In re: David B. , 367 Ill. App. 3d 1058 ( 2006 )

NOTICE NO. 5-05-0416
Decision filed 09/06/06. The text of
this decision may be changed or IN THE
corrected prior to the filing of a
Petition for Rehearing or the APPELLATE COURT OF ILLINOIS
disposition of the same.
FIFTH DISTRICT
___________________________________________________________________________
In re DAVID B. ) Appeal from the Circuit
) Court of Randolph County.
(The People of the State of Illinois, Petitioner- )
Appellee, v. David B., Respondent-Appellant). ) No. 05-MH-142
)
) Honorable Richard A. Brown,
) Judge, presiding.
___________________________________________________________________________
JUSTICE McGLYNN delivered the opinion of the court:
David B. appeals an order of the circuit court of Randolph County entered on June 22,
2005, finding him to be a person subject to involuntary admission and ordering his continued
hospitalization at the Chester Mental Health Center. Respondent filed a timely pro se notice
of appeal on July 20, 2005. His appointed counsel filed an amended notice of appeal on
August 15, 2005, in accordance with Supreme Court Rule 303(b)(4) (Official Reports
Advance Sheet No. 7 (March 30, 2005), R. 303(b)(4), eff. March 18, 2005). On appeal,
respondent argues the trial court's judgment should be reversed because (1) the State did not
meet the statutory requirements for his involuntary admission in that it failed to produce at
least one expert to testify at his involuntary admission hearing who had recently performed a
personal examination on him and (2) the trial court's judgment was against the manifest
weight of the evidence. We affirm.
I. Statement of Facts
A. Background
In 1981, respondent, David B., was convicted of three counts of indecent liberties with
1
a child. This court affirmed his appeal in that case. People v. David B., 1 95 Ill. App. 3d
1132, 420 N.E.2d 1076 (1981). Respondent was sentenced to 13 years' imprisonment on
each count, with the sentences to run concurrently.
On May 9, 1986, a petition for respondent's involuntary admission for hospitalization
in the Department of Mental Health and Developmental Disabilities (Department of Mental
Health) and the certificates of a psychologist and psychiatrist were filed in the circuit court of
Randolph County. On May 21, 1986, after serving 6 years and 62 months of his 13-year
sentence, respondent filed a "Petition for Judicial Discharge" with the circuit court. On the
same day, a "Parole or Mandatory Supervised Release Agreement" was filed. It stated that as
a condition of respondent's mandatory supervised release, he would be committed to the
Department of Mental Health for retention and treatment. A timely hearing on the petitions
was conducted, and a licensed psychologist testified that he had interviewed respondent,
reviewed his medical files, reviewed letters written by respondent, and spoken with his
therapist. Based on this information, the psychologist opined that at times respondent
becomes paranoid, which he projects at others, and becomes grossly psychotic. Respondent
continues to have sexual difficulty, which could have him act out against children in the
future. Respondent also believes that he can pick up other people's thoughts and predict
future disasters. Respondent has written threatening letters to those who were involved in
1
Throughout this opinion, the titles of cases have been modified to comply with
Supreme Court Rule 330 (Official Reports Advance Sheet No. 21 (October 17, 2001), R.
330, eff. October 1, 2001).
2
gathering or giving evidence that resulted in his conviction. The psychologist diagnosed
David B. as suffering from a schizoaffective disorder and a paranoid personality disorder and
concluded that at the time of the hearing he would be a danger to himself and to others if
released. This court affirmed the trial court's finding that David B. was still in need of
treatment and subject to involuntary admission. People v. David B., No. 5-86-0369 (1986)
(unpublished order under Supreme Court Rule 23 (87 Ill. 2d R. 23)).
