*1 permitted represent not, fact, rantors are types consumers that the results arbitration other dispute proceedings of informal resolution will be final binding. plaintiffs’ viability claims, As with other of these plainly underlying question claims turns on the Gateway obligations whether has violated its under the Magnuson-Moss Warranty sense, Act. this all of plaintiffs’ Warranty claims are Act claims. Under the statutory regulatory adopted by Congress, scheme plaintiffs right litigate have such claims in the courts. foregoing judg- reasons,
For the I would affirm the respectfully ment of I court. therefore dis- sent. joins
JUSTICE KILBRIDE in this dissent. (No. 95927. (The People
In re MICHELLE et J. al. of the State of Appellee, Appellants). Illinois, al., v. J. et
Opinion April 2004. filed *2 THOMAS, J., concurring. specially Rothert,
Anthony Alton, E. and Elvis C. Cameron Plesko, Anna, Jeff M. appellants. for Madigan, Attorney General, Lisa (Gary of Springfield Feinerman, General, Solicitor and Linda D. Woloshin and Mary Burns, Beth Attorneys General, Assistant Chicago, counsel), People. for the
JUSTICE RARICK delivered the opinion court: Before us are two involving unrelated cases respon- dents involuntarily state-operated admitted mental health facilities pursuant to the Mental Health and (the (405 Code) Developmental Disabilities Code ILCS (West 2000)). et seq. The cases were heard 5/1 —100 day the same instance, the same trial each judge. rejected challenges respondents’ counsel the State had to comply failed with section 3—807 *3 (405 (West of 2000)), the Code ILCS which 5/3 —807 requires that testimony certain be a presented before may person subject be found to involuntary admission. The appellate court consolidated the cases affirmed. App. granted respondents’ Ill. 3d 1026. We peti- appeal. tion for leave to 177 Ill. 2d R. 315. For the reasons follow, we now affirm in in part part. reverse pertinent straightforward. The facts are The two respondents before us are as Sam S. and known At of J. the time the events rise to this giving appeal, had already person Sam S. been determined to be a subject to admission under the and had Code admitted, mental involuntarily, state-operated been to health facility July order the circuit court. 2001, the State filed a to petition pursuant section 3—813 2000)) (West (405 extend to ILCS of the Code 5/3 —813 period. an additional involuntary admission for Sam’s are involuntary admissions to extend Proceedings Code as those of the subject provisions to the same 405 ILCS involuntary admissions. initial governing 5/3— 2000). 813(b) (West See 405 hearing A is to be conducted. 2000). (West to section Pursuant 3—813 ILCS 5/3 — Code, 3—807 of the may subject be found to
“[n]o clinical social psychiatrist, least one admission unless at him worker, who has examined psychologist or clinical respondent may person in at the The testifies subject ap- to waive 2000). (West court.” 405 proval ILCS 5/3 —807 was hearing petition The on the State’s conducted 23, 2001, not August County. in Madison Sam was The month he had been transferred present. preceding facility health in different mental state-operated Although requested he could have county. another (405 change of venue based on the transfer ILCS 5/3— 800(a) (West 2000)), he did He likewise declined to not. County to A written appear. travel back to Madison right hearing of Sam’s to be at the was present waiver (405 (West 2000)). attorney filed his ILCS 5/3 —806 validity challenged, The of that and the waiver was matter went forward in Sam’s absence.
During hearing, the State called course only testify was Fer- person. one witness She Debra chief at the Alton Mental Health guson, psychologist Center, prior had to his hospitalized where Sam been she “not Ferguson recent transfer. testified that treatment” and has “never been directly involved his Ferguson did not directly involved his treatment.” of the hear- purposes meet with Sam for the personally ing. opportunity had the She told she earlier, him two but that because “he interview weeks actually in was in a condition and was *4 compromised 432 time, at
restraints” go she was unable to forward. Her recollection was that the last time she had met with personally Sam was six months earlier.
Although Ferguson was unable to examine Sam herself, subsequently Sam’s condition improved. Accord- ing to Ferguson, psychiatrist, a psychologist and a clini- cal social worker were all able him prior to examine to None of those professionals, health-care however, were called the State to substantiate its case. Instead, argued State for continued com- solely mitment based on strength of what Ferguson had discerned from her review of Sam’s and records conversations with staff at the facility where he was hospitalized.
