APPEAL from the Circuit Court of Cook County; the Hon. JOSEPH
SCHNEIDER, Judge, presiding.
MR. JUSTICE DOWNING DELIVERED THE OPINION OF THE COURT:
Rehearing denied August 1, 1978.
This is yet another case affecting the deaf-mute, Donald Lang (defendant), who until quite recently was never trained to communicate in any recognized language system. (See People v. Lang (1967), 37 Ill.2d 75, 224 N.E.2d 838; People ex rel. Myers v. Briggs (1970), 46 Ill.2d 281, 263 N.E.2d 109; People v. Lang (1st Dist. 1975), 26 Ill. App.3d 648, 325 N.E.2d 305, cert. denied (1976), 423 U.S. 1070, 47 L.Ed.2d 80, 96 S.Ct. 851.) In appeal No. 77-1541, Robert A. deVito, M.D., Director of the Illinois Department of Mental Health and Developmental Disabilities (Director), appeals from the circuit court's issuance of a writ of mandamus against him. In appeal No. 78-250, defendant's attorneys (Public Defender) appeal from an order denying a petition for a writ of habeas corpus. We consolidated the cases on appeal in order to expedite a final disposition of the extensive litigation.
On July 26, 1971, defendant was indicted for murder (Ill. Rev. Stat. 1969, ch. 38, par. 9-1); and in January of 1972, he was convicted of that crime and sentenced to 14 to 25 years imprisonment. On February 14, 1975, we reversed the judgment because defendant's conviction was secured in the absence of trial procedures effectively compensating for defendant's disabilities. (26 Ill. App.3d 648, 655.) We remanded the cause with directions that defendant's fitness to stand trial be determined pursuant to section 5-2-1 of the Unified Code of Corrections (hereinafter UCC) (Ill. Rev. Stat. 1975, ch. 38, par. 1005-2-1) *fn1. On March 25, 1975, defendant was found unfit to stand trial and was remanded to the Illinois Department of Mental Health and Developmental Disabilities (Department) for a hearing into his need for hospitalization. (Ill. Rev. Stat. 1975, ch. 38, par. 1005-2-2.) *fn2 Thereafter on December 8, 1976, defendant was found not in need of mental treatment and not mentally retarded, as those terms are defined in the Mental Health Code (hereinafter MHC). Ill. Rev. Stat. 1975, ch. 91 1/2, pars. 1-11, 1-12.
In addition to finding defendant not in need of hospitalization, the court also imposed certain special conditions on bail: (1) that defendant continue in the Department's training program designed to teach him communication skills with the goal of rendering him fit to stand trial; and (2) that defendant reside in a secure setting to insure the continuity of his training and his appearance in court. The court concluded that the State had a critical interest in defendant's training and, therefore, ordered the Department to collaborate with the Public Defender in developing both an appropriate training program and an appropriate living arrangement. Pending further order of court, defendant was directed to continue his residence at the security unit at the Illinois State Psychiatric Institute (ISPI), a Department facility.
On February 18, 1977, the Department petitioned for defendant's release from ISPI on bail or recognizance. A month later the court's order requiring the Department to hold defendant was vacated and the Public Defender applied to the Department for defendant's voluntary admission. Defendant was then accepted in that status at ISPI where his temporary training in sign language continued. Between December of 1976 and October of 1977, the court conducted an extensive bail hearing in order to ascertain the necessary conditions of bail. In the course of such hearing, the parties were investigating various programs across the nation which would accept defendant in a permanent training program. Defendant's brother, Julius Lang (Conservator), also became involved in the bail hearing: initially as the conservator of defendant's estate and later as the conservator of defendant's estate and person.
In September of 1977, the Department informed the court that it had decided to discharge defendant and release him to the custody of the sheriff of Cook County. The Conservator and the Public Defender then obtained a temporary restraining order preventing such discharge. On October 3, 1977, the court issued an oral opinion dissolving the temporary restraining order. The next day the Department released defendant to the sheriff's custody and defendant was taken to the jail where he still remains. By the October 3 order (reduced to writing on October 11, 1977), the court issued a writ of mandamus against the Director, commanding him to "create and implement an adequate and humane care and treatment program for Donald Lang." The Director now appeals from the order and from an order which denied his motion to vacate, alter or amend the prior order. We granted the Director's motion for a stay of the order requiring him to develop a program.
