Quick Takes on Illinois Supreme Court Opinions Issued Thursday, Nov. 30
Leading appellate attorneys review Illinois Supreme Court opinions handed down on Thursday, Nov. 30. The cases are People v. Cole, People v. Relerford, People v. Hunter, People v. Brown, People v. Staake, In re Marriage of Goesel, Corbett v. The County of Lake, Citibank, N.A. v. The Illinois Department of Revenue, Lawler v. The University of Chicago Medical Center, Ramsey Herndon LLC v. Whiteside, and In re Benny M.
By Jay Wiegman, Office of the State Appellate Defender
The Sixth Amendment to the United States Constitution guarantees every criminal defendant the right to conflict-free counsel. Representation of multiple defendants by a single attorney does not represent a per se violation of the constitutional guarantee of the effective assistance of counsel. Within a law firm, multiple lawyers may not represent multiple clients if such representation would be a conflict for any lawyer who practiced alone, per Rule 1.10 of the Illinois Rules of Professional Conduct of 2010. Such potential conflicts of interest are common for Public Defenders, which were held to not be a firm in People v. Robinson, 79 Ill.2d 147 (1979).
In People v. Cole, 2017 IL 120997, the Cook County Public Defender, Amy P. Campanelli, tested the relationship between Robinson and the Rules of Professional Conduct. Cole was one of six co-defendants. When the circuit court sought to appoint Campanelli to represent Cole, she refused the appointment and informed the court that there was a conflict of interest because the public defender had been appointed to represent the other co-defendants. Campanelli argued that the Office of the Cook County Public Defender had a conflict of interest that prohibited it from representing Cole because the Office of the Cook County Public Defender is a law firm as set forth in Rule 1.10 of the Rules of Professional Conduct. The circuit court ordered that Campanelli was in direct civil contempt for refusing to represent Cole as directly ordered by the court.
A unanimous Illinois Supreme Court affirmed the circuit court’s judgment. Writing for the Court, Justice Thomas first considered Campanelli’s claim that representation by the office of the Public Defender constitutes representation by a single attorney. The court rejected Campanelli’s claim that Robinson did not resolve the question of whether the office of the public defender is a firm as set forth in Rule 1.10, because Robinson predated the drafting of the written rules of professional conduct in Illinois. The Illinois Supreme Court presumed that the court was well aware of its own case law holding that office of the public defender was not a law firm for purposes of conflict of interest when it enacted the rules of professional conduct in Illinois.
Noting that the court in Robinson had expressed concern that treating the public defender as a firm would lead to the appointment of inadequate and inexperienced private counsel, Campanelli urged the Court to overrule Robinson. The court rejected this request, noting that while such concern was expressed in Robinson, it was not the basis for the court’s decision. Moreover, Robinson had balanced the possibility of inadequate and inexperienced private counsel against the “remote possibility that an experienced member of the public defender’s staff might labor under a conflict of interest because another member of the staff” (which includes more than 500 attorneys) would be so burdened.
Having found that the Office of the Public Defender is not a firm for purposes of Rule 1.10, the court then determined that Rule 1.7 does not bar the public defender from representing multiple defendants in a single prosecution. The court determined that Rule 1.7 concerned the representation of multiple defendants by one attorney, whereas the issue here is whether representation of defendants by different assistant public defenders represents a conflict of interest.
The court then considered whether the circuit court had abused its discretion in appointing the public defender to represent Cole despite the public defender’s representations that a direct conflict of interest prevented the office from representing Cole. Because an attorney representing multiple defendants in a criminal matter is generally in the best position professionally and ethically to determine when a conflict of interest exists or is likely to develop, the court noted that a request for the appointment of separate counsel should generally be granted based upon counsel’s representations as an officer of the court. However, Illinois case law generally requires a circuit court to take “adequate steps” to determine if the risk of conflict is too remote to warrant separate counsel. While the defendant need only present the gist of a potential conflict between two public defenders, the Court concluded that the allegations presented in the instant case had been insufficient.