To this day respondent remains at Chester Mental Health Center. Prior to 2005, a
review of his confinement has come before this court at least 28 times, and each time this
court has affirmed respondent's involuntary confinement. 2 In the vast majority of these
appeals, this court has noted trial evidence bearing on respondent's consistent refusal to
accept any treatment 3 or medication, 4 his consistent refusal to deal with his sexual
2
This court has issued opinions in People v. David B., 95 Ill. App. 3d 1132, 420
N.E.2d 1076 (1981), and In re David B., 247 Ill. App. 3d 234, 616 N.E.2d 714 (1993). And
the court has issued unpublished Rule 23 orders in these cases: Nos. 5-86-0369 (1986), 5-86-
0588 (1987), 5-86-0837 (1987), 5-87-0459 (1988), 5-87-0582 (1988), 5-88-0025 (1988), 5-
88-0421 (1988), 5-89-0857 (1991), 5-90-0728 (1992), 5-91-0066 (1992), 5-92-0699 (1993),
5-92-0252 (1993), 5-93-0078 (1993), 5-93-0215 (1993), 5-93-0697 (1995), 5-94-0230
(1995), 5-94-0684 (1995), 5-94-0710 (1995), 5-95-0427 (1995), 5-95-0837 (1996), 5-95-
0924 (1996), 5-96-0446 (1997), 5-98-0514 (1999), 5-00-0034 (2001), 5-00-0035 (2001), and
5-00-0412 (2001).
3
People v. David B., No. 5-87-0459, order at 2 (1988) (unpublished Rule 23 order)
("[R]espondent has failed to cooperate with his treatment team"); People v. David B., No. 5-
3
88-0025, order at 2-3 (1988) (unpublished Rule 23 order) ("[R]espondent refuses to interact
with anyone at the hospital ***"); In re David B., No. 5-91-0066, order at 2 (1992)
(unpublished Rule 23 order) ("[Respondent] has refused most forms of treatment offered[,]
claiming he does not need it"); In re David B., 247 Ill. App. 3d 234, 239-40, 616 N.E.2d 714,
719 (1993) ("[R]espondent will not get involved in anything except for typing legal
documents. While respondent is now seeing a therapist, he does not want to deal with the
issue of his sexual offense or his borderline personality disorder and refuses any other means
of treatment"); In re David B., No. 5-92-0699, order at 3-4 (1993) (unpublished Rule 23
order) ("If respondent would agree to cooperate with treatment, he could eventually be
reintegrated into society"; "[respondent] has refused all types of treatment"); In re David B.,
No. 5-92-0252, order at 3 (1993) (unpublished Rule 23 order) ("[Respondent] has refused
any and all treatment"); In re David B., No. 5-93-0078, order at 3 (1993) (unpublished Rule
23 order) ("[Respondent] admitted that he was not cooperating with any treatment plans
***"); In re David B., No. 5-93-0215, order at 5 (1993) (unpublished Rule 23 order)
("Respondent has 'done absolutely nothing' to cooperate with the treatment programs offered
at Chester"); In re David B., No. 5-94-0230, order at 3 (1995) (unpublished Rule 23 order)
("Respondent refuses to participate in any of the Department's programs, with the exception
of ceramics ***"); David B. v. State, No. 5-95-0427, order at 2, 4 (1995) (unpublished Rule
23 order) ("[Respondent] refuses to cooperate in any treatment programs"; "[he] denied his
problems[] [and] would not accept treatment"); In re David B., No. 5-95-0837, order at 2-3
(1996) (unpublished Rule 23 order) ("[Respondent] does not participate in any type of
treatment program"); In re David B., No. 5-95-0924, order at 2 (1996) (unpublished Rule 23
order) ("[R]espondent, having no insight into his problems, has refused treatment"); In re
David B., No. 5-00-0034, order at 2 (2001) (unpublished Rule 23 order) ("[Respondent] has
4
problems, 5and his continued refusal to participate in mental examinations. 6
made no effort to discuss the issues that brought him to the mental health center"); In re
David B., No. 5-00-0035, order at 4 (2001) (unpublished Rule 23 order) ("[Respondent] had
refused to address the issue of his preoccupation with sexual gratification involving minor
females[,] *** used defiant means to thwart any therapeutic interventions ***, and refused
conventional treatment for pedophilia").
