C. J. v. Dept. of Mental Health & Developmental Disabilities
Annotate this Case
FIRST DIVISION
APRIL 6, 1998
No. 1-96-4142
C.J., K.M., and THOMAS JURESIC,
Plaintiffs-Appellants,
v.
THE DEPARTMENT OF MENTAL HEALTH AND
DEVELOPMENTAL DISABILITIES,
Defendant-Appellee. )
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) Appeal from the
Circuit Court of
Cook County
No. 96 CO 80
Honorable
James F. Henry,
Judge Presiding.
JUSTICE O'MARA FROSSARD delivered the opinion of the court:
Plaintiffs C.J., K.M., and Thomas Juresic filed this civil action
seeking injunctive relief against defendant, the Illinois Department of Mental
Health and Developmental Disabilities (Department). Plaintiffs are criminal
acquittees who were confined at the Elgin Mental Health Center (Elgin) after a
finding of not guilty by reason of insanity (NGRI). On March 29, 1996,
plaintiffs filed suit against the Department challenging a policy that they
allege does not allow the facility director of Elgin to exercise her
professional judgment to consider whether any of the plaintiffs should be
recommended for an unsupervised, on-grounds pass.
The complaint asserts that the facility director should be permitted to
exercise professional judgment in making this determination. Plaintiffs ask
the court to require that the Department allow the facility director of Elgin
Mental Health Center to exercise professional judgment when giving individual
consideration in determining whether to recommend NGRI acquittees for
unsupervised on-grounds passes. The complaint is not asking the court to
order the Department to require the facility director of Elgin to recommend
all NGRI acquittees at Elgin for unsupervised on-grounds passes.
Plaintiffs are seeking injunctive relief against the policy of the
Department, alleging that it violates Illinois law and the due process clause
of the fourteenth amendment of the United States Constitution (U.S. Const.
amend. XIV, 1). The question presented is whether plaintiffs have
substantive rights under the Mental Health and Developmental Disabilities Code
of the State of Illinois (hereinafter Mental Health Code)(405 ILCS 5/2-
102)(West 1994)) and under the due process clause of the fourteenth amendment,
which have been allegedly violated by the practices of the Department of
Mental Health and Developmental Disabilities regarding the issuance of
unsupervised on-grounds passes to NGRI acquittees. Plaintiffs also filed a
motion for class certification. In response, the Department filed a motion to
dismiss under section 2-619 of the Code of Civil Procedure. 735 ILCS 5/2-619
(West 1994). The trial court granted the defendant's motion to dismiss on all
counts and denied the plaintiffs' motion for class certification. It is from
this order that the plaintiffs appeal.
On appeal, the plaintiffs assert the following: (1) the circuit court
erred in dismissing each of the plaintiffs' eight counts for failure to state
a cause of action; (2) the Department's policy that does not permit the
facility director of the Elgin Mental Health Center to exercise her
professional judgment on whether to recommend any of the plaintiffs for
unsupervised on-grounds passes violates the Mental Health Code and the
fourteenth amendment; (3) the circuit court erred in dismissing this case for
lack of jurisdiction; and (4) the circuit court abused its discretion in
denying plaintiffs' motion for class certification.
FACTS
Plaintiffs allege that before May 30, 1990, certain NGRI acquittees
received recommendations for unsupervised, on-grounds passes which, if
approved by the court, permitted these acquittees to walk unescorted on most
of the 80-acre Elgin grounds during daylight hours for up to two hours at a
time. In May 1990, two persons acquitted by reason of insanity escaped from
Elgin while using their unsupervised on-grounds pass privileges.
The complaint further alleges that on May 30, 1990, the Department
unilaterally terminated the issuance of these passes for NGRI acquittees and
revoked the passes of those already in possession of the privilege. In the
months following the May 30, 1990, termination of on-grounds passes for all
NGRI acquittees at Elgin, a 12-foot fence was built around the forensic
facilities at Elgin.
Plaintiffs allege the determination to revoke the unsupervised on-
grounds passes was made with respect to all NGRI acquittees at the Elgin
facility and that no individual determinations were made regarding suitability
for such a pass. Though the Department still issues what is called an
"unsupervised, on-grounds pass," plaintiffs claim that on May 30, 1990, the
substance of this privilege was dramatically altered. Rather than permitting
NGRI acquittees with passes to freely travel the grounds of Elgin, plaintiffs
contend that the possession of this pass only allows them to walk through a
200-foot-long screened-in passageway between two residential buildings,
completely monitored by security personnel.
ANALYSIS
The Department's motion to dismiss originally brought pursuant to
section 2-615 of the Code of Civil Procedure was subsequently brought as an
amended motion to dismiss under section 2-619.
In ruling on a section 2-619 motion to dismiss, a court may consider
pleadings, depositions, and affidavits. Ozuk v. River Grove Board of
Education, 281 Ill. App. 3d 239, 666 N.E.2d 687 (1996). We review a trial
court's dismissal of a complaint under section 2-619 de novo. Metrick v.
Chatz, 266 Ill. App. 3d 649, 652, 639 N.E.2d 198 (1994); Golden v. Mullen, No.
1-96-2931 (August 22, 1997). For the purposes of a motion to dismiss, we must
accept as true all well-pleaded facts in the complaint and all inferences that
can reasonably be drawn in plaintiff's favor from those facts; dismissal is
proper only if no facts may be proven by which the plaintiff can recover.
Griffin v. Fluellen, 283 Ill. App. 3d 1078, 1083, 670 N.E.2d 845 (1996).
The question on appeal is whether the existence of a genuine issue of
material fact should have precluded dismissal or, absent such an issue of
fact, whether dismissal was proper as a matter of law. Illinois Graphics Co.
v. Nickum, 159 Ill. 2d 469, 639 N.E.2d 1282 (1994).
We first address plaintiffs' contention that the trial court was
incorrect to dismiss the complaint on the basis that the most appropriate
forum for this case was before the criminal court judges who have ongoing
supervisory responsibility for plaintiffs. The record indicates that despite
the trial judge's statement to this effect, he also stated that his court did
have jurisdiction in the case and that venue was proper. Thus the rationale
for his dismissal on a jurisdictional basis is unclear.
The present cause is a civil action seeking to obtain injunctive relief
for claims arising out of alleged violations of the Mental Health Code and the
United States Constitution. As the circuit court is a court of general
jurisdiction, we find no reason for finding that the case was improperly
before the trial court. Ferndale Heights Utility Co. v. Illinois Commerce
Comm'n, 112 Ill. App. 3d 175, 445 N.E.2d 334 (1982).
We now turn to the substantive basis of the plaintiffs' complaint, and
we will address each count of the complaint individually.
I. COUNT I
In count I of the complaint, plaintiffs allege that the Department's
policy regarding unsupervised on-grounds passes violates the "least
restrictive environment" mandate found in section 2-102(a) of the Mental
Health Code. This statute provides:
"A recipient of services shall be provided with adequate and
humane care and services in the least restrictive environment***."
405 ILCS 5/2-102(a) (West 1994).
All of plaintiffs' statutory claims arise from alleged violations of the
Mental Health Code. However, these claims must be examined in the context of
section 5-2-4 of the Unified Code of Corrections (Code of Corrections), which
provides for the involuntary admission of criminal defendants found to be
NGRI. 730 ILCS 5/5-2-4 (West 1994).
Illinois law provides that the admission, detention, care, treatment or
habilitation, review proceedings and discharge of NGRI defendants shall be
under the Mental Health Code. 405 ILCS 5/1-100 (West 1994); 730 ILCS 5/5-2-
4(b) (West 1994). However, the statutes explicitly provide that in the event
of a conflict between the Code of Corrections and the Mental Health Code, the
provisions of the Code of Corrections shall govern. 730 ILCS 5/5-2-4(k) (West
1994). When unsupervised on-grounds privileges are involved, then only
section 5-2-4(b) of the Code of Corrections applies. People v. Chiakulas, 288
Ill. App. 3d 248, 681 N.E.2d 35 (1997).
Section 5-2-4 of the Code of Corrections is "tailor-made" for NGRI
acquittees because the "presence of danger is recognized, and protection of
the public is a major function of the statutory provision." People v.
Ferguson, 238 Ill. App. 3d 448, 455, 603 N.E.2d 1257, 1261 (1992). "The
primary objective of section 5-2-4 is to insure that insanity acquittees are
not indeterminately institutionalized while at the same time protecting
society from the premature release of mentally ill persons who have been
proved capable of dangerous acts." People v. Winston, 191 Ill. App. 3d 948,
959, 548 N.E.2d 406, 414 (1989).
