In re M.A.

THIRD DIVISION
NOVEMBER 12, 1997

No. 1-96-3216)
1-96-3217) consolidated

IN RE THE MATTER OF M.A., ) Appeal from the
(alleged to be a person subject to ) Circuit Court of
involuntary psychotropic medication) ) Cook County
)
Respondent-Appellant )
) Honorable
THE PEOPLE OF THE STATE OF ILLINOIS, ) Michael Murphy,
) Judge Presiding.
Petitioner-Appellee, )
)
v. )
)
M.A., )
)
Respondent-Appellant. )

JUSTICE LEAVITT delivered the opinion of the court:

After a bench trial on August 20, 1996, M.A. was ordered to
be involuntarily hospitalized for no more than six months with
the Department of Mental Health pursuant to Illinois' Mental
Health and Developmental Disabilities Code (the Code). 405 ILCS
5/1-110 (West 1996). After another bench trial on August 22,
1996, M.A. was ordered to involuntarily receive psychotropic
medication for a period not to exceed 90 days. 405 ILCS 5/2-
107.1 (West 1996). M.A. argues we should reverse the commitment
order because (1) the State did not prove by clear and convincing
evidence she was reasonably expected to inflict serious physical
harm upon herself or another, and (2) hospitalization was not the
least restrictive alternative for treatment. M.A. asserts that
we should reverse the order for involuntary medication because
she was denied her right to a jury trial. Although the issues
raised are technically moot, as both orders have expired, they
are capable of repetition and yet they evade review. We
therefore address them. Madison Park Bank v. Zagel, 91 Ill. 2d 231, 235, 437 N.E.2d 638 (1982), citing August H. Skoglund Co. v.
Department of Transportation, 67 Ill. App. 3d 276, 280, 384 N.E.2d 849 (1978). We affirm the commitment order and reverse
the order for involuntary administration of psychotropic
medication.
At the trial where the State sought M.A.'s confinement,
M.A.'s brother, Dean, and Dr. Kristin Welch testified. Dean said
he received a call from M.A.'s landlord on August 10, 1996. He
told Dean that M.A. was "disrupting the building." Dean drove to
his sister's residence and found her in the hall ironing clothes
and blocking the hallway. Dean said M.A.'s small, one-room
apartment was "a disaster." He also said that he had previously
seen his sister's apartment in good condition.
Dr. Welch said she examined M.A. on August 15, 1996, and had
contact with her during some of M.A.'s 15 previous hospital
stays. She opined that M.A. suffered from bipolar disorder,
manic with psychotic features, and borderline personality. Dr.
Welch testified that M.A. had a manic, elevated, irritable mood.
She said M.A. could go from being "pleasant on the unit to very
hostile, angry and at times threatening on the unit."
According to Dr. Welch, M.A. made threatening comments to
staff members. Specifically, Dr. Welch said M.A. threatened one
of the unit nurses, saying the nurse needed to "watch herself
[from] now on whenever she walked out of the hospital to the
parking lot." Furthermore, Dr. Welch said she personally
observed a physical struggle between sheriffs and M.A. in which a
sheriff was poked with a needle tucked in M.A.'s waistband.
Finally, Dr. Welch testified that any alternative treatment
less restrictive than hospitalization was "absolutely not"
appropriate in this case. She opined that M.A. would have great
difficulty taking care of herself outside a structured setting.

