## I L L I N O I S 

## O F F I C I A L 

## RE P O R T S Appellate Court

In re Michael F. , 2011 IL App (5th) 090423

Appellate Court Caption In re MI CHAEL F., Alleg ed to Be a Person Subject to In v o l u n t ary Admission (The People of the State of I llinois
, Petitioner-Appellee
, v. Michae l F., Respondent- Appellant).

District & N o. Fifth District Docke t No. 5-09-0423

Rule 23 order

filed Motion to publ ish

g rante d J uly 27, 2011

September 1, 2011

Held (Note : This syl lab us

con st it ut e s no par t of the opi nio n of the cour t but has bee n pre

par ed by th e Repo rt er of D e c i s i o n s f

o r t h e

c o n v e n i e n c e o

f t h e

rea der

. ) In proce eding s on a petition for responde nt’s involuntary co m m i t m ent, the tri al court abused its discretion in allowing responde nt to waive his rig ht to counsel and repr esent himself at the hearing without sufficie ntly informing him of the rig ht he was waiving
, what the hearing conce rned, and the c onsequenc es of the he aring

.

Dec ision Under
Review Appea l from the Circuit Court of Madison County
, No. 09-MH-119; the Hon. Clarenc e W. Harr ison I I , J udg e, pre siding.

J udg ment Reverse d.Counsel on

Appea l Ba rb ar a A. Goebe n and Ver onique Ba ker, both of Guar dianship and Advoca cy

Commi ssion, of Alton, for appe llant.

Wil liam A. M udg e, S tate’s Attorney
, o f Edwar dsville (Patrick Delfino, Stephen E. Norris, a

nd Rebec ca E. McCormick, all of State’s Attorney s Appellate Prose cutor’s O ffice , of counse l), for the People.

Panel 

### JU S T IC E WE X S T T E N d eliv eredth e j u d g m en t o f th e co u rt, w ith

o p in io n

. Ju stices G o ld en h ersh an d D o n o v an co n cu rred in th e j u d g m en t an d

o p in io n

.

OP INION

¶ 1 The responde nt, Michae l F., appea ls from an order of the circ uit court of Madison County
g rantinga petition for a

n involuntary

admission. On appea l, the responde nt a rgues that the court’s decision should be reve rsed beca use the circ uit c ourt failed to de termine befor e the hear ing that the responde nt could knowing ly and voluntarily waive his rig ht to counsel. We

reve rse.

¶ 2 FACTS ¶ 3 On J uly 13, 2009, the re spondent, who wa s a voluntary patient at Alton Mental Health Center, signe d a written reque st for a discharg e. On J u l y 20, 2009, Alton Mental Hea lth Center social worke r J olene Be cker filed a petition alleg ing that the responde nt was a person

s ubject to an involuntary admission pursuant to section 3-600 of the Mental Hea lth and D e v e lo p me n

tal D is a b il itie s Code (the Mental Hea lth Code) (405 I L CS 5/3-600 (West 2008) )

. Be ck er alleg ed that the responde nt was a person with a mental illness; that beca use of h i s mental illness, he was rea sonably expected to eng ag e in dang erous c onduct placinghim or another at rea sonable risk for harm; that beca use of the nature of his illness, he was unable
to understand his need for treatment and, if not treated, was rea sonably expected to continue
to suffe r mental deter ioration or emotional deter ioration to the point that he was rea sonably expected to eng ag e in dang erous conduct; and that he was in need of immediate hospitaliz ation for the pr evention of that harm. ¶ 4 On August 4, 2009, at the hear ing on the petition, the responde nt’s counsel indicated that the responde nt wanted to repr esent himself. The circ uit court then addre ssed the responde nt, asking whether he desired to repr esent himself, whether he desired to discharg e his attorney , and whe ther he understood that he w ould be held to the same standard as if re prese nted by

-2-counsel. After answe ring these questions in the aff irmative, the responde nt ag ain stated that he d es i re d t o repr esent himself. The court indicated that it was g ranting the responde nt’s
reque st to waive his rig ht to counsel, but the followingcolloquy ensued: “[Respondent’s counsel:] Your Honor, it would be our position that you would have to inquire whethe r he ha s the ca pacity to do so at this ti me. THE COURT: I think the problem I ’m g oing to have is being able to deter mine that without some evidenc e as to his curr ent capa city is g oing to be limit ed [ sic ]. My thought is that unless Ihave the testimony with reg ard to the Involuntary Petition, Imay

not be able to make that deter

mination, and to do so preliminarily would require me to essentially make assumptions reg arding [t he responde nt]

