president court today she lives actually just a few blocks from here wish to present this morning to hear this oral argument four is basically using and applying the least restrictive alternative at the front down of the commitment process and in addition to what we already know about least restrictive alternative at the back end of the commitment process and this court has recently issued a couple of orders about least restrictive alternative and disposition which is at the person and take that person to a mental health facility for a psychiatric examination this is different from and since where a police officer observes potentially behavior whatever the case may be this is this is different from when a police officer actually observes that behavior except the first and then takes the person to the hospital for psychiatric examination and possible certification for purposes of commit three seven and four and presses the situation where somebody comes and says i think my neighbor my friend my loved one may be end of my to help treat i don't have a certificate but i think maybe they could benefit from and examination for that purpose so three dash seven o four provides a mechanism for that three dash seven o four of the code provides that a person should remain at home pending that psychiatric examination determine possible need for hospitalization unless an emergency exists but this was rarely used back in the seventy's and earlier at the time that report came out and your honour's it is rarely and i would say basically never used thirty four years later petition doesn't name friends and relatives as required by the mental health code this court has said that's that's a statutory compliance issue we are not going to consider that waived and waiver is something that the courts waiver is a limitation on the parties and the courts but i would ask that the sport consider this important issue because because of this thirty four year history of the the the individuals who were on the governor's commission recognized back then that this was not being used and sadly it's still not being and i have been doing mental health cases for seventeen over seventeen years i have mainly been doing trial work in cook county but i have been doing appeals from around the state then to say well you know i don't really see an emergency here rights issue an order saying that this person shall report within thirty six hours examination i don't see it and i don't think it's ever been challenged before because it just doesn't come up at trial and certainly by the time of trial the main focus is on at this point in time does the person meet the commitment then and in the cases where that's happening that the system is working i can tell you that what is more likely to happen at least in my experience in cook county is that someone does come with the state before a judge and the judge is making a decision whether to issue a writ and what happens is he that the writ is issue or the bridge is not assured there's no bothering with this thirty six hours that there's enough information for the police to pick up the most important of balancing the next most important i suppose would be the safety of one's home and yet for a very very long period of time judges have rest of one of the house and yet that is a time honored tested means by which to bring something to the attention to the court because if the beginning of the process and what you do with the in the process regarding least restrictive alternative given that we have a successful parallel in the criminal law where there are checks and balances and  considered ways i could as there is a loss of liberty we don't have we have how do i put this we have innocent people who are   who are already alleged to have a mental illness it makes sense for the right to provide some reasonable accommodation so that we are not making matters worse by having a police officer show up at their door and announced and saying you've got to come with me and you know that's that's exactly what happened in this case and you know i am not a criminal i here we use them we do find parallels in the criminal law but if if we look at this case in particular there's no evidence that anything was done other than signing order to have the person brought in and as as you know from the briefs i contacted the nice involved in this case who was the one who came and said i think my my aunt needs to have an examination for possible hospitalization she did not go before a judge there was no the evidence the record shows no finding of the sesame here and that's that's what i'm asking for that's what's important here and i think if there had been that consideration there had been  there had been a judge hearing from this niece and finding out if there's credible information to support having the person brought it up i don't i would not be doing this issue but i think that the before the court can make a finding the court has to hear some evidence and you know i'm not even asking to the respondents counsel be included i'm saying that there needs to be something on the record that warrants the judge entering this order to go and pick up this alleged mentally ill person and so you're not that is the can say anything and that petition and i've certainly seen petitions that were that were bogus that have gotten dismissed because of someone filing a petition for the progre we can't just trust the petition we can't just say oh well apparently this is a a loving family member i'm sure this loving family member is concerned i think it's ok but have the person  and as i explained in the reply brief to him there are other alternatives to sending the police out to pick up a person to come to hospital i think this is being challenged for the first time here too because it did come up the trial is explained in her testimony at the trial level what happened what it was like for her she's in her bathrobe