In opposing case, attorney State’s Sam’s argued herself, that because Ferguson had examined Sam her testimony was not to sufficient meet State’s (405 under burden section 3—807 of the Code ILCS 5/3— (West 2000)). The rejected argu- circuit court Ferguson’s conclusions, ment. on granted Based the court petition, subject the State’s found that Sam a person involuntary admission, to he ordered that continue to be a state-operated facility. held mental health Michelle J.’s case involved different circumstances from Sam’s. initially Michelle was to the Alton admitted Mental Health emergency pursuant Center on an basis (405 (West to section 3—600 of the Code ILCS 5/3 —600 2000)) indicating based a certification that she was mentally required ill and immediate hospitalization protect herself and others from serious harm. The hear- ing subject to determine Michelle was a person whether shortly admission was conducted thereaf- ter, day judge on the same same before the as Sam’s case. case,
As in Sam’s proceedings against Code, were 3—807 subject section which *5 least one admission “unless at precludes involuntary worker, psycholo- clinical clinical psychiatrist, social respondent] has examined testifies gist [the who 2000). (West the 405 ILCS person hearing.” at 5/3 —807 To the State called Lenora with section comply 3— at Brown, employed the psychologist a licensed clinical that she at- Health Brown testified Alton Mental Center. hear- day the the to interview Michelle before tempted that ing, grounds but discontinued the interview the appear making did not “an informed capable rights.” whether or not to waive her decision on case, however, the contrast State’s witness Sam’s condi- personal knowledge Brown did have Michelle’s Michelle, during tion. Brown knew interacted with her a earlier, group days session conducted three and served as to her team. consultant treatment Brown’s assessment limited Michelle was therefore not to information she acquired through secondhand Michelle’s medical records and conversations other staff. represented attorney
Michelle was the same who Sam, represented he the challenge raised same He sufficiency argued State’s case. that Brown could not be considered to have examined Michelle and that her was therefore sufficient to meet (405 burden State’s under section 3—807 of the Code (West 2000)). case, As it did in ILCS Sam’s 5/3 —807 rejected argument. circuit court Based on Brown’s the court testimony, granted petition, State’s found a person subject that Michelle was admis- sion, held in state-operated and ordered that she be facility. mental health appealed. appeals
Sam and Michelle each Their presented single Did the question: adequately State appellate with section of the Code? The comply 3—807 court answered the affirmative question this upheld judgments. doing, the circuit In so it court’s
concluded that the statute’s of testimony from a “psychiatrist, clinical social worker or clinical psychologist has respondent]” who examined [the does not mean the expert must have examined respondent personally. The recognized that a personal interview with prior to a hearing for is “highly commitment desir- ous,” but found that such an is not absolutely interview required by where, among Code other things, expert respondent’s has examined the medical records and talked to “workers involved intimately with the respondent’s day-to-day behaviors and conditions.” 336 Ill. App. 3d at 1031. may
Whether section 3—807 the Code be satisfied *6 based on of testimony the an witness who expert has not presents examined the personally respondent question review de construction, of statutory novo. See which we (2002). P., In Mary re Ann 393, 202 Ill. 2d 404 The issue has been considered our court We before. addressed In re the of of requirements section 3—807 the Code (1998). H., Barbara In case, Ill. 2d 482 that 183 the had expert psychiatric State’s sole not conducted Rather, respondent. examination of the she formulated her the diagnosis respondent’s of condition based on record’s, of respondent’s review the medical conversa staff, facility’s personal observations, tions with the and See In re Barbara her with past experience respondent. (1997). H., Ill. 3d On App. appeal, 288 363 we held expert because the had not examined the personally respondent with case and the connection the current respondent’s situation, requirements present of sec Although gave tion were not satisfied. the statute 3—807 respondent right to waive the expert her, subject from testimony an who had examined court, had approval to no such waiver been made. proceedings comport statutory Because the failed to with court order the circuit judgments requirements, a mental to admission ing respondent’s to administer authorizing the staff facility health her will were against her medication to psychotropic 2d 497-98. H., 183 Ill. at In re Barbara outright. reversed H., appellate of the portion In Barbara Under re admis- to Sam’s pertaining judgment court’s Sam, against In the proceedings sion cannot be sustained. case its H., premised the State in In re Barbara as had not expert an who on the exclusively respondent examination personal conducted a respon- and the proceeding the current connection with case, in In re In Sam’s as present dent’s situation. therefore not satisfied. H., Barbara the statute was H., Moreover, in In re Barbara there was no waiver as statutory requirements. distinguish re attempted The appellate that our was unclear grounds opinion Barbara H. on the actually attempted had expert there as whether theory court’s respondent. appellate talk The with that the made expert that if the record demonstrated unable to to interview the but was an effort impaired condi- respondent’s do so due to the conduct tion, personal satisfied without a section 3—807 could be expert personal of an based Testimony examination. observations, review of medical records consultation respondent’s others involved in the care would suf- with App. fice. m. 3d at 1031-32. court’s problem
A threshold *7 in In re place it overlooks what took analysis is for the State psychiatrist Barbara H. The who testified a examina- attempt personal in that case did to conduct fact, In tried respondent. perform tion of the she three times. examination of the psychiatric the respondent The reason she did not succeed is not detail these Although to talk to her. we did refused in facts our opinion, they clearly were set out in the ap- (In H., re Barbara pellate disposition court’s 288 Ill. App. 363) 3d at and were known to us when we ruled as we re Barbara H. cannot be read to did. Accordingly, permit recognition of an to the exception personal examination expert’s based inability personal to conduct a interview.