As a result, the trial court had not erred when it adjudicated Campanelli to be in direct civil contempt. However, as it was clear that the trial court understood that Campanelli’s contempt was purely formal and was for the purpose of appealing the issue of multiple representation of defendants in light of revisions to the Illinois Rules of Professional Conduct, the court vacated the order holding Campanelli in contempt, despite the finding that the order and the sanctions were valid.
By Jay Wiegman, Office of the State Appellate Defender
Illinois enacted its first stalking statute 25 years ago. The offense was defined in 720 ILCS 5/12-7.3(a) (West 1992) as requiring an intentional threat of a violent crime plus multiple acts of following or surveillance in furtherance of the threat. Subsequent modification required that the defendant’s actions be undertaken “knowingly and without lawful justification. The threat-focused version of subsection(a) was found to not be unconstitutionally overbroad because the speech prohibited by the statute was an integral part of the unlawful conduct in People v. Bailey, 167 Ill.2d 210 (1995). The definition of stalking was greatly expanded in 2010 by the addition of language that significantly broadened the types of conduct proscribed under the statute and eliminated the requirement of a threat from subsection (a). Thus, the current version of subsection (a) of the stalking statute provides: “A person commits stalking when he or she knowingly engages in a course of conduct directed at a specific person, and he or she knows or should know that this course of conduct would cause a reasonable person to: (1) fear for his or her safety or the safety of a third person; or (2) suffer other emotional distress.” 720 ILCS 5/12‑7.3(a)(1), (a)(2) (West 2012).
In People v. Relerford, 2017 IL 121094, the Illinois Supreme Court held that the terms of subsection (a) of the stalking and cyberstalking statues violate the First Amendment to the United States Constitution because they are overbroad and impermissibly infringe on the right to free speech. In Relerford, the defendant, who had interned at a radio station but whose applications for employment were rejected was charged with stalking an on-air personality because he called her, sent her e-mails, stood outside the station, and entered the station, and knew or should have known that doing so would cause a reasonable person to suffer emotional distress. He also made Facebook postings that the court termed “vulgar and intrusive,” but that were not characterized as conveying a threat against the complainant, who did not have direct access to the postings as she and the defendant were not Facebook friends. Relerford’s convictions were reversed by the appellate court, which determined that Elonis v. United States, 135 S.Ct. 2001 (2015) compelled invalidation of the stalking statues on due process grounds because the relevant provisions lack a mental state requirement. The Illinois Supreme Court granted the State leave to appeal.
The supreme court unanimously affirmed the judgment of the Appellate Court, First District, but on a different basis than that relied upon by the Appellate Court. The court found that the appellate court’s reliance upon Elonis was flawed because, unlike the federal laws at issue in that case, the statutory provisions at issue here were not silent as to the requisite mental states.
Justice Freeman, writing for the court, then considered the First Amendment implications of the stalking laws and determined that they improperly criminalize innocent conduct. The court noted that content-based laws are presumed to be invalid, although certain categories of expression, such as true threats and speech integral to criminal conduct, are not protected by the First Amendment. The statutory provisions at issue in Relerford were considered content-based restrictions because they could not be justified without reference to the content of the prohibited communications. Because the expressions at issue in the instant case were neither true threats nor integrally related to criminal conduct, they were protected by the First Amendment.
As a result, the court then considered whether the statutes were overbroad. The court determined that the broad sweep of subsection (a) reaches a host of social interactions that a person would find distressing but are clearly understood to be protected by the First Amendment. The court provided the example of a person who complained at town meetings about pollution cause by a local business and urged a boycott of the business. If the person, knowing the complaints would cause the business owner distress, nevertheless repeatedly made such complaints after being told to stop by the business owner, the person could be prosecuted. Because this is the very type of speech that is protected by the First Amendment, the statutes were found to be overbroad.