. In the event that the testimony wi t h rega rd to the petition is so sufficie nt, I may have to rec onsider whether I h av e allowed him to repr esent himself.” ¶ 5 T h e ci rc uit court thereaf ter asked t he respondent i f he knew where he was, the cur re n t date, and the name of the acting president. After the responde nt ans we red eac h question

corr ectly
, the court stated, “I ’ll be rese rving my ultimate ruling to observe [t he responde nt’s] participation in the case itself, but I will be g oing ahea d and taking [evidence] on the petition, allowing[t he re spondent] *** to enga g e in basic r epre sentation.” ¶ 6 Be cker then testified that the responde nt had been rec ently admitted to the Alton Mental Hea lth Center on J une 27, 2009, when it was repor ted that he threatened bodily harm to his mother, that he had been living in an apar tment with no elec tricity or food when the weather heat index had been above 100 degree s, and that he had been highly ag itated about milit ary deploy ment operations, believing himself to be a high commander in the United States Army and Mar ines, althoug h he wa s not a veter an. ¶ 7 Be cker testified that the responde nt had been previously admitted to Alton Mental Hea lth Center in Marc h 2008 and then from April to J uly 2008. Be cker testified that the responde nt suffe red from schizoaffe ctive disorder, bipolar ty pe, with alcohol and canna bis use. Be cker testified that the responde nt continued to be delusional and g randiose. Be cker testified that the responde nt did not believe that he had a mental illness and did not believe that he neede d
treatment. ¶ 8 Be cker testified that the Alton Me ntal Hea lth Center staff had administered e merg ency medications to the respond en t fo r 7 2 hours, due to the responde nt’s ag g ression, including threatening behavior toward a peer

. Be cker testified that in the previous wee k, the staff beg an

emer g ency medications once more beca use the responden t h ad fl ed the courtroom on the initially schedule d hearing date. ¶ 9 Be cker testifi ed t h at , if discharg ed, the responde nt would be unable to provide for his basic needs and would exhibi t dang erous conduct, placing another individual in a rea sonable expectation of being harme d. Be cker testified that she rea sonably expected t hat if the responde nt w ere not tr eate d, he would continue to suffe r mental deter ioration or emotional deter ioration or both and e ng ag e in dang erous c onduct. ¶ 10 As cross-e x a

min a ti o n , th e r e s p o n d e nt o ffe red the following : “No question for Ms. Be cker except for can she elabor ate the other entitlement for the medication, since it is often g ener ic,

an d t h e m edica l founding entitlement? ” The circ uit court clar ified for Be cker that th e

-3-responde nt was asking for the differ ent names of the medications he was taking
, and Be cker

answ er ed t h at olanzapine is a g eneric for Z y prexa. The State rested afte r the responde nt’s
one-que stion cross-examination of its only witness. ¶ 11 The re spondent then testified that he had not been evaluate d by J ody Fisher since June 21 and that the complaint of J une 26, 2009, there fore violated the Mental Hea lth Code. See 405 I L CS 5/3-602 (West 2008) (a cer tificate for an involuntary admission shall indicate that the phy sician persona lly examined the responde nt not more t h an 7 2 hours prior to the admission). The respondent t estified that he had funds to restore his elec tricity and that he had not acte d v i o l en t l y

. T h e responde nt stated, “I f there is to be any trial *** being of a milit ary acknow ledg ment, I rese rve the rig ht t o h av e that of a rese rved Circuit Court acknow ledg ment due to the milit ary acknow ledg ments of such which would be made.” The responde nt asserte d that he was not a dange r t o himself or others, a nd he re quested that he be re lease d to his own custody

. ¶ 12 At the close of the evidenc e, the circ uit court noted that the responde nt’s prese ntation was

a drama tic improvement from that ref lected in the rec ords from the end of J une. The circ uit
court stated that the responde nt looked well-re sted and well-groomed and was conscious of the proc eeding s and civil in prese nting his ca se. ¶ 13 The responde nt then reque sted leave to submit five ex h i b i t s , o n e o f which included various written re quests, including a reque st that the court discontinue his tre atment. After the court acc epted the responde nt’s exhibi ts into evidenc e, the following exchang e occur red:
“THE RESP ONDEN T: *** Your Honor, may you also be able to establish my proper appea ls petition that was put in place from a remote proce ssing of the Cecil Manag ement Group of r ealty

