen revealed new assertions dent gun threatened to against use or to authorities commit rob- against beries. The bolstered, State’s case significantly judge and the trial apparently gleaned enough additional evidence to persuade him the respondent should be committed. 63(A)(4)
Supreme clearly Court Rule apply. Stephen does not Ma- her not a party, is did not consent to the conference.
The trial finding court’s suffered from ill- mental ness not However, erroneous. finding respondent court’s was an immediate threat to harm either himself others was proved to the trial prior testimony court’s satisfaction to the additional by the following parte elicited court ex conversation. The trial parte court’s ex ensuing testimony conversation with court open prejudiced respondent. I would reverse trial court’s involuntarily order committing respondent.