By Jay Wiegman, Office of the State Appellate Defender
In 2015, the legislature changed the requirements for automatic transfer of a juvenile to adult court by raising the minimum age from 15 to 16 and eliminating armed robbery while armed with a firearm and aggravated vehicular hijacking while armed with a firearm from the list of automatic transfer offenses. Also in 2015, juvenile sentencing laws were modified to give the trial court discretion not to impose otherwise mandatory firearm sentencing enhancements. In People v. Hunter, 2017 IL 121306, the Illinois Supreme Court considered whether these legislative changes should be retroactively applied to defendants whose cases were pending on direct review when the cases became effective.
Writing for a unanimous court, Justice Theis noted that the court was guided by Landgraf v. USI Film Products, 511 U.S. 244 (1994), under which the court must first ask whether the legislature clearly indicated the statute’s temporal reach, in which case, barring any constitutional prohibition, the legislature’s intent is to be given effect. If the legislative intent is not clear, then the court must determine whether the statue has a retroactive impact; if it does not, the amendment may be applied retroactively. The court also noted that, as made clear in People v. Howard, 2016 IL 120729, Illinois courts need never go beyond the first step of Landgraf analysis. Thus, where the legislature does not clearly indicate whether the temporal reach of a statue, the general rule is that procedural changes will be applied retroactively, while substantive changes are prospective only.
Justice Theis also addressed whether statutory changes could be retroactively applied only to cases then pending in the trial court, or whether cases on direct review also qualified as pending. The court noted that its retroactivity jurisprudence “has not typically distinguished between cases that are pending on direct review at the time a statutory amendment becomes effective.” Hunter, 2017 IL 121306, ¶ 27. The court noted that, in Howard, the trial court proceedings had not been concluded, and thus were “ongoing.” In Hunter’s case, in which he challenged his automatic transfer to adult court because he was under the age of 16 at the time of the offense, trial court proceedings had concluded; as a result, the court considered it inappropriate to create new proceedings for the sole purpose of applying a procedural statute that was enacted after his trial and sentence. In the other case consolidated with Hunter’s, the mandatory firearm enhancements were found to not be retroactive because a punishment mitigated by a new law is applicable only to judgments imposed after the new law takes effect.
By Jay Wiegman, Office of the State Appellate Defender
A defendant claiming that he was denied the effective assistance of counsel must establish that: 1) his counsel’s performance fell below an objective standard of reasonableness; and 2) he was prejudiced by counsel’s deficient performance. Strickland v. Washington, 466 U.S. 668 (1984). The Strickland standard also applies to a claim that counsel was ineffective during the guilty plea process, except that to prove prejudice, a defendant who pled guilty must show that there is a reasonable probability that, but for counsel’s errors, the defendant would not have pled guilty and would have insisted on going to trial. Hill v. Lockhart, 474 U.S. 52 (1985). In People v. Brown, 2017 IL 121681, the Illinois Supreme Court considered whether a defendant’s claim that he would not have pled guilty and would have demanded a trial is sufficient to establish prejudice for purposes of an ineffectiveness claim, or whether the defendant must convince the court that a decision to reject the plea bargain would have been rational under the circumstances.
In Brown, the defendant entered a fully negotiated guilty plea to the charge of being an armed habitual criminal, in exchange for an 18-year sentence and the state’s agreement to nolle-prossequi a charge of home invasion. When the defendant later learned that he would be required to serve 85% of his sentence rather than the 50% he claimed counsel had advised, the defendant moved for the reduction of his sentence. The motion was denied. The defendant did not pursue a direct appeal, but filed a post-conviction petition in which he argued that he received the ineffective assistance of counsel. The circuit court granted the State’s motion to dismiss, after determining that Brown was not prejudiced by any error in counsel’s advice on sentencing.
