State: Illinois
Court: 5th District Appellate
Docket No: 5-96-0412
Case Date: 06/24/1997
Rule 23 Order filed
May 19, 1997;
Motion to publish granted
June 19, 1997. NO. 5-96-0412
IN THE
APPELLATE COURT OF ILLINOIS
FIFTH DISTRICT
_________________________________________________________________
In re C. RODNEY YODER ) Appeal from the
) Circuit Court of
(C. Rodney Yoder, ) Randolph County.
)
Petitioner-Appellant, )
)
v. ) No. 96-MH-3
)
The People of the State of Illinois, ) Honorable
) William A. Schuwerk, Jr.,
Respondent-Appellee). ) Judge, presiding.
_________________________________________________________________
JUSTICE CHAPMAN delivered the opinion of the court:
Petitioner Claude Rodney Yoder appeals from the May 29, 1996,
order of the Randolph County circuit court granting the State's
motion for a directed finding on his petition for discharge from
the custody of the Chester Mental Health Facility. He asserts that
the court erred because it (1) failed to appoint an independent
examiner to assess his mental status, (2) denied his request for a
jury trial, (3) refused to allow him to waive counsel and represent
himself, and (4) granted the State's motion for a directed finding
on his petition. He also asserts that appointed counsel provided
him with ineffective assistance. We hold that petitioner failed to
make a prima facie case for discharge, and that the court properly
found him unable to either waive counsel or represent himself, but
that the court erred in denying his request in regard to an
independent examination and in denying his request for a jury
trial. In view of our rulings on these issues, we need not pass
upon the issue of the effectiveness of counsel.
In a jury trial conducted on March 26, 1996, petitioner was
found to be a person in need of continued involuntary commitment
due to his presentation of a threat of danger to others. On May
23, 1996, he filed a pro se petition for discharge or modification
of his commitment order, pursuant to the Mental Health and
Developmental Disabilities Code (Code). 405 ILCS 5/1-100 et seq.
(West 1994). The petition, which was unsupported by affidavits,
alleged that the Department of Mental Health (Department) was no
longer providing him with appropriate therapy as of March 28, 1996;
that he had been removed from the case load of Sydelle C. Warshauer
and placed in treatment with a therapist and a psychiatrist he
described as "two litigants with [petitioner]"; that he was being
provided with custodial care only; that mental health advocates
were currently attempting to get appropriate care for him; that
bogus allegations of misconduct had been made against him,
thwarting a transfer to another unit in the system; that his
current caregivers were attempting to prescribe inappropriate drug
treatment for his mental problems; and that his mental status did
not warrant his confinement in his current, restrictive placement.
He demanded that his petition be set for a trial by jury, that
counsel be appointed to represent him, and that an independent
examiner be appointed to assess him.
The petition was set for hearing on May 29, 1996. Petitioner
was represented by Rayburn Fricke, his appointed counsel at the
time of the trial at which his involuntary commitment was
continued. Counsel informed the court that during his discussion
with petitioner prior to the appearance, petitioner told him that
he wished to represent himself and that he wanted a jury trial on
the petition. The demand for a jury trial was denied by the court
after the State asserted that the applicable statutes did not
provide for a jury trial on petitions for discharge and counsel
could cite no authority for petitioner's position. Petitioner's
demand to represent himself was denied without the court making
inquiry of petitioner.
When the court asked petitioner if he wished to testify, he
asserted that he did want to do so, "but in a real legal
proceeding, not a kangaroo proceeding." Petitioner, having told
the court that he wanted to be represented by counsel, but not the
one appointed for him, then left the courtroom. He asserted prior
to his departure that he was not waiving any of his rights, but
that the court was waiving them for him, and that he wanted to
leave. Counsel presented no evidence, and the court granted the
State's motion for a directed finding and denied the petition for
discharge, based on petitioner's failure to present any evidence to
substantiate the allegations of the petition.
I.
Petitioner maintains that under section 3-804 of the Code (405
ILCS 5/3-804 (West 1994)), he had a right to be examined by an
independent examiner to determine whether discharge or modification
of his treatment was warranted. The State contends that, because
petitioner failed to properly support his petition for discharge
and present a prima facie case for discharge which the State would
then be compelled to counter, the court was under no duty to
appoint an independent examiner.