Turning to the specific allegations in count I, section 5-2-4 of the
Code of Corrections states that NGRI acquittees should be "placed in a secure
setting unless the Court determines that there are compelling reasons why such
placement is not necessary." 730 ILCS 5/5-2-4(a)(West 1994). Though
plaintiffs allege that the policy of denying unsupervised on-grounds
privileges violates the requirement that recipients of services under the
Mental Health Code must be placed in the "least restrictive" setting, we find
that this particular section must be read in conjunction with section 5-2-4.
The "secure setting" provided for in section 5-2-4 of the Code of Corrections
is in effect the least restrictive environment permitted for NGRI acquittees
under the law, in the absence of compelling reasons for other placement.
This issue was addressed in the federal court case Maust v. Headley, 959 F.2d 644 (7th Cir. 1992). Plaintiff Maust, a criminal defendant who had been
found unfit to stand trial, challenged his transfer from one mental health
facility to another. He claimed the transfer violated his right to treatment
in the "least restrictive mental health institution." Maust, 959 F.2d at 646.
The same court, in Johnson v. Brelje, 701 F.2d 1201 (7th Cir. 1983),
previously held that a criminal defendant found unfit to stand trial had a
protectable liberty interest in being confined to the least restrictive mental
health institution. However, the Maust court noted that this decision was
made prior to the adoption of the language in section 5-2-4, that mandates
placement of NGRI acquittees and other such persons in a "secure setting."
Maust, 959 F.2d at 647-48. The court found that this amendatory language
created a conflict between the Mental Health Code and the Code of Corrections
with regard to placement of those found unfit to stand trial, and held the
conflict should be resolved in favor of the Code of Corrections, as required
by statute. Maust, 959 F.2d at 647-48.
The same rationale applies to the NGRI plaintiffs in the present case.
Section 3-814 of the Mental Health Code states:
"If the [recipient of services] has been ordered committed to the
facility after he has been found not guilty by reason of insanity, the
treatment plan and its review shall be subject to the provisions of
Section 5-2-4 of the Unified Code of Corrections." 405 ILCS 5/3-814
(West 1994).
Section 5-2-4 of the Unified Code of Corrections states, in relevant
part:
"The defendant shall be placed in a secure setting unless the Court
determines that there are compelling reasons why such placement is not
necessary. Such defendants placed in a secure setting shall not be
permitted outside the facility's housing unit unless escorted or
accompanied by personnel of the Department of Mental Health and
Developmental Disabilities or with the prior approval of the Court for
unsupervised on-grounds privileges as provided herein." 730 ILCS 5/5-2-
4(a) (West 1994).
A secure setting is mandated by law unless a court determines that there
are compelling reasons as to why a less secure placement is appropriate.
Accordingly, the dismissal of count I by the trial court was proper under
section 2-619 as a matter of law.
II. COUNT II
Count II alleges that the plaintiffs and others similarly situated have
not been considered for such passes based on an "individual services plan."
Specifically, plaintiffs contend that revocation of their passes violates
their state-created liberty interest in receiving adequate and humane care
pursuant to an individual services plan as provided by section 2-102(a) of the
Mental Health Code. This statute provides:
"A recipient of services shall be provided with adequate and
humane care and services *** pursuant to an individual services plan
***." 405 ILCS 5/2-102(a) (West 1994).
We recognize that one of the most important rights that any person
confined to a state mental hospital has is the right to an individual services
plan providing adequate and humane care and services. 405 ILCS 5/2-102(a)
(West 1994). However, NGRI acquittees do not have a statutory right to have
unsupervised on-grounds privileges.
In Illinois, neither statute nor case law recognizes unsupervised on-
grounds pass privileges as a mandatory element of mental health treatment
pursuant to an individualized plan providing humane care and services for NGRI
acquittees. Section 5-2-4(b) of the Code of Corrections provides as follows:
"[T]he defendant shall not be permitted to be in the community in
any manner, including but not limited to off-grounds privileges, ***
unsupervised on-grounds privileges, discharge or conditional or
temporary release, except by a plan as provided in this Section. ***
Such plan may also include unsupervised on-grounds privileges *** but
only where such privileges have been approved by specific court order
***." (Emphasis added.) 730 ILCS 5/5-2-4(b) (West 1994).
When interpreting a statute, the primary objective is to give effect to
the legislature's intent, which is determined primarily from the legislative
language itself. People v. Shelton, 281 Ill. App. 3d 1027, 1033, 667 N.E.2d 562 (1996). If the legislative intent can be ascertained from the statute's
language, it will be given effect without resorting to other aids for
construction. Shelton, 281 Ill. App. 3d at 1033.
An examination of the statute indicates the language regarding the
issuance of the passes in question is permissive, not mandatory. The statute
makes it clear that NGRI acquittees placed in a secure setting may be
considered for certain privileges - but nowhere in the statute does it mandate
the consideration for such a pass. Under the plain language of the statute,
recommendation of the unsupervised on-grounds pass is left to the discretion
of the Department subject to the approval of the court.
As the General Assembly chose not to make pass privileges mandatory, the
passes cannot be a required element of the adequate and humane care which must
be provided pursuant to an individual services plan. Any attempt to expand
this privilege must be made by the legislature, not the courts.
Therefore, plaintiffs' claim that the Department's policy regarding
unsupervised on-grounds passes violates their right to adequate and humane
care and services pursuant to an individual services plan fails as a matter of
law. Plaintiffs have no state-created interest in pass privileges as a
mandatory requirement of adequate and humane care and services and, thus,
cannot pursue a claim for injunctive relief to enforce any such interest.
III. COUNT III
Plaintiffs allege in count III of the complaint that they are being
denied mental health services based on a criminal record unrelated to present
dangerousness, in violation of section 2-100(b) of the Mental Health Code.
405 ILCS 5/2-100(b) (West 1994). Plaintiffs allege the Department's refusal
to allow the Elgin facility director to consider any NGRI acquittee for an on-
grounds pass is based solely on the criminal court convictions of the
acquittees and is unrelated to their present dangerousness.
Because the General Assembly did not make pass privileges mandatory for
NGRI acquittees, it could not have intended to make pass privileges a required
element of their mental health services plans. Thus, count III of plaintiffs'
complaint must also fail as a matter of law.
IV. COUNT IV
Count IV alleges a violation of section 2-202 of the Mental Health Code,
which states the Director of the Department and the director of each facility
shall adopt policies necessary to implement the Mental Health Code, but that
these policies shall not restrict or limit the rights guaranteed by the Code.
405 ILCS 5/2-202 (West 1994).
Count IV, as pled, restates violations of plaintiffs' right to care in
the least restrictive environment under section 2-102(a) (see count II) of
plaintiffs' right to care and services pursuant to an individual service plans
under section 2-102(a) (see count II), and their right not to be denied mental
health and developmental services because of a criminal record unrelated to
present dangerousness under section 2-100(b) (see count III). Based on the
reasons discussed above, we find count IV also fails as a matter of law under
a section 2-619 analysis.
V. COUNT V
Count V states that the Department is violating the due process clause
of the fourteenth amendment of the United States Constitution by failing to
protect the plaintiffs' state-created liberty interests in treatment in the
least restrictive setting, individual assessment of treatment, and not being
denied mental health services on the basis of criminal record unrelated to
present dangerousness.
Count V alleges the Department fails to provide sufficient procedures to
protect the plaintiffs' state-created liberty interests. However, we have
determined that there is no state-created liberty interest in treatment in the
least restrictive environment or pass privileges as a mandatory form of mental
health treatment or services. Therefore, this claim must also fail.
VI. COUNT VI
In count VI, plaintiffs allege the Department failed to provide
constitutionally required conditions of confinement under the due process
clause of the fourteenth amendment. The fourteenth amendment provides that a
state cannot deprive any person of life, liberty or property, without due
process of law. The mere fact that plaintiffs have been involuntarily
committed as NGRI acquittees does not deprive them of substantive liberty
interests under the fourteenth amendment. See Vitek v. Jones, 445 U.S. 480,
491, 63 L. Ed. 2d 552, 564, 100 S. Ct. 1254, 1263 (1979).
In count VI, plaintiffs allege that the due process clause allows
restriction on the freedom of bodily movement of involuntarily committed
mental patients only pursuant to a professional judgment that restrictions are
necessary for security or treatment reasons. Count VI further alleges that
the Department's policy never to allow the Elgin facility director to consider
or recommend any member of the plaintiff class for on-grounds privileges
restricts their freedom of bodily movement.
