In re Eric H.

CONSOLIDATED NO. 5-08-0317
NOTICE
Decision filed 04/14/10. The text of
IN THE
this decision may be changed or
corrected prior to the filing of a
APPELLATE COURT OF ILLINOIS
Peti tion for Rehearing or th e
disposition of the same.
FIFTH DISTRICT
________________________________________________________________________
In re ERIC H., Alleged to Be a Person ) Appeal from the Circuit
Subject to Involuntary Administration of ) Court of Randolph County.
Psychotropic Medication )
) Nos. 08-MH-95 & 08-MH-164
(The People of the State of Illinois, Petitioner- )
Appellee, v. Eric H., Respondent-Appellant). ) Honorable William A. Schuwerk, Jr.,
) Judge, presiding.
________________________________________________________________________
PRESIDING JUSTICE GOLDENHERSH delivered the opinion of the court:
In the circuit court of Randolph County, successive petitions were filed under the
Mental Health and Developmental Disabilities Code (Mental Health Code) (405 ILCS 5/2-
107.1 (West 2008)), requesting the involuntary administration of psychotropic medications
to respondent, Eric H. The circuit court granted both petitions. Eric H.'s appeals were
consolidated. On appeal, Eric H. contends that the petitions were defective because no
notice was provided to his counsel in the circuit court where he had been acquitted by reason
of insanity. We vacate the orders.
FACTS
At the time he filed these appeals, Eric H. was a patient at the Chester Mental Health
Center. On May 15, 2008, a psychiatrist filed a petition for the administration of authorized
involuntary treatment, alleging that Eric H. had refused to submit to treatment by
pyschotropic medication and that he lacked the capacity to give informed consent (Randolph
County No. 08-M H-95). The petition stated that Eric H. had been transferred from the
Sangamon County jail as a not-guilty-by-reason-of-insanity patient. The petition noted as
follows: "Legal Status: NGRI for Bank Robbery. Thiem date is 12/2008."
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On the date the petition was filed, the circuit court entered an order setting the matter
for a hearing and appointing a public defender to represent Eric H. The order had a box
checked requiring the following: "2. Notice of the time and place of hearing shall be sent by
the Clerk of the Court to all required and appropriate persons."
On May 28, 2008, the court heard argument on the petition. The hearing ended with
the following colloquy:
"[ERIC H.:] I was going to say one more thing, that my legal attorney on my
petition for discharge has never been notified of these proceedings.
THE COURT: I don't see any petition for discharge in this file, [Eric H.].
[ERIC H.:] That–that petition for discharge is in Sangamon County.
THE COURT: Oh.
[ERIC H.:] And my attorney there, Brian Otwell, has never been notified of
this proceeding here.
THE COURT: Well, you need to notify your attorney in Sangamon County,
then."
The court granted the petition authorizing the involuntary administration of specified
medications for up to 90 days. Eric H. appealed.
On August 14, 2008, the same psychiatrist filed another petition requesting
authorization to administer medication for another 90 days (Randolph County No. 08-MH-
164). The petition contained the same language on identifying information, legal status, and
the reason for admission as the previous petition. On that day, the court entered an order of
hearing marking the same box for the notice requirements and appointing the same public
defender. On August 20, 2008, the court conducted a hearing on the petition. At the
hearing, Eric H. stated as follows:
"And my attorney for the [p]etition for [d]ischarge, because I filed a [p]etition for
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[d]ischarge, was never notified of these court hearings."
The court entered an order authorizing involuntary treatment for another 90 days. Eric H.
appealed, and this court consolidated the appeals.
ANALYSIS
The appeal is moot. The 90-day period from the last order has expired. As a general
rule, this court does not consider moot questions. In re Michael H., 392 Ill. App. 3d 965,
969, 912 N.E.2d 703, 707 (2009).
Nonetheless, this appeal presents an issue of public interest that calls for an
authoritative determination. In re Larry B., 394 Ill. App. 3d 470, 471, 914 N.E.2d 1243,
1244 (2009). The public-interest exception allows a court of review to consider an otherwise
moot case when (1) the issue presented for review is of a public nature, (2) an authoritative
determination would provide guidance to public officers, and (3) the question is likely to
reoccur. In re Michael H., 392 Ill. App. 3d at 969, 912 N.E.2d at 707.
The issue of the notification of Eric H.'s counsel is an issue of substantial public
concern. Unlike sufficiency-of-the-evidence claims, this issue has broad implications for the
administration of justice–touching upon both proceedings for involuntary commitment and
the rights of defendants found not guilty by reason of insanity in our criminal justice system.