at home she's about to take a shower the police knock on her door they forced her way in she was very upset and worried is this is this the best plan for dealing with a person with mental illness sets before directing police to pick up a person to protect us i think if that's the case then i think this court needs to look at the constitutionally of the statute i think this court can interpret it that such a way it doesn't have to be it has to be a law a live person and it could perhaps be a police officer who is confronted with a petitioner and who has reliable corroborative information from neighbors or contact with the individual we give you a base of knowledge to evaluate if you were the police officer of the community mental health worker who was assisting the petitioner or was the person providing information to the judge  this is where the court had to be maybe a hopeful problem solver maybe can apply therapeutic jurisprudence and say wow i hear you i hear that that  you feel you feel for example you feel that you're at this not taken care of at the skin condition appropriately maybe it would be better to have  school i will issue i will be sure your three day examination know this but in the mean time here's the number for the area department on aging i think maybe you should call that that it was fifteen days from the date of being picked up by the police until she had a hearing fifteen days and that is that is a great span of time when the only basis for that emergency pick up was the judge issuing the order and without any evidence of a record that that was stuff i'm assessing i would like you the when the doctor see her you know i don't have that information off the top of my head i think it was on the next day to doctor saw her on the twenty first then there was a later certificate  has surprised a home by the police removed from her home and taken to the hospital may not be in the best condition to be meeting with psychiatry at that point i can imagine that someone who's been given notice and had a chance to understand us what have i better presentation to the to the doctors so i don't know that those certificates really give us the best picture i have of respondent and then particular this out i see my time is leave that alone but the there's a separate issue regarding the statutory claim that's being made for the first time in the reply brief and it oral argument which is that there was a failure to comply with section three seven zero four as it's interpreted or that their interpretation is mandated by constitutional necessity here their argument doesn't appear anywhere in the opening brief or in the lower court and i think in this situation you have a double for richer in that or should be especially reluctant to reach the issue and i would say so because in this case this is not a case in which the facts cry out for the court to forgive false statements it's subject to the requirements of section three six zero one require that it set forth in detail facts that support the basis for the whole to make of propositions that the person is in need of and says that the woman here was believe that her identity had been stolen by aliens she was taking showers with her clothes on she had an untreated skin infection with sores they were using from her skin and the doctors subsequently confirmed that that was a potentially fatal infection this was on the face of those papers in emergency situation that absolutely justified application of this narrow aspect of section three seven zero four we couldn't agree more that it is important for ports to apply this power in a careful selective fashion not just willy nilly issue it's across the volunteer my own experience i think in this case they're true but what i can say is that this case fully justified you have patient there but that's really not an issue that's before the court and we didn't come into this case to argue whether or not there was satisfaction of the elements of three seventy four in this case we came in to respond to the allegation that was made for the first time in the opening that the mental health code is unconstitutional is a violation of procedural process because it does not require some type of notice and hearing to the responses in all cases i guess or or or perhaps as a fallback senator as applied basis in this case  before there is an order directing that there be an emergency detention for evaluation for a maximum of twenty four hours and responding to the last question from the  the two doctors certificates were issued within that twenty four hour period there wasn't the fifteen day detention of the mental health facility until the final trial in this case that attention was based upon the certificates of two doctors that said that the elements of the statute were met in that immediate hospitalization was necessary so let's focus then and on the procedural due process issue in this case rather than the statutory if the court wants for the briefing on the statutory issue and directs us to submit such a briefing we would be only too glad to do so but it having risen for the first time to reply to every field a little bit at a disadvantage trying to address solely  argument for things that's a live issue for purposes of resolving i think of a fair analogy and analogies have limited use but but their relevance to a certain extent takes place and that's implemented by executive officers typically the police another analogy would be a temporary restraining order which normally should not be granted on an ex parte basis bu in limited situations the law authorizes the next part temporary restraining order and it's when the necessity of that narrow relief in time based upon compelling circumstances justifies it that the law forbids it only for that brief period of time i think those analogies help inform the constitutional analysis in this case the court i'm sure is familiar with the general three