Opinion filed January 18, 2022 ____________________________________________________________________________

IN THE

APPELLATE COURT OF ILLINOIS

THIRD DISTRICT

2021

In re MARCUS S., ) Appeal from the Circuit Court a Person Found Subject to Involuntary ) of the 10th Judicial Circuit, Commitment and Involuntary Medication ) Peoria County, Illinois. ) ) ) Appeal No. 3-16-0710 ) Circuit No. 16-MH-245 ) (The People of the State of Illinois, ) ) The Honorable Petitioner-Appellee, ) Suzanne Patton ) Judge, Presiding. v. ) ) Marcus S., ) ) Respondent-Appellant). ) ____________________________________________________________________________

JUSTICE HOLDRIDGE delivered the judgment of the court, with opinion. Justice Lytton concurred in the judgment and opinion. Justice Schmidt dissented, with opinion. ____________________________________________________________________________

OPINION

¶1 The trial court ordered the respondent-appellant, Marcus S., subject to involuntary

commitment at an inpatient mental health treatment facility and subject to involuntary treatment

through the administration of psychotropic medications. Marcus appeals those judgments,

arguing that the State failed to present evidence as to certain essential elements of the involuntary commitment and involuntary medication statutes in the Mental Health and

Developmental Disabilities Code (Code) (405 ILCS 5/1-100 et seq. (West 2016)) and otherwise

failed to satisfy various mandatory requirements of those statutes.

¶2 FACTS

¶3 At the time of the events at issue, Marcus S. was 23 years old. He lived in Canton,

Illinois, in a house his parents bought for him. He has a history of mental illness and has been

treated with various psychotropic medications on and off since he was 18 years old. In mid-

October, 2016, Marcus burned his hand while attempting to burn large quantities of trash in his

backyard, far away from his house. He put out the fire himself and went to the emergency room

where he received treatment for his hand.

¶4 One week later, Marcus’s father brought him to Unity Point Methodist Hospital in Peoria

(Unity Point) for follow-up burn care and possible mental health care. Marcus was admitted to

the hospital as a psychiatric patient. Although Marcus tried to sign in on a voluntary basis, Unity

Point staff filed a petition for involuntary commitment under the Code on October 25, 2016. The

petition did not include the names of any of Marcus’s relatives or information as to why they

could not be contacted, as required by section 3-601(b)(2) of the Code (id. § 3-601(b)(2)). The

State did not amend the petition to add the names of Marcus’s relatives, and Marcus’s counsel

did not object to this defect.

¶5 On October 27, 2016, Marcus’s treating psychiatrist at Unity Point, Dr. Andrew Lancia,

filed a petition for involuntary medication requesting the administration of 27 medications. Dr.

Lancia filed a preprinted form listing the statutory criteria for involuntary treatment under the

Code and directing the preparer to identify reasons why the statutory criteria had been met.

However, Dr. Lancia did not list any facts supporting any of the statutory criteria. Marcus’s

2 counsel never moved to dismiss the petition for failing to state a cause of action or otherwise

objected to the petition’s inadequacy.

¶6 The commitment and medication hearings were both held on November 1, 2016. Marcus

testified that he had tried to sign himself into Unity Point as a voluntary patient but was not

permitted to do so. Marcus’s counsel did not ask for a recess to address Marcus’s attempt to

become a voluntary admittee.

¶7 Dr. Lancia testified that Marcus’s father reported increasingly dangerous behavior by

Marcus, such as placing microwave popcorn in the oven and running a vacuum cleaner in

standing water. The State did not call Marcus’s father as a witness. Dr. Lancia also testified that

Marcus’s home was “a shambles,” that Marcus had not been cleaning up after his cats, and that

Marcus had a prior history of mental illness, including a prior suicide attempt. Dr. Lancia

diagnosed Marcus as having bipolar disorder with schizotypical personality disorder.

¶8 Dr. Lancia further testified that Marcus had been taking Zyprexa at the hospital

voluntarily as prescribed for the a few days. However, Dr. Lancia feared that Marcus might stop

taking the Zyprexa when he left the hospital. He therefore opined that Marcus needed an

injection of long-acting medication. Dr. Lancia opined that Risperdal’s long-acting injection was

a more practical alternative than Zyprexa’s long-acting injection because Zyprexa required the

patient to sit for a long period of time while the injection is administered and would therefore

require a willing patient.

¶9 Dr. Lancia did not file a predisposition report containing a social history and a detailed

treatment plan including treatment goals and an estimated timetable for their attainment, as

required by the Code. Rather, he merely filed a cursory, one-page treatment plan that listed

problems and goals but no specific treatment methods or timetable. Marcus’s counsel did not

3 object to the incomplete treatment plan or to the absence of a predisposition report. Dr. Lancia

testified in conclusory fashion that he did not believe that Marcus could be released to a less

restrictive facility than Unity Point.