See In re Robert S., 213 Ill. 2d 30, 46, 820 N.E.2d 424, 434 (2004); In re Alfred H.H., 233
Ill. 2d 345, 355, 910 N.E.2d 74, 80 (2009).
The record in this case bears witness to the other criteria of the public-interest
exception. The parties point to no case, and this court's research reveals no precedent,
addressing the need, in an involuntary-treatment case involving a respondent who has been
acquitted by reason of insanity, for notice informing the respondent's criminal defense
counsel of the involuntary-treatment proceedings. The fact that the trial court found that it
was Eric H.'s own duty to notify counsel suggests a need for this court to establish a guiding
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precedent. The fact that the court repeated the same course on a successive petition suggests
the likelihood of a reoccurrence of the question. Indeed, the underlying record seems
tailored for review under the public-interest exception.
This case is resolved by the application of the plain language of the Mental Health
Code (405 ILCS 5/2-107.1(a-5)(1) (West 2008)) and informed by the role of counsel for
those acquitted by reason of insanity outlined in the Unified Code of Corrections
(Corrections Code) (730 ILCS 5/5-2-4 (West 2008)). The Mental Health Code sets forth
exacting standards for a petition for the involuntary administration of psychotropic
medication. In particular, it requires the following notice:
"The petitioner shall deliver a copy of the petition, and notice of the time and place
of the hearing, to the respondent, his or her attorney, any known agent or attorney-in-
fact, if any, and the guardian, if any, no later than 3 days prior to the date of the
hearing." 405 ILCS 5/2-107.1(a-5)(1) (West 2008).
This requirement was not met.
The Mental Health Code mandates that notice of a petition to involuntarily administer
psychotropic medication must be given to a respondent's criminal defense attorney. Illinois
courts have consistently held that an order of involuntary treatment will not stand when
notice pursuant to the M ental Health Code is not given to the criminal defense attorney of
a respondent who is institutionalized as unfit to stand trial. In re Robert S., 213 Ill. 2d at 56-
57, 820 N.E.2d at 439-40; In re Leslie H., 369 Ill. App. 3d 854, 857, 861 N.E.2d 1010, 1013
(2006); In re Atul R., 382 Ill. App. 3d 1164, 1169-70, 890 N.E.2d 695, 699-700 (2008).
The State contends that the case at hand is distinct from precedent where respondents
were institutionalized as unfit to stand trial. The State asserts that in previous cases the
criminal cases were still pending. In In re Robert S., the court stated as follows:
"Respondent came to be in a mental health facility because he was found unfit
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to stand trial in a criminal proceeding. In that proceeding, he was represented by an
attorney. All of the parties to this action were aware of that proceeding. Although
the purpose of the instant proceeding was to determine whether psychotropic
medication should be forced upon respondent for his own benefit and/or the safety
of those around him, ultimately, there may be consequences pertinent to the pending
criminal matter.
We note that the language concerning notification in section 2-107.1(a-5)(1)
of the Code is very broad and general. It refers to notification of, inter alios, a
respondent's 'attorney' and 'any known agent,' without qualification or limitation. We
have previously construed this section to require notification of 'any other interested
parties to the proceeding.' See In re C.E., 161 Ill. 2d [200,] 226[, 641 N.E.2d 345,
357 (1994)]. In the absence of any restrictive language in the statute, we believe
respondent's criminal defense attorney qualifies as a party to whom notice is due. In
the very least, criminal counsel was a 'known agent,' and thus should have been given
notice of this proceeding." In re Robert S., 213 Ill. 2d at 56-57, 820 N.E.2d at 440.
In contrast, the disposition of the criminal charges against Eric H. were not pending. By the
time the petition was filed, Eric H. had already been found not guilty by reason of insanity.
The asserted distinction is ephemeral. The plain language of Corrections Code
illustrates the need for notification. 730 ILCS 5/5-2-4 (West 2008). As indicated in the
petition, Eric H. had been institutionalized for inpatient treatment in a secured setting upon
a finding of not guilty by reason of insanity, and he had not reached the end of the maximum
period of involuntary commitment known as his Thiem date. 730 ILCS 5/5-2-4(b) (West
2008); People v. Thiem, 82 Ill. App. 3d 956, 962, 403 N.E.2d 647, 652 (1980); see Williams
v. Staples, 208 Ill. 2d 480, 489, 804 N.E.2d 489, 494 (2004) (a conditional discharge
terminates criminal court jurisdiction). Like those institutionalized while unfit to stand trial,
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Eric H. had matters of consequence before the circuit court of Sangamon County.
