21 July 2000

PRESIDING JUSTICE COOK delivered the opinion of thecourt:

In March 1999, the trial court found respondent,Christopher Maher, subject to involuntary admission to a mentalhealth facility. Respondent appeals, arguing that (1) the trialcourt questioned a witness in chambers ex parte and then calledthe witness to testify, becoming an advocate for the State anddepriving him of a fair trial, (2) the trial court misapplied thestandard of proof and placed the burden of proof on respondent,(3) the State failed to prove by clear and convincing evidence hewas subject to involuntary commitment, (4) his commitment was notin compliance with the emergency-admission-by-certificate procedures of the Mental Health and Developmental Disabilities Code (Mental Health Code) (405 ILCS 5/3-600 et seq. (West 1998)), andmultiple procedural deficiencies occurred in transferring him tothe mental health center. We affirm.

I. BACKGROUND

On March 16, 1999, a petition for emergency admissionby certificate was filed by a crisis therapist pursuant tosection 3-601 of the Mental Health Code (405 ILCS 5/3-601 (West1998)) on the grounds respondent was mentally ill and, because ofhis illness, was reasonably expected to inflict serious physicalharm on himself or another in the near future. Two certificatessupporting the petition were prepared and filed that day. Thecertificates were prepared by an emergency room physician atBroMenn Hospital and by Dr. Robert Scott Hamilton, a psychiatrist. The certificates contained allegations respondent hadbarricaded or "isolated" himself in his room at his parents'house and threatened his parents.

A hearing on the petition took place on March 19. Stephen Maher, respondent's father, testified respondent beganengaging in "aberrant behavior" as an adolescent. Respondentverbally harassed and physically abused his younger brothers andsister "beyond that which might have been expected of *** anadolescent." In 1977, Stephen and his wife obtained counselingfor respondent and the family. The counselor diagnosed respondent with "passive-aggressive disorder." Counseling was discontinued after several months because respondent was uncooperative.

Stephen stated respondent continued to engage inviolent behavior, such as breaking items, kicking doors, andbeating his brothers and sister. At one time Stephen attemptedto pull respondent away from his brother, who was eight yearsyounger than respondent, and respondent struck a blow toStephen's forehead, breaking his eyeglasses. On anotheroccasion, Stephen's daughter called him at work becauserespondent had been "violent to her" and, when Stephen returnedhome, he found respondent had cut his sister's hand with a knife.

Respondent abused alcohol, drove his car through thefamily's yard and verbally abused his family with "loud anddistasteful language." Stephen testified respondent wasconvicted of either aggravated assault or aggravated battery forassaulting a video store clerk who tried to detain him when hestole some merchandise. Respondent was also convicted ofmultiple incidents of driving under the influence of alcohol anddriving while license revoked, spending periods of incarcerationin the county jail. He was found to be unfit to stand trial in acriminal case and hospitalized for several months until he wasfound to be fit. A psychologist who evaluated respondent at thattime diagnosed him with organic brain disorder induced by drugabuse as opposed to head trauma. At that time, respondent wasusing cannabis, lysergic acid diethylamide (LSD), and cocaine. Respondent was convicted and sentenced to four years in thecorrectional facility at Dixon but only served six months.

Stephen and his wife enrolled respondent in asubstance-abuse rehabilitation program at Lutheran GeneralHospital, but respondent did not successfully complete treatment. He did later stop using cocaine on his own and had abstained fromalcohol for nine years.

While living with his parents from 1993 through March1998, respondent obtained a psychiatric evaluation in which hewas diagnosed with bipolar disorder (manic-depressive disorder)and schizophrenia. Respondent received counseling and medicationand obtained employment as a cook and a janitor. His behaviorimproved although he had occasional "outbursts." In March 1998,respondent moved to Milwaukee. There he continued treatment withDr. Bott, a psychiatrist who prescribed Thorazine and Cogentin. Stephen was aware respondent was not taking his medication in thequantity Dr. Bott prescribed. Dr. Bott told Stephen he did notreally have a diagnosis for respondent's disorder but wastreating him according to his "basic regimen" for a patient withpersonality disorders.

On March 7, 1999, respondent returned to his parents'Bloomington residence. Respondent was upset the family dog diedand wanted to know who had killed the dog and if he had beenpoisoned. Stephen told respondent the dog died a natural death,but the dog had actually been euthanized. In the evening hoursof March 15, Stephen asked respondent to leave the room becausehe was directing foul remarks to his mother, who was in a greatdeal of pain from a broken arm. Respondent began talking aboutthe dog and warned Stephen, "Satan is going to get you folks."

