Perona, Matter of, 4-97-0261

• Citation: 294 Ill.App.3d 755,229 Ill.Dec. 11,690 N.E.2d 1058
• Decision Date: 09 February 1998
• Docket Number: No. 4-97-0261,4-97-0261
• Parties: , 229 Ill.Dec. 11 In The Matter of Bruce PERONA a Person Found Subject to Involuntary Admission (People of the State of Illinois, Petitioner-Appellee, v. Bruce Perona, Respondent-Appellant).
• Court: United States Appellate Court of Illinois

Page 1058

690 N.E.2d 1058

294 Ill.App.3d 755, 229 Ill.Dec. 11

In The Matter of Bruce PERONA a Person Found Subject to Involuntary Admission (People of the State of Illinois, Petitioner-Appellee, v. Bruce Perona, Respondent-Appellant).

No. 4-97-0261.

Appellate Court of Illinois Fourth District.

Argued Oct. 15, 1997.

Decided Feb. 9, 1998.

Jeff M. Plesko, Managing Attorney (Court-appointed), Guardianship & Advocacy Commission, Anna, Cynthia Z. Tracy (Court-appointed), Guardianship & Advocacy Commission, Peoria, for Bruce Perona.

Kevin Lyons, State's Attorney, Peoria, Norbert J. Goetten, Director, Robert J. Biderman, Deputy Director, Charles F. Mansfield, State's Attorneys Appellate Prosecutor, Springfield, for the People.

Presiding Justice GARMAN delivered the opinion of the court:

In March 1997, respondent Bruce Perona was involuntarily recommitted to Zeller Mental Health Center (Zeller) after a hearing in absentia conducted pursuant to section 3-806 of the Mental Health and Developmental Disabilities Code (Code) (405 ILCS 5/3-806 (West 1996)). He appeals, arguing (1) the State failed to comply with section 3-806 of the Code; (2) the section is unconstitutional because it violates his right to due process under the United States and Illinois Constitutions (U.S. Const., amends. V, XIV; Ill. Const.1970, art. I, § 2); and (3) the circuit court erred by entering a subsequent order pursuant to section 2-107.1 of the Code (405 ILCS 5/2-107.1 (West 1996)), subjecting him to psychotropic medication against his will. We affirm.

I. BACKGROUND

By way of background, on November 9, 1996, Perona was found naked in his car by police. The police believed he was hallucinating and in need of psychiatric care. They took him to Zeller, where he was admitted. On November 13, 1996, the trial court granted the State's motion to have Perona involuntarily committed for 90 days. On December 18, 1996, the trial court granted the State's petition to administer psychotropic medication involuntarily. On February 11, 1997, the State brought a petition for involuntary recommitment. Before the hearing began, Perona's attorney noted Perona did not want to come and waived Perona's presence on his behalf. The hearing continued in Perona's absence. The court granted the petition, and Perona was recommitted for another 30 days.

On March 7, 1997, the State filed the instant motion for involuntary admission and recommitment. Perona was given notice of the motion, and counsel was appointed before the petition was heard on March 12, 1997. He was also given notice of the instant motion to allow the State to administer psychotropic drugs to him against his will. At the beginning of the hearing, Perona's counsel made the following statement:

"I would like to indicate for the record that I visited with [Perona] yesterday. He indicated that he would not want to attend the hearing. I believe he did that last time also. I spoke to him about the idea of consolidating the two petitions, but we didn't get that far. He said he didn't want to come to court. I ask we proceed just on the one."

The involuntary recommitment hearing proceeded without Perona present. According to Dr. Jayalakshmi Attaluri, a psychiatrist at Zeller, Perona suffers from psychosis, coupled with paranoia and auditory hallucinations. Perona believed people at Zeller were provoking him by coughing or crossing their legs, thereby communicating to him that he had to take off his clothes. After hearing testimony from Attaluri, the trial court entered an involuntary recommitment order.

On March 19, 1997, the State's petition for involuntary medication was heard. Perona was present and, as the hearing began, he started unbuttoning his shirt. Attaluri told him he must not do that, and the judge told him that if he wanted to attend the hearing, he would have to remain clothed. Perona stated "I don't want to attend it" and left the courtroom. The hearing proceeded without Perona present.

According to Attaluri, Perona's illness resulted in a deterioration of his ability to function. She testified Perona refused to talk to her; his delusions continued, as did accompanying auditory hallucinations. Attaluri testified Perona denied he has a psychiatric illness and lacked the ability to make a reasoned decision for himself as to whether it was in his best interest to take medication.