¶ 10 The trial court ordered Marcus subject to involuntary commitment at Unity Point for 90

days. It found Unity Point to be the least restrictive treatment alternative. The court concluded

that, because of his mental illness, Marcus was reasonably expected to engage in conduct placing

himself or others in danger of physical harm. It further found that Marcus was unable to

understand the need for treatment because, although he had been taking Zyprexa, he had refused

Risperdal and was therefore likely to deteriorate if not treated as an inpatient.

¶ 11 The involuntary medication hearing took place immediately after the commitment

hearing. During the medication hearing, Dr. Lancia testified that Marcus was voluntarily taking

Zyprexa and “seem[ed] to show some improvement.” However, Dr. Lancia stated that Risperdal

or Haldol would be better options because they allow for a long-lasting injectable form to be

given once every two to four weeks. Dr. Lancia asked the court to approve 27 medications in all.

Although he testified that, to his knowledge, Marcus had not suffered any side effects from any

of the 27 medications at issue, he acknowledged that Marcus had “potential allergies” to two of

the requested medications, Risperdal and Haldol.

¶ 12 Marcus testified that, when he had taken Risperdal and Haldol in the past, he could not

breathe and was not able to move his jaw, arms, or legs. He described these reactions as

“horrible” and very painful. Marcus stated that, for that reason, he refused to take Haldol or

Risperdal because the Zyprexa was “working just fine” and he did not have any adverse

reactions to Zyprexa. He did not want Haldol or Risperdal forced on him. Marcus’s mother

testified that, when Marcus was hospitalized at another facility several years ago, the hospital

4 staff told her that he had experienced tremors, involuntary twitches, and jaw locking, which was

alleviated by another “side effect” medication. However, Marcus testified that “it didn’t help, it

still hurt.”

¶ 13 Thereafter, Dr. Lancia was recalled to testify. Given Marcus’s mother’s testimony, Dr.

Lancia stated that he would “prefer to stay away” from Risperdal and that Risperdal would be

“really down the line” of medications he wished to administer to Marcus. He acknowledged that

Marcus might also have “minor problems” with Haldol. Dr. Lancia stated that he was now

considering different options than he was before, like “sticking with the atypicals,” i.e., second

generation drugs with fewer side effects, such as Abilify and Invega, both of which have long-

lasting injectables.

¶ 14 Although a 105-page packet of medication handouts was filed in the record, information

about one of the 27 requested medications (Abilify Aristrada) was not included in the packet.

Moreover, no witness testified that the packet was ever provided to Marcus. Marcus’s counsel

did not object to the incomplete packet or to the lack of proof that Marcus was provided with the

packet.

¶ 15 The trial court found Marcus subject to all 27 of the requested medications for up to 90

days. This appeal followed.

¶ 16 ANALYSIS

¶ 17 1. The State’s Failure to Comply With the Involuntary Admission Statute

¶ 18 Marcus argues that the State failed to satisfy certain mandatory requirements of the

involuntary admission statutes in the Code. We agree.

¶ 19 Section 3-601(b)(2) of the Code requires the State to include the names and contact

information of the admittee’s family members in in its petition for involuntary admission, or, if

5 no such names are included, to identify the steps taken to make a diligent inquiry to identify and

locate any such family members. 405 ILCS 5/3-601(b)(2) (West 2016). In this case, the State did

neither. Failure to provide this information rendered the State’s petition fatally defective. In re

Lance H.,

(2010).

¶ 20 Further, the State failed to file a predisposition report as required by section 3-810 of the

Code (405 ILCS 5/3-810 (West 2016)). The predisposition report must include (1) information

on the appropriateness and availability of alternative treatment settings; (2) a social investigation

of the respondent; and (3) a detailed preliminary treatment plan that addresses the respondent’s

problems and needs, treatment goals, proposed treatment methods, and a projected timetable for

the attainment of the treatment goals.

The State filed no predisposition report in this case.

Instead, it filed a cursory, one-page care plan that did not include all of the required elements of a

preliminary treatment plan under section 3-810, much less all of the required elements of a

predisposition report under that section. The one-page care plan listed problems and goals but

did not contain any proposed treatment methods or a projected timetable for the proposed

treatment. Nor did it include a social investigation of Marcus or a written report on alternative

treatment settings. There was no testimony presented on these matters proving this information.