The Supreme Court has recognized that "[l]iberty from bodily restraint
always has been recognized as the core of the liberty protected by the Due
Process Clause from arbitrary governmental action." Greenholtz v. Inmates of
Nebraska Penal & Correctional Complex, 442 U.S. 1, 18, 60 L. Ed. 2d 668, 682-
83, 99 S. Ct. 2100, 2109 (1979) (Powell, J., concurring in part and dissenting
in part).
In Youngberg v. Romeo, 457 U.S. 307, 73 L. Ed. 2d 28, 102 S. Ct. 2452
(1982), the Court addressed the liberty interests of a developmentally
disabled man, Nicholas Romeo, who was involuntarily committed to a state
institution. In response to injuries that he suffered at the institution,
Romeo's mother filed a civil rights suit against institution officials,
asserting her son had been denied his constitutional rights to safe conditions
of confinement, freedom from bodily restraint and training or "habilitation."
The Court found that the liberty interest in freedom from bodily
restraint survives criminal conviction, incarceration, and involuntary
commitment. Youngberg, 457 U.S. at 319, 73 L. Ed. 2d at 39, 102 S. Ct. at
2460. The Supreme Court held that the interest in freedom of bodily movement
is not absolute, and the state has a legitimate interest in restraining the
movement of individuals placed in its institutions. Youngberg, 457 U.S. at
320, 73 L. Ed. 2d at 40, 102 S. Ct. at 2460. Under Youngberg, an individual's
liberty interest must be weighed against the state's asserted interest for
restraining liberty. Youngberg, 457 U.S. at 321, 73 L. Ed. 2d at 40-41, 102 S. Ct. at 2461. The Supreme Court established that the appropriate standard
to apply in balancing these two interests is whether professional judgment was
exercised prior to the liberty deprivation. Youngberg, 457 U.S. at 324, 73 L. Ed. 2d at 42, 102 S. Ct. at 2462.
In Foucha v. Louisiana, the Supreme Court recognized that freedom from
bodily restraint is a liberty interest that applies to insanity acquittees.
Foucha v. Louisiana, 504 U.S. 71, 80, 118 L. Ed. 2d 437, 448, 112 S. Ct. 1780,
1785 (1992). The Foucha case involved a Louisiana statute that allowed an
insanity acquittee to be confined even after the hospital reported no evidence
of mental illness. The Court found that the statute violated the due process
clause of the fourteenth amendment. The Court stated that "'commitment for
any purpose constitutes a significant deprivation of liberty that requires due
process protection.'" Foucha, 504 U.S. at 80, 118 L. Ed. 2d at 448, 112 S. Ct.
at 1785, quoting Jones v. United States, 463 U.S. 354, 361, 77 L. Ed. 2d 694,
703, 103 S. Ct. 3043, 3048 (1983).
In Johnson v. Brelje, the seventh circuit recognized a substantive
liberty interest in freedom of bodily movement. Johnson, 701 F.2d at 1201. In
Johnson, the plaintiffs were criminal defendants found unfit to stand trial.
The Johnson plaintiffs alleged the Department's practice of confining them
indoors for months at a time violated their constitutional rights, though no
actual physical restraint was alleged. Although the facility had a policy
that allowed outdoor activities five times weekly, the evidence showed the
plaintiffs were rarely, if ever, permitted outdoors. The court noted that
Department officials had not asserted any reason for the failure to permit
outdoor activities pursuant to their policy. The court said:
"The plaintiffs' freedom of movement *** is limited and the defendants
have not justified this restriction in terms of legitimate interests in
treatment and security; therefore, in confining the plaintiffs indoors,
we are not 'certain that professional judgment in fact was exercised.'"
Johnson, 701 F.2d at 1209, quoting Youngberg, 457 U.S. at 321, 73 L. Ed. 2d at 41, 102 S. Ct. at 2461.
The court held plaintiffs were unconstitutionally denied the freedom to
go outdoors, in violation of their right to freedom of bodily movement.
Johnson, 701 F.2d at 1208.
In the present case, the trial court found that under People v. Owens, 269
Ill. App. 3d 152, 645 N.E.2d 483 (1994), plaintiffs had no rights to the
statutory and constitutional liberty interests asserted. Under Owens, an NGRI
acquittee may petition the court to modify the treatment plan to obtain
additional privileges beyond those recommended by the Department, but the NGRI
acquittee is not entitled to a hearing on the petition. Owens, 269 Ill. App.
3d at 159. However, the Owens case addresses a substantially different issue
than that in the present case. The Owens decision defines the NGRI
acquittee's rights when requesting unsupervised on-grounds passes. In the
present case, however, we are called upon to define the nature of the duty the
Department owes to an NGRI acquittee when restraining freedom of movement in
the context of unsupervised on-grounds passes under the due process protection
of the fourteenth amendment.
We believe in the present case, plaintiffs have adequately pled a
constitutionally protected liberty interest in freedom of bodily movement,
challenging the Department's alleged policy preventing the facility director
of Elgin from considering unsupervised on-grounds passes for the plaintiffs.
The Department denies that such a policy or practice exists. The record
contains an affidavit from Thomas Monahan, forensic program director and
assistant facility director of Elgin, which denied the existence of any
Department policy that prohibits him or other Department staff from
considering or recommending an NGRI acquittee for passes or privileges. In
the affidavit, Monahan states the following:
"In my experience as the Forensic Program Director at Elgin, I am
personally aware of criminal court judge's orders approving
recommendations that Elgin be allowed to provide specific privileges,
including passes, as part of the treatment plan for specific
individuals. In such cases, Elgin implements the treatment plan
accordingly. Should the court rule that the treatment plan is to be
less or more restrictive than that proposed by Elgin or the NGRI himself
or herself, Elgin follows the court's order."
This affidavit does not in and of itself require dismissal because a
genuine issue of material fact exists as to what constitutes an unsupervised
on grounds pass. Significantly, Monahan's affidavit does not describe what
unsupervised on-grounds passes are. According to the uncontradicted pleading
of the plaintiffs, unsupervised on-grounds pass privileges for NGRI acquittees
consist solely of permitting the NGRI acquittees to walk down a 200-foot-long
enclosed area with a security team at both ends. Monahan neither confirms not
denies this alleged fact.
This question of fact as to what constitutes an unsupervised on-grounds
pass must be addressed before it can be determined whether the Department has
violated the constitutional prohibition against restrictions on the freedom of
bodily movement of involuntarily committed mental patients.
Plaintiffs allege in their complaint that the Department has established
a policy preventing the Elgin facility director from exercising the discretion
to recommend on-grounds unsupervised passes for NGRI acquittees. "[T]o the
extent that any administrative rule is in conflict with the statutory language
under which the rule is adopted, it too is invalid." Aurora East Public
School District No. 131 v. Cronin, 92 Ill. App. 3d 1010, 1014, 415 N.E.2d 1372
(1981). In Aurora, the court found an administrative rule to be invalid
because the agency had "taken away, for its own use, the discretion granted"
by statute to local officials. Aurora, 92 Ill. App. 3d at 1018. The court
declared the rule invalid and enjoined its enforcement.
Here, as in Aurora, plaintiffs seek an injunction that would effectively
prevent enforcement of an alleged Department policy that restricts the
facility director's exercise of statutorily granted discretion. Plaintiffs
seek an order compelling the director to exercise discretion to recommend on-
grounds passes, where clinically appropriate. The order sought would not
direct the manner in which the director exercised that discretion. However,
the order would mandate action by Elgin's director to allow the exercise of
professional judgment in considering the recommendation of NGRI acquittees at
Elgin for unsupervised on-grounds passes.
Plaintiffs allege that on May 30, 1990, the Department terminated all
on-grounds passes for NGRI acquittees at Elgin, without any individualized
assessments. Agency actions may be considered arbitrary where the agency has
relied on factors the legislature did not intend it to consider, failed to
consider factors important to its decision, or suddenly changed its policy or
practices. Greer v. Illinois Housing Development Authority, 122 Ill. 2d 462,
505-06, 524 N.E.2d 561 (1988). The decision to revoke all passes allegedly
resulted from a policy change in which the Department prohibited the Director
from exercising professional judgment in considering NGRI acquittees for
unsupervised on-grounds passes.
Contrary to the Department's argument, plaintiffs here do not seek
imposition of a rule requiring all NGRI acquittees to be treated alike.
Instead, plaintiffs seek relief from an alleged policy which, contravening our
supreme court's decision in People v. Roush, 101 Ill. 2d 355, 462 N.E.2d 468
(1984), is directed at all NGRI acquittees at Elgin, limiting their freedom of
movement without exercise of professional judgment.
