In re Merrilee M.

No. 2—10—0103
Opinion filed April 28, 2011
______________________________________________________________________________
IN THE
APPELLATE COURT OF ILLINOIS
SECOND DISTRICT
______________________________________________________________________________
In re MERRILEE M., Alleged to be a Person
) Appeal from the Circuit Court
Subject to Involuntary Admission ) of Kane County.
)
) No. 09—MH—172
)
(The People of the State of Illinois, ) Honorable
Petitioner-Appellee, v. Merrilee M., ) Susan Clancy Boles,
Respondent-Appellant). ) Judge, Presiding.
______________________________________________________________________________
JUSTICE McLAREN delivered the judgment of the court, with opinion.
Justices Bowman and Burke concurred in the judgment and opinion.
OPINION
Respondent, Merrilee M., appeals from the trial court’s ruling that she be involuntarily
admitted to the Department of Human Services pursuant to section 3—600 of the Mental Health and
Developmental Disabilities Code (Code) (405 ILCS 5/3—600 (West 2008)). Respondent argues that
the trial court’s order should be vacated because it applied an unconstitutional standard when finding
that she was a person subject to involuntary admission. For the reasons that follow, we vacate the
trial court’s order.
BACKGROUND
On November 23, 2009, a petition for respondent’s involuntary admission to Elgin Mental
Health Center (EMHC) was filed with the trial court. Following a hearing, the trial court granted the
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petition and found respondent to be subject to involuntary admission for 90 days. Respondent then
brought this timely appeal.
ANALYSIS
Before addressing the merits of respondent’s contentions on appeal, we must first address the
issue of mootness.
This appeal is moot because the 90-day period covered by the trial court’s order has already
expired. In re Robert S., 213 Ill. 2d 30, 45 (2004). “An appeal is considered moot where it presents
no actual controversy or where the issues involved in the trial court no longer exist because
intervening events have rendered it impossible for the reviewing court to grant effectual relief to the
complaining party.” In re J.T., 221 Ill. 2d 338, 349-50 (2006). Generally, courts of review do not
decide moot questions, render advisory opinions, or consider issues where the result will not be
affected regardless of how those issues are decided. In re Barbara H., 183 Ill. 2d 482, 491 (1998).
Reviewing courts, however, recognize exceptions to the mootness doctrine, such as (1) the public-
interest exception, applicable where the case presents a question of public importance that will likely
recur and whose answer will guide public officers in the performance of their duties, (2) the capable-
of-repetition exception, applicable to cases involving events of short duration that are capable of
repetition, yet evading review, and (3) the collateral-consequences exception, applicable where the
involuntary admission order could return to plague the respondent in some future proceedings or
could affect other aspects of the respondent’s life. In re Alfred H.H., 233 Ill. 2d 345, 355-62 (2009);
J.T., 221 Ill. 2d at 350; In re Wathan, 104 Ill. App. 3d 64, 65-66 (1982).
The collateral-consequences exception applies here. The record reveals that, prior to her
admission, respondent was employed as a registered nurse. As such, her license was automatically
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suspended upon the determination that she was subject to involuntary admission. 225 ILCS
65/70—5(c) (West 2008). Her license may be reinstated only upon a court’s finding that she is no
longer subject to involuntary admission and upon the Board of Nursing’s recommendation for
reinstatement. 225 ILCS 65/70—5(c) (West 2008). Although there is a procedure by which
respondent may regain her license, we conclude that the suspension of her license and the necessity
of seeking the reinstatement of that license are sufficiently significant collateral consequences to
warrant a review of respondent’s contention on appeal.
The State contends that any negative employment consequences of the suspension of
respondent’s license are overshadowed by the negative employment consequences of respondent’s
being fired from her last job and being investigated by the Du Page County sheriff’s department for
employment-related activities. The record does not support the State’s contentions. Respondent
testified that she was not fired from her last job; rather, the family to which she was assigned by her
nursing agency asked her not to come back due to her making a report with the Department of
Children and Family Services. Dr. Syed Waliuuddin, a staff psychiatrist at EMHC, testified that
respondent had hinted that she was fired, but that respondent did not provide any details of what
actually happened. Similarly, there is no definitive indication in the record that respondent was being
investigated by the sheriff’s department for employment-related activities. Rather, the State simply
asked respondent whether she had spoken with investigators from the sheriff’s department regarding
her departure from her last job. Respondent stated that any conversations that occurred were
between her and the sheriff’s department. Nothing indicates that respondent did, in fact, speak with
the sheriff’s department and that, if she did, the conversations were a result of her being investigated
for employment-related activities.