Dr. Lancia was asked whether he believed that Marcus could be released into any less restrictive

facility than Unity Point, and he answered “no.” Such conclusory, cursory testimony does not

suffice. In re Daryll C.,

(2010). Dr. Lancia was not asked to opine regarding

the other information required by section 3-810, and he offered no such opinion.

¶ 21 These procedural and evidentiary failures require reversal of the State’s petition for

involuntary admission. Because we reverse the trial court’s involuntary commitment order, we

must also reverse the involuntary medication order, which was contingent upon Marcus

6 receiving inpatient care pursuant to the commitment order. In re John N.,

(2006). The State concedes this point.

¶ 22 Accordingly, we could resolve the appeal on this ground alone. However, the State’s

involuntary medication petition was also patently inadequate and riddled with reversible errors,

and Marcus’s trial counsel did nothing to address many of them. Because these types of flagrant

failures, utter disregard of the Code’s requirements, and dereliction of duty both by trial courts

and counsel for both parties recur with disturbing regularity, we choose to address the

involuntary medication order as well.

¶ 23 2. The State’s Failure to Comply With the Involuntary Treatment Statute

¶ 24 The trial court erred in ordering the involuntary administration of 27 drugs because the

State failed to comply with several mandatory requirements of the Code’s involuntary treatment

statute (405 ILCS 5/2-107 (West 2016)). Specifically, the State failed to establish that (1) Marcus

lacked the capacity to make a reasoned decision about the proposed treatment; (2) other, less

restrictive alternatives to involuntary medication had been explored and found inappropriate; and

(3) the benefits of each requested medication outweighed its potential harm.

¶ 25 The administration of involuntary mental health services entails a “ ‘massive curtailment

of liberty.’ ” In re Barbara H.,

(1998) (quoting Vitek v. Jones,

(1980)); see also In re Torry G.,

(“Autonomous

decisionmaking in matters affecting the body and mind is one of the most valued liberties in a

civilized society.” (Internal quotation marks omitted.)). When the State seeks to forcibly

administer psychotropic medication to an individual, the interference with the individual’s liberty

is “ ‘particularly severe.’ ” In re Robert S.,

(2004) (quoting Riggins v. Nevada,

(1992)). Under the due process clause of the fourteenth amendment to the

7 United States Constitution (U.S. Const., amend. XIV), a mentally ill person has a liberty interest

to refuse medical treatment, including the administration of psychotropic medications. In re C.E.,

(1994). However, this liberty interest is balanced against the State’s

legitimate parens patriae interest in furthering the treatment of a mentally ill person who lacks

the capacity to make a reasoned decision concerning his or her need for such medication.

¶ 26 In 1991, the legislature enacted the involuntary-treatment statute of the Code (Ill. Rev.

Stat. 1991, ch. 91½, ¶ 2-107 (now codified at 405 ILCS 5/2-107.1)) as a mechanism for

determining when psychotropic medication may be administered over an individual’s objections.

Section 2-107.1(a-5)(4) provides that psychotropic medication shall not be involuntarily

administered to a patient unless all of the following factors are present:

“(A) That the recipient has a serious mental illness or developmental

disability.

(B) That because of said mental illness or developmental disability, the

recipient currently exhibits any one of the following: (i) deterioration of his or her

ability to function, as compared to the recipient’s ability to function prior to the

current onset of symptoms of the mental illness or disability for which treatment

is presently sought, (ii) suffering, or (iii) threatening behavior.

(C) That the illness or disability has existed for a period marked by the

continuing presence of the symptoms set forth in item (B) of this subdivision

(4) or the repeated episodic occurrence of these symptoms.

(D) That the benefits of the treatment outweigh the harm.

(E) That the recipient lacks the capacity to make a reasoned decision about

the treatment.

8 (F) That other less restrictive services have been explored and found

inappropriate.

(G) If the petition seeks authorization for testing and other procedures, that

such testing and procedures are essential for the safe and effective administration

of the treatment.” 405 ILCS 5/2-107.1(a-5)(4) (West 2016).

Section 2-107.1 serves as the legal standard for balancing an individual’s liberty interests and the

State’s interest in treating persons with mental illnesses. The Illinois Supreme Court upheld the

constitutionality of section 2-107.1, in part, because the statute is “narrowly-tailored” to balance

individual liberty against the State’s interest and because the statute’s “strict standards” “must be

satisfied by clear and convincing evidence before medication can be ordered” on an involuntary

basis. C.E.,

.

¶ 27 Whether there was compliance with a statutory provision presents a question of law,

which we review de novo. In re Nicholas L.,

(2011). However, a

reviewing court will not reverse a trial court’s determination as to the sufficiency of the evidence

unless it is against the manifest weight of the evidence. In re Laura H.,

(2010). A judgment is against the manifest weight of the evidence only where the opposite

conclusion is apparent or where the findings appear to be unreasonable, arbitrary, or not based on

the evidence.