Petitioner cites the decision in In re Katz, 267 Ill. App. 3d
692, 642 N.E.2d 893 (1994), and the decision in In re Barnard, 247
Ill. App. 3d 234, 616 N.E.2d 714 (1993), in support of his
assertion that he was entitled to an independent examiner. In
Katz, although the reviewing court found that the respondent did
not establish a prima facie case for discharge via her petition and
testimony, it held that "nothing in the format for the procedure
for a discharge hearing negates application of section 3-804 of the
Code to entitle a respondent to an examination by an independent
expert before a hearing on a petition for discharge." (Emphasis
added.) Katz, 267 Ill. App. 3d at 696, 642 N.E.2d at 896. In
Barnard, the respondent appealed from a finding that he was subject
to continued involuntary admission to a mental health facility and
raised, inter alia, the issue of whether he was entitled to an
examination by an independent examiner who was not an employee of
the Department of Mental Health. This court held that "section 3-
804 of the Code applies with equal force to both petitions for
discharge and petitions for involuntary admission" (emphasis added)
(Barnard, 247 Ill. App. 3d at 249, 616 N.E.2d at 725) and found
that an employee of the Mental Health Department was capable of
performing an impartial examination. See also our decision in In
re Pates, 99 Ill. App. 3d 847, 850, 426 N.E.2d 275, 278 (1981),
where the respondent filed a petition for discharge on September
25, 1981, a State-employed psychologist examined him on September
30, 1981, and on October 1, 1981, defense counsel sought the
appointment of an "impartial medical expert" to aid in the
preparation for a hearing on his petition for discharge. We found
that it was proper for an examiner employed by the State to provide
an independent examination, in the absence of questions about his
competence, his impartiality, or the thoroughness of his
examination. Pates, 99 Ill. App. 3d at 850, 426 N.E.2d at 278.
We do not believe, given the precedent in Katz, that it is
necessary for petitioner to first establish a prima facie case for
discharge before he is entitled to appointment of an independent
expert to examine him. However, we do not feel compelled to follow
the court's holding in Katz that the State must pay for an examiner
chosen by a party petitioning for discharge, at State expense, who
is not an employee of the Department of Mental Health. Our
decision in Barnard reflects our continuing conviction that such a
party is not entitled to choose his own appointed examiner, and
that an examiner who is affiliated with the Department of Mental
Health is a proper, impartial examiner, in the absence of evidence
to the contrary.
We find that petitioner was entitled to the appointment of an
independent examination prior to the hearing on his petition for
discharge, and that the trial court erred when it failed to make
the appointment.
II.
Petitioner next argues that he was entitled to have a jury
hear his petition for discharge because, under section 3-901(b) of
the Code, Article VIII of Chapter III of the Code, which governs
court hearings, "applies to hearings held under this Section." 405
ILCS 5/3-901(b) (West 1994). The State contends that, because
section 3-901 repeatedly indicates that the court shall control the
setting of hearings and enter orders relating to petitions for
discharge, the plain language militates in favor of holding that
the jury trial provisions of section 3-802 (405 ILCS 5/3-802 (West
1994)) apply to adjudications of involuntary admission only.
Under section 3-802 "The respondent is entitled to a jury on
the question of whether he is subject to involuntary admission."
(Emphasis added.) 405 ILCS 5/3-802 (West 1994). In interpreting
a statute, the objective of the court is to ascertain and give
effect to the intent of the legislature, and the most reliable
indicator of legislative intent is the language of the statute,
which must be given its plain and ordinary meaning. Boaden v.
Department of Law Enforcement, 171 Ill. 2d 230, 237, 664 N.E.2d 61,
65 (1996). If the statutory language is clear and unambiguous, the
court should generally apply the statute without further aids to
statutory construction. People v. Bole, 155 Ill. 2d 188, 197, 613
N.E.2d 740, 744-45 (1993). The plain language of section 3-802
would yield the conclusion that the right to a jury trial is
afforded to only those parties who are the subject of involuntary
admission to the Department.
However, given our decision in Barnard, in which we found that
the independent examination provision of Article VIII applies "with
equal force" to petitions for discharge and petitions for
involuntary commitment (Barnard, 247 Ill. App. 3d at 249, 616
N.E.2d at 725), we cannot hold that the right to a jury trial
contained in that Article does not apply to discharge proceedings.
The language of section 3-901(b) dictates this application, given
the language, "Article VIII of this Chapter applies to hearings
held under this Section." 405 ILCS 5/3-901(b) (West 1994).
Article VIII's right to a jury trial is clear:
"The respondent is entitled to a jury on the question of
whether he is subject to involuntary admission. The jury
shall consist of six persons to be chosen in the same manner
as are jurors in other civil proceedings." 405 ILCS 5/3-802
(West 1994).
Petitioner in this case seeks a discharge as he is currently
committed against his will. Because his petition for discharge
inherently concerns the subject of his involuntary commitment, we
conclude that the right to a jury trial contained in section 3-802
applies to discharge proceedings. Therefore, we find that the
trial court erred when it denied petitioner's request for a jury
trial on his petition for discharge.