manag ement that wa s filed with the Circuit Court of the Third J udicial Circuit in Edwardsville?
THE COURT : I do not have that in front of me. I s that for a dispute with your landlord?
THE RESPONDENT: No. That is upon today ’s cur rent he aring .” ¶ 14 The responde nt also reque sted to make closing statements. During these statements, the responde nt ref

err ed to repor

ts of t he L as Veg as pol ice department and “a small FBI o ff ice within their location” a

nd seeme d to assert that his birth certificate established the “ rea son of transfe r of custody from [hi s] mother.” The re s p o n d en t indicated that his attorney was “protra cted from Alton Mental Hea lth Center,” and he was unable to establish his own “fr om a public def

ender or assistant public defe nder’ s notion.” The re spondent furthe r stated that the medication Z y

prexa was a health risk to him beca use of continuous open bleeding on his fee t, and he r equeste d Wellbutrin as an alterna tive medication. ¶ 15 The circ uit court explained to the responde nt that his attorney ’s office was located in the Alton Mental Hea lth Center fac ility beca use of state funding issues but that she was actua lly employ ed by the Guar dianship a n d A d v o c a c y Co mm is s io n , a

n in d ep endent ag ency appointed specific ally to act much like a public defe nder in this ty pe of case

. The circ uit court clar ified that it was not enter ing an order for i n v oluntary medication but that it was solely deciding whether to grant the pet i t i o n for an involuntary admission. The circ uit court “conf irm[ed] [t he re spondent’s] right to g o ahea d and discha rg e counse l.”

-4-¶ 16 On August 4, 2009, at the end of t he hearing
, the circuit court fo u nd the respondent to

be a person subject to an involuntary admission. The circ uit court then direc ted that a notice of appe al be pr epar ed and submitted to the re spondent for his sig nature

. ¶ 17 The circ uit court’s Au gust 4, 2009, written order finding the responde nt subject to an involuntary admission left blank the place ment and period of the responde nt’s commitment. On August 7, 2009, the responde nt filed a timely notice of appea l. There afte r, on September 17, 2009, the Alton Mental He alth Center discha rg ed the r espondent.

¶ 18 ANALYSI S ¶ 19 Initially
, we rec og nize that this case is m o o t

. Be ca u s e the responde nt was discha rg ed from the mental health fac ility on September 17, 2 0 0 9
, i t is impossibl e for us to g rant any meaning ful relief

, and any decision we rende r is essentially advisory in nature

. Gene rally
, a court will not consider moot questions or rende r advisory decisions. In re Robert S.
, 213 I ll. 2d 30, 45 (2004). However
, “[q] uestion s raised in an appeal that are capa ble of repe tition,
y et m ight e vade r eview be cause of the short duration of the order
, fall under the ex ception of the mootness doctrine .” In re Kev in S.
, 381 I ll. App. 3d 260, 263 (2008). Give n that the responde nt has a history of civil commitment and the circ umstances prese nt here may likely

reoc cu r wi t hout the opportunity for a resolution befor e the case is rende red moot, we will addre ss the responde nt’s contentions. ¶ 20 The respondent argues t hat t he circuit court denied the re spondent’s right to a fair trial by allowing him to proc ee d p r o s e without fully deter mining that he knowing ly and voluntarily

waived his right to counsel. ¶ 21 The Mental Hea lth Code aff ords all persons allege d t o b e s ub j ec t to an involuntary commitment a right to counsel. 405 I L CS 5/3-805 (West 2008). “Involuntary mental health service s entail a ‘massive curta ilment of liberty ’ [citation ]
, an d t h e rig ht to counsel is a centr al feature of the proce dures enac ted by our leg islature to ensure that I llinois citizens are not subjected to such services imp ro p er l y .” In re Barbara H.
, 183 I ll. 2d 482, 496 (1998). A responde nt may waive the ri g ht to counsel only if the trial court is satisfied that the responde nt has the capa cit y t o make an informed waiver

. 405 I L CS 5/3-805 (West 2008). The deter mination of whether a responde nt has the capa city to waive his or her rig ht to

co u n s el i s wi thin the discretion of the trial court. In re Denby
, 273 I ll. App. 3d 287, 2 8 9 (1995). ¶ 22 Specifica lly , the Mental He alth Code provides the f ollowing:
“A hear ing shall not proce ed when a responde nt is not repr esente d b y co un s el unless, afte r confe rring with counsel, the responde nt reque sts to repr esent himself and the court is satisfied that the responde nt has the capa city to make an informed waiver of his rig ht to counsel.” 405 I L CS 5/ 3-805 (West 2008). ¶ 23 To deter

mine whether the responde nt has the capa city to make an informed waiver of his rig ht to counsel, the trial court must make inquiries conce rning the responde nt’s mental ability , intelligenc e, and unde rstandingof the ba sic purpose of counsel. In re Lawrence S.
, 319 I ll. App. 3d 476, 481 (2001); In re Click
, 196 I ll. App. 3d 413, 423 (1990). The court has an obli g ation to be certain a responde nt has the leg al or e ducational ba ckground nec essar y

