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In re Evelyn S.
State: Illinois
Court: 5th District Appellate
Docket No: 5-01-0240 Rel
Case Date: 04/01/2003
                    NOTICE
Decision filed 04/01/03.  The text of this decision may be changed or corrected prior to the filing of a Petition for Rehearing or the disposition of the same.

NO. 5-01-0240

IN THE

APPELLATE COURT OF ILLINOIS

FIFTH DISTRICT


In re EVELYN S.,
Alleged to Be a Person Subject to Involuntary
Administration of Psychotropic Medication

(The People of the State of Illinois, Petitioner-
Appellee, v. Evelyn S., Respondent-Appellant
(James E. Ryan, Attorney General of the State
of Illinois, and the Department of Human 
Services, Intervenors-Appellees)). 

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Appeal from the
Circuit Court of
Madison County.

No. 01-MH-62

Honorable
Ralph J. Mendelsohn,
Judge, presiding.


JUSTICE CHAPMAN delivered the opinion of the court:

Evelyn S. (respondent) was found unfit to stand trial on a charge of first-degreemurder, and she was admitted to the Alton Mental Health Facility (Alton). In April 2001,the Madison County circuit court found her to be a person subject to the involuntaryadministration of psychotropic medication. See 405 ILCS 5/2-107.1 (West 2000). EvelynS. raises numerous issues on appeal. Because our conclusion that the trial court improperlyallowed Evelyn S. to waive her right to counsel and proceed pro se requires a reversal, weneed not address her other arguments.

I. BACKGROUND

In September 1999, Evelyn S. was arrested and charged with first-degree murder forthe death of her husband. On January 31, 2001, a Cook County court found her unfit tostand trial. On February 21, 2001, she was admitted to Alton for treatment.

On March 19, 2001, the State filed a petition for the involuntary administration ofpsychotropic medication to Evelyn S. pursuant to section 2-107.1 of the Mental Health andDevelopmental Disabilities Code (Mental Health Code) (405 ILCS 5/2-107.1 (West 2000)). The petition alleged that Evelyn S. suffered from a psychotic disorder, not otherwisespecified, and had been exhibiting symptoms including paranoia and aggression since herarrest in 1999. The petition further alleged that Evelyn S. was incapable of making aninformed decision regarding psychotropic medication and that the benefits of suchmedication would outweigh the potential harm.

The matter was initially set for a hearing on March 22, 2001. At that time, the courtgranted Evelyn S.'s motion for a continuance so she could consult with her criminal attorneyin Cook County. The hearing was then set for March 29, at which time Evelyn S. requesteda two-week continuance to allow her time to obtain an independent examination, conductdiscovery, and arrange for witnesses to appear to testify on her behalf. She also requesteda jury trial. The court denied both requests but granted her another one-week continuanceto contact the attorney she claimed represented her in Cook County. The court advisedEvelyn S. that she was to tell her Chicago attorney to enter an appearance on her behalf bythe time the court convened the following week.

On March 30, 2001, Evelyn S. filed a motion to reconsider the denial of her jurydemand and, as an alternative, a motion for leave to file a late jury demand. In the motionto reconsider, she contended that her initial jury demand was timely because the hearing hadnot yet begun. In the motion for leave to make a late jury demand, she contended that,assuming, arguendo, her March 29 jury demand was not timely, (1) any untimeliness wasnot due to any negligence on Evelyn S.'s part and (2) the State was not prejudiced by anydelay.

On April 3, 2001, Evelyn S. served the Alton staff with interrogatories and a requestto produce documents. On the same day, she served Dr. M.V. Reddy, her attendingphysician at Alton, and Dr. Stephen Robinson with notices to appear pursuant to SupremeCourt Rule 237(b) (166 Ill. 2d R. 237(b)). Also on April 3, Evelyn S. filed a motion todismiss the State's petition for a lack of subject matter jurisdiction. She contended that theCook County court's continuing jurisdiction to determine her fitness to stand trial (see 725ILCS 5/104-20 (West 2000)) precluded the Madison County court's jurisdiction under theMental Health Code. The court denied the motion.

On April 5, 2001, the trial judge conducted a hearing at Alton. Because the Chicagoattorney had not entered an appearance for Evelyn S., the court informed her that her choiceswould be to accept her appointed attorney's continued representation or represent herself. Evelyn S. chose the latter option.