Under the balancing test articulated in Youngberg, it must be determined
whether the Department's replacement of pass privileges with the above
described "pass" constitutes a violation of the constitutionally protected
liberty interest in freedom of bodily movement of NGRI acquittees. These
interests are not absolute. In operating an institution such as Elgin, it is
necessary for the state to restrain the movement of residents to protect them,
as well as others, from violence. The issue is not simply whether a
substantive liberty interest exists and has been limited, but whether the
extent, nature and duration of the limitation is such as to violate due
process.
We find dismissal under a section 2-619 analysis is not warranted as
there is a genuine issue of material fact. Issues raised by this complaint
include but are not limited to the following:
(1) what in fact constitutes an unsupervised on-grounds pass
and whether this pass violates the plaintiffs' liberty interest in
freedom of movement;
(2) whether in fact plaintiffs are confined indoors and whether the
conditions of confinement since May 30, 1990, constitute a "lock down"
at the Elgin Mental Health Center;
(3) whether in fact the Department has adopted policies or practices
that prohibit Elgin staff members from exercising their individualized
professional judgment in considering and recommending an NGRI acquittee
for unsupervised on-grounds passes;
(4) whether in fact professional judgment is being exercised in making
individual recommendations regarding unsupervised on-grounds passes; and
(5) whether defendants have lawful justification consistent with due
process for alleged restrictions on plaintiffs' movement based on
legitimate state interests in treatment and security.
It is for the trial court to apply the Youngberg test and determine
whether professional judgment was exercised prior to the alleged liberty
deprivation when balancing the NGRI acquittees' liberty interest against the
Department's interest in restraining liberty.
VII. COUNT VII
To the extent that count VII alleges violations of section 2-102(a) of
the Mental Health Code, addressing the alleged statutory right to be provided
services in the least restrictive environment and pursuant to an
individualized service plan, count VII fails to state a cause of action for
the reasons discussed above.
The remaining allegations of count VII allege that the due process
clause of the fourteenth amendment prohibits restrictions on freedom of bodily
movement of NGRI acquittees where the state's interests in restricting liberty
do not outweigh the NGRI acquittees' interests in freedom of bodily movement.
Count VII simply restates that the balancing test we recognized under our
discussion of the pleadings in count VI must be used to resolve questions of
whether the Department has violated the constitutional rights of the NGRI
acquittees.
We find that the due process violations alleged in count VII have been
adequately pled in count VI. Accordingly, count VII merges with count VI.
VIII. COUNT VIII
Count VIII alleges that the due process clause of the fourteenth
amendment requires that the nature of the NGRI acquittee's commitment bear a
reasonable relation to the purpose for which the person is committed.
Section 5-2-4 of the Code of Corrections indicates that the purpose of
commitment following an insanity acquittal is "'to treat the individual's
mental illness, and at the same time protect him and society from his
potential dangerousness.'" People v. Pastewski, 164 Ill. 2d 189, 197, 647 N.E.2d 278 (1995), quoting People v. Williams, 140 Ill. App. 3d 216, 228, 488 N.E.2d 649 (1986). This purpose is consistent with the overall purpose of the
Code of Corrections, which is designed to protect society from future criminal
conduct by past offenders (730 ILCS 5/1-1-2(b) (West 1994)), prevent arbitrary
or oppressive deprivations of the liberties of offenders (730 ILCS 5/1-1-2(c)
(West 1994)), and restore offenders to useful citizenship (730 ILCS 5/1-1-
2(d)(West 1994). See Turner v. Campagna, 281 Ill. App. 3d 1090, 1094, 667 N.E.2d 683, 687 (1996), appeal denied, 168 Ill. 2d 627, 671 N.E.2d 744 (1996).
In determining whether a substantive right protected by the due process
clause has been violated, it is necessary to balance "the liberty of the
individual" and "the demands of an organized society." Poe v. Ullman, 367 U.S. 497, 542, 6 L. Ed. 2d 989, 1019, 81 S. Ct. 1752, 1776 (1961) (Harlan, J.,
dissenting). In seeking this balance in other cases, the Court has weighed
the individual's interest in liberty against the state's asserted reasons for
restraining individual liberty.
In Jackson v. Indiana, 406 U.S. 715, 32 L. Ed. 2d 435, 92 S. Ct. 1845
(1972), the Court suggested a constitutional standard for evaluating the
conditions of a civilly committed person's confinement: "At the least, due
process requires that the nature and duration of commitment bear some
reasonable relation to the purpose for which the individual is committed."
Jackson, 406 U.S. at 738, 32 L. Ed. 2d at 451, 92 S. Ct. at 1858.
What constitutes an unsupervised on-grounds pass is an issue of material
fact which must be determined before the conditions of confinement can be
evaluated using the Jackson standard. There are issues of material fact that
must be addressed before the court can assess whether the Department exercised
professional judgment in the alleged curtailment of plaintiffs' liberty
interests. Accordingly, we find that the existence of a genuine issue of
material fact precludes dismissal under section 2-619.
IX. CLASS CERTIFICATION
Our holding that plaintiffs' complaint states a valid cause of action
requires that the question of class certification be determined by the trial
court. See Stinson v. Physicians Immediate Care, Ltd., 269 Ill. App. 3d 659,
646 N.E.2d 930 (1995).
A party may sue as representative of a class only if the court finds:
(1) the class is so numerous that joinder of all members is impracticable; (2)
there are questions of law or fact common to the class, which common questions
predominate over any questions affecting only individual members; (3) the
representative parties will fairly and adequately protect the interest of the
class; and (4) the class action is an appropriate method for the fair and
efficient adjudication of the controversy. 735 ILCS 5/2-801 (West 1994).
Additionally, in the particular context of this case, it need be
determined whether a class action is an appropriate mechanism for resolving
the controversy in light of the ongoing jurisdiction by the judges of the
criminal court who committed the NGRI acquittees to the Department.
If on remand the circuit court determines this case may proceed as a
class and plaintiffs are granted the injunction they seek, the individual
criminal court judge, after reviewing the proposed scope and limits of the
unsupervised on-grounds pass recommended by the Department, will still
ultimately decide whether an NGRI acquittee should get a pass. 730 ILCS 5/5-
2-4(b) (West 1994). A criminal court judge maintains jurisdiction over an
NGRI acquittee that he or she committed to a mental institution. See People
v. Roush, 101 Ill. 2d 355, 363, 462 N.E.2d 468, 472 (1984); 730 ILCS 5/5-2-4
(West 1994). This judge, by maintaining jurisdiction over an NGRI acquittee,
determines what measures are appropriate to reasonably assure satisfactory
progress in treatment and the safety of an NGRI acquittee and the community.
We reject the defendant's argument that the relief the plaintiffs seek
is to allow the plaintiffs to dictate the perimeters of their confinement.
Nothing in this opinion indicates that the courts will be involved in the day-
to-day administration of the Department or that the inmates are to dictate to
the Department how the Elgin facility should be operated. We recognize that
these decisions are appropriately made by the facility administrators.
We are mindful of the concerns the supreme court expressed in Roush
regarding court interference with the administration of a mental institution
under the state's control. In the present case, in contrast to Roush, the
NGRI acquittees at Elgin seek to compel the Department to exercise
professional judgment when giving individual consideration regarding whether
to recommend an NGRI acquittee for unsupervised on-grounds passes. Exercise
of professional judgment is required for recommendations that limit
plaintiffs' liberty interest. Youngberg 457 U.S. at 324, 73 L. Ed. 2d at 42,
102 S. Ct. at 2462. Such recommendations would continue to be reviewed by the
criminal court judges who retain jurisdiction over their NGRI acquittees
committed to the Department. Those judges would continue to approve, deny or
modify the Department's recommendations.
Finally, nothing in this opinion indicates that if this injunction were
granted, all NGRI acquittees would be given unsupervised on-grounds
privileges.
CONCLUSION
For the foregoing reasons, we hold that the trial court erred in
dismissing plaintiffs' complaint as to counts VI and VIII. We agree with the
trial court's dismissal of counts I, II, III, IV, and V. Count VII was
properly dismissed to the extent it alleges violations of the Mental Health
Code. Count VII merges with count VI to the extent it alleges due process
violations previously pled in count VI.
The judgment of the trial court is affirmed in part and reversed in
part, and this cause of action is remanded to the trial court for further
action consistent with this opinion.
Affirmed in part and reversed in part; cause remanded.