A problem second with the appellate court’s approach is that the exception it seeks to create inapplicable is Sam’s situation. The appellate court was concerned about what could be done the respondent’s when mental illness interrogation was such that verbal impossible. was Sam’s Ferguson, illness was not that severe. expert, State’s worked at a different institution than the one where Sam being held at the time of the hearing. The reason she did not him personally examine was that he was restrained and not in a position to be interviewed when her schedule allowed her to travel there see him. It was not because he was incapable being interviewed to the prior hearing. contrary, To the the record showed visit, that after Ferguson’s psychiatrist, a psychologist and a clinical social worker were all able to examine Sam time for the
Had the called one of experts, State those three other the requirements of section 3—807 would have been met. The State offers no as to it explanation why rely chose to simply on someone else instead. We infer that it was Ferguson matter of administrative convenience. worked county hearing where the was held. The other circumstances, did not. Under there experts these is no legitimate deviating basis for from section 3— 807’s explicit requirements. Statutory mandates cannot be compromised simply to accommodate the convenience of the State’s witnesses. expert
Our conclusion that who testified Sam’s requirements did not meet the of section 3—807 is case
437 by statutory supported principles further basic Examining person’s records, medical construction. Ferguson did, is not the same as examin which is what ing person, specifies.If which is what the statute thought reviewing respondent’s Assembly that General interviewing medical charts and other staff members adequate examination, were an substitute for an actual language in it could have included such the statute. It guise did not. We cannot rewrite a statute under the statutory depart plain language construction or from the by reading exceptions, limitations, of a statute into it expressed by legislature. Mary In conditions re P., Ann 202 Ill. at2d 409. principles apply particular
These force here. integral part Section 3—807 of the Code is an by Assembly mechanism established involuntary the General for requiring admission of individuals mental involuntary health services. Because administration of implicates liberty mental health services fundamental governing applicable procedures interests, statutes narrowly. H., should be construed In re Barbara 183 Ill. (1998). 482, 2d 498 statutory provisions note, moreover,
We
governing
hearings
under the Code have been
Assembly
amended
the General
on several occasions
H.,
since our decision in In re Barbara
Counsel’s failure to invoke the “clear If of no the State adduced ing” consequence. standard is sought, for the relief it it neces- evidentiary no valid basis clear that it failed to establish its case sarily follows only way The to avoid this convincing evidence. that the State’s burden can by holding conclusion is testimony in from a be satisfied the absence of somehow such to section 3—807. No qualified expert pursuant held in In re Brown and as conclusion is As we possible. judgment in order- disposition, have reiterated this we cannot be affirmed the ing involuntary commitment with section 3—807’s comports absence of that requirements. regarding judgment the court’s
Although appellate sustained, cannot be admission Sam S. the correct result with that the court reached we believe respect called the State to Michelle J. The witness testify had been unsuccessful did that she Michelle’scase day attempt Michelle the before in her to interview hearing. expert case, however, she in Sam’s Unlike respondent’s directly testi- in the care. She was involved to Michelle’s treat- fied that she served as consultant person- able to meet with ment team was ally group The related to the session. session gave psychiatric admis- issues that rise to process process that and occurred while sions appears underway. us, it From materials before hearing. place hours of the We the session took within 72 length depth session, but we do not know the suggest nothing it in the materials before us to see adequate expert to draw an was not to enable judgment psychiatric condition informed as to Michelle’s circumstances, at the time of the Under these say requirements of 3—807 we cannot that the section were not satisfied. foregoing judgments reasons,
For the respect to circuit and courts are reversed with proceedings against They are affirmed the respect Sam S. proceedings against
to the Michelle J.