Stephen told respondent he was going to get counselingfor him. Respondent threatened to load his 30-30 and his 9-millimeter gun and "blow away" anyone that walked through thedoor. Stephen knew a .25-caliber handgun and a 30-30 werechained to a steel support pole in the basement. He thoughtrespondent had a key to the lock. Stephen never saw a 9-millimeter gun, but he had a receipt he thought represented adown payment for such a weapon. Then he stated, "It does notmean that one exist [sic]."

With his wife locked in the master bedroom, Stephenleft for the crisis center because he was afraid to telephone forhelp from his residence. The crisis team suggested policeintervention. When Stephen returned home, his wife wasfrightened because she thought she heard a gun being cocked. Stephen and his wife left the house immediately. Neither of themwas physically harmed during the episode.

Detective Clay Wheeler was called in as a policenegotiator at about 8 p.m. on March 15, 1999, for what he wastold was a barricaded subject possibly holding hostages. Hetelephoned the Maher residence, but respondent would notinitially answer the phone. Wheeler left about eight messages onthe answering machine before respondent called him back about 30minutes later. Wheeler talked with respondent for about an hour. Respondent told him Stephen was to blame for the incident becausehe was intoxicated and had ridiculed respondent. Respondentmentioned his dog of 14 years had died. He also stated if hisparents were dead he "would tear [his sister] apart." Wheelertried to convince respondent to meet with him face to face, butrespondent refused. Wheeler told respondent he knew about thethreats respondent made toward his parents and the police neededto come into the house. Respondent admitted to Wheeler guns werein the house.

After about an hour, respondent said he was tired andgoing to bed, and he hung up the phone. Wheeler did not get anyresponse to about 27 more telephone calls to the house.

Officers tried to talk with respondent over a megaphoneuntil respondent talked to Wheeler a second time on the phone.This time, respondent said he "would take care of his Dad" if helost his housing income and the "next time" the police came out"it would be a lot more of a problem to get him out of thehouse." Wheeler convinced respondent to surrender at 4:25 a.m.on March 16. Respondent did not resist the police when he walkedout of the house. The officers entered the house and found theguns still secured in the basement.

Dr. Hamilton testified he was called in by the crisisteam. Members of the crisis team as well as respondent's parentstold him respondent "had threatened physical violence" and theywere concerned respondent might have access to a gun. Dr.Hamilton first talked to respondent about 1 a.m. on March 16. After respondent was in custody, Dr. Hamilton learned respondenthad not been armed, but the police negotiator told him respondenthad threatened to "be violent with his family, with his parentsin particular," when he was discharged from the hospital.

Dr. Hamilton examined respondent later in the morningon March 16 after he was brought to BroMenn Hospital by thepolice. He prepared a history and physical report of respondentand relied upon a social service investigative report anddispositional report prepared by clinical social worker CaleneRoberts. Roberts' report revealed respondent had a longpsychiatric history with a diagnosis of schizophrenia and hadbeen hospitalized at least once. He also had been hospitalizedfor substance abuse and had been incarcerated at the statecorrectional facility in Dixon. Respondent had been receivingoutpatient treatment near Chicago just prior to the incident thatcaused the filing of this petition.

In the history gathered by Dr. Hamilton, respondentreported he is a recovering alcoholic, he occasionally usedmarijuana, and he received psychiatric care in Milwaukee, wherehe currently lived. Respondent also stated he sustained headtrauma following a car accident and at times he hears voices andgets "somewhat paranoid." Respondent stated he had not beentaking his prescribed medication, Trifluoperazine, for the pastweek because he could not afford the prescription.

Respondent told Dr. Hamilton everybody, particularlyhis family, told lies about him and anybody providing an accountof the March 15 incident contrary to his was lying. Respondentbelieved "people were following him." He told Dr. Hamilton hisfather "set off" the incident on March 15 by demeaning him andhis family "always harassed him." Respondent told Dr. Hamiltonhe came to Bloomington because he wanted his parents to help himmove into a new apartment in Milwaukee.

Dr. Hamilton attempted to confer with respondent'streating psychiatrist, Dr. Bott, but could not reach him. Respondent told Dr. Hamilton he would "go nuts" if he werecommitted, which Dr. Hamilton interpreted to mean respondentwould be "violent and disruptive."