Dr. Suresh Chand was the only witness for the State. Dr. Chand admitted that he hadnot spoken to Evelyn S. prior to the hearing. She had refused to allow him to interview her. His testimony was based on Evelyn S.'s medical records and his discussions with Alton staffmembers who had worked with her. Dr. Chand testified that Evelyn S.'s mental illnessmanifested itself in her refusal to eat at least six meals since her admission, her refusal tobathe, and her aggressive and paranoid behavior. He stated that she refused meals, fearingthey had been poisoned. He explained the benefits of each prescribed medication inreducing delusional thinking or anxiety or minimizing the side effects of the othermedications and stated that these benefits outweighed the potential harm and that lessrestrictive alternatives to medication were not appropriate for Evelyn S.. Dr. Chand opinedthat Evelyn S. was incapable of making an informed decision about whether to take themedications.

Evelyn S. called her brother, Peter Popovich, to testify on her behalf. He testified thatshe had always been devoutly religious and had professed to believe in faith healing ratherthan medication long before the murder charge was filed against her. Popovich furthertestified that he had never known his sister to refuse to bathe or keep clean, nor had heknown her to accuse anyone of trying to poison her.

Evelyn S. testified that she had never told the staff at Alton that she feared her foodwas being poisoned but that she never told them she was fasting and praying for Lentbecause "[i]t's supposed to be done in silence and a very private thing." She stated that thestaff documented that she refused to bathe because she wanted to wait for a phone call fromher attorney in Chicago and bathe later. She further testified that she was not mentally illbut was grieving for her husband. A friend who ran a psychiatric outpatient clinic inChicago had explained to Evelyn S. that the symptoms of grief can be similar to those ofmental illness.

The court asked Dr. Chand if the side effects of the medications sought to beadministered to Evelyn S. would be made worse if she were given the drugs while she wasfasting. Dr. Chand stated that any side effects could be reduced by reducing the dosages.

At the end of the hearing, the court found Evelyn S. to be a person subject to theinvoluntary administration of psychotropic medication, and the court entered an orderauthorizing the staff at Alton to administer Risperdal, Haldol, lorazepam, Cogentin,Benadryl, and Haldol decanoate to Evelyn S. and conduct the testing necessary to monitorany adverse reactions. The order was to go into effect on April 16, 2001, to coincide withthe end of Lent so as to minimize the potential adverse effects from taking the medicationswhile fasting.

Evelyn S. filed the instant appeal the same day. She contends that the trial court erredby (1) allowing her to waive counsel despite evidence she was not competent to do so, (2)denying her request for a jury (see 405 ILCS 5/3-802 (West 2000)), (3) denying her requestfor a continuance to conduct discovery (see 405 ILCS 5/2-107.1(a-5)(2)(i) (West Supp.2001)), (4) denying her request for an independent examination (see 405 ILCS 5/3-804(West 2000)), (5) finding her subject to the involuntary administration of psychotropicmedication without the testimony of at least one psychiatrist who had actually examined her(see 405 ILCS 5/3-807 (West 2000)), (6) failing to employ a "substituted judgment test" todetermine her expressed desires regarding her care when she was competent, and (7)authorizing the maximum dosages of medication requested in the petition, which exceededthose suggested by the State's only witness. She also argues that section 2-102(b) of theMental Health Code (405 ILCS 5/2-102(b) (West 2000) (allowing the withholding ofmedical treatment to members of any "well-recognized religious denomination" where it isnecessary to respect their religious beliefs)) is unconstitutional because it impermissiblyentangles the state with religion by requiring courts to decide what denominations are "well-recognized." She finally contends that if section 2-102(b) is void, section 2-107.1 isunconstitutional without it. See In re C.E., 161 Ill. 2d 200, 224, 641 N.E.2d 345, 356 (1994)(rejecting a constitutional challenge to section 2-107.1 partly on the basis of section 2-102).

On April 12, 2001, this court entered an order staying the trial court's order pendingappeal. On April 23, 2001, the State filed a motion to dismiss Evelyn S.'s appeal,contending that this court lacks jurisdiction to consider it because it was an interlocutoryorder merely effectuating the Cook County court's order for Evelyn S. to undergo treatment. We ordered the State's motion taken with the case. On July 27, 2001, we granted theAttorney General's motion to intervene on behalf of the Illinois Department of HumanServices (Department) to defend against Evelyn S.'s constitutional challenge and respondto the State's motion to dismiss. On January 2, 2002, just days before oral argument in thiscase, the Attorney General filed a motion to dismiss this appeal on the ground of mootnessbecause the Department intended to recommend that Evelyn S. be found fit to stand trial. We ordered the motion taken with the case. On March 15, 2002, the Cook County trial courtfound Evelyn S. fit to stand trial. She has been transferred to the Cook County jail to awaittrial on the murder charges.

For the reasons that follow, we deny both motions to dismiss and reverse the trialcourt's order.