¶ 28 Here, the State did not satisfy several of section 2-107.1’s mandatory requirements for

the involuntary administration of psychotropic medication. First, the State failed to demonstrate

that Marcus lacked the capacity to make a reasoned decision about his treatment. The State

cannot demonstrate such incapacity without showing, inter alia, that Marcus had received

written notice of the risks and benefits of, and alternatives to, each of the proposed medications,

9 as required by section 2-102(a-5) of the Code (405 ILCS 5/2-102(a-5) (West 2016)). “ ‘If such

[written] notice is not given, then the State cannot establish that a respondent lacks the capacity

to make a “reasoned decision” about treatment, because the written notice forms the basis upon

which such a decision can be made.’ ” In re Wilma T.,

(quoting

In re Katarzyna G.,

); see also Tiffany W.,

; In re Linda K.,

(2011), overruled on other grounds,

In re Rita P.,

. Although a 105-page packet of medication handouts

was filed in the record (the first page of which is signed by someone who claimed to have given

the materials to Marcus), no one testified at trial that this packet was provided to Marcus.

Moreover, even if Marcus had received the packet, it would not have satisfied the Code’s written

notice requirement because it contained no information whatsoever about one of the medications

requested by the State and no information about possible treatment alternatives to the 27

proposed medications. To comply with section 2-107.1’s requirements, the State had to provide

evidence of the benefits and harms of each of the proposed drugs (In re Alaka W.,

(2008)) and had to show that the benefits of each drug outweighed its harms (In re

C.S.,

(2008)). If only one medication on a proposed medication

package does not satisfy this requirement, then the entire medication package must fail. C.S.,

; In re Mary Ann P.,

(2002). The legislature did not

intend the courts to authorize less than what the treating doctor prescribed or to otherwise engage

in selective authorization of psychotropic medication. Mary Ann P.,

.

10 Accordingly, as a matter of law, the State failed to demonstrate that Marcus lacked the capacity

to make a reasoned decision about his own medical treatment. 1

¶ 29 For this reason alone, the trial court committed reversible error by approving the State’s

involuntary medication petition. Wilma T.,

; Tiffany W.,

. The Code’s written notice requirement demands strict compliance. It

may not be waived (Tiffany W.,

) or satisfied by anything less

than complete written notice of all the information listed in the statute, including alternatives to

medication (Wilma T.,

; Linda K.,

).

¶ 30 Further, there was evidence that Marcus had the capacity to make a reasoned decision

about his treatment. During the trial, Marcus testified cogently and showed an awareness of the

side effects of Haldol and Risperdal, and he testified about the particular side effects he had

experienced when he took those drugs in the past, which was corroborated by his mother’s

testimony. Marcus rationally explained his reasons for declining the medications Dr. Lancia had

offered. In addition, Marcus was voluntarily taking Zyprexa while under Dr. Lancia’s care at the

hospital, which suggests that Dr. Lancia was treating him as a person with the capacity to

consent to mental health treatments. In re Hatsuye T.,

(1997) (noting

that it is “most significant to the question of capacity” when medical professionals treat their

mentally ill patient as if she had the capacity to make her own treatment decisions). A person

does not lack the capacity to make decisions about his own treatment merely because he has a

mental illness (In re Alaka W.,

; In re Phyllis P.,

(1998)) or because he disagrees with his doctor’s proposed treatment (In re Nicholas L.,

When asked at trial whether he believed that Marcus had the capacity to make a reasoned decision on whether to take the psychotropic medications, Dr. Lancia answered, “No.” This one-word, unsupported, conclusory opinion is insufficient as a matter of law to establish a lack of capacity. In re Larry B.,

(2009). 11 App. 3d at 1076). Marcus’s testimony and the other evidence presented at trial suggested that

Marcus had the capacity to make a reasoned decision about his treatment. See In re Israel,

(1996); Hatsuye T.,

. Dr. Lancia’s testimony to the

contrary was conclusory and insufficient to prove incapacity. Larry B.,

.

¶ 31 Moreover, the State failed to prove by clear and convincing evidence that the benefits of

Dr. Lancia’s proposed drug treatments outweighed the harm of those treatments, as required by

section 2-107.1(a-5)(4)(D) of the Code (405 ILCS 5/2-107.1(a-5)(4)(D) (West 2016)). Although

Dr. Lancia mentioned the benefits or harms of some of the drugs he proposed, he did not do so

for all of them. In addition, the State failed to prove that the benefits of two of the drugs, Haldol

and Risperdal, outweighed the serious harms that they could cause Marcus, especially given his

history of suffering severe side effects while taking those drugs. As noted above, the State was

required to provide evidence of the benefits and harms of each of the 27 proposed drugs and

show that the benefits of each drug outweighed its harms. Alaka W.,

; C.S.,

.

