1

Ru le 23 or derfiled NOS. 5-08-0010, 5-08- 0327, & 5-08-0553 Aug ust 4, 2009; Mot ion t o pu bli sh gr an ted I N THE Dec em ber 10, 2009. AP PE LLA TE C O U R T O F IL LIN O IS FI FTH DI STRI CT

________________________________________________________________________ In re DO NR ELL S., ) Appeal f rom the Alleged to Be a P erson Subjec t to Involuntary ) Circui t Court of Admissi on ) Randolph County. ) (The P eople of the State of Illinois, Petitioner- ) No. 07-MH-288 Appellee, v. D onrell S., Respo ndent-Ap pellant). )

____________________________________________ ) ) In re HAL K ., ) Alleged to Be a P erson Subjec t to Involuntary ) Admissi on ) No. 08-MH-31 ) (The P eople of the State of Illinois, Petitioner- ) Appellee, v. H al K., R espond ent-Appellant). )

____________________________________________ ) ) In re LANC E H ., ) Alleged to Be a P erson Subjec t to Involuntary ) No. 08-MH-170 Admissi on ) ) Ho nora ble (The P eople of the State of Illinois, Petitioner- ) W illiam A. Schuw erk, Jr., Appellee, v. Lance H., R espond ent-Appellant). ) Jud ge, p resid ing.

________________________________________________________________________ JUST ICE C HA PM AN delivered the op inion o f the co urt: The respo nden ts, Do nrell S., Hal K ., and Lanc e H., appeal or ders finding t hem subject to involuntary adm ission aft er each waived hi s right to a he aring . Because thi s court has
recen tly found that

the Mental Health and Development al Disa bilities C ode ( M ental H ealth Code) (405 I LCS 5/1- 100 et seq. (W est 20 06)) d oes n ot con templa te or pe rmit such a blanket waiver of allthe proce dural s afeguards prov idedto res pondents on petiti ons for involuntary admissi on, we rever se. These three c ases in volve patie nts w ith long hist ories of mental i llness and m ultiple previ ous involuntary admi ssions . I n Septe mber 2004, re spondent Donrel l S. was2

involuntari ly admit

ted to Chest er Mental He alth C enter (C hester ). He wa s diagno sed w ith sch izoa ffec tive disorde r, bipol ar type, and suffe red paranoi d delusi ons. On November 29, 2007, the State fil ed the pet iti on for cont inued inv oluntar y admissi on at issue in this ap peal. At th e o ut se t o f t he D ec em be r 5 he ar in g o n t ha t p et it io n, D on re ll 's attor ney, Jeremy W alker, infor med the court that D onrell had "ex pressed a d esire to waiv e the ri ght to a heari ng." The foll owing dis cussion f

ollowed: "THE CO UR T: M r. [S.], do you wish to giv e up your ri ght to have a hearing this m orn ing? RE SPO ND EN T [D onre ll S.]: I want to appe al. TH E C OU RT : Do you wa nt to have a he arin g? RESPON DEN T: Waive. TH E C OU RT : I' ll accept your w aiver." The court then fo und that D onre ll S. wa s sub ject to involuntary commi tment. That was the fullextent

of the hearing . DonrellS. fi led his notice of appeal on January 2, 2008. The second res ponden t in this appeal, Hal K., has a far longer history. His fi rst involuntary admissi on to a facil ity occ urred i n 1980; however, his sympt oms of anger and paranoia date back

to 1961, when he was 13 years old. In 1988, Hal was found not guilty by reaso n of in sanity o n cha rges of a ttempte d mu rder, a ggravated b att ery, and armed viol ence in Cook County. I n Jul y 20 06, h e w as tran sferred to Ch ester an d bec ame a civil involuntary admittee aft er his Thiem date had p assed. People v. Thiem , 82 I ll. App. 3d 956, 962, 403 N.E.2d 647, 652 (1980) ( explai ning t hat an orde r committing adefendant found not guilty by reason of

insani ty must

specif y a maximum peri od of confi nem ent equal to the longest sentence the defenda nt could ha ve received had h e been c onvicted). On February 14, 2008, the Stat e fil ed the pet iti on for cont inued inv oluntar y admissi on that f orms the basis of this appe al. A hearing on the pet iti on was set for February 20. Hal3

was repres ented at

the hearing

by Jeremy Walker , the same att orney wh o rep resen ted D onre ll S. at his hearing. W alker told the court that, afte r discu ssing the petition prior to com ing to court that mo rning, H al "exp ressed a des ire to waive his right to a hearing this mo rning." The court as ked Hal i f he wan ted to g ive u p his ri ght to a heari ng, and t he foll owing
convers ation e nsued:

"RE SP ON DENT [Ha l K. ]: I don 't know wh at the adva ntage is in h aving a hea ring. TH E C OU RT : So you wa nt to give it up , corre ct? RESPO ND ENT : I g

uess. TH E C OU RT : I' ll accept your w aiver." The cour t then fo und Ha l subjec t to involu ntary a dmissio n and entere d an o rder to that effe ct. Th is w as th e fu ll ext ent o f the hea ring. On March 20, 2008, Hal K. fil ed a pro se motion t o reconsi der. He all egedthat he only waived t

he heari ng because he was advis ed by his for mer attorney that

he had no chance of winnin g at the hearing. On M ay 21, the cour t held a hearing on the moti on. Hal appeare d with new coun sel. Th rou gh coun sel, he argued , as he does on ap peal, th at the M ental H ealth Code does not p ermit the wa iver of the statutorily man dated proc edur es in the ir entir ety. The court interr

upted and the foll owing exchang e took place: "THE COU RT: Well, here, I don' t know what you' re talking about the re, but
we 've been doingthese things dow n here for 3 0 years, an d we 've been taking waivers from recipie nts for o ver 30 y ears th at I'm aware of. I don 't know w hat the y do in Alton. Do they tak e waiver s in Al ton? MS. G OE BE N [cou nsel for Ha l K.]: No , You r Hon or. TH E C OU RT : No wa ivers of h earings a t all? MS. G OE BE N: N o."4

The co ur t r ej ec te d H al 's arguments. The court t ook judi cialnotice that, in 13 prev ious hearing s, Hal sometimes had waiv ed the hearing and someti mes had not. The cour t found that t his pattern indicat ed that Hal "knew what he was doing" when he waiv ed the right to
a hearing. The court therefore d enied the m otion to recon sider. Hal K. fil ed a notic e of appeal on June 10, 2008. Lance H.'s earliest admission to a fac ility was in 199 7. On F ebruary 29, 2008, Lance H. wa s adm itted to C hester after he reach ed his parole date on a sent ence for sexu al assa ult. On March 4, Lance si gnedan appli cati on to be admi tted v oluntarily t o Chester. On June 4, how ever, he w as fou nd su bject to involun ta ry ad mis sion. O n Au gust 28 , 200 8, the State fil ed a peti tionfor cont inued inv oluntar y admissi on. The entir e Sept ember 3 hearing on the petition echoed the hearing s on the pet iti ons for continued inv oluntar y admissi on of D onre ll S. an d H al K . It began wit h attor ney Jeremy Walke r inf ormingthe court

that he had discuss ed the proce eding s with Lance that very mor

ning and that L ance "expres sed a desire to wa ive his right to a he arin g." T he r ema ind er o f the hea ring co nsist ed of the f ollowing exchange: "THE CO UR T: M r. [H.], do you wish to g ive up your ri ght to have a hearing this m orn ing? RE SPON DE NT [Lance H .]: Yes, sir. TH E C OU RT : I' ll accept your w aiver." On October1, 20 08, La nce H . filed a m otion to recon sider, th rough new ly appointe d counsel Barb ara G oebe n. H e argue d that (1 ) the M ental H ealth C ode d oes n ot perm it a
com plete waiver of

a heari ng on a petition for involuntary admi ssion t o a faci lit y and (2)
even ass uming that t

he heari ng canbe waived i n its entir ety, L ance did not underst and the consequences of

waivi ng his right to a h earin g. The court deni ed the mot ion to r econsider
on October 3. L ance H. fil ed his appea l on Octobe r 30, 2008. Because t he three cases5