4
People v. David B., No. 5-86-0588, order at 2 (1987) (unpublished Rule 23 order)
("Petitioner had not taken medication ***"); In re David B., 247 Ill. App. 3d 234, 241, 616
N.E.2d 714, 720 (1993) ("[R]espondent has refused all medication"); In re David B., No. 5-
92-0252, order at 4 (1993) (unpublished Rule 23 order) ("Respondent has refused individual
therapy, GED classes, and medication"); In re David B., No. 5-94-0230, order at 3 (1995)
(unpublished Rule 23 order) ("[Respondent] refuses all medication"); In re David B., No. 5-
98-0514, order at 3 (1999) (unpublished Rule 23 order) ("Although respondent has taken
antianxiety and antidepressant medication, he refuses the kind of medication recommended
by his psychiatrist for the treatment of his other problems, because respondent does not feel
that pedophilia can be treated"); In re David B., No. 5-00-0034, order at 2 (2001)
(unpublished Rule 23 order) ("He refuses medication for his pedophilia ***").
5
People v. David B., No. 5-86-0588, order at 2 (1987) (unpublished Rule 23 order)
("Petitioner has a preoccupation with young girls and has sexually abused his sister, his
cousins, and his step[]daughter. *** [I]f petitioner were released, he would become involved
again with a prepubescent child"); In re David B., 247 Ill. App. 3d 234, 240, 616 N.E.2d 714,
719 (1993) ("[H]e does not want to deal with the issue of his sexual offenses ***"); In re
David B., No. 5-92-0699, order at 4 (1993) (unpublished Rule 23 order) ("Respondent has
5
attempted to treat himself by masturbating to pictures of young children taken from
magazines or drawing his own pictures of children for the same purpose"); In re David B.,
No. 5-92-0252, order at 5 (1993) (unpublished Rule 23 order) ("Respondent denied that he
suffers from pedophilia as he 'would just as soon have adult women as young girls' "); In re
David B., No. 5-93-0078, order at 2 (1993) (unpublished Rule 23 order) ("Petitioner
maintains that there is a distinct difference between child molesters that have psychopathic
personalities and pedophiles, which care for their victims. By petitioner's definition, he is a
pedophile"); In re David B., No. 5-93-0215, order at 5-6 (1993) (unpublished Rule 23 order)
("If not hospitalized, respondent will stalk and hurt kids"); In re David B., No. 5-94-0684,
order at 7 (1995) (unpublished Rule 23 order) ("Petitioner believes that he is entitled to
participate in acts of pedophilia and would commit acts of pedophilia if given the opportunity
***"); In re David B., No. 5-98-0514, order at 3 (1999) (unpublished Rule 23 order)
("[R]espondent does not believe that pedophilia can be treated"); In re David B., No. 5-00-
0034, order at 2 (2001) (unpublished Rule 23 order) ("[Respondent] has made no effort to
discuss the issues that brought him to the mental health center. He *** states that he can treat
his abnormally high sex drive by eating peas"); In re David B., No. 5-00-0035, order at 4
(2001) (unpublished Rule 23 order) ("[Respondent] refused conventional treatment for
pedophilia").
6
People v. David B., No. 5-87-0459, order at 2 (1988) (unpublished Rule 23 order)
("[A] clinical psychologist *** attempted to interview respondent, but he refused to speak
***"); People v. David B., No. 5-87-0582, order at 2 (1988) (unpublished Rule 23 order)
("[A] clinical psychologist *** testified that he attempted to interview petitioner on the day
prior to the hearing, but he declined to be interviewed"); People v. David B., No. 5-88-0025,
order at 2 (1988) (unpublished Rule 23 order) ("[A] psychologist *** testified he attempted
6
to see respondent *** but respondent refused to speak with him ***"); In re David B., 247
Ill. App. 3d 234, 239, 616 N.E.2d 714, 719 (1993) ("[The examiner] testified that he
attempted to examine respondent *** but respondent chose not to speak with him"); In re
David B., No. 5-92-0252, order at 4 (1993) (unpublished Rule 23 order) ("Respondent
admitted that he refused to be examined ***"); In re David B., No. 5-94-0230, order at 3, 5
(1995) (unpublished Rule 23 order) ("[The examiner] made two attempts to examine
respondent in the 10 days preceding the hearing, but respondent refused to speak with him,"
and "[r]espondent testified *** that he does not participate in therapy because whatever he
says in the sessions are [sic] used against him in court ***"); In re David B., No. 5-94-0684,
order at 2 (1995) (unpublished Rule 23 order) ("[P]etitioner refused to be interviewed *** the
day prior to the hearing ***"); In re David B., No. 5-98-0514, order at 2 (1999) (unpublished
Rule 23 order) ("[R]espondent had refused to be interviewed for the hearing"); In re David
B., No. 5-00-0034, order at 1-2 (2001) (unpublished Rule 23 order) ("[Respondent] had
refused to speak with [the examiner], but [the examiner] had reviewed [respondent's] clinical
file and had spoken with members of [respondent's] treatment team").