III.
Petitioner contends that under section 3-805 of the Code (405
ILCS 5/3-805 (West 1994)), the court erred by refusing to allow him
to represent himself. This section allows a party to waive counsel
and represent himself if "the court is satisfied that the [party]
has the capacity to make an informed waiver of his right to
counsel." 405 ILCS 5/3-805 (West 1994).
When petitioner's counsel first addressed the court, he stated
that petitioner wished to represent himself on the petition. After
the court denied that request, petitioner complained that attorney
Fricke had not consulted with him at sufficient length, and the
following exchange took place.
"THE COURT: Mr. Yoder, you have been down this road so
many times, you know this procedure as well as I do. Do you
want to testify here today, Mr. Yoder?
[MR.] YODER: Yeah. I would like to be represented by
counsel, your Honor." (Emphasis added.)
The court denied petitioner's request for counsel other than
attorney Fricke, and petitioner left the hearing after a heated
exchange in which he declined to be sworn and to testify.
Petitioner asserts that under In re Click, 196 Ill. App. 3d
413, 322-23, 554 N.E.2d 494, 500 (1990), the court had an
affirmative duty to make inquiries to ascertain whether or not he
was capable of waiving his right to counsel and proceeding pro se,
whether the request was voluntary, the specifics of the request,
and whether he had the requisite legal or educational background to
represent himself.
The State argues that the exchange in which petitioner asked
to be represented by counsel indicated that petitioner intended to
abandon his request to represent himself, and that he was
attempting only to substitute some other counsel for attorney
Fricke. In the alternative, the State contends that, because
petitioner had been found incompetent to waive counsel or to
represent himself at the March 25, 1996, hearing on the petition
for continued involuntary commitment, the court could logically
conclude that he continued to be unfit, particularly since the
court was well acquainted with petitioner from past proceedings.
It asserts that petitioner's display of temper, which culminated in
his exit from the proceedings, supports the conclusion that he was
unable to make informed decisions concerning the proceedings.
In In re Denby, 273 Ill. App. 3d 287, 290-91, 653 N.E.2d 73,
76 (1995), the court found that the respondent was not prejudiced
by his waiver of counsel at the hearing on his petition for
discharge despite the fact that the court did not question the
respondent to determine whether he was competent to make that
waiver. However, the court noted that the better policy is for the
trial court to ask a few questions of the respondent to make
certain that he understands the consequences of waiving counsel,
but that it could not say that reversal was required on every
occasion in which the trial court failed to do so, given that it
was a discretionary call. Denby, 273 Ill. App. 3d at 290-91, 653
N.E.2d at 76.
Although we, too, believe that it would have been appropriate
for the court to make inquiry of petitioner in this case, given the
history which the court and petitioner shared and the very recent
determination that he was not capable of waiving counsel and
proceeding pro se, we do not conclude that the court erred on this
point. We would, however, suggest that the court be more careful
in making such determinations in the future in order to minimize
distress to the party seeking discharge and to delete at least one
issue from the appeals which will arise from proceedings such as
this one.
IV.
Petitioner next asserts that the trial court committed
reversible error because it granted the State's motion for a
directed finding. He argues that, although the matter was not
properly argued to the court at the time of the hearing, his
petition was sufficient on its face to constitute a prima facie
case for discharge or review of the order under which he was being
treated and to compel the State to prove by clear and convincing
evidence that he should continue to be subject to involuntary
admission in the system and placement in the most secure forensic
mental facility in the state.
The party seeking discharge from confinement has the burden of
proving a prima facie case for discharge, after which point the
State has the burden of proving by clear and convincing evidence
that discharge should be denied. In re Katz, 267 Ill. App. 3d 692,
695, 642 N.E.2d 893, 895 (1994). In Katz, the petitioner was sworn
and testified in support of her petition, which was found to be
insufficient to establish that she had a right to discharge. The
reviewing court in In re Smoots, 189 Ill. App. 3d 289, 291, 544
N.E.2d 1235, 1237 (1989), found that the sworn statements of a
person who has been found subject to involuntary admission under
the Code constitute a prima facie case for discharge. Matter of
Smoots, 189 Ill. App. 3d 289, 291, 544 N.E.2d 1235, 1237 (1989).
In the instant case, petitioner's petition itself was not verified,
nor was it accompanied by an affidavit attesting to the truth of
the allegations contained therein. Moreover, although the court
attempted to persuade petitioner to be sworn in order that he might
testify in support of his petition, petitioner refused to be sworn
and absented himself from the hearing on the petition, leaving
counsel, who had intended to present only petitioner's testimony,
to stand on the unverified petition. We cannot conclude on the
basis of this record that petitioner established a prima facie case
such that the burden of proof shifted to the State. The court thus
was not in error when it granted the State's motion.
