In re Leslie H.

• Decision Date: 05 July 2006
• Docket Number: No. 2-05-0648.,2-05-0648.
• Citation: 308 Ill.Dec. 445,861 N.E.2d 1010
• Parties: In re LESLIE H., Alleged to be a Person in Need of Authorized Involuntary Treatment (The People of the State of Illinois, Petitioner-Appellee, v. Leslie H., Respondent-Appellant).
• Court: United States Appellate Court of Illinois

861 N.E.2d 1010

308 Ill.Dec. 445

In re LESLIE H., Alleged to be a Person in Need of Authorized Involuntary Treatment (The People of the State of Illinois, Petitioner-Appellee, v. Leslie H., Respondent-Appellant).

No. 2-05-0648.

Appellate Court of Illinois, Second District.

July 5, 2006.

As Modified Upon Denial of Rehearing January 5, 2007.

Inez Toledo (Court-appointed), Guardianship & Advocacy Commission, Chicago, for Leslie H.

John A. Barsanti, Kane County State's Attorney, St. Charles, Martin P. Moltz, Deputy Director, Diane L. Campbell, State's Attorneys Appellate Prosecutor, Elgin, for the People.

Modified Upon Denial Of Rehearing

Justice GILLERAN JOHNSON delivered the opinion of the court:

The respondent, Leslie H., was charged with telephone harassment (720 ILCS 135/1-1 (West 2004)) in Cook County. During those proceedings, she was found unfit to stand trial (see 725 ILCS 5/104-10 (West 2004)), and she subsequently was admitted to the Elgin Mental Health Center (EMHC). During her stay there, her treating psychiatrist petitioned to involuntarily administer psychotropic medication, claiming, among other things, that the respondent could become harmful to herself or others and that she exhibited suffering and a deterioration in her ability to function. The Kane County public defender was appointed to represent the respondent on the petition to involuntarily administer psychotropic medication. The respondent's criminal defense attorney in the telephone harassment case was never notified of the petition. During the proceedings on the petition, the trial court inquired whether the Kane County public defender took issue with service of the petition. The assistant Kane County public defender advised the trial court that she did not challenge such service. Following a hearing, the trial court granted the petition. The respondent timely appeals, contending that, pursuant to section 2-107.1(a-5)(1) of the Mental Health and Developmental Disabilities Code (Code) (405 ILCS 5/2-107.1(a-5)(1) (West 2004)), the trial court's order authorizing the administration of psychotropic medication must be reversed because her criminal defense attorney was not notified of the petition. We agree, and, thus, we reverse.

Before considering the merits of this appeal, we address two preliminary matters. Specifically, we consider whether the issue the respondent raises on appeal is moot and whether the respondent waived review of that issue.

We first address whether the issue is moot. The issue the respondent advances on appeal could be considered moot, as an order authorizing the involuntary administration of psychotropic medication shall not be effective for more than 90 days, the 90 days have long since past, and, thus, the trial court's order granting the petition no longer has any force or effect. In re Robert S., 213 Ill.2d 30, 45, 289 Ill.Dec. 648, 820 N.E.2d 424 (2004). Nevertheless, we choose to consider the issue pursuant to the public interest exception to the mootness doctrine. Robert S., 213 Ill.2d at 45, 289 Ill.Dec. 648, 820 N.E.2d 424 (public interest exception to mootness doctrine applies if (1) the question raised is of a public nature; (2) an authoritative determination on the issue raised could help guide public officers; and (3) it is likely that the issue will recur).

Second, we consider whether the issue is waived. Citing In re Splett, 143 Ill.2d 225, 157 Ill.Dec. 419, 572 N.E.2d 883 (1991), the State contends that the respondent waived review of whether notice of the petition should have been served on her criminal defense attorney, because she did not raise that issue in the trial court. In Splett, the issue presented to our supreme court was whether reversal of an order granting the involuntary administration of psychotropic medication must be reversed when the respondent did not receive formal notice of the proceedings. Splett, 143 Ill.2d at 227, 157 Ill.Dec. 419, 572 N.E.2d 883. In finding that formal notice is not necessary if the respondent receives actual notice of the petition, our supreme court noted that reversal of an order granting a petition to involuntarily administer psychotropic medication is not required if the respondent and his attorney took part in the proceedings on the merits and never challenged a procedural defect to which an objection could and should have been immediately made, the procedural defect could have been cured easily if a timely objection had been made, and the procedural defect made no difference in the end result. Splett, 143 Ill.2d at 230-31, 157 Ill.Dec. 419, 572 N.E.2d 883.