7
B. June 22, 2005, Hearing
Carole Metzger, a licensed clinical social worker employed by Chester Mental Health
Center, was charged with examining respondent for the purpose of testifying as the State's
expert witness at the hearing on respondent's continued involuntary admission. At the
hearing, Metzger testified that respondent simply refused to speak with her when she
attempted to personally examine him. Although she was successful in examining him in
2002, Metzger testified that respondent's lack of cooperation was a consistent pattern of
refusals to talk with his therapist or anyone else about his pedophilic behavior. Metzger also
testified that respondent had told her he refused to speak with her because she would testify
at the next hearing regarding his involuntary confinement.
Metzger further testified about respondent's long history of diagnosed mental illness.
Respondent had been committed at Chester Mental Health Center since 1986 but also had
been admitted at the Zeller Mental Health Institution in 1973. According to his medical
records, respondent has a delusional disorder, has a personality disorder of paranoia, and is a
pedophile. He also has a history of persecutory delusions with projections of blame and
suspiciousness. He has written threatening letters to officials at the Department of Children
and Family Services and the State's Attorney's office. He has a history of sexually
inappropriate expression with pedophilia and a preoccupation with sadomasochistic sexual
fantasies. Metzger attributed his current lack of violent outbreaks and aggressiveness to the
structured environment of the mental health center. She believed that without this
environment he would cease taking his medication and would be a threat to himself and to
others. Metzger also testified she did not believe that respondent would be able to take care
of himself if released.
Respondent testified on his own behalf at the hearing, stating that the reason he
refused to speak with Metzger was that he had been sleeping and had not been totally
8
oriented. He also stated that his only illness was depression and that he thought he could take
care of himself if released. Respondent failed to contradict the State's case, except to deny
that he was a pedophile. We also note that respondent never objected to Metzger's testimony,
nor did he move to dismiss the State's petition on the ground that an expert had not recently
examined him.
II. Analysis
Respondent now appeals the latest order for involuntary admission, arguing that the
State failed to have him examined pursuant the Mental Health and Developmental
Disabilities Code (Code) (405 ILCS 5/3-807 (West 2000)), despite his continuing failure to
cooperate or participate with mental examinations. David B. further argues that the order of
confinement was against the manifest weight of the evidence. We disagree on both counts
and affirm the order of confinement.
A. Examination Required Under Statute
In his first point, respondent argues the order of confinement must be reversed
because the State's expert failed to examine him in a manner consistent with the requirements
of section 3-807 of the Code (405 ILCS 5/3-807 (West 2000)). Pursuant to section 3-807:
"No respondent may be found subject to involuntary admission unless at least
one psychiatrist, clinical social worker, or clinical psychologist who has examined
him testifies in person at the hearing. The respondent may waive the requirement of
the testimony subject to the approval of the court." 405 ILCS 5/3-807 (West 2000).
Respondent argues that the order of confinement must be reversed because there must be a
personal interview prior to the hearing, before an expert can be deemed qualified to testify
about the committed's condition. We disagree. While we are mindful of the fundamental
liberties at issue and that certain due process protections must be afforded so that these
fundamental rights are not trampled in the rush to protect society at the expense of the
9
individual, the question remains whether we can allow a sexually dangerous person who has
become familiar with the law through numerous appeals to gain freedom by simply refusing
to speak with the State's expert. Put simply, the answer is no; the statutory language
requiring an evaluation from a competent expert was not intended to create a loophole for a
sexually dangerous person to exploit.
The supreme court has allowed a doctor to testify about an involuntarily committed
person based entirely on a review of the patient's records, discussions with staff members,
and prior observations of the respondent. People v. Lang, 113 Ill. 2d 407, 468-69, 498
N.E.2d 1105, 1133 (1986) ("[W]e do not construe section 3-208 [of the Code (Ill. Rev. Stat.