-5-to repr esent himself. In re Eve lyn S.
, 337 I ll. App. 3d 1096, 1111-12 (2003); In re Y oder
, 289 I ll. App. 3d 465, 470 (1997). At the very least, the trial court should ask a few questions requiring answe rs that would show whether the responde nt has a basic understanding of what the hear ing is about and the role of counsel. See In re Eve lyn S.
, 337 I ll. App. 3d at 1112; In re Click, 196 I ll. App. 3d at 423. ¶ 24 Even when the trial court fails to make a specific inquiry to g lean whether a re spondent understands the ramifica

tions of his w aiving his r ight to c ounsel, the responde nt suffe rs no prejudice if he demonstrates the ca pacity require d to waive the le g al right to counsel. In re Lawrence S.
, 319 I ll. App. 3d at 481 (although the trial court clea rly did not comply with the Mental Hea lth Code’s require ment that it make an inquiry into the responde nt’s capa city to waive his rig ht to counsel befor e allowing the responde nt to repr esent himself, a reve rsal was not r equire d beca

use the responde nt suf

fer ed no prejudice ). On a

ppeal, we must de termine “not whether responde nt suffe re d p r e ju d ic e d u rin g th e h e a

ring by proce eding without counsel (litiga nts near ly alway s suffe r prejud i ce when they proce ed without counsel), but whether responde nt suffe red prejudice from the court’s fail u re to inquire as to his capa city .” In re L a w r ence S.
, 319 I ll. App. 3d at 481. Acc ording ly
, we must deter mine whether the r ec o rd supports the conc lusion that the respondent ha d the ca pacity to waive his right to counsel. ¶ 25 I n t h e p re s en t ca s e, befor e hearing evidenc e on the petition for an i n v o l u n t ar y commitment, the circ uit court addre ssed the responde nt, asking whether h e d esired to repr esent himself, whether he desired to disc harg e his attorney , and whether he understood that he would be held to the same standard as if repr esente d by counsel, and the responde nt

answe red the questions in the aff irmative. After the responde nt’s counsel sug g ested that the circ uit court inquire into the responde nt’s capa city to waive counsel, the circ uit court asked the responde nt if he knew wher e he was, the curr ent date, and the name o f the acting president. After the responde nt answe red these questions corr ectly
, the circ uit court allowed the hea ringto proce ed with the re spondent repr esentinghimself. ¶ 26 We agree with the re spondent that the circ uit court failed to sufficie ntly inform hi m of the rig ht he was waiving (that of counsel), what the hearing conce rned (an involuntary civil commitment), and the conseque nces of the hearing (a 90-day period of civil c ommitm ent). The circ uit co u rt als o failed to make meaning ful inquiries conce rning the responde nt’s mental ability
, in t el l i gen ce, understanding of the basic purpose of counsel, and ability to repr esent himself. See In re Lawrence S.
, 319 I ll. App. 3d at 481; In re Click
, 196 I ll. App. 3d at 423. The circ uit court’s questions wer e insufficient to deter mine t h e re s p o n d ent’s
capa city to knowingly

waive his right to counsel and to re prese nt himself. ¶ 27 We further find that the responde nt was prejudice d as a result of the circ uit court’s f ailure
to deter mine his capa city to waive counsel. The responde n t ’s s t atements at the hear ing ind i ca t ed that he believed that the hearing involved the involuntary administration of medication and a rea l estate disput e. T h e very nature of the hearing, the responde nt’s confusion, and the responde nt’s statements during the hearing indicated that the responde nt lacke d the capa city to make an informed waiver of counsel. See In re Click
, 196 I ll. App. 3d
at 4 2 3. Acc ording ly
, we find that the circ uit court abused its discretion in allowing the responde nt to waive his rig ht to counsel and re prese nt himself at the hea ring

.

-6-¶ 28 CONCLUSI ON

¶ 29 Fo r t h e fo re go i n g re as ons, we reve rse the judgme nt of the circ uit court of Madison County

.

¶ 30 Reverse d.

-7-