factor analysis matters versus eldridge you look at personal interest you look at the sort of the sliding scale of the risk of erroneous deprivation if you provide less procedures or different procedures or the benefits you know  deprivations by providing more procedures and then finally the government interest both the substantive interest and then also the administrative and this will burdens from providing the greater procedures that are evoked here and i wing emergency order for attention without a prior period i mean the court asked what type of hearing are you saying the constitution requires in the answer came back there has to be live testimony by somebody to support their type of water i don't think that the the mental health though that space requires that so that would be imposed by the court as a matter of constitutional assessed essentially during bracketing it out of the statute or invalidating the station to the extent that it doesn't include that requirement of light testimony they've indicated that apparently they don't believe the constitution requires that there be you know attorney appointed in that time i assume that the respondent would be present would have the right to be present although that's not entirely fleshed out in the briefs but even just for the limited purpose with the limited suggestion that it's made here of having live testimony there's a balancing that the court asked to engage in in a value waiving the constitutional issue and here the key here is that you would potentially defeat the government's need in potentially urgent circumstances by always requiring that type of presentation it's not required detention is permissible here it's limited to twenty four hours here its sole purpose is to permit the court to find out when there is no certificate accompany the petition whether the person is subject to immediate hospitalization health facility simply person with a court order telling respondent show up so the statute seems to be well crafted to allow this menu of options depending upon the seas of the circumstance and to say that in all cases it's unconstitutional defeat the government's ability to fulfill its substantive purpose of protecting either the mentally ill themselves or the public at large if you have an emergency situation where you don't already have a doctor or otherwise state of public prosecutor as far as application of collateral consequences based on the offer to change decision to the third issue i do not agree with respect to the second show and well i think you could even are you could even reach that third issue if necessary and i'll tell you why but first the nexus issue the nexus issue is because of mental illness of mental illness does the person exhibit some type of active or passive part of the act of harm we're not dealing with here it's the pacifier alleged neglect inability to provide for basic physical needs i argue that that is a legal question that nexus must be present and that's not just a sufficiency of sufficiency of the evidence argument that is a question because of one thing are we seeing the other and there has to be that connection and we here we all we have we have a couple of things that the doctor relied upon the doctor said i think she's making erratic citizens and she talked oddly about her identity and her social security number the doctor relented on the social security number and said i'm i'm cautious too about handing out my social security card and we must remember that miss  m worked for the federal government and she said i've seen how kinds of abuses with social security are so i tried to caution the doctor said me too but she made a joke about not being able to find her id at the  move on but i want the court to recognize that that nexus is very important the question of whether that nexus must be there has not been addressed before i think it's something that can be repeated in other cases  so that is something that's capable of repetition of meeting review and as far as the basic needs question itself can a court commit a person fifteen days after admission when whatever problem may have existed at the time of admission is no taken care of adequately kind of and must be based at the time of hearing not on an alleged korea admission failure to obtain treatment but i'd like to go back to really the main issue in this case and the most important issue and i would like to point out that this is not an issue that's being raised for the first time the fiery court in oral argument do what was required of the statute and this court does not interpret the statute as for wiring that fine ceci then i think the statute is unconstitutional and that is that is my argument in the me that is how i conclude my make commendations for persons with disabilities and it's disappointing when i look at the attorney general's website there's a whole section on you know caring for the person persons with disabilities the rights of persons with disabilities and it's it's a little disappointing to have the attorney general coming in and arguing that let's be expedient somebody comes in with a petition it's ok to issue the order that the attorney general says the statute doesn't impose live testimony but then in the attorney general's theory the attorney general says if there's credible evidence that it's ok for this order to be entered today then argument the attorney general's office said if there's reliable evidence it's ok for this read to be entered how do we know it's credible how do we know it's reliable unless there's an important case law says the petition is not evidence there must be some minimal inquiry to find out what the emergency is and if it's an emergency warning it's soaking the police to someone's home someone who is alleged to have a mental disability someone who this me  someone who may be quite affected by the police showing up at the door and then just making matters worse th