1983, ch. 912, par. 3-208)] as barring an examiner's testimony if it is derived from other
sources. Here, respondent refused to communicate with Dr. Ney for any reason, and the
doctor's testimony was based entirely on his review of the records, discussions with Chicago-
Read staff members, and his prior observations of respondent. As such, his testimony was
properly allowed by the circuit court"). This court has allowed the same. In re David B., 247
Ill. App. 3d 234, 239, 616 N.E.2d 714, 719 (1993). Relying on Lang, the court in In re
Pritchett, 148 Ill. App. 3d 746, 749-50, 499 N.E.2d 1029, 1031-32 (1986), held that a doctor
may testify at a respondent's hearing for involuntary admission and base his or her testimony
upon the observations of the respondent's condition when the respondent refuses an
examination and when the doctor fails to inform the respondent of his right to remain silent
under section 3-208, since no statement the respondent made was used by the examining
physician in forming the opinion on the respondent's mental condition that was offered at the
hearing.
Recently, the supreme court found that even though an examiner had been
unsuccessful in an attempt to interview the respondent the day before the hearing, it was
sufficient for the examiner to testify under section 3-807 when the examiner was directly
10
involved in the respondent's care, was a consultant in the respondent's treatment team, and
met with the respondent in a group session within three days of the hearing. In re Michelle
J., 209 Ill. 2d 428, 439, 808 N.E.2d 987, 993 (2004).
Respondent also cites In re Michelle J., a consolidated appeal in which the supreme
court found that although it was appropriate for Michelle's clinical psychologist to testify for
the reasons stated above, Sam's involuntary admission could not be extended based on the
testimony of a psychologist who had not examined the patient. In re Michelle J., 209 Ill. 2d
428, 808 N.E.2d 987. Although neither expert had personally interviewed the patients, their
competency to testify was due to the level of involvement with the individual respondents.
In re Michelle J., 209 Ill. 2d at 438-39, 808 N.E.2d at 992-93. Sam's psychologist was " 'not
directly involved in his treatment' " and had " 'never been directly involved in his
treatment.' " In re Michelle J., 209 Ill. 2d at 431, 808 N.E.2d at 989. "In contrast to ***
Sam's case, however, [Michelle's psychologist] did have personal knowledge of Michelle's
condition. [She] knew Michelle, interacted with her during a group session conducted three
days earlier, and served as a consultant to her treatment team." In re Michelle J., 209 Ill. 2d
at 433, 808 N.E.2d at 989-90. The reason there had been no interview with Sam was that the
patient "was restrained and not in a position to be interviewed when [the psychologist's]
schedule allowed her to travel there to see him." In re Michelle J., 209 Ill. 2d at 436, 808
N.E.2d at 991. The reason there had been no interview with Michelle was that the
psychologist believed that Michelle was unable to make an informed decision concerning her
rights, due to her "deteriorated clinical condition." In re Michelle J., 336 Ill. App. 3d 1026,
1028, 785 N.E.2d 133, 135 (2003), aff'd in part & rev'd in part, 209 Ill. 2d 428, 808 N.E.2d
987 (2004).
In In re Barbara H., 183 Ill. 2d 482, 702 N.E.2d 555 (1998), the supreme court held
that because the expert had not personally examined the respondent in connection with that
11
case and the respondent's situation at that time, the requirements of section 3-807 had not
been satisfied. The supreme court likened the facts surrounding Barbara H. to the facts
surrounding Sam in In re Michelle J., 209 Ill. 2d at 435-36, 808 N.E.2d at 990-91. Neither
had been interviewed by an expert.
Given the holdings in the latter cases, what does constitute an appropriate examination
under section 3-807 is the subject of some debate. See In re Michelle J., 209 Ill. 2d at 439,
808 N.E.2d at 993 (Thomas, J., specially concurring). Much has been made with respect to
the language in In re Barbara H. that holds that a case for involuntary admission cannot be
entirely predicated on the testimony of a physician who has not personally examined the
individual sought to be committed. In re Barbara H., 183 Ill. 2d at 497, 702 N.E.2d 562.