present identical i ssues, this court consoli dated them for purpos es of ar gument and decisi on. We begin b y no ting that all three of these appe als ar e moot. The orde r involun tarily admitting Do nrell S. expi red on June 2, 2008; the order admittingHal K. expired on Au gust 18, 2008; and the order admi tting Lance H. expired on December 1, 2008. Because t he orders a ppealed hav e expire d, we cannot g ranteffective re lief to any of these respondents. This makes the issues raised in these app eals moot. In re Barbar a H. , 183 Ill. 2d 482, 490, 702 N.E .2d 555 , 559 (19 98). O rdinarily, c our ts l ack j urisdi ction to consider moot is sues because our rulings on t hose issues are, es senti ally, advi sory. In re Barbar a H. , 183 I ll. 2d at490-91 , 702 N .E.2d a t 559. H owe ver, we may cons ider the se ap peals if th ey fall w ithin
a recogni zed exception to the moo tness doctrine. In re Al fred H.H. , 233 I ll. 2d 345, 351, 910 N.E .2d 74, 7 8 (2009 ). We find t hat the inst ant appealfall s withi n the recogni zed exception for cases that are capa ble of repetiti on yet av oidingrevi ew. In or der to f it wit hin thi s excepti on, an appeal must meet two criteria. Fi rst, the order appealed " must be of a duration to o short to be fu lly litigatedprior to its cessation." In re Al fred H.H. , 233 I ll. 2d at 358 , 910 N.E .2d a t 82. T his crit erion i s clearly met he re. Initi al orders for inv oluntary admission expire aft er 90 days. Orders for cont inued inv oluntar y admissi on, such as t

hose inv olve d here, expire aft er 180 days (alt ho u gh we n ote that the order e ntered finding Lanc e H. su bject to involuntary admissi on expired in 9 0 days). This i s to o li tt le time to permi t an appealto be ful ly li tig ated before t he orders expire. In additi on, ther e must be a "reas onable expect ation t hatthe sam e com plainin g party woul d be subjected to the same action ag ain." In re Barbar a H. , 183 I ll. 2d at 491, 702 N.E.2d at 559. The pot entia l fut ure act ion need not

be ident icalto the a ctionap pealed; however, i t must

be simi lar

enough thatthe res oluti on of the i ssue rai sed in t he otherwis emoot appe al will likely hav e an effe ct on a fut ure case involv ing t

he appellant. In re Alf

red6

H.H. , 233 Il l. 2d at

359, 910 N.E.2d at82. As noted, these three r espondents all have a l ong history of me ntal illnes s, and all t hree h ave been f ound subject

to inv oluntar

y admissi on
more than o nce. W e may also take judicia l notice of th e f act that Lance H. has an appeal pendingbefore t

his court which rais es the i dentic al is sue aft er a subse quent order finding h im subject to continued inv oluntar y commitment . Moreover, as prev iousl y d i scussed, the record of the heari ng on Hal K.' s moti on to recons ider demons trat es that precis ely thi s iss ue has aris en more than o nce d uring pro ceed ings on petition s in vol ving Hal. Thus, we find t

hat these three r espondents are ve ry li kel y to be subject ed to t he sa me ac tion again . W e w ill therefore cons id er this appeal under the capable-of -repetiti on-yet- avoi ding- revi ew exception. This cour t recen tly add ressed the issu es raise d in this appeal i n In re Mic hae l H. , 392 Ill. App. 3d 965, 91 2 N.E .2d 703 (2009). There, as her e, the r espondent was found subje ct to continuing inv oluntar y ad mi ss io n t o Ch ester after waivi ng his right to a he aringon the petition for continued commitme nt. In re Mic hae l H. , 392 I ll. App. 3d at 968, 912 N.E.2d at706. There, as h ere , the r espondent argued on appealthat ( 1) the MentalHealth Code does not permi t the c omplete waiver of a hearing, (2) alternativ ely, the court must at least make a reaso nable inqu iry into b oth the res pon dent's cap acity to wa ive his rights a nd h is underst andingof th e conseque nces of doi ng so, and (3) i f a res pondent does agree to be admitt ed, he must be treated as a voluntary adm ittee, with all the rights that entails. In re MichaelH. , 392 I ll. App. 3d at 970, 912 N.E.2d at 708; s ee 405 IL CS 5/3-403 ( West 2006) (prov idingthat a

volunt arily admitt ed patie ntmayre que st a di sc harge at

anyti me) ; 4 05 I LCS 5/3-404 (West 2006) (r equiring the facil ity t o reasse ss a v oluntarily admi tted patie nt' s need forcontinue d hospit aliz ation a fter 30 days and prov idingthat t he patient's failure to confirm in writing his or her desire for cont inued admi ssionat that ti me will be inter preted to mean the patient no lon ger wishes to b e admitted). In acce pting these arguments , we noted that the Mental Heal th Code does not7

expr essly prohibi t an "agreed" or derfor involuntary adm ission. In re Mic hae l H. , 392 Ill. App. 3d at 978, 912 N.E.2d at 714. Howe ve r, we foun d that su ch an orde r is at od ds w ith vari ous provisions of the M ental Hea lth Code