MCNULTY, P.J. and RAKOWSKI, J., concur.
APRIL 6, 1998
No. 1-96-4142
C.J., K.M., and THOMAS JURESIC,
Plaintiffs-Appellants,
v.
THE DEPARTMENT OF MENTAL HEALTH AND
DEVELOPMENTAL DISABILITIES,
Defendant-Appellee. )
)
)
)
)
)
)
)
) Appeal from the
Circuit Court of
Cook County
No. 96 CO 80
Honorable
James F. Henry,
Judge Presiding.
JUSTICE O'MARA FROSSARD delivered the opinion of the court:
Plaintiffs C.J., K.M., and Thomas Juresic filed this civil action
seeking injunctive relief against defendant, the Illinois Department of Mental
Health and Developmental Disabilities (Department). Plaintiffs are criminal
acquittees who were confined at the Elgin Mental Health Center (Elgin) after a
finding of not guilty by reason of insanity (NGRI). On March 29, 1996,
plaintiffs filed suit against the Department challenging a policy that they
allege does not allow the facility director of Elgin to exercise her
professional judgment to consider whether any of the plaintiffs should be
recommended for an unsupervised, on-grounds pass.
The complaint asserts that the facility director should be permitted to
exercise professional judgment in making this determination. Plaintiffs ask
the court to require that the Department allow the facility director of Elgin
Mental Health Center to exercise professional judgment when giving individual
consideration in determining whether to recommend NGRI acquittees for
unsupervised on-grounds passes. The complaint is not asking the court to
order the Department to require the facility director of Elgin to recommend
all NGRI acquittees at Elgin for unsupervised on-grounds passes.
Plaintiffs are seeking injunctive relief against the policy of the
Department, alleging that it violates Illinois law and the due process clause
of the fourteenth amendment of the United States Constitution (U.S. Const.
amend. XIV, 1). The question presented is whether plaintiffs have
substantive rights under the Mental Health and Developmental Disabilities Code
of the State of Illinois (hereinafter Mental Health Code)(405 ILCS 5/2-
102)(West 1994)) and under the due process clause of the fourteenth amendment,
which have been allegedly violated by the practices of the Department of
Mental Health and Developmental Disabilities regarding the issuance of
unsupervised on-grounds passes to NGRI acquittees. Plaintiffs also filed a
motion for class certification. In response, the Department filed a motion to
dismiss under section 2-619 of the Code of Civil Procedure. 735 ILCS 5/2-619
(West 1994). The trial court granted the defendant's motion to dismiss on all
counts and denied the plaintiffs' motion for class certification. It is from
this order that the plaintiffs appeal.
On appeal, the plaintiffs assert the following: (1) the circuit court
erred in dismissing each of the plaintiffs' eight counts for failure to state
a cause of action; (2) the Department's policy that does not permit the
facility director of the Elgin Mental Health Center to exercise her
professional judgment on whether to recommend any of the plaintiffs for
unsupervised on-grounds passes violates the Mental Health Code and the
fourteenth amendment; (3) the circuit court erred in dismissing this case for
lack of jurisdiction; and (4) the circuit court abused its discretion in
denying plaintiffs' motion for class certification.
FACTS
Plaintiffs allege that before May 30, 1990, certain NGRI acquittees
received recommendations for unsupervised, on-grounds passes which, if
approved by the court, permitted these acquittees to walk unescorted on most
of the 80-acre Elgin grounds during daylight hours for up to two hours at a
time. In May 1990, two persons acquitted by reason of insanity escaped from
Elgin while using their unsupervised on-grounds pass privileges.
The complaint further alleges that on May 30, 1990, the Department
unilaterally terminated the issuance of these passes for NGRI acquittees and
revoked the passes of those already in possession of the privilege. In the
months following the May 30, 1990, termination of on-grounds passes for all
NGRI acquittees at Elgin, a 12-foot fence was built around the forensic
facilities at Elgin.
Plaintiffs allege the determination to revoke the unsupervised on-
grounds passes was made with respect to all NGRI acquittees at the Elgin
facility and that no individual determinations were made regarding suitability
for such a pass. Though the Department still issues what is called an
"unsupervised, on-grounds pass," plaintiffs claim that on May 30, 1990, the
substance of this privilege was dramatically altered. Rather than permitting
NGRI acquittees with passes to freely travel the grounds of Elgin, plaintiffs
contend that the possession of this pass only allows them to walk through a
200-foot-long screened-in passageway between two residential buildings,
completely monitored by security personnel.
ANALYSIS
The Department's motion to dismiss originally brought pursuant to
section 2-615 of the Code of Civil Procedure was subsequently brought as an
amended motion to dismiss under section 2-619.
In ruling on a section 2-619 motion to dismiss, a court may consider
pleadings, depositions, and affidavits. Ozuk v. River Grove Board of
Education, 281 Ill. App. 3d 239, 666 N.E.2d 687 (1996). We review a trial
court's dismissal of a complaint under section 2-619 de novo. Metrick v.
Chatz, 266 Ill. App. 3d 649, 652, 639 N.E.2d 198 (1994); Golden v. Mullen, No.
1-96-2931 (August 22, 1997). For the purposes of a motion to dismiss, we must
accept as true all well-pleaded facts in the complaint and all inferences that
can reasonably be drawn in plaintiff's favor from those facts; dismissal is
proper only if no facts may be proven by which the plaintiff can recover.
Griffin v. Fluellen, 283 Ill. App. 3d 1078, 1083, 670 N.E.2d 845 (1996).
The question on appeal is whether the existence of a genuine issue of
material fact should have precluded dismissal or, absent such an issue of
fact, whether dismissal was proper as a matter of law. Illinois Graphics Co.
v. Nickum, 159 Ill. 2d 469, 639 N.E.2d 1282 (1994).
We first address plaintiffs' contention that the trial court was
incorrect to dismiss the complaint on the basis that the most appropriate
forum for this case was before the criminal court judges who have ongoing
supervisory responsibility for plaintiffs. The record indicates that despite
the trial judge's statement to this effect, he also stated that his court did
have jurisdiction in the case and that venue was proper. Thus the rationale
for his dismissal on a jurisdictional basis is unclear.
The present cause is a civil action seeking to obtain injunctive relief
for claims arising out of alleged violations of the Mental Health Code and the
United States Constitution. As the circuit court is a court of general
jurisdiction, we find no reason for finding that the case was improperly
before the trial court. Ferndale Heights Utility Co. v. Illinois Commerce
Comm'n, 112 Ill. App. 3d 175, 445 N.E.2d 334 (1982).
We now turn to the substantive basis of the plaintiffs' complaint, and
we will address each count of the complaint individually.
I. COUNT I
In count I of the complaint, plaintiffs allege that the Department's
policy regarding unsupervised on-grounds passes violates the "least
restrictive environment" mandate found in section 2-102(a) of the Mental
Health Code. This statute provides:
"A recipient of services shall be provided with adequate and
humane care and services in the least restrictive environment***."
405 ILCS 5/2-102(a) (West 1994).
All of plaintiffs' statutory claims arise from alleged violations of the
Mental Health Code. However, these claims must be examined in the context of
section 5-2-4 of the Unified Code of Corrections (Code of Corrections), which
provides for the involuntary admission of criminal defendants found to be
NGRI. 730 ILCS 5/5-2-4 (West 1994).
Illinois law provides that the admission, detention, care, treatment or
habilitation, review proceedings and discharge of NGRI defendants shall be
under the Mental Health Code. 405 ILCS 5/1-100 (West 1994); 730 ILCS 5/5-2-
4(b) (West 1994). However, the statutes explicitly provide that in the event
of a conflict between the Code of Corrections and the Mental Health Code, the
provisions of the Code of Corrections shall govern. 730 ILCS 5/5-2-4(k) (West
1994). When unsupervised on-grounds privileges are involved, then only
section 5-2-4(b) of the Code of Corrections applies. People v. Chiakulas, 288
Ill. App. 3d 248, 681 N.E.2d 35 (1997).
Section 5-2-4 of the Code of Corrections is "tailor-made" for NGRI
acquittees because the "presence of danger is recognized, and protection of
the public is a major function of the statutory provision." People v.
Ferguson, 238 Ill. App. 3d 448, 455, 603 N.E.2d 1257, 1261 (1992). "The
primary objective of section 5-2-4 is to insure that insanity acquittees are
not indeterminately institutionalized while at the same time protecting
society from the premature release of mentally ill persons who have been
proved capable of dangerous acts." People v. Winston, 191 Ill. App. 3d 948,
959, 548 N.E.2d 406, 414 (1989).