¶ 32 Because these errors and omissions require reversal of the State’s involuntary treatment

petition, we need not address the State’s alleged failure to satisfy other required elements of the

involuntary medication statutes. However, we note, once again, that we find it alarming that

these types of fundamental and obvious errors occur. The Code provides that the state’s attorney

“shall ensure that petitions, reports and orders [filed pursuant to the Code] are properly

prepared.” 405 ILCS 5/3-101 (West 2016). The state’s attorney utterly failed to fulfill this

obligation in this case. Accordingly, the involuntary commitment and medication orders must be

reversed.

¶ 33 3. Ineffective Assistance of Counsel

12 ¶ 34 Marcus further argues that his trial counsel provided ineffective assistance during the

involuntary admission and involuntary medication proceedings. We agree. Respondents facing

involuntary commitment or involuntary admission of psychotropic medication have a statutory

right to counsel under the Code. 405 ILCS 5/3-805 (West 2016); Barbara H.,

-

94. This right to counsel includes the right to effective assistance of counsel; anything less would

render the statutory guarantee of counsel a mere “hollow gesture serving only superficially to

satisfy due process requirements.” (Internal quotation marks omitted.) In re Tara S.,

, ¶ 17. In determining whether counsel has effectively tested the State’s case in

proceedings under the Code, our appellate court applies the Strickland standard. See Strickland v.

Washington,

(1984). To establish ineffective assistance under this standard, a

respondent must show that his counsel’s performance was deficient (i.e., that he committed

errors so serious that he was not functioning as counsel as contemplated by the Code) and

(2) counsel’s errors were so prejudicial as to deprive the respondent of a fair hearing. In re Tara

S.,

. Of “paramount importance” in involuntary health proceedings

is whether respondent’s counsel held the State to its burden of proof and to its procedural

requirements. In re Sharon H.,

.

¶ 35 Marcus contends that his counsel provided ineffective assistance in this case by

(1) failing to protect Marcus’s right to request voluntary admission, (2) failing to protect

Marcus’s right to the least restrictive form of treatment with psychotropic medication, and

(3) failing to hold the state to various procedural and substantive requirements of the Code.

Because Marcus’s third argument is dispositive of this issue, we will address that argument only.

¶ 36 In this case, the State failed to comply with several mandatory requirements of the Code

without meeting any challenge or objection from Marcus’s counsel. As noted above, section 3-

13 601(b)(2) of the Code required the State either to include the names and contact information of

Marcus’s family members in the involuntary admission petition or, if no such names are

provided in the petition, to identify the steps taken to make a diligent inquiry to identify and

locate any such family members. 405 ILCS 5/3-601(b)(2) (West 2016). The State did neither.

Failure to provide this information rendered the State’s petition fatally defective. Lance H.,

. Nevertheless, Marcus neither objected to the deficiencies in the State’s

petition nor moved to dismiss the petition. This failure was so prejudicial to Marcus that it

deprived him of a fair trial. Marcus’s counsel’s failure to notify the trial court that the State’s

petition was defective amounted to ineffective assistance. See In re Jessica H.,

.

¶ 37 Moreover, the State’s involuntary treatment petition merely incorporated the statutory

standards for granting such a petition, i.e., it baldly stated the legal conclusions justifying an

order of involuntary medication but did not include any facts supporting those conclusions or

explain Dr. Lancia’s reasons for finding the statutory criteria satisfied. Illinois is a fact-pleading

jurisdiction. Schloss v. Jumper,

, ¶ 20. In order to state a claim for

involuntary medication, the State had to allege facts in support of its claim, not merely legal

conclusions. Marshall v. Burger King Corp.,

(2006); Kucinsky v. Pfister,

. A complaint that alleges mere conclusions fails to state a claim

and is insufficient to withstand a motion to dismiss. Kucinsky,

.

Because the State’s petition was conclusory and contained no supporting facts, it was facially

deficient. Jessica H.,

. Nevertheless, Marcus’s counsel did

not move to dismiss the petition. This error also constituted ineffective assistance. Jessica H.,

(counsel’s failure to notify the trial court that the State’s

14 commitment petition was untimely or to move to dismiss the petition constituted ineffective

assistance).