Respondent asks this court to read that language so broadly that it renders insufficient the
evidence adduced against him and requires his release. We do not read In re Barbara H. so
broadly, nor do we believe that it mandates the release of respondent here.
The individual in In re Barbara H. was a woman who was alleged to be mentally ill
and unable to care for her basic physical needs. In re Barbara H., 183 Ill. 2d at 486, 702
N.E.2d at 557. The State sought to have her involuntarily confined, and it administered
psychotropic drugs against her wishes. In re Barbara H., 183 Ill. 2d at 487, 702 N.E.2d at
557. There was no evidence that Barbara H. posed any risk of harm to others or that she had
participated in such proceedings previously. Moreover, during the hearing in question, a
public defender, who, it turned out, had never been appointed to represent her, waived
Barbara H.'s rights to be present during the hearing. In re Barbara H., 183 Ill. 2d at 494-95,
702 N.E.2d at 561. The supreme court found that the lower court had "allowed [her] rights to
be surrendered by a stranger," and the supreme court stated, "Her statutory right to counsel
*** was reduced to no more than an empty formality." In re Barbara H., 183 Ill. 2d at 496,
702 N.E.2d at 561.
12
The procedural infirmities that plagued the hearing in In re Barbara H. do not
remotely resemble the reasonable proceeding afforded David B. Moreover, while Barbara H.
appeared to be a person wrestling with a mental disorder, there was no evidence that she was
purposefully uncooperative. Nor does the record reflect she was a veteran of such court
proceedings, as indeed David B. has become. The record reflected a concern by the State
that while Barbara H. might have been a threat to only herself, the concern surrounding
David B. is his disturbing predatory actions toward children and his long history of refusing
to address the threat he continues to pose to others. In examining the facts of In re Barbara
H., one cannot conclude that the supreme court intended to create a loophole for a pedophile
to exploit when it insisted that Barbara H. be provided a hearing that was fair and procedural
due process that was meaningful and not hollow.
In In re Barbara H., the supreme court did not reach the question of the effect of a
conscious decision by the patient not to talk in order to escape involuntary confinement or
otherwise to frustrate an effort by the State to maintain confinement. A reviewing court
opinion is a precedent only for what is actually decided, and it is not a precedent for issues
that could have been decided but were not. Bergin v. Board of Trustees of the Teachers'
Retirement System, 31 Ill. 2d 566, 574-75, 202 N.E.2d 489, 494 (1964); Save the Prairie
Society v. Greene Development Group, Inc., 338 Ill. App. 3d 800, 803, 789 N.E.2d 389, 392
(2003); Schusse v. Pace Suburban Bus Division of the Regional Transportation Authority,
334 Ill. App. 3d 960, 968 n.1, 779 N.E.2d 259, 266 n.1 (2002).
The court in In re Collins, 102 Ill. App. 3d 138, 148, 429 N.E.2d 531, 539 (1981),
expressed "severe reservations as to the efficacy of the statutory scheme provided in the
present Mental Health and Developmental Disabilities Code." The court described situations
meriting "special attention," including the following one:
"[T]here is the situation in which the mentally ill person 'understands' his rights
13
and still refuses to talk to physicians. If he can avoid making any statements to the
doctor [citation], then the attending physicians will have to look solely to outside
sources or rely on nonverbal conduct of the respondent to arrive at a diagnosis,
thereby making the diagnostic process much more difficult." In re Collins, 102 Ill.
App. 3d at 146-47, 429 N.E.2d at 538.
This case is one of those situations. We find guidance in Allen v. Illinois, where the United
States Supreme Court affirmed the Illinois Supreme Court's finding that proceedings under
the Illinois Sexually Dangerous Persons Act (Ill. Rev. Stat. 1985, ch. 38, par. 105-1.01 et
seq.) were not "criminal" within the meaning of the fifth amendment's guarantee against
compulsory self-incrimination. Allen v. Illinois, 478 U.S. 364, 92 L. Ed. 2d 296, 106 S. Ct.