Turning to the specific allegations in count I, section 5-2-4 of the
Code of Corrections states that NGRI acquittees should be "placed in a secure
setting unless the Court determines that there are compelling reasons why such
placement is not necessary." 730 ILCS 5/5-2-4(a)(West 1994). Though
plaintiffs allege that the policy of denying unsupervised on-grounds
privileges violates the requirement that recipients of services under the
Mental Health Code must be placed in the "least restrictive" setting, we find
that this particular section must be read in conjunction with section 5-2-4.
The "secure setting" provided for in section 5-2-4 of the Code of Corrections
is in effect the least restrictive environment permitted for NGRI acquittees
under the law, in the absence of compelling reasons for other placement.
This issue was addressed in the federal court case Maust v. Headley, 959 F.2d 644 (7th Cir. 1992). Plaintiff Maust, a criminal defendant who had been
found unfit to stand trial, challenged his transfer from one mental health
facility to another. He claimed the transfer violated his right to treatment
in the "least restrictive mental health institution." Maust, 959 F.2d at 646.
The same court, in Johnson v. Brelje, 701 F.2d 1201 (7th Cir. 1983),
previously held that a criminal defendant found unfit to stand trial had a
protectable liberty interest in being confined to the least restrictive mental
health institution. However, the Maust court noted that this decision was
made prior to the adoption of the language in section 5-2-4, that mandates
placement of NGRI acquittees and other such persons in a "secure setting."
Maust, 959 F.2d at 647-48. The court found that this amendatory language
created a conflict between the Mental Health Code and the Code of Corrections
with regard to placement of those found unfit to stand trial, and held the
conflict should be resolved in favor of the Code of Corrections, as required
by statute. Maust, 959 F.2d at 647-48.
The same rationale applies to the NGRI plaintiffs in the present case.
Section 3-814 of the Mental Health Code states:
"If the [recipient of services] has been ordered committed to the
facility after he has been found not guilty by reason of insanity, the
treatment plan and its review shall be subject to the provisions of
Section 5-2-4 of the Unified Code of Corrections." 405 ILCS 5/3-814
(West 1994).
Section 5-2-4 of the Unified Code of Corrections states, in relevant
part:
"The defendant shall be placed in a secure setting unless the Court
determines that there are compelling reasons why such placement is not
necessary. Such defendants placed in a secure setting shall not be
permitted outside the facility's housing unit unless escorted or
accompanied by personnel of the Department of Mental Health and
Developmental Disabilities or with the prior approval of the Court for
unsupervised on-grounds privileges as provided herein." 730 ILCS 5/5-2-
4(a) (West 1994).
A secure setting is mandated by law unless a court determines that there
are compelling reasons as to why a less secure placement is appropriate.
Accordingly, the dismissal of count I by the trial court was proper under
section 2-619 as a matter of law.
II. COUNT II
Count II alleges that the plaintiffs and others similarly situated have
not been considered for such passes based on an "individual services plan."
Specifically, plaintiffs contend that revocation of their passes violates
their state-created liberty interest in receiving adequate and humane care
pursuant to an individual services plan as provided by section 2-102(a) of the
Mental Health Code. This statute provides:
"A recipient of services shall be provided with adequate and
humane care and services *** pursuant to an individual services plan
***." 405 ILCS 5/2-102(a) (West 1994).
We recognize that one of the most important rights that any person
confined to a state mental hospital has is the right to an individual services
plan providing adequate and humane care and services. 405 ILCS 5/2-102(a)
(West 1994). However, NGRI acquittees do not have a statutory right to have
unsupervised on-grounds privileges.
In Illinois, neither statute nor case law recognizes unsupervised on-
grounds pass privileges as a mandatory element of mental health treatment
pursuant to an individualized plan providing humane care and services for NGRI
acquittees. Section 5-2-4(b) of the Code of Corrections provides as follows:
"[T]he defendant shall not be permitted to be in the community in
any manner, including but not limited to off-grounds privileges, ***
unsupervised on-grounds privileges, discharge or conditional or
temporary release, except by a plan as provided in this Section. ***
Such plan may also include unsupervised on-grounds privileges *** but
only where such privileges have been approved by specific court order
***." (Emphasis added.) 730 ILCS 5/5-2-4(b) (West 1994).
When interpreting a statute, the primary objective is to give effect to
the legislature's intent, which is determined primarily from the legislative
language itself. People v. Shelton, 281 Ill. App. 3d 1027, 1033, 667 N.E.2d 562 (1996). If the legislative intent can be ascertained from the statute's
language, it will be given effect without resorting to other aids for
construction. Shelton, 281 Ill. App. 3d at 1033.
An examination of the statute indicates the language regarding the
issuance of the passes in question is permissive, not mandatory. The statute
makes it clear that NGRI acquittees placed in a secure setting may be
considered for certain privileges - but nowhere in the statute does it mandate
the consideration for such a pass. Under the plain language of the statute,
recommendation of the unsupervised on-grounds pass is left to the discretion
of the Department subject to the approval of the court.
As the General Assembly chose not to make pass privileges mandatory, the
passes cannot be a required element of the adequate and humane care which must
be provided pursuant to an individual services plan. Any attempt to expand
this privilege must be made by the legislature, not the courts.
Therefore, plaintiffs' claim that the Department's policy regarding
unsupervised on-grounds passes violates their right to adequate and humane
care and services pursuant to an individual services plan fails as a matter of
law. Plaintiffs have no state-created interest in pass privileges as a
mandatory requirement of adequate and humane care and services and, thus,
cannot pursue a claim for injunctive relief to enforce any such interest.
III. COUNT III
Plaintiffs allege in count III of the complaint that they are being
denied mental health services based on a criminal record unrelated to present
dangerousness, in violation of section 2-100(b) of the Mental Health Code.
405 ILCS 5/2-100(b) (West 1994). Plaintiffs allege the Department's refusal
to allow the Elgin facility director to consider any NGRI acquittee for an on-
grounds pass is based solely on the criminal court convictions of the
acquittees and is unrelated to their present dangerousness.
Because the General Assembly did not make pass privileges mandatory for
NGRI acquittees, it could not have intended to make pass privileges a required
element of their mental health services plans. Thus, count III of plaintiffs'
complaint must also fail as a matter of law.
IV. COUNT IV
Count IV alleges a violation of section 2-202 of the Mental Health Code,
which states the Director of the Department and the director of each facility
shall adopt policies necessary to implement the Mental Health Code, but that
these policies shall not restrict or limit the rights guaranteed by the Code.
405 ILCS 5/2-202 (West 1994).
Count IV, as pled, restates violations of plaintiffs' right to care in
the least restrictive environment under section 2-102(a) (see count II) of
plaintiffs' right to care and services pursuant to an individual service plans
under section 2-102(a) (see count II), and their right not to be denied mental
health and developmental services because of a criminal record unrelated to
present dangerousness under section 2-100(b) (see count III). Based on the
reasons discussed above, we find count IV also fails as a matter of law under
a section 2-619 analysis.
V. COUNT V
Count V states that the Department is violating the due process clause
of the fourteenth amendment of the United States Constitution by failing to
protect the plaintiffs' state-created liberty interests in treatment in the
least restrictive setting, individual assessment of treatment, and not being
denied mental health services on the basis of criminal record unrelated to
present dangerousness.
Count V alleges the Department fails to provide sufficient procedures to
protect the plaintiffs' state-created liberty interests. However, we have
determined that there is no state-created liberty interest in treatment in the
least restrictive environment or pass privileges as a mandatory form of mental
health treatment or services. Therefore, this claim must also fail.
VI. COUNT VI
In count VI, plaintiffs allege the Department failed to provide
constitutionally required conditions of confinement under the due process
clause of the fourteenth amendment. The fourteenth amendment provides that a
state cannot deprive any person of life, liberty or property, without due
process of law. The mere fact that plaintiffs have been involuntarily
committed as NGRI acquittees does not deprive them of substantive liberty
interests under the fourteenth amendment. See Vitek v. Jones, 445 U.S. 480,
491, 63 L. Ed. 2d 552, 564, 100 S. Ct. 1254, 1263 (1979).
In count VI, plaintiffs allege that the due process clause allows
restriction on the freedom of bodily movement of involuntarily committed
mental patients only pursuant to a professional judgment that restrictions are
necessary for security or treatment reasons. Count VI further alleges that
the Department's policy never to allow the Elgin facility director to consider
or recommend any member of the plaintiff class for on-grounds privileges
restricts their freedom of bodily movement.