According to the doctor, Perona started demonstrating signs of depression in addition to his psychoses. Attaluri testified an aide at Zeller recently found Perona lying naked in his room, hoping someone would come and "do something and then everything would be back to normal like * * * he was four years ago." Frequently in the past month, Perona has refused to eat. For two weeks prior to the hearing, he had been eating at least a meal a day, but he was still losing a lot of weight. Perona had been on an antidepressant earlier, but Attaluri discontinued it once Perona stopped eating regularly because the drug caused hypotension.

Attaluri testified Perona showed improvement in January, when he was on Olanzapine, a neuroleptic drug that was crushed into his food, but his condition worsened when she started giving him the drug in pills. Attaluri suspected he stopped taking it. Attaluri testified Perona's condition fluctuated, but this was accounted for by his fluctuating compliance with the medication regimen. Attaluri testified Perona had been taking medication for 10 days prior to the hearing. He showed no signs of improvement, but Attaluri testified this was because of the delay before the medication takes effect. The morning of the hearing the prior medication order expired and Perona refused to take his medication.

Attaluri testified the benefits of psychotropic medication would outweigh the side effects. She had attempted to treat Perona using outpatient therapy and both individual and group counseling. However, she found medication was necessary for Perona to improve. Attaluri testified she would be able to monitor for possible harm or side effects at the hospital.

Perona's attorney rested without presenting evidence. The judge stated that the evidence was clear and convincing, there was a need for administration of psychotropic medicine, and the order would not exceed 90 days. Perona appeals both the March 12 and the March 19 orders.

II. ANALYSIS

A. The Recommitment Order

1. Compliance With Section 3-806

On appeal, Perona first argues the trial court failed to comply with section 3-806 because it did not find his attendance would subject him to a substantial risk of serious physical or emotional harm. Section 3-806 provides, in pertinent part:

"(a) The respondent shall be present at any hearing held under this Act unless his attorney waives his right to be present and the court is satisfied by a clear showing that the respondent's attendance would subject him to substantial risk of serious physical or emotional harm.

"(b) * * * If the recipient's attorney advises the court that the recipient refuses to attend, the hearing may proceed in his or her absence.

"(c) No inference may be drawn from the recipient's non-attendance pursuant to either subsection (a) or (b) of this Section." (Emphasis added.) 405 ILCS 5/3-806 (West 1996).

It is undisputed that the trial court did not make a finding of substantial risk of harm, as required by section 3-806(a). However, this finding is not required by the text of section 3-806(b). The comments of Perona's counsel at the March 12 hearing indicate this case falls squarely within this provision. Section 3-806(c) demonstrates these two provisions provide distinct methods for a proceeding to continue in a respondent's absence. Section 3-806(a) demonstrates the legislature knew how to impose a requirement of a finding of substantial harm and chose not to in cases where the respondent refuses to attend. See Village of Southern View v. County of Sangamon, 228 Ill.App.3d 468, 473, 170 Ill.Dec. 203, 206, 592 N.E.2d 639, 642 (1992) (where a particular provision appears in a statute, the failure to include that same requirement in another section of the statute will not be deemed to have been inadvertent).

2. Constitutional Challenge to Section 3-806

Citing this court's recent opinion in In re Branning, 285 Ill.App.3d 405, 220 Ill.Dec. 920, 674 N.E.2d 463 (1996), Perona next argues section 3-806 of the Code violates both his procedural and substantive due process rights by allowing a hearing to continue in his absence without adequate assurances his waiver of the right to be present is voluntary. While procedural due process governs the methods by which a protected interest may be deprived, substantive due process imposes absolute limits on the state's ability to act without regard to any procedural protections in place. Collins v. City of Harker Heights, 503 U.S. 115, 125, 112 S.Ct. 1061, 1068, 117 L.Ed.2d 261, 273 (1992); Dennis E. v. O'Malley, 256 Ill.App.3d 334, 349, 194 Ill.Dec. 865, 876, 628 N.E.2d 362, 373 (1993).

We address only Perona's procedural due process claim. Where a due process claim framed by a party in terms of substantive due process is better resolved under procedural due process standards, it is within the authority of a court of review to restructure its analysis accordingly. See Gasick v. O'Connor, 201 Ill.App.3d 1013, 1017, 147 Ill.Dec. 401, 404, 559 N.E.2d 574, 577 (1990). Branning dealt with the constitutionality of a part of the Code that allowed a caregiver to give consent for a respondent to be subjected to electroconvulsive therapy. While our decision in Branning relied in part on substantive due process, that case implicated the fundamental substantive right to refuse psychotropic treatment. Branning, 285 Ill.App.3d at 411-12, 220 Ill.Dec. at 925, 674 N.E.2d at 468, citing In re C.E., 161 Ill.2d 200, 214, 204 Ill.Dec. 121, 127, 641 N.E.2d 345, 351 (1994). Here, by contrast, Perona seeks additional procedural protections for waiver...