Dr. Hamilton's initial diagnosis was organicpersonality syndrome due to a closed head trauma with psychosisand possible developmental delay. His dispositional reportrecommended long-term psychiatric hospitalization, followed byadmission to a supervised or supportive living situation andoutpatient treatment with a psychiatrist at a mental healthclinic. Dr. Hamilton changed his diagnosis to paranoidschizophrenia after conferring with respondent's family and nurseChar Tyler.

Stephen Maher told Dr. Hamilton respondent's mentalproblems started long before his automobile accident andrespondent had been diagnosed by other professionals withpassive-aggressive behavior disorder and paranoid schizophrenia,had engaged in physical violence in the past, and had beenadmitted previously to a mental hospital. Stephen also showedhim a receipt for a 9-millimeter gun.

Dr. Hamilton obtained information from nurse Tyler thatrespondent stated he would "get" his parents if they did not givehim money and take care of him and the police could not watch him24 hours a day, 7 days a week. Respondent later explained he wasnot going to physically harm his parents but would "get them"some other way.

Dr. Hamilton stated a paranoid schizophrenic does notnecessarily have paranoid delusions, but respondent did. He alsoexplained most schizophrenics are not violent but several factorsincrease the risk of violence, such as substance abuse,noncompliance with taking medication, and a history of threats orengaging in violent behavior. All of these factors applied torespondent.

Dr. Hamilton stated both his original diagnosis and hiscurrent diagnosis would account for respondent's behavior. Hebelieved respondent's mental condition was "more schizophrenic." Dr. Hamilton opined respondent was mentally ill and, because ofhis illness, he was reasonably expected to inflict physical harmon himself or another in the future. He recommended long-termhospitalization because of respondent's noncompliance with takingmedication and his potential for violence. Anything less thanhospitalization would be a potential danger for society andrespondent.

Dr. Hamilton admitted on cross-examination thatrespondent's threats were verbal, and although guns were locatedin the house, respondent never had one in his hand. Dr. Hamiltonadmitted he may have assumed respondent threatened someone with agun. He also admitted respondent did not appear to him to beviolent, hostile, or aggressive at the time Dr. Hamilton signedthe certificate.

The only evidence offered by respondent was a writtenletter to the trial judge, which was admitted into evidence. Respondent described the incident in question as an argumentbetween himself and his father that got blown out of proportionby the police and later the media. He stated he told the policethey could come into the house any time they wanted and he wouldnever harm his parents. Respondent stated he knew right fromwrong and was making a new life for himself in Wisconsin, wherehe had just obtained a new apartment.

Arguments by counsel followed. The trial court thenexpressed its concern about hospitalizing someone simply becausehe or she was unreasonable, belligerent, or even threateningunless the court believed the threatened behavior was likely tooccur in the near future. The court found the testimonyindicated respondent had mental problems but found it to becontradictory and unclear on whether he had a mental illness or apersonality disorder. The trial court expressed its frustrationthe only two options available were ordering hospitalization orletting respondent go. The judge wished someone could look afterrespondent if he let him go and queried where respondent would goif he were free.

Respondent's counsel then stated respondent told her hehad employment with a landscaping firm in Milwaukee and hadrecently been accepted into a subsidized-living apartment. Thetrial court then asked if the parties objected if he "talked" torespondent's father, Stephen, in chambers. Counsel for the Statereplied, "No, sir," and respondent's counsel said, "I don'tcare."

The trial judge then took Stephen into his chambers foran ex parte conversation that was not recorded or transcribed. After the court's conversation with Stephen, the judge calledStephen back to the witness stand. The judge made a record thatin chambers he inquired of Stephen what would happen if he gaverespondent a bus ticket back to Milwaukee. He asked Stephen totell the parties what he told the court in chambers. Accordingto Stephen, respondent did not have an apartment because he hadbeen evicted. He stated respondent had applied for subsidizedhousing, but Stephen had no proof respondent would get suchhousing. As for a job, Stephen stated there was "no absolutepromise of work at this present time." There was "an indication"respondent could start work. Stephen stated that, althoughrespondent did not have a place to go in Wisconsin, he was notwelcome at his parents' home.

Stephen also told the trial court about a receipt for agun, a 9-millimeter Ruger. The trial court asked Stephen to tellthe parties what he had told the court. Stephen stated he hadthe receipt, which did not state the purchaser's name but noted a$25 down payment had been made on February 3. He stated he didnot have the receipt with him but it represented a purchase madein Wisconsin.