Relying on People v. Kitchell, 2015 IL App (5th) 120548, and People v. Stewart, 381 Ill.App.3d 200 (2008), the defendant argued that he was only required to allege that he entered into the guilty plea in reliance on trial counsel’s erroneous sentencing advice in order to make a substantial showing of a constitutional violation. The Appellate Court, Fourth District, affirmed the trial court. The supreme court granted the defendant’s petition for leave to appeal.
Writing for a unanimous court, Justice Kilbride devoted considerable attention to Lee v. United States, 137 S.Ct. 1958, which was decided while Brown was pending appeal. Lee, which involved a guilty plea from a defendant who was subject to mandatory deportation, distinguished an ineffective assistance claim involving a matter of trial strategy related to a defendant’s acquittal prospects from a claim involving a defendant’s understanding of the consequences of pleading guilty. In the former category, the defendant must show what he would have been acquitted had he gone to trial, or that he had a viable defense. In the latter category, Lee set forth that it is appropriate to compare the consequences of a conviction following a trial to the consequences of entering a guilty plea. When the consequences of a plea are dire from the defendant’s perspective, even a slim chance of success at trial might be reasonably attractive. Thus, somebody facing a twenty year term but with poor prospects of succeeding at trial might be willing to gamble if the state’s plea offer is 18 years.
But while the court agreed with the defendant that he was not required to prove that he was innocent or had a plausible defense, the court found that the allegations contained in the defendant’s petition were insufficient to establish prejudice. The court noted that the defendant faced a total sentencing range of up to 45 years, rather than the 18 he received, and that he would likely have been sentenced toward the higher end of that range on conviction, given his criminal background. Moreover, nothing in the defendant’s plea colloquy demonstrated that his primary focus when pleading guilty was on the percentage of his sentence that would have to be served. The court therefore affirmed the judgments of the appellate and circuit courts.
By Jay Wiegman, Office of the State Appellate Defender
Pursuant to 725 ILCS 5/103-5, a defendant shall be tried within 120 days from the date he was taken into custody unless the defendant either causes the delay or acquiesces to a delay requested by the state. Where a delay on a charge is attributable to the defendant, that delay is not always attributable to the defendant on a subsequently filed charge, according to the rule established in People v. Williams, 94 Ill.App.3d 241, 248-49 (1981). Said the court in Williams:
“Where new and additional charges arise from the same facts as did the original charges and the State had knowledge of these facts at the commencement of the prosecution, the time within which trial is to begin on the new and additional charges is subject to the same statutory limitation that is applied to the original charges. Continuances obtained in connection with the trial of the original charges cannot be attributed to defendants with respect to the new and additional charges because these new and additional charges were not before the court when those continuances were obtained.”
Williams, 94 Ill.App.3d at 248-49.
In People v. Staake, 2017 IL 121755, the defendant was originally charged with second degree murder. Nearly five months later, the state filed an amended charging instrument that alleged that the defendant had committed first degree murder. The amended information did not charge second degree murder. The information was later amended; it again alleged first degree murder, but under a different theory. At the completion of the state’s case, and over objection by defendant, the trial court instructed the jury on second degree murder. The defendant was found guilty of second degree murder and was sentenced to 18 years in prison.
The appellate court affirmed the defendant’s conviction. The court found that first degree murder and second degree murder require proof of the same elements, with the only difference being that second degree murder requires the additional proof of a mitigating factor. The appellate court stated that first degree murder was not a new and additional charge for purposes of compulsory joinder because the criminal behavior the state alleges defendant committed is the same for both charges.
Writing for a unanimous supreme court, Justice Thomas observed that the case hinged on whether the first degree murder charge was a new and additional charge to the original second degree murder charge. The court determined that the original indictment provided the defendant with the material allegations of the subsequent information, and noted that the offenses charged had essentially the same elements. As a result, the offenses were subject to the same defenses. The court therefore affirmed the judgment of the appellate court affirming the defendant’s conviction of second degree murder.