. In re MichaelH. , 392 I ll. App. 3d at 978, 912 N.E.2d at 714. We emphasized the statutory prov isions gov erning agr eed orders for less restr ictive mental health care (s ee 405 IL CS 5/ 3-801.5 (West 2006) ) and the provis ions relating to voluntary admission (se e 405 ILCS 5/3-4 03, 3-80 1 (W est 2006)). We expla ined th at ev en when a respondent agree s to an or der for

outpati ent car e, before entering the agreed order, t he court must make two criti cal inquiri es. The court must determine whether the respondent underst ands the conditions of the order. In re Mic hae l H. , 392 Il l. App. 3d at 977, 912 N.E.2dat713 (c itin g 4 05 I LCS 5/3-801.5 (a)(2) (W est 2006)). The cour t must a lso de termine wh ether th e treatm ent proposed i n the order will be in the
re sp on de nt 's best interes ts. In re Mic hae l H. , 392 I ll. App. 3d at 977, 912 N.E.2d at 713 (citing 405 ILCS 5/3-8 01.5(a )(1) ( West 2006)). In other words, even where a r espondent agree s to an order

fortreat ment, t he court c annot tr eat this agreement a s a complet e waiver of the statut ory procedures put in place to protect hi s right s. Even assuminga simi lar pr oc edure wou ld be permi ssibl e with res pect t o a commitment

order, w e found that t he court' s inqui ry int o Michael' s underst andingof the rights he was w aivingwas "wo efully inadequate." In re Mic hae l H. , 392 Il l. App. 3d at 975, 912 N.E.2d at 711. We note that the la ck of any me aning ful i nqu iry i nto thes e three respondents' cap acity to w aive their rights was far more egr egi ous than what occ urred i n the MichaelH. case. The re, at lea st the co urt asked if M ichae l und erstoo d w hat his a ttorney told the court, to w hich M ichael replied: " 'Yeah. H e said I would be here for an oth er six months.' " In re Michae l H. , 392 Ill. App. 3 d at 96 8, 91 2 N .E.2 d at 70 6. W e fou nd th is inquiry to be inadequate because the court did not det ermine whethe r Michael underst ood the burden t

he Stat e would have t o meet i f he went for ward with the he aringor whether he8

underst ood that

he had the opt ion of r equesting a v oluntar y admissi on and seeking t o dismiss the pendingpetition for involuntary admi ssion. In re Mic hae l H. , 392 Ill. App. 3d at 975, 912 N .E.2d a t 711. Here, the " inquiries" were evenmore lacking. The court as ked Lanc e H. only if he
wa nted to wa ive the he aring. W hen th e cou rt asked D onre ll S. if he w anted to give up h is right to a he aring, D onre ll stat ed that he wanted to appea l, which i ndicat ed that he did not underst and what he was waivi ng at all. Hal K. told t

he court t

hat he di d not know what advant age t

here was in hav ing a heari ng, and when ask ed if t hat meant

he w ante d to wa ive it, he repli ed, "Iguess ." Atbest, t his i ndicat es ambiv alence t oward the so- call ed waiver . See In re Mic hae l H. , 392 I ll. App. 3d at 977, 912 N.E.2d at 713 (expl aining that a respondent might wa ive his hearing be cause he bel iev es it would be futi le, rather th an be caus e he tru ly wants to waiv e it) . This we cannot e ndorse. Mo reover, in our Mic hae l H. decisi on, we found sev er al rea sons to t reat orders for involuntary admissi on diff erently from orders f

or alt ernative car e. First, we found that those orders are inhe rently more rest rictive than othe r mentalhealth orders. In re Michael H. , 392 Ill. App. 3d at 972, 912 N.E.2d at 709. Next, we found t hat ev en if pr ocedures applic able to agreed orders for out

patie nt care are fol lowed, an "agreed" or der for involuntary admi ssion
wo uld be inconsi stent

with the provis ions of t he Mental Health Code gover ning bot h agree d orders for out

patie nt care and orders f or voluntary admi ssion. We explained that an agre ed order f or outpatient c are may not include a requ iremen t that the r espo nden t be ad mitted to
a facility. In re Mic hae l H. , 392 Ill. App. 3d at 977, 912 N.E.2d at 713 (ci ting405 IL CS 5/3- 801.5(a)( 4) (West 2006)). Lik ewise, i t may not be constr ued as a fi nding t

hatthe res pondent is subject to involuntary ad mission. In re Mic hae l H. , 392 Ill. App. 3d at 978, 912 N.E.2d at 713 (citing 405 ILCS 5/3 -801.5(d ) (We st 2006)). We further expla ined that, i f a res pondent reque sts a v oluntar y admissi on wh ile a9