The provision of the Corrections Code addressing those acquitted by reason of
insanity illustrates the continuing role of Eric H.'s Sangamon County counsel. 730 ILCS 5/5-
2-4 (West 2008). Because the circuit court of Sangamon County acquitted Eric H. by reason
of insanity, that court maintained jurisdiction over him. 730 ILCS 5/5-2-4(b) (West 2008);
C.J. v. Department of Mental Health & Developmental Disabilities, 296 Ill. App. 3d 17, 23,
693 N.E.2d 1209, 1212 (1998) (a criminal court judge maintains jurisdiction over a not-
guilty-by-reason-of-insanity acquittee). Notably, Eric H. was entitled to counsel before that
court after it found that he was in need of mental health services. 730 ILCS 5/5-2-4(c)(1)
(West 2008); People v. Shelton, 281 Ill. App. 3d 1027, 1037, 667 N.E.2d 562, 569 (1996)
(every insanity acquittee is entitled to continuing vigorous representation). Eric H.'s
Sangamon County counsel could still petition for treatment plan review, transfer to a
nonsecure setting, discharge, or conditional release. 730 ILCS 5/5-2-4(e) (West 2008).
Indeed, the Corrections Code requires the facility director to send periodic treatment plans
summarizing the defendant's treatment needs and recommended services to the criminal court
and defense counsel. 730 ILCS 5/5-2-4(b) (West 2008); see also People v. Markwart, 327
Ill. App. 3d 80, 85, 91, 762 N.E.2d 623, 627, 631 (2001) (though a hearing is discretionary,
reporting to the criminal court is mandatory).
The continuing role of counsel before the circuit court of Sangamon County might
justify notice regardless of any statutory requirement, but in the end, our holding is mandated
by the plain language of the Mental Health Code. The Mental Health Code requires notice
be sent to a respondent's attorney and "any known agent or attorney-in-fact." 405 ILCS 5/2-
107.1(a-5)(1) (West 2008). The unexpired Thiem date was noted in the petitions. Eric H.'s
Sangamon County counsel was both his attorney and a known agent. Eric H. was entitled
to have his counsel properly notified of the petitions. The lack of proper notice invalidates
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the petitions.
Because we vacate the orders and the appeal is otherwise moot, we decline to address
the other issues raised by Eric H.
CONCLUSION
Accordingly, the orders of the circuit court are hereby vacated.
Vacated.
WELCH and CHAPMAN, JJ., concur.
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CONSOLIDATED NO. 5-08-0317
IN THE
APPELLATE COURT OF ILLINOIS
FIFTH DISTRICT
___________________________________________________________________________________
In re ERIC H., Alleged to Be a Person ) Appeal from the Circuit
Subject to Involuntary Administration of ) Court of Randolph County.
Psychotropic Medication )
) Nos. 08-MH-95 & 08-MH-164
(The People of the State of Illinois, Petitioner- )
Appellee, v. Eric H., Respondent-Appellant). ) Honorable William A. Schuwerk, Jr.,
) Judge, presiding.
___________________________________________________________________________________
Opinion Filed: April 14, 2010
___________________________________________________________________________________
Justices: Honorable Richard P. Goldenhersh, P.J.,
Honorable Thomas M . Welch, J.,
Honorable Melissa A. Chapman, J.,
Concur
___________________________________________________________________________________
Attorneys Veronique Baker, Director, Laurel Spahn, Staff Attorney, Legal Advocacy Service,
for Illinois Guardianship & Advocacy Commission, West Suburban Office, P.O. Box
Appellant 7009, Hines, IL 60141-7009; Barbara A. Goeben, Illinois Guardianship & Advocacy
Commission, 4500 College Avenue, Suite 100, Alton, IL 62002
___________________________________________________________________________________
Attorneys Hon. Randall Rodewald, State's Attorney, Randolph County Courthouse, Chester,
for IL 62233; Patrick Delfino, Director, Stephen E. Norris, Deputy Director, Kendra
Appellee S. Peterson, Staff Attorney, Office of the State's Attorneys Appellate Prosecutor,
730 East Illinois Highway 15, P.O. Box 2249, Mt. Vernon, IL 62864
___________________________________________________________________________________