Because this matter must be returned to the circuit court of
Randolph County for further proceedings, we need not address
petitioner's contention that he was afforded ineffective assistance
of counsel.
Reversed and remanded.
GOLDENHERSH, J., concurs.
WELCH, J., concurring in part and dissenting in part.
I agree that under this court's decision in Barnard petitioner
was entitled to the appointment of an independent medical examiner
to determine if he continued to be subject to involuntary
commitment in connection with his petition for discharge. I also
concur in the majority's holding that the trial court properly
refused to allow petitioner to waive counsel and that a directed
finding for the State was appropriate, as well as its determination
that we need not address the issue of counsel's representation. I
write separately because I do not believe that the extension of the
Barnard decision by the majority is warranted, and that petitioner
was not entitled to a jury trial to determine whether he was
entitled to discharge from the Department. I respectfully dissent
from that portion of the majority's opinion which holds that he is
so entitled.
Under section 3-802 of the Code, "The respondent is entitled
to a jury on the question of whether he is subject to involuntary
admission." (Emphasis added.) 405 ILCS 5/3-802 (West 1994). The
majority concedes that in interpreting a statute, the objective of
the court is to ascertain and give effect to the intent of the
legislature, and that the most reliable indicator of legislative
intent is the language of the statute, which must be given its
plain and ordinary meaning. Boaden v. Department of Law
Enforcement, 171 Ill. 2d 230, 237, 664 N.E.2d 61, 65 (1996).
Although in Barnard we found that the independent examination
provision of Article VIII applies "with equal force" to petitions
for discharge and petitions for involuntary commitment (Barnard,
247 Ill. App. 3d at 249, 616 N.E.2d at 725), it does not
necessarily follow that the right to a jury on the question of
whether a respondent is subject to involuntary admission contained
in that Article should be extended to discharge proceedings.
Section 3-804 states that "[a]ny such physician ***, whether
secured by the respondent or appointed by the court, may interview
by telephone or in person any witnesses or other persons listed in
the petition for involuntary admission." (Emphasis added.) 405
ILCS 5/3-804 (West 1994). Logically, an independent examiner for
purposes of either an initial involuntary admission or a discharge
proceeding would benefit from access to a person who had input to
the initial petition for involuntary admission.
The language of section 3-802, however, cannot be read so
broadly. It states without equivocation, ambiguity, or the
possibility of other interpretation that a respondent is entitled
to a jury on the question of whether he is subject to involuntary
admission. The plain language of section 3-802 yields the
conclusion that the right to a jury trial is afforded to only those
respondents who are the subject of involuntary admission to the
Department. The maxim expressio unius est exclusio alterius is an
aid to statutory construction, although it may give way if a
clearer expression of legislative intent may be found elsewhere
(Cremer v. City of Macomb Board of Fire & Police Commissioners, 281
Ill. App. 3d 497, 499, 666 N.E.2d 1209, 1211 (1996)), which I do
not find in this instance. Courts are not at liberty to depart
from the plain language and meaning of the statute by reading into
it exceptions, limitations, or conditions that the legislature did
not express. Klem v. First National Bank, 275 Ill. App. 3d 64, 67,
655 N.E.2d 1211, 1213 (1995). A statute which specifies one
exception to a general rule excludes other exceptions by
implication (In re County Collector, 281 Ill. App. 3d 467, 473, 667
N.E.2d 109, 114 (1996)), even in the absence of negative words of
prohibition. Stern v. Norwest Mortgage, Inc., 284 Ill. App. 3d
506, 509, 672 N.E.2d 296, 300 (1995), appeal allowed, 171 Ill. 2d
586, 677 N.E.2d 972 (1997).
Applying these principles to the case at bar, I believe that
the language of section 3-802 excludes the provision of a jury
trial to determine if a person files a petition for discharge
should be subject to continued involuntary admission to the
Department. To hold otherwise would be inconsistent with the
stated intent of the legislature, to which the courts must give
effect without considering additional indicia of legislative
intent. First of America Bank, Rockford, N.A. v. Netsch, 166 Ill.
2d 165, 181, 651 N.E.2d 1105, 1112 (1996). The language of section
3-901(b) does not preclude this application, given that the
references to "the court" contained therein are ones which deal
with administrative activities which are within the purview of the
court, setting petitions for hearing, directing that notice be
given of that hearing, and entering orders. None of these
activities are ones which a jury may do in any event. Therefore,
I would find that the trial court properly denied petitioner's
request for a jury trial on his petition for discharge. For the
reasons indicated, I concur in part and dissent in part.
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