Judgments part in affirmed part. and reversed in concurring: specially THOMAS, JUSTICE agree I the in with result these consolidated cases. agree majority However, I that this cannot with the salvaged in H. can be in its court’s decision Barbara entirety. my opinion, repudiate para- two In we must graphs opinion going if are to have a workable of that we rule for the lower courts to follow. principal holding in H. that the
The
Barbara
was
validly
right
public
had not
waived Barbara H.’s
defender
hearing.
present
at the
commitment
be
holding,
H.,
After
this
Barbara
“The regarding State likewise had no information risk, whether Barbara H.’s pose attendance would otherwise, physical substantial or of serious or emotional Indeed, harm to her. the State had no direct evidence of any facet of Barbara H.’s condition. Its entire case was predicated testimony physician on the of a who had not personally Although examined her. treated doctor had past, Barbara H. he1 admitted on direct examination opportunity perform psychiatric that he had not had an examination on her in connection with this case her present situation. expressly
Section 3—807 of the Mental Health Code provides: respondent may subject
‘No
be found
psychiatrist,
admission unless at least one
clinical
worker,
psychologist
social
or clinical
who has
examined him testifies in
at
person
The
respondent may
requirement
waive the
of the testi-
mony subject
approval
to the
of the court.’ 405 ILCS
(West 1996).
5/3—807
testify
Because the sole witness to
for the State had not
H.,
examined Barbara
this
not
In
statute was
satisfied.
ad-
dition,
requirement
testimony
waived.”
H.,
Barbara
H. was sufficient to examination, in concluding an and this court erred testimony, ap- otherwise. Dr. Husain’s as detailed (Barbara H., opinion App. court 288 Ill. 3d at pellate 363-64), intimately that she was familiar with shows patient H. had her Barbara H.’s condition. Barbara been period for a six-month that ended three months before 1According opinion, to the the doctor was (1997). H., App. See In re Barbara 288 Ill. 3d woman. *11 441 to attempted Dr. Husain Importantly, the H. on three Barbara a current examination conduct to H. refused time Barbara occasions, and each separate respon- of the diagnosis Thus, Dr. Husain’s her. talk to records, the medical on her review of dent “was based observations, and staff, personal the with conversation Barbara respondent when with the past experience her May in ending period for a six-month patient H. was her in at 363. Neither H., Ill. 3d App. Barbara 1996.” does this court opinion in the current H. nor Barbara this required psychiatrist have else it would explain what clearly not like situation done. This is to have had someone who S., upon relied State Sam which only and who Sam’s treatment never been involved with Moreover, in Sam S. him one time. to examine attempted him not examine that the doctor could the evidence was In Barbara H. at the time. he restraints because intimately had been was that a doctor who the evidence to attempted treatment respondent’s in the involved and the three occasions respondent speak with majority holding Is the refused to talk to her. respondent involuntary commitment respondent that a can avoid to assigned the doctor by refusing speak with simply examine him or her? compared is of Barbara H.’s case disposition
When the courts J.’s, it difficult for lower will be issue. respect rule with this to discern what our is a doctor testimony Barbara H. we held insufficient months for six respondent treated personally who had through knowledge of the case and had her updated observations, and staff, personal conversations with Further, three attempted she medical records. review of but respondent, examinations contrast, in Michelle J.’s By with her. speak refused to psychiatrist hold sufficient case we Michelle J.’s treatment a consultant merely who was team and who had met with her in a group session. The *12 doctor attempted to interview Michelle day J. the before the hearing, and Michelle J. refused speak to with her. As the majority admits, we know nothing about the group session: “We do not length know the depth session, of the but we see nothing in the materials before suggest us to that it adequate was not to expert enable the to draw an informed
judgment
psychiatric
as to Michelle’s
condition at the time
hearing.”
Several are apparent with this approach. First, the majority acknowledges “[w]e cannot rewrite a statute under guise of statutory construc- tion or depart plain from the language of a statute reading into it exceptions, limitations, or conditions not expressed by legislature.” 209 Ill. 2d at If 437. this is true, how can we write a 72-hour time limit into the Second, statute? how can saywe that an observation of respondent group a session a consultant to the (Michelle J.) respondent’s treatment team is an “exami- nation” for purposes statute, but a review medi- records, cal staff, conversations personal aby observations treating physician intimately familiar (Barbara H.) with the respondent’s treatment is not? Third, how can one attempt speak with the respondent be sufficient satisfy the statute while three attempts are I insufficient? do not see how the lower courts will be able to discern a workable rule from opinions. these J., Barbara H. and in
Both in physician familiar with the respondent’s case attempted personal interview with the respondent, and the respondent to speak refused with the In doctor. each of these cases we say should the State satisfied the other my no rule is workable opinion, examination. an attempt personal doctor to requires one that than refuses, then interview, if the the statu- but with treat- may be discussions tory examination based The majority’s of medical staff and a review records. ing of this a workable rule out case attempt forge for courts and cause confusion the lower Barbara H. will made a illogical decisions. We mistake wholly result to fix it. H., and we owe it to the courts Barbara (Nos. 95943, 95944 cons. *13 ILLINOIS,
THE PEOPLE OF THE OF STATE Appel- lant, al., T. et Appellees. v. JOHN EINODER
Opinion April 2004. filed