On cross-examination by respondent's counsel, Stephenadmitted he did not know whether respondent contacted LutheranSocial Service Agency in Wisconsin about placement in subsidizedhousing. Stephen did not know respondent had a business cardfrom an agency representative indicating respondent's dealingswith the agency. Stephen thought respondent could not take suchsteps on his own but would need Stephen's help, as he had in thepast. Stephen stated respondent worked for the landscapingcompany on a temporary, as-needed basis the previous summer. Thereceipt for the gun purchase only indicated a down payment hadbeen made and not that the gun was actually received.

When cross-examined by the State, Stephen statedrespondent had repeatedly talked about the gun and that he neededit to protect himself from people who might enter his apartment. Further, respondent stated he would use the gun to stop the"authorities" from harassing him or, if times got really tough,he would use it to hold up places. Stephen helped respondent attimes in the past to move to new apartments or obtain newhousing. He had been to Milwaukee a few weeks before thisincident to help respondent obtain subsidized housing as he wasabout to be evicted. When respondent came to Bloomington, heleft all his personal property in Milwaukee. He told Stephen hehad an appointment in Milwaukee set on the day of the hearing.

The trial judge indicated this was a borderline casewhere it was hard for him to know what to do. The courtindicated its preference for sending respondent for furtherevaluation to see if he had a long psychiatric history, whetherhe really was schizophrenic, whether he was a danger to himselfor others, with the court to receive a report in a couple ofweeks. The judge noted he had nowhere to send respondent to havethis evaluation and, therefore, found him to meet the statutorycriteria and ordered him involuntarily admitted to the ZellerMental Health Center. The judge then stated Zeller was requiredto provide a report to him in 30 days concerning the patient'sneeds. At that time, the trial court would decide whether tokeep him for a longer period of time or "turn him loose."

The trial court entered a written order findingrespondent was a person subject to involuntary admission andhospitalizing him for up to 180 days in the Department of MentalHealth and Developmental Disabilities, finding that was theleast-restrictive environment currently appropriate andavailable.

Respondent filed a timely notice of appeal on March 23.On April 15, 1999, a notice of change in status was filed withthe court by the facility director of Zeller Mental HealthCenter, informing the court respondent had been discharged fromthe facility on April 12.

II. ANALYSIS

Both parties contend this case is not moot, despiterespondent's release from the Zeller Mental Health Center, basedon an exception to the rule of mootness. Our supreme court hasrecognized where the case involves an event of short durationthat is "capable of repetition, yet evading review," review maybe had despite the issue otherwise being moot. In re Barbara H.,183 Ill. 2d 482, 491, 702 N.E.2d 555, 559 (1998). To qualify forthis exception, the challenged action must be too short in itsduration to be fully litigated prior to cessation and the causemust present a reasonable expectation the same complaining partywould be subjected to the same action again. Barbara H., 183Ill. 2d at 491, 702 N.E.2d at 559. Both parties contend thiscase meets both criteria. For involuntary hospitalizations, themaximum term is 180 days, after which a new petition must befiled, a new hearing held, and a new order entered by the court. 405 ILCS 5/3-813 (West 1998). The commitment order expired inits entirety in this case prior to our review. Respondent hadbeen released long before the expiration of the order.

Respondent does have a history of mental illness, andat least a brief history of prior involuntary hospitalization, soit is reasonable to expect the same action that was taken againsthim here might be undertaken again. We elect to address thisappeal on the merits.

Respondent argues the trial court's ex parteconversation with a witness in chambers and then recalling him totestify to information gained in that conversation, thussupplying additional evidence for the State, was error requiringreversal of the trial court's order.

The State argues respondent has forfeited this issuedue to his counsel's failure to object during the hearing andfailure to raise this issue in a posttrial motion. See In reBarnard, 247 Ill. App. 3d 234, 252, 616 N.E.2d 714, 727 (1993). Application of the forfeiture rule is less rigid where the basisof the objection is the trial court's own conduct. People v.Davis, 185 Ill. 2d 317, 343, 706 N.E.2d 473, 485 (1998). Specifically, where the trial court departs from its role andbecomes an advocate for the State's position, no objection byopposing counsel is necessary to preserve the issue for review. People v. Rega, 271 Ill. App. 3d 17, 24, 648 N.E.2d 130, 134(1995); People v. McGrath, 80 Ill. App. 2d 229, 236, 224 N.E.2d660, 664 (1967).