¶ 38 Further, as noted, the State failed to file a predisposition report as required by section 3-

810 of the Code (405 ILCS 5/3-810 (West 2016)). Instead, it filed a cursory, one-page care plan

that did not include all of the required elements of a preliminary treatment plan under section 3-

810, much less all of the required elements of a predisposition report. Nor did the State present

any testimony on these matters that could have sufficed in lieu of a predisposition report. The

conclusory, cursory testimony presented by the State does not satisfy section 3-810’s mandatory

requirements. See, e.g., Daryll C.,

. A respondent’s counsel provides

ineffective assistance when he does not object to the State’s failure to file a proper predisposition

report, particularly where, as here, the State did not present testimony as to each of the required

elements of a predisposition report.

; Alaka W.,

; In re Daniel

M.,

(2008). The State’s failure to provide a proper predisposition report

or equivalent testimony severely prejudiced Marcus, and Marcus’s counsel’s failure to object to

this error constituted ineffective assistance.

¶ 39 Finally, as noted above, the State did not prove that Marcus was provided with all of the

statutorily required written information on the side effects, risks, benefits, and alternatives to

each of the 27 medications requested by the State. Marcus’s counsel’s failure to object to the

State’s lack of evidence on this dispositive issue was also ineffective assistance. Marcus had a

due process right not to be medicated on an involuntary basis unless the State proved that he

lacked the capacity to make a reasoned decision about his own medical treatment. The State

could not prove that Marcus lacked that capacity without first demonstrating that he had received

all of the information required by the Code as to each proposed medication. 405 ILCS 5/2-102(a-

15 5) (West 2016)). By failing to object to the State’s failure of proof on this issue, Marcus’s

counsel failed to protect Marcus’s fundamental due process right, thereby depriving him of a fair

trial.

¶ 40 4. Forfeiture

¶ 41 The State argues that any objections to the errors it allegedly committed in this case were

forfeited because Marcus’s counsel did not object to any of the errors before the trial court and

he does not argue that they are reviewable under the plain error doctrine. These arguments fail.

Forfeiture is a limitation on the parties, not the reviewing court. In re Amanda H.,

. Finding forfeiture would be inappropriate in this case given the State’s

complete failure to observe the Code’s mandatory provisions that safeguard the respondent’s

liberty and due process rights. If a respondent fails to object to violations of the Code committed

by the State, he may not appeal the State’s lack of “strict compliance” with the Code; however,

he retains the right to appeal the State’s total noncompliance with those requirements.

Cases

finding forfeiture of procedural errors in involuntary commitment or medication proceedings

under the Code usually involve errors that were harmless under the circumstances presented.

See, e.g., In re Nau,

(1992) (counsel’s failure to object to allegedly improper

notice of involuntary commitment hearing forfeited the issue where the respondent actually

appeared at the hearing with his counsel, thereby negating any claim of prejudice). However, the

errors committed in this case cannot be said to be harmless, and our appellate court has held that

some of the errors alleged in this case cannot be forfeited. See, e.g., In re Robin C.,

(2009) (holding that the State’s total failure to meet section 3-810 requirements

regarding a predisposition report is an error that is “neither harmless nor forfeited”); Tiffany W.,

(holding that the State’s failure to prove that the respondent

16 received complete written information as to all the risks and benefits of each requested

medication and alternatives thereto could not be forfeited).

¶ 42 5. Mootness

¶ 43 The State also argues that we should dismiss this appeal as moot. The involuntary

commitment and medication orders at issue in this appeal expired by their own terms 90 days

after they were entered. Thus, both orders are now moot.

¶ 44 Generally, courts of review do not decide moot questions, render advisory opinions, or

consider issues where the result will not be affected by the court’s decision. In re Alfred H.H.,

(2009). However, there are three established exceptions to the mootness

doctrine: (1) the “public interest” exception, applicable where the case presents a question of

public importance that will likely recur and whose answer will guide public officers in the

performance of their duties; (2) the “capable of repetition” exception, applicable to cases

involving events of short duration that are capable of repetition, yet evading review; and (3) the

“collateral consequences exception,” applicable where the involuntary treatment order could

return to plague the respondent in some future proceedings or could affect other aspects of the

respondent’s life.

. Whether a particular appeal falls within one of these exceptions

to the mootness doctrine must be determined on a case-by-case basis, considering each exception

in light of the relevant facts and legal claims raised in the appeal.

; Daryll C.,

.

¶ 45 We find that the “capable of repetition” exception applies in this case. That exception has

two elements. First, the challenged action “must be of a duration too short to be fully litigated

prior to its cessation.” Alfred H.H., 233 Ill. 2d. at 358. Second, “there must be a reasonable

expectation that ‘the same complaining party would be subjected to the same action again.’ ”

17 (quoting Barbara H.,

). In the present case, there is no question that the first

element has been met. As noted, the challenged orders were limited to 90 days, and the parties

agree that the orders could not have been fully litigated prior to their cessation.