petition for involuntary adm issio n is pendi ng, t he court may e ither

dismi ss the pe tition imme diately or "require proo f that di smiss ing t he peti tion i s in the best interes ts of t he respondent

and the public." In re Mic hae l H. , 392 Ill. Ap p. 3d at 978, 912 N.E.2d at 714 (citing 405 IL CS 5/3-801 ( Wes t 2006)). I f the cour t dis misses the pet iti on, then t he respondent

is to be tr eated as a vol untari ly admit ted pat ient. If

, on the ot

her hand, the court does not dismiss the pet iti on, it wil l remain pending"subjec t to al l the procedural safeguards ordin arily applic able" bef ore the c ourt can ord er the r espondent commi tted involunt arily. In re Mic hae l H. , 392 I ll. App. 3d at 978- 79, 912 N.E.2d at 714. Finally, we co nsidered the p urpose o f these re quirement s. We explained t hat the y
ensure that ne ither

a re sp on de nt 's a gr ee m en t t o a n o rd er fo r o ut pa ti en t c ar e n or a r es po nd en t's decisi on to be admit

ted v olunt ari ly can be use d as a way to circumv e nt the re quirem ents applic able t o a peti tion f or involuntary com mitment. In re Mic hae l H. , 392 I ll. App. 3d at 978, 912 N.E.2d at 714. In light of t his, we hel d that a

respondent

in procee dings on a petition for i nvolunt ary admis sion cannot effective ly waiv e the en tir e heari ng and al l the rights that entails unless he is treated a s a voluntary admitt ee. In re Mic hae l H. , 392 I ll. App. 3d at 978 -79, 912 N.E .2d at 714 . That ho lding controls our de cision today. For the r easons stat ed, we rever se the or ders finding Donrel l S. , Hal K., andLance H. to be subje ct to c ontinued involunt ary admis sion.

Reversed.

GO LDE NH ER SH and SPOM ER , JJ., concu r.NOS. 5-08-0010, 5-08- 0327, & 5-08-0553 I N THE AP PE LLA TE C O U R T O F IL LIN O IS

FI FTH DI STRI CT

___________________________________________________________________________________ In re DO NR ELL S., ) Appeal f rom the Alleged to Be a P erson Subjec t to Involuntary ) Circui t Court of Admissi on ) Randolph County. ) (The P eople of the State of Illinois, Petitioner- ) No. 07-MH-288 Appellee, v. D onrell S., Respo ndent-Ap pellant). )

____________________________________________ ) ) In re HAL K ., ) Alleged to Be a P erson Subjec t to Involuntary ) Admissi on ) No. 08-MH-31 ) (The P eople of the State of Illinois, Petitioner- ) Appellee, v. H al K., R espond ent-Appellant). )

____________________________________________ ) ) In re LANC E H ., ) Alleged to Be a P erson Subjec t to Involuntary ) No. 08-MH-170 Admissi on ) ) Ho nora ble (The P eople of the State of Illinois, Petitioner- ) W illiam A. Schuw erk, Jr., Appellee, v. Lance H., R espond ent-Appellant). ) Jud ge, p resid ing.

___________________________________________________________________________________ Rule 2 3 O rder F iled: August 4, 2009 M otion to Publish Gra nted: December 10, 2009 Opini on Fi led : December 10, 2009

___________________________________________________________________________________ Justi ces : Honorable M elissa A. Chapman, J.

Honorable Richar d P. Goldenhersh, J., and Hon orable Stephen L. Spomer, J., Concur

___________________________________________________________________________________ Attorn ey Barbara A. Goeben, S taff Attor ney, Leg al Adv ocacy Ser vic e, Guardians hip & for Advoc acy C omm ission, M etro E . Re gional O ffice, 4 500 Co llege Aven ue, Su ite Appellants 100, Alt on, I L 62002

___________________________________________________________________________________ Attorn eys St ep he n E . N or ri s, D ep ut y D ir ec to r, K ev in D . S w ee ne y, St af f A tt or ne y, St at e's for Attorne ys Ap pellate P rosec utor, 7 30 E . Illinois H ighwa y 15 , P.O . Bo x 22 49, M t. Appell ee Vernon, I L 62864; Hon. RandallRodewald, Randolph County St ate' s Att orney,

Randolph County Courthouse , #1 Taylor S treet , Chester , I L 62233

___________________________________________________________________________________