A trial court may, in its discretion, questionwitnesses to elicit the truth or clarify material issues thatseem obscure as long as it does so in a fair and impartialmanner. People v. Smith, 299 Ill. App. 3d 1056, 1062, 702 N.E.2d218, 222 (1998). However, the trial court must not depart fromits function as a judge and may not assume the role of anadvocate for the State. Smith, 299 Ill. App. 3d at 1064, 702N.E.2d at 223; McGrath, 80 Ill. App. 2d at 236, 224 N.E.2d at664. The propriety of an examination of a witness by the trialcourt must be determined by the circumstances of each case andrests within the discretion of the trial court. People v. Gallo,260 Ill. App. 3d 1032, 1039, 632 N.E.2d 99, 104 (1994).

Supreme Court Rule 63(A)(4)(c) provides a judge may,with the consent of the parties, confer separately with theparties and their lawyers in an effort to mediate or settlematters pending before the judge. 155 Ill. 2d R. 63(A)(4)(c). Generally, private conversations with a judge concerning apending case are improper. See People v. Taylor, 288 Ill. App.3d 21, 27, 679 N.E.2d 847, 851 (1997). A trial judge has anobligation to assure the public that justice is administeredfairly and must avoid the appearance of impropriety. People v.Bradshaw, 171 Ill. App. 3d 971, 975-76, 525 N.E.2d 1098, 1101(1988). While no reported case has been found dealing with atrial judge having ex parte communications with a witness duringa trial, it has been held an administrative law judge shouldavoid ex parte communications with a testifying witness andreversal is required where actual prejudice to the complainant isshown. Korunka v. Department of Children & Family Services, 259Ill. App. 3d 527, 530-31, 631 N.E.2d 759, 761 (1994).

The court acted out of a desire to do the right thingfor respondent. It was concerned with the family problem thecase presented and was grasping for a practical solution. Whether Stephen here fell within the language of Rule63(A)(4)(c), which allows the court, with consent, to conferseparately with parties and their attorneys, is unclear. Nevertheless, because respondent consented to the separateconference in this matter, we perceive no prejudice. Werecommend that the court not engage in such conferences in thefuture absent compelling circumstances.

Once the ex parte conference was held, the court couldappropriately call Stephen to the stand to make a record of whathad been discussed. Likewise the court could appropriatelyquestion Stephen for the purpose of educating itself fullyregarding the circumstances of this case, although a court thatquestions a witness must be careful not to appear as if it isacting as an advocate. The fact that the judge's questionsbrought out information damaging to respondent does not mean thejudge was acting as an advocate.

We have examined the other issues advanced byrespondent and decline to address them, as they are moot.

We affirm the judgment of the trial court.

Affirmed.

MYERSCOUGH, J., concurs.

KNECHT, J., dissents.

JUSTICE KNECHT, dissenting:

I respectfully dissent.

In this case, the trial court abused its discretion andoverstepped its bounds by conversing with Stephen Maher ex parte. The error was exacerbated because no court reporter was present. Prior to speaking with Stephen ex parte in chambers, the courtwas frustrated with the choices of disposition and opined it wasnot yet convinced as to which way it should rule.

Mental health cases are often frustrating. A trialjudge with a sincere desire to solve or ameliorate a humanproblem may be sorely tempted to become a counselor or mediator. However, ex parte communication such as that which occurred hereis improper no matter the benevolent motivation of the trialcourt. It is especially damaging when it occurs with the majorcomplaining witness and a liberty interest is at stake. While myview of the trial judge's effort to resolve this case ischaritable, what must the respondent have thought when he saw thechief witness against him being ushered to a private audiencewith the court? An ex parte conversation with the chief witnessin a mental health case is akin to a trial judge having a privateconversation with a victim in a criminal case. Such ex parteconversations should only occur on television or in films.

After the ex parte communication, the trial courtcompounded the error by recalling Stephen as a witness and notonly questioning him concerning whether respondent had a place tolive and a place to work in Milwaukee, but also questioning himabout the actual existence of the 9-millimeter gun to which hehad previously referred. The additional cross-examination ofStephen revealed new assertions respondent threatened to use thegun against authorities or to commit robberies. The State's caseagainst respondent was significantly bolstered, and the trialjudge apparently gleaned enough additional evidence to persuadehim the respondent should be committed.

Supreme Court Rule 63(A)(4) clearly does not apply. Stephen Maher is not a party, and respondent did not consent tothe conference.

The trial court's finding that respondent suffered frommental illness was not erroneous. However, the trial court'sfinding respondent was an immediate threat to harm either himselfor others was not proved to the trial court's satisfaction priorto the additional testimony elicited by the court following theex parte conversation. The trial court's ex parte conversationwith Stephen and the ensuing testimony in open court prejudicedrespondent. I would reverse the trial court's orderinvoluntarily committing respondent.