¶ 46 Thus, the only question is whether there is a reasonable expectation that Marcus will

personally be subject to the same action again. That occurs when the resolution of the issue

raised in the present case would be likely to affect a future case involving Marcus or to “have

some bearing on a similar issue presented in a subsequent case” involving Marcus. Id. at 359,

360; see also Wilma T.,

.

¶ 47 This evidence in this case satisfies that standard. Because of Marcus’s history of mental

illness and involuntary hospitalizations, it is reasonably likely that he will face additional

involuntary admission and medication orders in the future. Indeed, he faced such additional

orders in La Salle County only 32 days after the orders at issue in this case were entered. Those

La Salle County circuit court orders are the subject of In re Marcus. S.,

. In that case, the trial court repeated many of the same errors at issue in the instant case. 2

That makes the argument for review under the “capable of repetition” exception particularly

strong in this case. Wilma T.,

(taking judicial notice of prior

involuntary commitment case wherein the same error was committed and ruling that “[t]he fact

that the same problem has affected respondent twice shows that this issue could affect her again

2 We may take judicial notice of the record in another case involving the same party or of public documents contained in the record of any other judicial proceeding if doing so would aid us in deciding the instant case. Wilma T.,

(taking judicial notice of prior involuntary commitment case involving the same respondent and the same error); see also Metropolitan Life Insurance Co. v. American National Bank & Trust Co.,

(1997); People v. Davis,

(1976). We may do so sua sponte, i.e., even if the parties did not seek judicial notice in the trial court. In re N.G.,

; State Farm Fire & Casualty Co. v. Watts Regulator Co.,

.

18 in future proceedings”); see generally In re Eric H.,

(2010) (applying

“public interest” mootness exception in consolidated mental health appeals and finding that the

fact that the trial court repeated the same course in successive petitions suggested “the likelihood

of a recurrence”).

¶ 48 As Marcus correctly notes, the State and the trial court failed to comply with certain

procedural and substantive requirements of the Code. For example, the trial court erred by

granting the involuntary medication petition even though the State (1) failed to present evidence

that Marcus had received written notice of the risks and benefits of, and alternatives to, the

proposed medications, as required by section 2-102(a-5) of the Code (405 ILCS 5/2-102(a-5)

(West 2016)), and (2) failed to demonstrate by clear and convincing evidence that the Marcus

lacked the capacity to make a reasoned decision about his medical treatment, as required by

section 2-107.1(a-5)(4)(E) of the Code (id. § 2-107.1(a-5)(4)(E) (West 2016)). The trial court

also erred by granting the involuntary commitment petition even though (1) the petition did not

include the names of any of Marcus’s relatives or information as to why they could not be

contacted, as required by section 3-601(b)(2) of the Code (id. § 3-601(b)(2)), and (2) the State

failed to file a predisposition report as required by section 3-801 of the Code (id. § 3-810) or to

present oral testimony containing the information required by that section (see Daryll C.,

). The trial court also erred by granting the petitions even though Marcus’s

counsel provided ineffective assistance and by failing to advise Marcus of his appeal rights. It is

reasonably likely that the resolution of these issues will affect future cases involving Marcus

because he will likely again be subject to involuntary commitment and medication, the trial court

will likely again commit the same statutory compliance issues, and counsel for both parties will

likely commit the same errors. See Wilma T.,

(“[t]he fact that the

19 same problem has affected respondent twice shows that this issue could affect her again in future

proceedings”); In re Val Q.,

(2009) (applying the “capable of

repetition” exception and finding it reasonably likely that the resolution of an issue “would affect

future cases involving respondent, because respondent will likely again be subject to involuntary

treatment and the court will likely again commit the same alleged error”), overruled on other

grounds by In re Rita P.,

; Tara S.,

(applying the “capable of repetition” exception to claim of ineffective assistance of counsel in

proceedings under the Code). In fact, that is exactly what happened merely weeks later in the

La Salle County case. Accordingly, the “capable of repetition” exception to the mootness

doctrine applies here.

¶ 49 The State argues that the “capable of repetition” exception does not apply here because

the respondent is arguing only that the evidence was insufficient to support the involuntary

admission and medication orders in this case. The State and the dissent are correct that fact-

specific arguments (such as an argument addressing the sufficiency of the evidence in a given

case) are not subject to the “capable of repetition” exception because such issues are unlikely to

recur in future cases and the resolution of such issues will not impact future cases. Alfred H.H.,

. Contrary to the State’s and the dissent’s assertions, however, the instant

appeal does not merely involve challenges to the sufficiency of the evidence or any other fact-

specific issue. Rather, it involves the State’s complete failure to observe several mandatory

procedural and substantive requirements of the Code and Marcus’s counsel’s ineffectiveness for

failing to object to such failures. Our appellate court has repeatedly recognized that the “capable

of repetition” exception applies under these circumstances. See, e.g., Wilma T.,

; Val Q.,

; Tara S.,

.