While the Director was perfecting the appeal in 77-1541, the proceedings below continued. On October 19, 1977, the Public Defender filed a motion to quash the warrant and bar further prosecution, a petition for writ of habeas corpus, and a motion to modify the conditions of bail. On October 24, 1977, the court set defendant's bail in the amount of $50,000, which could be executed by the Conservator. The conditions of bail set forth in the orders of December 8, 1976, and October 11, 1977, were to be superseded by the condition that within 30 days of his release on bail defendant was to be placed in a training program designed to help render him fit to stand trial. Lastly, the court entered an order, later stayed, for a rule to show cause why the Director should not be held in contempt for his failure to obey the earlier order commanding him to create and implement a training program.
On November 29, 1977, the trial court denied the motions and petitions filed by the Public Defender. The court acknowledged that since the time of its denial of an earlier petition for a writ of habeas corpus, defendant had been transferred to the jail where all training had ceased. As bail had been set in an amount which the Conservator could provide, the court maintained that the only restraint upon defendant was the Conservator's "unwillingness to post bail without a suitable living arrangement." On defendant's behalf, the Public Defender now appeals in 78-250 from the court's denial of the petition for a writ of habeas corpus.
The issues presented by these appeals may be reduced to the following: (1) whether the court conducted the bail hearing properly; (2) whether the court had the authority to order the Department to retain custody of defendant; (3) whether the court had the authority to order the Director to develop and implement a training program for defendant; (4) whether the court had the authority and jurisdiction to enter a writ of mandamus against the Director and, if the court was so authorized, whether the entry of the writ was permissible upon the facts; (5) whether the court erred in denying the petition for a writ of habeas corpus; and (6) whether the court erred in refusing to dismiss the indictment against defendant.
We note at the outset that the Director has challenged the method by which he was brought into the mandamus action. He contends that the court never acquired jurisdiction over him because the petition for mandatory injunction was filed by the Conservator who was not a proper party to the proceedings, and, because the petition was filed against the Governor of Illinois and the State's Attorney of Cook County, but not the Director himself. A limited chronological review of the case below is necessary to understand the court's issuance of the mandamus.
From December of 1976 to October of 1977, the court held a lengthy hearing with the object of setting the terms and conditions of defendant's release on bail. The determination of such special conditions was complicated by the unique nature of defendant's disabilities, his history of alleged violence, the conflict in the expert testimony proffered and the inability to locate a program which provided the necessary training and suitable security. Although the Department had accepted defendant as a voluntary admission to ISPI, the Department made clear that it did not believe defendant belonged in that facility. The Department's single suggestion was defendant's placement in a facility which housed mentally retarded individuals. That suggestion ignored the finding that defendant is not mentally retarded and that he becomes irritable when housed with those who are. Simultaneously, the Public Defender was investigating programs in Illinois, Wisconsin, Maryland, the District of Columbia, and Indiana, which would offer defendant both the specialized training he needs and a therapeutic living environment.
In the course of the bail hearing, on February 18, 1977, the Public Defender suggested that in order to further investigate a program with the Illinois Division of Vocational Rehabilitation, it would be advisable to have representatives of the Social Security Administration, the Department of Public Aid, and the Conservator appear in court. The Conservator was subpoenaed, and on May 4, 1977, the court called him as the court's witness. The Conservator explained that he was at that time conservator of defendant's estate and would be willing to become conservator of defendant's person. The Conservator said that he had always assumed that he had authority of defendant's person also. On June 8, 1977, an attorney appeared for the first time in the proceedings as the Conservator's counsel. On July 12, 1977, the attorney appeared and tendered an order stating that the Conservator had been appointed conservator of defendant's person. The Conservator also testified on that date that he was prepared to take defendant home even though no one from the Department had ever talked to him about the possibility during the three or four year period when he had been conservator of defendant's estate.