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Turning to the merits, respondent contends that the trial court’s order for her involuntary
admission should be vacated as void because the trial court relied on a standard that previously had
been held unconstitutionally vague. The petition for involuntary admission alleged that respondent
was mentally ill and, because of that illness, she was (1) reasonably expected to engage in dangerous
conduct (see 405 ILCS 5/1—119(1) (West 2008)) and (2) unable to understand her need for
treatment and, if she were not treated, she would be expected to suffer mental and emotional
deterioration to the point that she would reasonably be expected to engage in dangerous conduct (see
405 ILCS 5/1—119(3) (West 2008)). The trial court found “that the evidence is clear and convincing
that as a result of this mental illness, [respondent] is reasonably expected to engage in dangerous
conduct which may include threatening behavior or conduct that places her or another individual in
reasonable expectation of harm.” According to respondent, because the definition of “dangerous
conduct” that was in effect at the time of the trial court’s decision previously had been found to be
unconstitutionally vague (In re Torski C., 395 Ill. App. 3d 1010 (2009)), the trial court’s order
holding her to be subject to involuntary admission on the basis that she was reasonably expected to
engage in dangerous conduct must be vacated as void.
The State argues that respondent has forfeited this contention by failing to raise it in the trial
court. We disagree. Before beginning her closing argument, respondent’s attorney stated that she
objected to a decision based on section 1—119(3) of the Code because of the Torski decision. We
believe that this was sufficient to put the State and the trial court on notice that respondent was
challenging involuntary admission on the basis that she was reasonably expected to engage in
dangerous conduct. Moreover, respondent’s failure to raise the issue in a posttrial motion does not
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result in forfeiture, as a posttrial motion is not required in nonjury proceedings. Ill. S. Ct. R.
366(b)(3)(ii) (eff. Feb. 1, 1994).
When the petition was filed, the Code defined a person subject to involuntary admission as
follows:
“(1) A person with mental illness and who because of his or her illness is reasonably
expected to engage in dangerous conduct which may include threatening behavior or conduct
that places that person or another individual in reasonable expectation of being harmed;
(2) A person with mental illness and who because of his or her illness is unable to
provide for his or her basic physical needs so as to guard himself or herself from serious harm
without the assistance of family or outside help; or
(3) A person with mental illness who, because of the nature of his or her illness, is
unable to understand his or her need for treatment and who, if not treated, is reasonably
expected to suffer or continue to suffer mental deterioration or emotional deterioration, or
both, to the point that the person is reasonably expected to engage in dangerous conduct.”
405 ILCS 5/1—119 (West 2008).
“Dangerous conduct” was defined as “threatening behavior or conduct that places another individual
in reasonable expectation of being harmed, or a person’s inability to provide, without the assistance
of family or outside help, for his or her basic physical needs so as to guard himself or herself from
serious harm.” 405 ILCS 5/1—104.5 (West 2008).
Respondent contends that the trial court’s order that she be involuntary admitted should be
vacated because the definition of “dangerous conduct” is unconstitutionally vague. In support of her
argument, respondent relies exclusively on Torski. In Torski, the State sought, and was granted, the
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involuntary admission of the respondent based on section 1—119(3) of the Code. Torski, 395 Ill.
App. 3d at 1014, 1017. On appeal, the respondent argued, among other things, that the definition
of “dangerous conduct” found in section 1—104.5 of the Code was unconstitutionally vague. Torski,
395 Ill. App. 3d at 1018. The Fourth District agreed, holding that the definition of “dangerous
conduct” encompassed conduct that would not constitutionally support the liberty deprivation
associated with involuntary admission. Torski, 395 Ill. App. 3d at 1024-25. The court also held that
the definition allowed for the arbitrary application of the statute to mentally ill individuals who
engaged in merely unusual or annoying behavior. Torski, 395 Ill. App. 3d at 1025. Accordingly, the
Fourth District vacated the order of involuntary admission, because it was based on section
1—119(3) of the Code, which incorporated the term “dangerous conduct” as defined in section
1—104.5 of the Code. Torski, 395 Ill. App. 3d at 1027.
Having reviewed and carefully considered the matter, and for the reasons stated in Torski, we
conclude that the Fourth District correctly held that the definition of “dangerous conduct” found in
section 1—104.5 of the Code is unconstitutionally vague.1 Accordingly, the order for respondent’s
involuntary admission must be vacated. We note that, although the respondent in Torski was
involuntarily admitted based on section 1—119(3) of the Code while the trial court here relied on
section 1—119(1), both section 1—119(1) and section 1—119(3) require a finding that the
respondent is reasonably expected to engage in dangerous conduct, as defined in the unconstitutional
1
The supreme court allowed an appeal in Torski and then dismissed the appeal as moot on
September 15, 2010 (In re Torski C., No. 109623 (Sept. 15, 2010) (minute order)), in light of the
legislature’s passage of new language in section 1—119 (see Pub. Act 96—1399 (eff. July 29, 2010)
(amending 405 ILCS 5/1—119 (West 2008))).
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section 1—104.5. Thus, respondent’s admission may not be sustained under either section 1—119(1)
or section 1—119(3).
CONCLUSION
For the above-stated reasons, the judgment of the circuit court of Kane County is vacated.
Vacated.
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