The Supreme Court has recognized that "[l]iberty from bodily restraint
always has been recognized as the core of the liberty protected by the Due
Process Clause from arbitrary governmental action." Greenholtz v. Inmates of
Nebraska Penal & Correctional Complex, 442 U.S. 1, 18, 60 L. Ed. 2d 668, 682-
83, 99 S. Ct. 2100, 2109 (1979) (Powell, J., concurring in part and dissenting
in part).
In Youngberg v. Romeo, 457 U.S. 307, 73 L. Ed. 2d 28, 102 S. Ct. 2452
(1982), the Court addressed the liberty interests of a developmentally
disabled man, Nicholas Romeo, who was involuntarily committed to a state
institution. In response to injuries that he suffered at the institution,
Romeo's mother filed a civil rights suit against institution officials,
asserting her son had been denied his constitutional rights to safe conditions
of confinement, freedom from bodily restraint and training or "habilitation."
The Court found that the liberty interest in freedom from bodily
restraint survives criminal conviction, incarceration, and involuntary
commitment. Youngberg, 457 U.S. at 319, 73 L. Ed. 2d at 39, 102 S. Ct. at
2460. The Supreme Court held that the interest in freedom of bodily movement
is not absolute, and the state has a legitimate interest in restraining the
movement of individuals placed in its institutions. Youngberg, 457 U.S. at
320, 73 L. Ed. 2d at 40, 102 S. Ct. at 2460. Under Youngberg, an individual's
liberty interest must be weighed against the state's asserted interest for
restraining liberty. Youngberg, 457 U.S. at 321, 73 L. Ed. 2d at 40-41, 102 S. Ct. at 2461. The Supreme Court established that the appropriate standard
to apply in balancing these two interests is whether professional judgment was
exercised prior to the liberty deprivation. Youngberg, 457 U.S. at 324, 73 L. Ed. 2d at 42, 102 S. Ct. at 2462.
In Foucha v. Louisiana, the Supreme Court recognized that freedom from
bodily restraint is a liberty interest that applies to insanity acquittees.
Foucha v. Louisiana, 504 U.S. 71, 80, 118 L. Ed. 2d 437, 448, 112 S. Ct. 1780,
1785 (1992). The Foucha case involved a Louisiana statute that allowed an
insanity acquittee to be confined even after the hospital reported no evidence
of mental illness. The Court found that the statute violated the due process
clause of the fourteenth amendment. The Court stated that "'commitment for
any purpose constitutes a significant deprivation of liberty that requires due
process protection.'" Foucha, 504 U.S. at 80, 118 L. Ed. 2d at 448, 112 S. Ct.
at 1785, quoting Jones v. United States, 463 U.S. 354, 361, 77 L. Ed. 2d 694,
703, 103 S. Ct. 3043, 3048 (1983).
In Johnson v. Brelje, the seventh circuit recognized a substantive
liberty interest in freedom of bodily movement. Johnson, 701 F.2d at 1201. In
Johnson, the plaintiffs were criminal defendants found unfit to stand trial.
The Johnson plaintiffs alleged the Department's practice of confining them
indoors for months at a time violated their constitutional rights, though no
actual physical restraint was alleged. Although the facility had a policy
that allowed outdoor activities five times weekly, the evidence showed the
plaintiffs were rarely, if ever, permitted outdoors. The court noted that
Department officials had not asserted any reason for the failure to permit
outdoor activities pursuant to their policy. The court said:
"The plaintiffs' freedom of movement *** is limited and the defendants
have not justified this restriction in terms of legitimate interests in
treatment and security; therefore, in confining the plaintiffs indoors,
we are not 'certain that professional judgment in fact was exercised.'"
Johnson, 701 F.2d at 1209, quoting Youngberg, 457 U.S. at 321, 73 L. Ed. 2d at 41, 102 S. Ct. at 2461.
The court held plaintiffs were unconstitutionally denied the freedom to
go outdoors, in violation of their right to freedom of bodily movement.
Johnson, 701 F.2d at 1208.
In the present case, the trial court found that under People v. Owens, 269
Ill. App. 3d 152, 645 N.E.2d 483 (1994), plaintiffs had no rights to the
statutory and constitutional liberty interests asserted. Under Owens, an NGRI
acquittee may petition the court to modify the treatment plan to obtain
additional privileges beyond those recommended by the Department, but the NGRI
acquittee is not entitled to a hearing on the petition. Owens, 269 Ill. App.
3d at 159. However, the Owens case addresses a substantially different issue
than that in the present case. The Owens decision defines the NGRI
acquittee's rights when requesting unsupervised on-grounds passes. In the
present case, however, we are called upon to define the nature of the duty the
Department owes to an NGRI acquittee when restraining freedom of movement in
the context of unsupervised on-grounds passes under the due process protection
of the fourteenth amendment.
We believe in the present case, plaintiffs have adequately pled a
constitutionally protected liberty interest in freedom of bodily movement,
challenging the Department's alleged policy preventing the facility director
of Elgin from considering unsupervised on-grounds passes for the plaintiffs.
The Department denies that such a policy or practice exists. The record
contains an affidavit from Thomas Monahan, forensic program director and
assistant facility director of Elgin, which denied the existence of any
Department policy that prohibits him or other Department staff from
considering or recommending an NGRI acquittee for passes or privileges. In
the affidavit, Monahan states the following:
"In my experience as the Forensic Program Director at Elgin, I am
personally aware of criminal court judge's orders approving
recommendations that Elgin be allowed to provide specific privileges,
including passes, as part of the treatment plan for specific
individuals. In such cases, Elgin implements the treatment plan
accordingly. Should the court rule that the treatment plan is to be
less or more restrictive than that proposed by Elgin or the NGRI himself
or herself, Elgin follows the court's order."
This affidavit does not in and of itself require dismissal because a
genuine issue of material fact exists as to what constitutes an unsupervised
on grounds pass. Significantly, Monahan's affidavit does not describe what
unsupervised on-grounds passes are. According to the uncontradicted pleading
of the plaintiffs, unsupervised on-grounds pass privileges for NGRI acquittees
consist solely of permitting the NGRI acquittees to walk down a 200-foot-long
enclosed area with a security team at both ends. Monahan neither confirms not
denies this alleged fact.
This question of fact as to what constitutes an unsupervised on-grounds
pass must be addressed before it can be determined whether the Department has
violated the constitutional prohibition against restrictions on the freedom of
bodily movement of involuntarily committed mental patients.
Plaintiffs allege in their complaint that the Department has established
a policy preventing the Elgin facility director from exercising the discretion
to recommend on-grounds unsupervised passes for NGRI acquittees. "[T]o the
extent that any administrative rule is in conflict with the statutory language
under which the rule is adopted, it too is invalid." Aurora East Public
School District No. 131 v. Cronin, 92 Ill. App. 3d 1010, 1014, 415 N.E.2d 1372
(1981). In Aurora, the court found an administrative rule to be invalid
because the agency had "taken away, for its own use, the discretion granted"
by statute to local officials. Aurora, 92 Ill. App. 3d at 1018. The court
declared the rule invalid and enjoined its enforcement.
Here, as in Aurora, plaintiffs seek an injunction that would effectively
prevent enforcement of an alleged Department policy that restricts the
facility director's exercise of statutorily granted discretion. Plaintiffs
seek an order compelling the director to exercise discretion to recommend on-
grounds passes, where clinically appropriate. The order sought would not
direct the manner in which the director exercised that discretion. However,
the order would mandate action by Elgin's director to allow the exercise of
professional judgment in considering the recommendation of NGRI acquittees at
Elgin for unsupervised on-grounds passes.
Plaintiffs allege that on May 30, 1990, the Department terminated all
on-grounds passes for NGRI acquittees at Elgin, without any individualized
assessments. Agency actions may be considered arbitrary where the agency has
relied on factors the legislature did not intend it to consider, failed to
consider factors important to its decision, or suddenly changed its policy or
practices. Greer v. Illinois Housing Development Authority, 122 Ill. 2d 462,
505-06, 524 N.E.2d 561 (1988). The decision to revoke all passes allegedly
resulted from a policy change in which the Department prohibited the Director
from exercising professional judgment in considering NGRI acquittees for
unsupervised on-grounds passes.
Contrary to the Department's argument, plaintiffs here do not seek
imposition of a rule requiring all NGRI acquittees to be treated alike.
Instead, plaintiffs seek relief from an alleged policy which, contravening our
supreme court's decision in People v. Roush, 101 Ill. 2d 355, 462 N.E.2d 468
(1984), is directed at all NGRI acquittees at Elgin, limiting their freedom of
movement without exercise of professional judgment.