2988 (1986). Specifically, the Supreme Court noted with approval the observations of the
Illinois Supreme Court when it found, "[T]he State's interest in treating, and protecting the
public from, sexually dangerous persons would be 'almost totally thwarted' by allowing those
persons to refuse to answer questions posed in psychiatric interviews ***." Allen, 478 U.S.
at 367, 92 L. Ed. 2d at 303, 106 S. Ct. at 2991.
The same logic applies here, given that section 3-208 of the Code provides that a
respondent has an absolute right to refuse to talk to an examiner, that the examiner must
inform the respondent of that right, and that the examiner may not testify at a hearing if the
respondent has not been notified of that right. 405 ILCS 5/3-208 (West 2002). Section 3-
807 of the Code provides that no respondent may be found subject to involuntary admission
unless an expert who has examined that respondent testifies in person at the hearing. 405
ILCS 5/3-807 (West 2002). It would be an absurd result to allow a dangerous pedophile,
who has become sophisticated in litigation through long experience with commitment
proceedings, to free himself by simply refusing to discuss his pedophilia with anyone defined
in the statute as competent to testify at a commitment proceeding. The clinical psychologist
14
who interviewed David B. testified that the reason he did not want the interview was that she
would testify in court. The judge, as a trier of fact, was entitled to believe the expert rather
than the committed person. In re Carmody, 274 Ill. App. 3d 46, 50, 653 N.E.2d 977, 981
(1995). By extending the statutory requirement that "at least one psychiatrist, clinical social
worker, or clinical psychologist who has examined him testifies in person at the hearing"
(405 ILCS 5/3-807 (West 2000)) to one where the qualified examiner must have personally
interviewed the respondent immediately prior to the hearing, we would set the stage for an
abuse of the Code the legislature surely did not intend.
We hold that section 3-807 of the Code requires the examiner to attempt a personal
interview but that if the respondent refuses or is intentionally uncooperative, then the
statutory examination may be based on discussions with treating staff and a review of
medical records.
B. Against the Manifest Weight of the Evidence
Respondent's second argument is that the trial court's ruling should be reversed
because it was against the manifest weight of the evidence.
A person may be found subject to involuntary admission only where it is proven by
clear and convincing evidence that he meets the statutory criteria. 405 ILCS 5/3-808 (West
2004). In order to establish that a person is in need of mental treatment, the State must first
prove that the respondent is suffering from a mental disorder; in addition, the State must also
produce an explicit medical opinion concluding that as a direct result of mental illness a
person is unable to care for himself or is potentially dangerous to himself or others. In re
Whitehouse, 56 Ill. App. 3d 245, 249, 371 N.E.2d 990, 993 (1977). Absent clear and
convincing evidence, the petition must be dismissed and the respondent discharged. 405
ILCS 5/3-809 (West 2004).
For purposes of an involuntary commitment proceeding, it is proper for an expert
15
witness to examine a respondent's complete psychiatric history in forming his opinion
concerning the respondent's current and future dangerousness. In re Robert H., 302 Ill. App.
3d 980, 707 N.E.2d 264 (1999). As noted above, respondent has a long-documented
psychiatric history. In In re David B., 247 Ill. App. 3d 234, 256-57, 616 N.E.2d 714, 730
(1993), this court found that the evidence in respondent's involuntary admission proceeding
supported the examining doctors' assessment that there was a reasonable expectation that
David B. might engage in dangerous conduct if he were to be released. An expert testified
that David B. was suffering from mental illness, pedophilia, and other personality disorders
which affected his insight and judgment and that, therefore, he was a danger to himself and to
others. This court also found that David B. failed to cooperate in psychotherapy and
medication treatment. The assessment of the doctors that David B.'s impaired judgment and
inability to control his behavior caused him to be a danger to himself and others was
corroborated by David B.'s drawing, in explicit detail, a female child with genitalia and his
testimony indicating a preoccupation with naked female children and his inability to
recognize that he has a problem in this regard.
A review of the record and our previous orders leads us to conclude that the State met
its burden of proving clearly and convincingly that David B. is subject to continued
involuntary confinement. Respondent argues to the contrary, citing the facts that little
evidence was presented by the State during the hearing at issue and that no evidence was
presented to support the conclusion that David B. even has a mental illness. Further,
respondent argues that no evidence was presented to show that respondent was reasonably
expected to inflict serious physical injury upon himself or another in the near future.