This case simply is not analogous to Splett. Although here, as in Splett, the respondent and her attorney took part in the proceedings on the merits and never challenged the lack of service to the respondent's criminal defense attorney, which could have been easily cured if objected to, the result of the proceedings could indeed affect the respondent's criminal case. See Robert S., 213 Ill.2d at 57, 289 Ill.Dec. 648, 820 N.E.2d 424. In any event, to the extent that the respondent waived the issue by failing to challenge service of the petition, waiver is a limitation on the parties and not the courts, and, in order to achieve a just result, a reviewing court may ignore waiver especially in a case where the State seeks to involuntarily administer psychotropic medication. See In re Janet S., 305 Ill.App.3d 318, 320, 238 Ill.Dec. 700, 712 N.E.2d 422 (1999). Thus, we choose to address the merits of this appeal.

Turning to the merits, the issue raised on appeal is whether the respondent's criminal defense attorney was entitled to notice of the petition to involuntarily administer psychotropic medication. Because this issue requires us to decide whether compliance with section 2-107.1(a-5)(1) of the Code was had, our review is de novo. See In re M.A., 293 Ill.App.3d 995, 998-99, 228 Ill.Dec. 266, 689 N.E.2d 138 (1997) (court reviewed de novo whether the respondent's right to a jury trial, as guaranteed by section 3-802 of the Code (405 ILCS 5/3-802 (West 1996)), was waived). Section 2-107.1(a-5)(1) of the Code delineates who shall be served with notice of a petition to involuntarily administer psychotropic medication. Specifically, that section provides, in pertinent part:

"The petitioner shall deliver a copy of the petition, and notice of the time and place of the hearing, to the respondent, his or her attorney, any known agent or attorney-in-fact, if any, and the guardian, if any, no later that 3 days prior to the date of the hearing." 405 ILCS 5/2-107.1(a-5)(1) (West 2004).

The question then becomes whether a respondent's criminal defense attorney falls into one of the categories of individuals who must be notified of a petition to involuntarily administer psychotropic medication. Our supreme court addressed this precise issue in Robert S.

In Robert S., the respondent was found unfit to stand trial on unknown charges. Robert S., 213 Ill.2d at 32, 289 Ill.Dec. 648, 820 N.E.2d 424. He was subsequently admitted to the EMHC, and, during his stay there, his treating psychiatrist petitioned to involuntarily administer psychotropic medication because, among other things, the respondent exhibited a deterioration in his ability to function, suffering, and threatening behavior. Notice of the petition was never served on the respondent's criminal defense attorney. Following a hearing at which the respondent represented himself, the trial court granted the petition to involuntarily administer psychotropic medication.

On appeal, our supreme court considered, among other things, whether, pursuant to section 2-107.1(a-5)(1) of the Code, the respondent's criminal defense attorney was entitled to notice of the petition to administer psychotropic medication. The court determined that the respondent's criminal defense attorney was due such notice because, at the very least, that attorney was the respondent's agent, and, as such, the plain language of section 2-107.1(a-5)(1) required that notice be served on him or her. Robert S., 213 Ill.2d at 57, 289 Ill.Dec. 648, 820 N.E.2d 424. In reaching that conclusion, the court noted:

"Respondent came to be in a mental health facility because he was found unfit to stand trial in a criminal proceeding. In that proceeding, he was represented by an attorney. All of the parties to this action were aware of that proceeding Although the purpose of the * * * proceeding [to involuntarily administer psychotropic medication] was to determine whether psychotropic medication should be forced upon respondent for his own benefit and/or the safety of those around him, ultimately, [the resolution of the petition] may [raise] consequences pertinent to the pending criminal matter." Robert S., 213 Ill.2d at 56-57, 289 Ill.Dec. 648, 820 N.E.2d 424.

Here, the State and the respondent agree that all of the parties to the proceedings were aware that counsel represented the respondent on the charge of telephone harassment. Section 2-107.1(a-5)(1) of the Code mandates that an agent for the respondent must be given notice of a petition seeking to involuntarily administer psychotropic medication, and our supreme court has determined that a respondent's criminal defense attorney falls into this category. Thus, the respondent's criminal defense attorney was entitled to notice of the petition.

Moreover, such notice was not an empty formality. As noted, the result of a petition to involuntarily administer psychotropic medication may affect a respondent's pending criminal case. Indeed granting a petition to involuntarily administer psychotropic medication could lead to a respondent's fitness to stand trial, which would dramatically change the course of a respondent's criminal case. See 725 ILCS 5/104-21(a) (West 2004) (a respondent who is receiving psychotropic medication is not presumed unfit solely because the respondent is taking psychotropic medication); People v. Ralon, 211...