Under the balancing test articulated in Youngberg, it must be determined
whether the Department's replacement of pass privileges with the above
described "pass" constitutes a violation of the constitutionally protected
liberty interest in freedom of bodily movement of NGRI acquittees. These
interests are not absolute. In operating an institution such as Elgin, it is
necessary for the state to restrain the movement of residents to protect them,
as well as others, from violence. The issue is not simply whether a
substantive liberty interest exists and has been limited, but whether the
extent, nature and duration of the limitation is such as to violate due
process.
We find dismissal under a section 2-619 analysis is not warranted as
there is a genuine issue of material fact. Issues raised by this complaint
include but are not limited to the following:
(1) what in fact constitutes an unsupervised on-grounds pass
and whether this pass violates the plaintiffs' liberty interest in
freedom of movement;
(2) whether in fact plaintiffs are confined indoors and whether the
conditions of confinement since May 30, 1990, constitute a "lock down"
at the Elgin Mental Health Center;
(3) whether in fact the Department has adopted policies or practices
that prohibit Elgin staff members from exercising their individualized
professional judgment in considering and recommending an NGRI acquittee
for unsupervised on-grounds passes;
(4) whether in fact professional judgment is being exercised in making
individual recommendations regarding unsupervised on-grounds passes; and
(5) whether defendants have lawful justification consistent with due
process for alleged restrictions on plaintiffs' movement based on
legitimate state interests in treatment and security.
It is for the trial court to apply the Youngberg test and determine
whether professional judgment was exercised prior to the alleged liberty
deprivation when balancing the NGRI acquittees' liberty interest against the
Department's interest in restraining liberty.
VII. COUNT VII
To the extent that count VII alleges violations of section 2-102(a) of
the Mental Health Code, addressing the alleged statutory right to be provided
services in the least restrictive environment and pursuant to an
individualized service plan, count VII fails to state a cause of action for
the reasons discussed above.
The remaining allegations of count VII allege that the due process
clause of the fourteenth amendment prohibits restrictions on freedom of bodily
movement of NGRI acquittees where the state's interests in restricting liberty
do not outweigh the NGRI acquittees' interests in freedom of bodily movement.
Count VII simply restates that the balancing test we recognized under our
discussion of the pleadings in count VI must be used to resolve questions of
whether the Department has violated the constitutional rights of the NGRI
acquittees.
We find that the due process violations alleged in count VII have been
adequately pled in count VI. Accordingly, count VII merges with count VI.
VIII. COUNT VIII
Count VIII alleges that the due process clause of the fourteenth
amendment requires that the nature of the NGRI acquittee's commitment bear a
reasonable relation to the purpose for which the person is committed.
Section 5-2-4 of the Code of Corrections indicates that the purpose of
commitment following an insanity acquittal is "'to treat the individual's
mental illness, and at the same time protect him and society from his
potential dangerousness.'" People v. Pastewski, 164 Ill. 2d 189, 197, 647 N.E.2d 278 (1995), quoting People v. Williams, 140 Ill. App. 3d 216, 228, 488 N.E.2d 649 (1986). This purpose is consistent with the overall purpose of the
Code of Corrections, which is designed to protect society from future criminal
conduct by past offenders (730 ILCS 5/1-1-2(b) (West 1994)), prevent arbitrary
or oppressive deprivations of the liberties of offenders (730 ILCS 5/1-1-2(c)
(West 1994)), and restore offenders to useful citizenship (730 ILCS 5/1-1-
2(d)(West 1994). See Turner v. Campagna, 281 Ill. App. 3d 1090, 1094, 667 N.E.2d 683, 687 (1996), appeal denied, 168 Ill. 2d 627, 671 N.E.2d 744 (1996).
In determining whether a substantive right protected by the due process
clause has been violated, it is necessary to balance "the liberty of the
individual" and "the demands of an organized society." Poe v. Ullman, 367 U.S. 497, 542, 6 L. Ed. 2d 989, 1019, 81 S. Ct. 1752, 1776 (1961) (Harlan, J.,
dissenting). In seeking this balance in other cases, the Court has weighed
the individual's interest in liberty against the state's asserted reasons for
restraining individual liberty.
In Jackson v. Indiana, 406 U.S. 715, 32 L. Ed. 2d 435, 92 S. Ct. 1845
(1972), the Court suggested a constitutional standard for evaluating the
conditions of a civilly committed person's confinement: "At the least, due
process requires that the nature and duration of commitment bear some
reasonable relation to the purpose for which the individual is committed."
Jackson, 406 U.S. at 738, 32 L. Ed. 2d at 451, 92 S. Ct. at 1858.
What constitutes an unsupervised on-grounds pass is an issue of material
fact which must be determined before the conditions of confinement can be
evaluated using the Jackson standard. There are issues of material fact that
must be addressed before the court can assess whether the Department exercised
professional judgment in the alleged curtailment of plaintiffs' liberty
interests. Accordingly, we find that the existence of a genuine issue of
material fact precludes dismissal under section 2-619.
IX. CLASS CERTIFICATION
Our holding that plaintiffs' complaint states a valid cause of action
requires that the question of class certification be determined by the trial
court. See Stinson v. Physicians Immediate Care, Ltd., 269 Ill. App. 3d 659,
646 N.E.2d 930 (1995).
A party may sue as representative of a class only if the court finds:
(1) the class is so numerous that joinder of all members is impracticable; (2)
there are questions of law or fact common to the class, which common questions
predominate over any questions affecting only individual members; (3) the
representative parties will fairly and adequately protect the interest of the
class; and (4) the class action is an appropriate method for the fair and
efficient adjudication of the controversy. 735 ILCS 5/2-801 (West 1994).
Additionally, in the particular context of this case, it need be
determined whether a class action is an appropriate mechanism for resolving
the controversy in light of the ongoing jurisdiction by the judges of the
criminal court who committed the NGRI acquittees to the Department.
If on remand the circuit court determines this case may proceed as a
class and plaintiffs are granted the injunction they seek, the individual
criminal court judge, after reviewing the proposed scope and limits of the
unsupervised on-grounds pass recommended by the Department, will still
ultimately decide whether an NGRI acquittee should get a pass. 730 ILCS 5/5-
2-4(b) (West 1994). A criminal court judge maintains jurisdiction over an
NGRI acquittee that he or she committed to a mental institution. See People
v. Roush, 101 Ill. 2d 355, 363, 462 N.E.2d 468, 472 (1984); 730 ILCS 5/5-2-4
(West 1994). This judge, by maintaining jurisdiction over an NGRI acquittee,
determines what measures are appropriate to reasonably assure satisfactory
progress in treatment and the safety of an NGRI acquittee and the community.
We reject the defendant's argument that the relief the plaintiffs seek
is to allow the plaintiffs to dictate the perimeters of their confinement.
Nothing in this opinion indicates that the courts will be involved in the day-
to-day administration of the Department or that the inmates are to dictate to
the Department how the Elgin facility should be operated. We recognize that
these decisions are appropriately made by the facility administrators.
We are mindful of the concerns the supreme court expressed in Roush
regarding court interference with the administration of a mental institution
under the state's control. In the present case, in contrast to Roush, the
NGRI acquittees at Elgin seek to compel the Department to exercise
professional judgment when giving individual consideration regarding whether
to recommend an NGRI acquittee for unsupervised on-grounds passes. Exercise
of professional judgment is required for recommendations that limit
plaintiffs' liberty interest. Youngberg 457 U.S. at 324, 73 L. Ed. 2d at 42,
102 S. Ct. at 2462. Such recommendations would continue to be reviewed by the
criminal court judges who retain jurisdiction over their NGRI acquittees
committed to the Department. Those judges would continue to approve, deny or
modify the Department's recommendations.
Finally, nothing in this opinion indicates that if this injunction were
granted, all NGRI acquittees would be given unsupervised on-grounds
privileges.
CONCLUSION
For the foregoing reasons, we hold that the trial court erred in
dismissing plaintiffs' complaint as to counts VI and VIII. We agree with the
trial court's dismissal of counts I, II, III, IV, and V. Count VII was
properly dismissed to the extent it alleges violations of the Mental Health
Code. Count VII merges with count VI to the extent it alleges due process
violations previously pled in count VI.
The judgment of the trial court is affirmed in part and reversed in
part, and this cause of action is remanded to the trial court for further
action consistent with this opinion.
Affirmed in part and reversed in part; cause remanded.
MCNULTY, P.J. and RAKOWSKI, J., concur.
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