Code section 1-119 defines a person subject to involuntary
hospital admission as:
"(1) A person with mental illness and who because
of his or her illness is reasonably expected to inflict
serious physical harm upon himself or herself or
another in the near future; or
(2) A person with mental illness and who because
of his or her illness is unable to provide for his or
her basic physical needs so as to guard himself or
herself from serious harm." 405 ILCS 5/1-119 (West
1996).
When seeking to have an individual involuntarily hospitalized,
the State must show the need for such confinement by clear and
convincing evidence. In re Manis, 213 Ill. App. 3d 1075, 1077,
572 N.E.2d 1213 (1994). Mere proof of mental illness is not
alone sufficient to establish a person needs treatment. Manis,
213 Ill. App. 3d at 1077. However, the State is not required to
prove respondent is a definite danger to himself or society.
Manis, 213 Ill. App. 3d at 1077. Thus, courts do not have to
wait until someone is harmed before ordering hospitalization.
Manis, 213 Ill. App. 3d at 1077. We will not disturb a trial
court's conclusion as to whether a respondent should be
involuntarily hospitalized unless it is against the manifest
weight of the evidence. Manis, 213 Ill. App. 3d at 1078.
Dr. Welch was the only expert who testified and one of only
two witnesses called. Because of Dr. Welch's testimony regarding
M.A.'s mental illness and concomitant instability which she said
caused M.A. to threaten others and be a potential danger to
herself and society, we cannot say the court's order requiring
M.A.'s hospitalization was against the manifest weight of the
evidence.
As to M.A.'s claim that hospitalization was not the least
restrictive treatment option, the only evidence involving
possible alternative treatments came from Dr. Welch who said no
alternative to hospitalization was viable in this case. Based on
that, we also cannot say that the court's determination that
hospitalization was the least restrictive alternative for M.A.
was against the manifest weight of the evidence. For these
reasons, we affirm the court's August 20, 1996 order.
M.A. further claims she was wrongly denied her right to a
jury trial at the August 22, 1996 proceeding which resulted in an
order for involuntary administration of psychotropic drugs. We
review this legal issue under the de novo standard. People v.
Ravellette, 263 Ill. App. 3d 906, 911, 636 N.E.2d 105 (1994).
At that proceeding, before any witness was called, the
assistant public defender stipulated to Dr. Welch's expert
qualifications. M.A., who had legal training, interrupted to say
Dr. Welch was not her attending psychiatrist and that she would
not "stipulate to her being an expert." Nevertheless, the court,
having heard from her in the previous proceeding, accepted Dr.
Welch as an expert.
As the public defender continued to advise the court of
additional stipulations, M.A. interrupted repeatedly and
inappropriately and was generally disruptive. The judge finally
told M.A. she could say only the word "objection," and that if he
did not understand an objection, he would ask her to elaborate.
Shortly thereafter, the public defender stated, "[w]e'll waive
trial by jury." Immediately afterward, M.A. said, "objection."
Ignoring the objection, the judge said, "[o]kay. We'll proceed.
Thank you." M.A. received a bench trial.
The Code's chapter 3, in article 8, sets forth the
procedures that apply in section 2-107.1 hearings like the one
here. 405 ILCS 5/2-107.1(C) (West 1996). Section 3-802 states a
respondent in civil commitment proceedings "is entitled to a
jury." 405 ILCS 5/2-802 (West 1996). This is unlike Illinois'
Code of Civil Procedure which requires a plaintiff to file a
written jury demand. 735 ILCS 5/2-1105 (West 1996).
Although judicial proceedings held pursuant to the Code are
generally conducted in accordance with Illinois' Code of Civil
Procedure, the Code takes precedence when the two are
inconsistent. In re Dryjanski, 282 Ill. App. 3d 161, 164, 668 N.E.2d 616 (1996). Insofar as the Code of Civil Procedure
requires plaintiffs to file a written jury demand before trial,
it is inconsistent with the Code, and, in this case, the Code
controls. Dryjanski, 282 Ill. App. 3d at 164.
Statutes which govern one's right to a jury trial, including
the Code's section 3-802, should be liberally construed in favor
of granting the right, both as to form and timeliness. In re
Williams, 151 Ill. App. 3d 911, 919, 503 N.E.2d 816 (1987). We
have previously interpreted section 3-802 of the Code to mean no
written jury demand is required in civil commitment proceedings.
Dryjanski, 282 Ill. App. 3d at 164. We have further held that an
oral jury demand is appropriate and timely if made at the
beginning of the proceeding. Dryjanski, 282 Ill. App. 3d at 165.
In Dryjanski, the State sought the respondent's involuntary
hospitalization. When the respondent's case was called, her
attorney identified himself for the record as did the State's
attorney. The respondent's attorney next asked for a one-week
continuance. The court denied the motion. Immediately
thereafter, respondent's counsel requested a jury trial. In
denying the jury request, the judge said, "[y]our request for a
jury trial was not made on a timely basis; we have already
commenced the hearing." Dryjanski, 282 Ill. App. 3d at 163. We
reversed, holding the hearing had not commenced where "neither
party had made an opening argument, and the first witness had not
been called or duly sworn." Dryjanski, 282 Ill. App. 3d at 164.
We find Dryjanski apposite to the case sub judice. Like the
respondent there, M.A. manifested a desire for a jury trial. She
did so in a timely fashion, before any witness was called and
before opening argument commenced. The State argues that because
M.A. was disruptive, commenting on or objecting to virtually
everything that was said, the judge properly recognized loquacity
as a symptom of M.A.'s mania and ignored her objection as one
made by a mentally disturbed individual. At oral argument, the
State suggested that M.A.'s was not a "serious" objection, and it
was therefore permissible for the court to disregard it. We
disagree.
First, there is no presumption in such a proceeding that a
respondent is unfit or unable to comprehend the proceeding and
articulate herself. If the judge here believed M.A. had
difficulty understanding what was happening or was unfit to
participate, it would have been appropriate for him to appoint a
guardian ad litem, not ignore her objection. Here, no one ever
suggested a guardian ad litem be appointed. Hence, we are left
to assume that no one felt M.A. was unfit to meaningfully
participate in the proceeding.
Alternatively, the judge could have avoided the error that
occurred here by simply asking M.A., a former licensed attorney,
some questions instead of dismissing her objection. For example,
did she know what a jury was? Did she understand she had a right
to a jury? Did she mean by her objection that she desired a jury
of her peers to decide whether she should be forced to ingest
unwanted psychotropic medication?
We consider the entitlement to a jury trial granted in
section 3-802 of the Code too important to be summarily
disregarded as it was here. 405 ILCS 5/3-802 (West 1996).
Although M.A. did not explicitly request a jury, when her
attorney purported to announce her intent to waive a jury, she
objected. At this point, the public defender was no longer
announcing M.A.'s decision to waive a jury, and that decision was
manifestly hers to make. This cannot be considered an effective
waiver. See People v. Anderson, 266 Ill. App. 3d 947, 956, 641 N.E.2d 591 (1994) (holding waiver is operative only when effected
by the respondent herself). Because M.A. was entitled to a jury
trial but was denied one without ever having waived that right,
we reverse the August 22, 1996 order for involuntary
administration of psychotropic drugs.
AFFIRMED IN PART.
REVERSED IN PART.
Cousins, P.J., and Cahill, J. concur.