Commencing from that point in the proceedings, the Conservator's attorney represented the Conservator and filed motions. On September 22, 1977, the Department moved to strike all of the Conservator's pleadings up to that point "which in any way concern the bail or recognizance hearing." In particular, the Department wanted the Conservator's amended petition for a preliminary injunction stricken. The Conservator and the Public Defender had petitioned for and obtained an order temporarily restraining the Department from discharging defendant to the sheriff of Cook County. The court found that irreparable harm would result if defendant were forced to leave ISPI before an evaluation team arrived from an Indiana institute. On September 23, 1977, the temporary restraining order was continued in effect pending the resolution of various motions and petitions before the court. They included the Conservator's petition for mandatory injunction and the Governor's special and limited appearance and motion to strike and dismiss the petition. The trial court did not rule upon the latter. On October 11, 1977, the court dissolved the temporary restraining order, denied the Department's motion to strike the Conservator's pleadings, and issued the writ of mandamus against the Director of the Department.
1, 2 In view of this sequence of events, we cannot say that the trial court lacked jurisdiction to enter a writ of mandamus. We think the Conservator was proper party to the proceedings. Although the Director argues that the court erred in deviating from the strict format of the bail hearing being conducted, we disagree. In our opinion the State and defendant were not the only real participants in this bail hearing. We are not persuaded by the Director's bald assertion that section 5-2-2 of the UCC bars the admission of other parties. The record clearly reflects that the trial court was aware of the unusual hearing being conducted and the necessity of having all affected persons before it. The conduct of the proceedings was in accord with section 25 of the Civil Practice Act, which provides in part, "[i]f a complete determination of a controversy cannot be had without the presence of other parties, the court may direct them to be brought in." (Ill. Rev. Stat. 1975, ch. 110, par. 25(1).) Here the Conservator had control over defendant's estate and later his person. Defendant's placement in some of the suggested programs could have required the Conservator's authorization for the disbursement of funds or the Conservator's assessment of defendant's finances. Furthermore, the eventual setting of bond in the amount of $50,000 demonstrates the need for the Conservator's presence in order to meet the stated sum. We conclude, therefore, that the Conservator's presence was needed for a complete determination of the hearing, and that the trial court committed no error in admitting him to the proceedings.
3, 4 The Director's contention that the trial court lacked jurisdiction because the Director was not properly before the court is also without merit. Pursuant to section 11 of "An Act to revise the law in relation to mandamus," the provisions of the Civil Practice Act apply to mandamus proceedings. (Ill. Rev. Stat. 1975, ch. 87, par. 11; see also People ex rel. Commissioners v. Dixon (1931), 346 Ill. 454, 460, 178 N.E. 914.) Generally, anyone interested in the subject matter of a mandamus action may be brought in as a party or may intervene. (26 Ill. L. & Prac. Mandamus § 127 (1956), citing section 25 of the Civil Practice Act, Ill. Rev. Stat. 1975, ch. 110, par. 25.) All persons should be made parties who are legally or beneficially interested in the subject matter of the litigation, and who will be affected by the decree, so as to enable the court to dispose of the whole controversy. (Oglesby v. Springfield Marine Bank (1944), 385 Ill. 414, 423, 52 N.E.2d 1000; Riley v. Webb (1916), 272 Ill. 537, 538-39, 112 N.E. 340; Nolan v. Barnes (1915), 268 Ill. 515, 523, 109 N.E. 316.) In a proceeding for mandamus, when a party is shown by the petition to have a legal interest in the right or duty sought to be enforced by the writ, and that the rights of such party will be collaterally determined by the judgment if rendered as prayed in the petition, the cause should not be adjudicated until such party is made a respondent thereto, when he is shown to be within the jurisdiction of the court. Powell v. People ex rel. Hedrick (1905), 214 Ill. 475, 479, 73 N.E. 795; People ex rel. Bradford National Bank v. School Directors (4th Dist. 1941), 309 Ill. App. 242, 249-50, 32 N.E.2d 1008.
Although the Conservator's petition for mandatory injunction named the People of the State of Illinois, the Governor and the State's Attorney as respondents, part of the relief sought was a mandatory injunction requiring the People as represented by the State's Attorney and Governor to "develop a program (within the guidelines to be set for his release on bail or recognizance) for Donald Lang which holds out a substantial likelihood that he will be given the opportunity to acquire fitness to stand trial within a reasonable time." Any such relief had to be provided by the Department and its Director as representatives of the executive branch of the State government under the Governor. We interpret the court's action in this respect as one whereby he joined the Director and then issued the relief requested against the respondent most able to provide it.