By Susan Goldberg
Defendant Brooks was charged with DUI after a single-vehicle motorcycle accident. He filed a motion to suppress the results of a blood-alcohol analysis that was done at the hospital on the night of the accident, contending that the blood draw was an unlawful search.
The court ruled that filing a motion to suppress does not establish that a search took place. The defendant bore the burden at the suppression hearing of showing that his blood was drawn, but he failed to offer any evidence to establish that fact, and thus failed to establish that element of his prima facie case. Also, no evidence was shown that any individual who may have drawn the defendant's blood did so while acting at the behest, or under the influence, of the police. The court held that even if blood was drawn from the defendant at the hospital, it was a private search that did not implicate the Fourth Amendment.
By Michael T. Reagan, Law Offices of Michael T. Reagan
In In re Marriage of Goesel, Justice Thomas wrote for a unanimous court in holding that the most reasonable interpretation of the term “available funds” as that term relates to previously paid “retainers or interim payments” to an attorney as used in Section 501(c-1)(3) of the Marriage and Dissolution of Marriage Act is that fees which had already been earned by an attorney are not subject to disgorgement to the other side. The Illinois Supreme Court’s opinion resolved an express conflict among three appellate districts, and noted that “this is a difficult question, and the policy concerns on both sides are substantial.” Here, the opinion of the Third District was affirmed. The court resolved a slight difference between the First and Third Districts on whether “earned” was limited to the date of filing the petition for disgorgement in favor of the First District’s resolution of that point. That difference was not material to the outcome of this case.
The Illinois State Bar Association and the Illinois Chapter of the American Academy of Matrimonial Lawyers filed a joint brief amici curiae in support of the attorney who had been ordered to disgorge funds which were no longer in her possession. Once the circuit court had ordered that attorney to disgorge funds and held the attorney in indirect civil contempt with an attendant fine and jail sentence, the opposing attorney “immediately put a freeze on (the first attorney’s) bank accounts and issued a citation to discover assets against her.” The briefs, and the courts below, discussed the hardships which would be imposed on attorneys if this case were to be decided as the circuit court had ruled.
Justice Thomas’s opinion pointed the way forward. The court noted the suggestion of counsel that the disadvantaged spouse could file a petition for interim attorney fees at the beginning of the case and also seek a preliminary injunction or temporary restraining order. Further, the opinion, at multiple junctures, called upon the legislature to examine the statute at issue, concluding: “We believe that the legislature needs to take another look at Section 501(c-1)(3) and make its intentions absolutely clear.”
This opinion contains a detailed discussion of public policy considerations and of the potential pitfalls attendant to each opposing view of the statute, which are commended to the reader’s attention. A footnote contains a sometimes-seen statement as to why the court allowed the Petition for Leave to Appeal.
By Joanne R. Driscoll, Forde Law Offices LLP
This case offers useful instruction on statutory construction in answering the question of what is a “riding trail” under section 3-107(b) of the Local Governmental and Governmental Employees Tort Immunity Act (745 ILCS 10/3-107(b) (West 2012)). That section provides absolute immunity for injuries caused by a condition of “[a]ny hiking, riding, fishing or hunting trail.” The plaintiff was injured while biking on a paved bicycle path maintained by the City of Highland Park.
In a unanimous opinion authored by Justice Burke, the court affirmed the appellate court’s rejection of the city’s tort immunity defense but not the appellate court’s reasoning and adoption of the analytical framework used in Brown v. Cook County Forest Preserve, 284 Ill. App. 3d 1098 (1st Dist. 1996). The court held that Brown relied on an incomplete dictionary definition of “trail” that was not in existence when the statute was enacted and failed to consider that term “trail” in context—all violations of fundamental principles of statutory construction.