20 ¶ 50 Because we hold that the “capable of repetition” exception to mootness applies, we do

not need to address Marcus’s argument that the “public interest exception” also applies.

¶ 51 We close by admonishing trial courts, the state’s attorney, and all counsel who represent

respondents in involuntary commitment and treatment proceedings to do better in future cases.

Unfortunately, this is far from the first time we have encountered such a brazen disregard for the

law in civil commitment cases. Our appellate court has repeatedly stressed the need for strict

compliance with the legislatively established procedural safeguards for involuntary commitment

proceedings. See, e.g., Alaka W.,

; Daniel M.,

-

23; Amanda H., 2017 IL App (3d) 15016, ¶ 46. Nevertheless, our admonitions continue to go

unheeded, and fundamental errors and omissions recur with disturbing regularity. This threatens

to render involuntary commitment and treatment proceedings, which involve massive intrusions

on respondents’ liberty, pro forma proceedings. That cannot be tolerated. We hope that our

supreme court will act to stop to these continuing, egregious violations of respondents’

constitutional and statutory rights in these cases. Our supreme court could, for example, require

that all trial courts presiding over these cases, attorneys in the state’s attorney’s office, attorneys

in the legal advocacy service, and any other counsel representing respondents in these cases

receive adequate training as to the Code’s requirements in order to ensure that such requirements

are fully observed and strictly enforced.

¶ 52 CONCLUSION

¶ 53 For the foregoing reasons, we reverse the judgment of the circuit court of Peoria County.

¶ 54 Reversed.

¶ 55 JUSTICE SCHMIDT, dissenting:

21 ¶ 56 While the majority’s concerns are well founded, we are bound by our supreme court’s

admonishment not to decide moot questions. Alfred H.H.,

. The majority finds

that this case falls within the “capable of repetition, yet evading review” exception to the

mootness doctrine. Supra ¶ 45. This exception has two elements: (1) the challenged action is in

its duration too short to be fully litigated prior to its cessation and (2) there is a reasonable

expectation that the same complaining party would be subjected to the same action again. In re A

Minor,

(1989).

¶ 57 The first element is satisfied. However, the second element is not. The fact that

respondent may face involuntary admission and involuntary medication in the future is not a

sufficient basis to satisfy the second element of this exception to the mootness doctrine. Alfred

H.H.,

. Respondent is not arguing that any statute is unconstitutional, and he

may be subjected to the same unconstitutional statute in the future. Nor does he challenge the

trial court’s interpretation of a statute. He argues only that the trial court and the State failed to

follow certain statutory procedures, and his counsel was ineffective for failing to object to the

failure to follow the procedures. His argument is fact-specific. There is no clear indication of

how a resolution of the issues raised in this case could be of use to respondent in a future

litigation as any future litigation would be based upon new petitions, new hearings, new

evidence, and an assessment of whether the State met its burden of proof in those cases. See

(making a similar statement about the argument raised in that case). Nothing in the

majority’s opinion constitutes anything other than a recitation of existing case law. In other

words, the majority opinion does not offer any new guidance to be used in the future by litigants.

While it is troubling that the court and parties below appear to repeatedly disregard procedural

22 requirements in involuntary commitment proceedings, there is no justification for issuing a new

opinion, which applies already existing law to the facts of this case.

¶ 58 The majority finds the above exception to the mootness doctrine is satisfied and does not

address the alternative mootness exception raised by respondent on appeal. Specifically,

respondent argues that the public interest exception to the mootness doctrine is also satisfied.

This argument should be rejected as well.

¶ 59 The public interest exception is applicable only if there is a clear showing that (1) the

question is of a substantial public nature, (2) an authoritative determination is needed for future

guidance, and (3) the circumstances are likely to recur. In re J.B.,

(2003).

The exception is narrowly construed and requires a clear showing of each criterion. In re India

B.,

(2002). The second element is not satisfied in this case. This exception

does not apply when there are no conflicting precedents requiring an authoritative resolution.

The majority does not resolve any conflicting issues in the law. Rather, it applies existing case

law to the specific facts of this case. Therefore, an authoritative determination is not necessary as

required by this exception.

¶ 60 This appeal should be dismissed as moot.

23