This court has found that respondent suffers from mental illness and is a pedophile,
not just in one published opinion but in numerous unpublished orders under Supreme Court
Rule 23. Although Rule 23 orders are not precedential, they may be cited for contentions
16
such as res judicata, collateral estoppel, and the law of the case. 166 Ill. 2d R. 23(e). A final
judgment between the same parties is binding in later litigation under the rule of res judicata
for all the issues decided and is binding under the rule of collateral estoppel for all the
findings of fact. LaSalle Bank National Ass'n v. Village of Bull Valley, 355 Ill. App. 3d 629,
635, 826 N.E.2d 449, 455-56 (2005); Bickel v. Subway Development of Chicagoland, Inc.,
354 Ill. App. 3d 1090, 1102, 822 N.E.2d 469, 479 (2004). Respondent has been convicted of
sexually abusing little girls (People v. David B., 95 Ill. App. 3d 1132, 420 N.E.2d 1076
(1981)), and we have upheld numerous findings that he is a dangerous pedophile who would
in all probability prey on young children if released (In re David B., 247 Ill. App. 3d 234,
616 N.E.2d 714 (1993); People v. David B., No. 5-86-0588 (1987) (unpublished Rule 23
order); In re David B., No. 5-94-0230 (1995) (unpublished Rule 23 order); David B. v. State,
No. 5-95-0427 (1995) (unpublished Rule 23 order); In re David B., No. 5-95-0837 (1996)
(unpublished Rule 23 order)). Additionally, for nearly every hearing over the past 20 years
we have found that David B. refuses to accept treatment for his sexual problem and denies
that his pedophilia is a problem. See slip op. at 3-7, nn.3, 4, 5, & 6.
We find that it was not against the manifest weight of the evidence for the court to
find that David B. has a mental disorder and, if released, would be a threat to himself and to
others. Metzger testified she was familiar with respondent's case, had consulted with other
experts familiar with respondent's case, and had reviewed respondent's records in preparation
for the involuntary confinement hearing. Metzger testified that respondent suffered not only
from pedophilia but also from paranoia, delusional disorder, and sadomasochistic sexual
fantasies. His paranoia manifested itself in persecutory delusions, projections of blame,
suspiciousness, and threats to persons of authority. She came to the conclusion there has
been no change in his circumstances to warrant his release.
Our examination of the entire record and previous orders reveals that David B.
17
continuously refuses all treatment with regard to his condition. It was not against the
manifest weight of the evidence for the trial judge to conclude, given the testimony, that a
convicted pedophile who continues to refuse treatment would continue to be a threat to
himself or to others.
III. Conclusion
The judgment of the lower court is affirmed.
Affirmed.
WELCH and DONOVAN, JJ., concur.
18
NO. 5-05-0416
IN THE
APPELLATE COURT OF ILLINOIS
FIFTH DISTRICT
___________________________________________________________________________________
In re DAVID B. ) Appeal from the Circuit
) Court of Randolph County.
(The People of the State of Illinois, Petitioner- )
Appellee, v. David B., Respondent-Appellant). ) No. 05-MH-142
)
) Honorable Richard A. Brown,
) Judge, presiding.
___________________________________________________________________________________
Opinion Filed: September 6, 2006
___________________________________________________________________________________
Justices: Honorable Stephen P. McGlynn, J.
Honorable Thomas M. Welch, J.
Honorable James K. Donovan, J.
Concur
___________________________________________________________________________________
Attorneys Anthony E. Rothert, Staff Attorney, Legal Advocacy Service, Guardianship and
for Advocacy Commission, Metro East Regional Office, 4500 College Avenue,
Appellant Suite 100, Alton, IL 62002
___________________________________________________________________________________
Attorneys Hon. Randall Rodewald, State's Attorney, Randolph County Courthouse, Chester,
for IL 62233; Norbert J. Goetten, Director, Stephen E. Norris, Deputy Director, Kevin
Appellee D. Sweeney, Staff Attorney, Office of the State's Attorneys Appellate Prosecutor,
730 E. Illinois Highway 15, Suite 2, P.O. Box 2249, Mt. Vernon, IL 62864
___________________________________________________________________________________