Applying the canon of noscitur a sociis—i.e., “a word is known by the company that it keeps”—the court concluded that by including the words “hiking,” “fishing,” and “hunting” in the same sentence as “riding,” the legislature intended to provide blanket immunity only to primitive, rustic, or unimproved trails. As further support, the court utilized a second rule of statutory construction, in pari materia, examining related section 3-107(a) and its reference to roads that provided access to “primitive” areas. Next, the court applied the rule of construction to avoid anomalous results, concluding that it made sense to apply blanket immunity only to undeveloped, unimproved trails, not to paths built and maintained by local public entities for use by the public. Lastly, the court applied a fourth rule of construction when it rejected the City’s argument to read the definition of “recreational trail” found in Recreational Trails of Illinois Act (20 ILCS 862/10 (West 2012)) into section 3-107(b). According to the court, that definition was inappropriate because the two statutes had different purposes and different contexts.
Citibank, N.A. v. The Illinois Department of Revenue
By Michael T. Reagan, Law Offices of Michael T. Reagan
This unanimous and lengthy opinion written for the court by Justice Karmeier affirmed the conclusion by the Dept. of Revenue that Citibank, which had financed sales, was not entitled to a refund of that portion of debt that was ultimately found to be uncollectible which corresponded to the sales tax originally paid. This opinion provides a detailed and granular exposition of the Retailers’ Occupation Tax Act (35 ILCS 120/6), the regulations issued under it, and relevant Supreme Court opinions. A complete accounting of that statutory scheme, the supreme court precedents, and the court’s rationale cannot be afforded here. In broad summary, the court noted that the focus of the Act and the regulations was on the “retailer” and on the actual remitter of the taxes to the state. The circuit and appellate courts had disagreed with the Department’s determination that Citibank was not entitled to a refund, but those courts were reversed by the supreme court.
The supreme court relied, in part, on the principle that taxes voluntarily, even though erroneously, paid cannot be recovered in the absence of an authoritative statute. Consistent with that principle, a statute providing for a refund must specifically provide for the relief requested. Here, “the statute authorizes tax relief only for ‘the retailer’ and requires all reporting to the Department only through ‘the retailer.’"
The court sounded the general note that lenders would not be without a remedy in the future so long as they “order their commercial relationships accordingly.” The court also observed that the legislature has broad latitude in enacting legislation to benefit the general welfare. As was also done today by the court in Goesel, the court noted that if this interpretation of the statute and regulations is not what the legislature intended, that the legislators should “revisit the issue and make their intent manifest.”
Lawler v. The University of Chicago Medical Center
By Karen Kies DeGrand, Donohue Brown Mathewson & Smyth LLC
In Lawler v. University of Chicago Medical Center, the Illinois Supreme Court considered the convergence of three statutes to determine whether the plaintiff could proceed on a wrongful death claim based on medical negligence, where plaintiff filed the claim more than four years after the patient care in question. Holding that the wrongful death claim related back to the initial, timely-filed complaint, the supreme court ruled that, although the four-year statute of repose had expired, the statute did not bar the claim.
The supreme court considered the two-year Wrongful Death Act statute of limitations, 740 ILCS 180/2 (West 2010); the four-year medical malpractice statute of repose, 735 ILCS 5/13-212(a) (West 2010); and the relation back statute, 5/2-616(b) (West 2010), in analyzing the circuit court’s dismissal of plaintiff’s Wrongful Death Act count. The patient had initially filed a medical malpractice complaint against several medical providers based on medical care and treatment she received from November 5, 2007 through July, 2009. The patient died on November 24, 2013. Within one year, the patient’s daughter substituted as the party plaintiff and filed an amended complaint that included claims under the Wrongful Death and Survival Acts. The parties did not dispute that the original complaint was timely filed or that the amendment arose from the same occurrence described in the initial complaint.