II. ANALYSIS

A. The Attorney General's Motion to Dismiss on the Ground of Mootness

The instant appeal is moot. Evelyn S. was found fit to stand trial and transferred tothe Cook County jail. The State no longer is seeking to medicate her against her will. Thus,our decision cannot grant effective relief to any party. Thus, it is essentially an advisoryopinion. Appellate courts generally lack jurisdiction to render advisory opinions. In reMary Ann P., 202 Ill. 2d 393, 401, 781 N.E.2d 237, 242 (2002). We find that the issuesraised in Evelyn S.'s appeal fall within the public-interest exception to the mootnessdoctrine, however. The criteria for this exception are (1) the public nature of the issuespresented, (2) the desirability of an authoritative determination for the purpose of guidingpublic officials, and (3) the likelihood that the question will recur. In re Mary Ann P., 202Ill. 2d at 402, 781 N.E.2d at 242-43. The procedures courts must follow to authorize theinvoluntary medication of mental health patients are a matter of "substantial public concern." In re Mary Ann P., 202 Ill. 2d at 402, 781 N.E.2d at 243. Because of the short duration oforders authorizing involuntary treatment, it is likely that the circumstances present in thecase at bar will recur without the opportunity to be litigated before the case is rendered mootby the expiration of the order. See In re Mary Ann P., 202 Ill. 2d at 402-03, 781 N.E.2d at243. Moreover, we note, as did the Attorney General, that between the time of the hearingand the time their briefs were filed in this court both parties changed their position withrespect to jurisdiction. This demonstrates the confusion that exists over the issues presented. Thus, we find a definitive answer desirable. We therefore deny the Attorney General'smotion to dismiss, and we consider the merits of Evelyn S.'s contentions.

B. Applicability of the Mental Health Code

The State's arguments are premised on the State's contention that because Evelyn S.initially came before the court system pursuant to the Code of Criminal Procedure of 1963(725 ILCS 5/100-1 et seq. (West 1998)), the Mental Health Code does not pertain to theseproceedings at all. The State points out that the Code of Criminal Procedure of 1963, ratherthan the Mental Health Code, applies to the involuntary commitment of criminal defendantsfound unfit to stand trial. From this, the State reasons, it follows that the Code of CriminalProcedure of 1963 also applies exclusively to proceedings to administer psychotropicmedications against the patient's wishes. Evelyn S. argues that the right to refuse suchmedication is a fundamental liberty interest and that accepting the State's argument wouldallow courts to override this right automatically if a mental health patient is a defendant whohas been found unfit to stand trial. The Attorney General argues that the provisions of theMental Health Code and the Code of Criminal Procedure of 1963 were intended to operatetogether and that, because the Code of Criminal Procedure of 1963 contains no provisionsrelating to the administration of psychotropic medication, the Mental Health Code appliesto such proceedings. We hold that the Mental Health Code governs the procedures.

Involuntary mental health services, including the involuntary administration ofpsychotropic medications, involve a " 'massive curtailment of liberty.' " In re Barbara H.,183 Ill. 2d 482, 496, 702 N.E.2d 555, 561 (1998) (quoting Vitek v. Jones, 445 U.S. 480, 491,63 L. Ed. 2d 552, 564, 100 S. Ct. 1254, 1263 (1980)). Thus, the courts of this state haverepeatedly recognized the importance of "the procedures enacted by our legislature to ensurethat Illinois citizens are not subjected to such services improperly." In re Barbara H., 183Ill. 2d at 496, 702 N.E.2d at 561-62; see, e.g., In re C.E., 161 Ill. 2d at 213, 641 N.E.2d at351 (holding that mentally ill patients have a constitutional liberty interest in refusingpsychotropic medication); In re Jones, 318 Ill. App. 3d 1023, 1025-26, 743 N.E.2d 1090,1093 (2001) (strict compliance with the procedural safeguards of the Mental Health Codeis required). These protections are no less important to a criminal defendant found unfit tostand trial than they are to a mental health patient subject to involuntary civil commitment. See, e.g., People v. DeJesus, 263 Ill. App. 3d 487, 488-89, 636 N.E.2d 112, 113-14 (1994)(the respondent was also a defendant who had been found unfit to stand trial; the court heldthat the Mental Health Code provides a statutory right to a jury hearing on petitions for theinvoluntary administration of psychotropic medications). Indeed, were we to accept theState's contention that the order to medicate Evelyn S. was no more than an ordereffectuating the Cook County court's order to render her fit to stand trial, we would find theprocedural protections of the Mental Health Code even more important. See United Statesv. Brandon, 158 F.3d 947, 957 (6th Cir. 1998) (procedures to determine whether toinvoluntarily medicate a nondangerous pretrial detainee for the sole purpose of renderinghim fit to stand trial must satisfy strict-scrutiny review even though a lower standard ofreview is appropriate where the medication is sought to protect the respondent's safety or thesafety of those around him); see also Bee v. Greaves, 744 F.2d 1387, 1395 (10th Cir. 1984)(adopting a strict-scrutiny test for decisions to medicate pretrial detainees and questioningwhether the government's interest in rendering them fit for trial, standing alone, could everbe sufficiently compelling to support involuntary medication); Woodland v. Angus, 820 F.Supp. 1497, 1509 (D. Utah 1993); but see Khiem v. United States, 612 A.2d 160, 169 (D.C.1992) (finding the governmental interest in bringing a defendant to trial more compellingthan its interests in involuntarily medicating a civilly committed mental health patient). Thus, we conclude that the legislature could not possibly have intended to leave personssuch as Evelyn S. without procedural safeguards. With this premise in mind, we considerwhat procedure is applicable to the proceedings here at issue.