Regardless of what his position in the proceedings is denominated, the Director should have a critical interest in the ultimate disposition of the defendant, Donald Lang. A complete determination of the petition for mandatory injunction could not be had without his presence. (Ill. Rev. Stat. 1975, ch. 110, par. 25.) Therefore, the Director was a "necessary respondent" (Powell, at 479); a "necessary party" (In re North Country Development Corp. v. Massena Housing Authority (1970), 316 N.Y.S.2d 894, 897, 65 Misc.2d 105); the "real party in interest" (Martin v. County of Contra Costa (1970), 8 Cal.App.3d 856, 865-66, 87 Cal.Rptr. 886, 892); an "indispensable party" (State ex rel. State Highway Com. v. Quesenberry (1964), 74 N.M. 30, 32-33, 390 P.2d 273, 275); and the person who has "an interest in the controversy adverse to the plaintiff" (State ex rel. Hartoon v. Sweeney (Ohio App. 1950), 61 Ohio Abs. 561, 105 N.E.2d 660). Under the circumstances of this particular case, the court had the statutory authority (section 25 of CPA) to add the Director as a respondent. Moreover, the power to add such parties as may be affected by the result of either an order in the nature of mandamus or a judgment of injunction is inherent. People ex rel. Public Service Com. v. New York Telephone Co. (1940), 21 N.Y.S.2d 405, 409, 174 Misc. 517; State ex rel. Kubel v. Plummer (1924), 130 Wn. 135, 139, 226 P. 273, 275.
For all of these reasons we reject the Director's asserted challenge to the court's jurisdiction over him. The entry into the proceedings of both the Conservator and the Director might appear to be unorthodox, however, such was necessary to the facts of this case. The presence of both parties in this continuing litigation is necessary in order to hopefully assist in solving the many issues raised in this matter.
On December 8, 1976, the trial court found defendant neither in need of mental treatment, nor mentally retarded. Nevertheless, the court ordered the Department to retain custody of defendant during the bail proceedings. The Director maintains that the court erred in doing so because it had no authority to order the Department to "hold" an unfit, uncommittable defendant. We agree.
5 A defendant who is found unfit to stand trial is remanded to a hospital for a hearing to determine if he is in need of mental treatment. (Ill. Rev. Stat. 1975, ch. 38, par. 1005-2-2(a).) The hearing into an unfit defendant's need for mental treatment is conducted in accordance with the terms and procedures of the MHC. (Ill. Rev. Stat. 1975, ch. 38, par. 1005-2-2(a); People v. Byrnes (2d Dist. 1972), 7 Ill. App.3d 735, 738, 288 N.E.2d 690.) The MHC contains two criteria for a defendant's need of hospitalization: that he is a person in need of mental treatment, or that he is mentally retarded. (Ill. Rev. Stat. 1975, ch. 91 1/2, pars. 1-11, 1-12; People v. Lang (1st Dist. 1975), 26 Ill. App.3d 648, 658, 325 N.E.2d 305, cert. denied (1976), 423 U.S. 1070, 47 L.Ed.2d 80, 96 S.Ct. 851.) If it is determined that the unfit defendant is not in need of hospitalization, then the Department must petition the trial court to release the defendant on bail or recognizance. (Ill. Rev. Stat. 1975, ch. 38, par. 1005-2-2(a).) Once the petition is filed, the court must hold a hearing into the question of the defendant's release. People ex rel. Martin v. Strayhorn (1976), 62 Ill.2d 296, 342 N.E.2d 5.
6 The Director argues that once the trial court found that defendant was unfit to stand trial and not in need of hospitalization and the Department petitioned for defendant's release, the court had no legitimate statutory or clinical justification to order the Department to retain custody of defendant in Department facilities. Our recent opinion in People v. Ealy (1st Dist. 1977), 49 Ill. App.3d 922, 365 N.E.2d 149, supports the Director's contention. In Ealy the court below set bail for the unfit, uncommittable defendant in an amount which allegedly ...