The defendants asserted that the four-year repose period — which expired before the death of plaintiff’s decedent — extinguished the action before it accrued; therefore, the relation back statute could not preserve this action. The supreme court acknowledged the difference between a statute of limitations and a statute of repose; the former hinges on discovery of an injury, and the latter on the date of the act or omission. The court also noted that, in the medical malpractice realm, the statute of repose was enacted to establish a rigid outer limit for commencing lawsuits, with fraudulent concealment being the sole exception.
The supreme court found that the relation back statute applied to the wrongful death claim notwithstanding the statute of repose. Observing that the plaintiff had met the two requirements for filing a new claim in an amended pleading after the expiration of the limitations period — a timely original complaint and a cause of action that grew out of the same transaction — the court held that the concerns of the legislature over “long tail” liability exposure for health care providers was not implicated when a medical malpractice complaint already was pending and a wrongful death claim was added.
Ramsey Herndon LLC v. Whiteside
By Karen Kies DeGrand, Donohue Brown Mathewson & Smyth LLC
In Ramsey Herndon LLC v. Whiteside, the Illinois Supreme Court addressed a dispute concerning a claim to oil and gas lease royalties. At issue was whether plaintiff, an entity in the business of extracting oil, gas, and mineral reserves, had a viable breach of contract action against defendant, to whom plaintiff had conveyed all of its “right, title and interest in and to the oil, gas and mineral leases” plaintiff held in a 220-acre parcel in Macon County. Plaintiff contended that it retained a portion of its interest — in the parlance of the oil, gas and mineral business, an ”override” — notwithstanding the contract’s broad description of the scope of the conveyance.
After providing background information clarifying the types of interests involved in the oil, gas, and mineral market, the supreme court considered the specific terms of the conveyance at issue and found the language unambiguous. In the supreme court’s view, a reference in the instrument to a “proportionate share of … overriding royalty interests” did not reduce the general grant of all of plaintiff’s interests in the lease.
The court touched on whether the instrument was correctly characterized as a contract pertaining to personal property or a deed conveying real estate. Under some circumstances, the difference could be significant, because courts interpret deeds in favor of the grantee (here, the defendant). Features of the instrument indicated to the court that the document was a deed. Yet the exact characterization did not matter given the unambiguous language. Plaintiff’s claim for breach of contract failed.
By Joanne R. Driscoll, Forde Law Offices LLP
In this case, the Supreme Court answered an issue of first impression by setting forth standards and procedures for allowing a respondent to remain shackled in an involuntary treatment proceeding. But before the court addressed that issue, it confirmed its jurisdiction under the mootness exception for issues capable of repetition yet evading review. That exception was met here because: (1) the challenged action (involuntary administration of psychotropic medication not to exceed 90 days) was too short to allow appellate review; and (2) there was a reasonable expectation that the complaining party (who had a history of mental illness and involuntary hospitalizations for refusal to take medication) would be subject to the same action again.
On the issue of the use of shackles in an involuntary treatment proceeding, the unanimous court reviewed the standards and procedures utilized in adult criminal and juvenile delinquency proceedings pursuant to Supreme Court Rules 430 and 934, respectively. It adopted a similar standard of manifest necessity, considering the risk of flight, threats to the safety of people in the courtroom, and maintaining order during the hearing. As to procedural requirements, the court again followed the case law and Rules 430 and 934 by requiring the trial court to make an independent determination, give the respondent’s attorney an opportunity to be heard, and state on the record the reasons for allowing the respondent to remain shackled. The court refused to list factors to consider in that determination, such as those identified in Rules 430 and 934, noting that medical and therapeutic considerations, not found in those rules, will be relevant.
Ultimately, the court did not reach the issue of whether the trial court utilized the appropriate procedure in this case. Following In re Mark P., 402 Ill. App. 3d 176 (2010), it found that respondent forfeited any error by failing to object in the trial court to the procedure used, failing to ask for any additional opportunity to be heard, and failing to request findings of fact or an explicit statement of the trial court’s reasons for permitting the respondent to remain shackled.