The Code of Criminal Procedure of 1963 includes procedures for the involuntarycommitment of defendants found unfit to stand trial. Its provisions, rather than those of theMental Health Code, govern proceedings to involuntarily admit those defendants and todetermine whether they remain unfit to stand trial. In re Clarke, 200 Ill. App. 3d 365, 369,558 N.E.2d 719, 721 (1990). Under the Code of Criminal Procedure of 1963, the courtretains "supervisory jurisdiction" to monitor an unfit defendant's commitment and treatment. See People v. Lavold, 262 Ill. App. 3d 984, 990, 635 N.E.2d 919, 924 (1994) (discussingthe period of time during which a pretrial detainee may be held pursuant to this jurisdictionwithout a separate finding that he or she is subject to civil commitment). Specifically,section 104-16(d) provides that, upon finding a defendant not fit to stand trial but likely tobecome fit within a year, the court must order the defendant to undergo treatment to renderhim or her fit to stand trial. 725 ILCS 5/104-16(d) (West 2000). Section 104-17(b) providesthat the court may order the defendant committed to the Department or a private mentalhealth facility for treatment. 725 ILCS 5/104-17(b) (West 2000). Within 30 days of theentry of such an order, the person supervising the treatment must file a report specifying thedefendant's diagnosis, the manner of treatment proposed, and an estimate of the time it willtake to render the defendant mentally fit to stand trial. 725 ILCS 5/104-17(e) (West 2000). Section 104-20(a) requires the court to hold hearings every 90 days to determine if thedefendant is still unfit to stand trial and, if so, whether the defendant is likely to attain fitnesswithin one year. 725 ILCS 5/104-20(a) (West 2000). If the court finds that the defendantis still unfit to stand trial but is making progress in treatment towards becoming fit, the court"may continue or modify its original treatment order." 725 ILCS 5/104-20(c) (West 2000). We think the State's position overstates the authority this statutory scheme gives thetrial court to order any and all treatment necessary to render a defendant fit. The Code ofCriminal Procedure of 1963 includes no provisions for determining whether the treatmentof a defendant found unfit to stand trial may include involuntary medication. In other words,while the Code of Criminal Procedure of 1963 provides its own procedural safeguards forthe involuntary admission of defendants found unfit to stand trial, it provides no alternativeto the procedural safeguards afforded mental health patients under the Mental Health Codefor the involuntary administration of psychotropic medication. If the Mental Health Codedoes not apply, then, there are no procedural safeguards that do. Given the importance ofthe rights at stake, we conclude that the legislature could not have intended this result.

In so holding, we note that the conclusion we reach is similar to that reached by theSeventh Circuit Court of Appeals applying Illinois law in Johnson v. Brelje, 701 F.2d 1201(7th Cir. 1983). There, the Seventh Circuit found that defendants found unfit to stand trialenjoyed the right to be placed in the least restrictive environment guaranteed to civillycommitted mental health patients by the Mental Health Code. Johnson, 701 F.2d at 1206;see 405 ILCS 5/2-102(a) (West 2000). Although this result was later superceded by statute (Maust v. Headley, 959 F.2d 644, 648 (7th Cir. 1992)), we find its rationale persuasive. TheJohnson court found that the Mental Health Code and the Code of Criminal Procedure of1963 were meant to work together to govern the treatment and conditions of the confinementof defendants found unfit to stand trial. It is only where there are conflicts between the twocodes that the provisions of the Code of Criminal Procedure of 1963 take precedence. Johnson, 701 F.2d at 1206; see 725 ILCS 5/104-29 (West 2000). At that time, the MentalHealth Code provision there at issue did not conflict with any provisions in the Code ofCriminal Procedure of 1963. Johnson, 701 F.2d at 1206. After an amendment to section104-17(b) of the Code of Criminal Procedure of 1963 (Pub. Act 83-839, eff. January 1,1994 (1983 Ill. Laws 5455 (

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