APPEAL from the Circuit Court of Cook County; the Hon. PETER
STANIC and the Hon. ARCHIBALD T. LeCESNE, Judges, presiding.
MR. PRESIDING JUSTICE JIGANTI DELIVERED THE OPINION OF THE COURT:
The circuit court of Cook County found 17-year-old Willie Reliford mentally retarded and in need of hospitalization. He was committed to the facility recommended "as appropriate to his needs" by the Department of Mental Health and Developmental Disabilities. In this appeal Reliford argues that his institutionalization, pursuant to portions of the Mental Health Code of 1967 (Ill. Rev. Stat. 1975, ch. 91 1/2, pars. 1-1 et seq.) contravenes several provisions of both the United States and the Illinois constitutions. We find that, as applied to Reliford, the Mental Health Code violates the due process clauses of both constitutions. Because this finding is dispositive of the case we need not reach Reliford's other arguments.
Reliford was indicted for theft, but found not fit to stand trial; his custody was transferred to the Department of Mental Health. A petition, filed in the circuit court, asserted that he was mentally retarded and in need of mental treatment as defined by the Mental Health Code. (Ill. Rev. Stat. 1975, ch. 91 1/2, pars. 1-12 and 1-11.) It stated that Reliford required admission to a mental hospital and requested that the court conduct a hearing to determine whether Reliford needed mental treatment. As required by the statute, two doctors filed certificates in support of the petition. (Ill. Rev. Stat. 1975, ch. 91 1/2, par. 8-3.) One said Reliford required hospitalization because of his "questionable ability to care for [him]self." The other suggested that he was psychotic. Both certificates characterized Reliford as mentally retarded.
At a hearing on the petition, Reliford was represented by an assistant public defender. Sister Meckley, a social worker, testified that Reliford's legal guardian, his aunt, was unable to attend the proceeding. The trial judge telephoned the aunt and obtained permission to proceed in her absence. The phone conversation was not made part of the record.
Three doctors, all of whom had examined Reliford, testified for the State. They all found him to be moderately mentally retarded and recommended his hospitalization. All agreed that Reliford suffered from some sort of personality disorder, manifested by his frequent thefts, but that the disorder was not related to his mental retardation. Except for this testimony of the doctors, no other information about Reliford was introduced into the record.
Doctor Gerald Wellens, a registered psychologist, investigated Reliford's mental abilities through a variety of tests. He reported that results of those tests showed that Reliford was in a mildly "educable range" of mental retardation with a mental age near 9 years old, and an I.Q. of 54. Wellens testified that he read Reliford's "record" which showed an 8-year history of stealing. According to Wellens, this indicated an antisocial personality disorder. He called Reliford "compulsive" and a "thief" but said that the behavior was unrelated to the mental retardation. While the stealing did not mean that Reliford was "of danger" to the community, Wellens believed that Reliford needed some treatment. He did not know what kind of therapy would solve the problem. Without the antisocial personality disorder, Reliford's mental retardation, Wellens said, would not itself cause him to recommend institutionalization but rather he would suggest community treatment. However, Wellens thought that Reliford should be removed from his home environment because he needed treatment for this personality disorder. He explained that he understood that community treatment had been "unsuccessfully attempted" with Reliford already.
Doctor Edward Page-El, M.D., also evaluated Reliford's mental status and diagnosed him as mildly mentally retarded. Page-El characterized Reliford as oriented in time and place but having little insight into the solution to problems. Reliford's affect, said Page-El, was "somewhat flat." In addition to the retardation, Page-El found that Reliford had epilepsy and an unspecified personality disorder. Page-El said that Reliford was not psychotic. The doctor associated the personality disorder with the disruption of Reliford's relationship with his aunt which occurred when Reliford's sisters began living with him and his aunt. Page-El said community placement would have been appropriate except for Reliford's "chronic history of stealing and numerous arrests." Removing Reliford from his home environment, according to Page-El, would cause a decline in this stealing. Page-El cautioned, however, that any positive attempt at treatment might reinforce the behavior as a means of getting attention. Page-El recommended institutionalization.
Doctor Basil Siomopoulous, M.D., said he, too, conducted a psychiatric interview with Reliford and he agreed with the diagnosis that Reliford suffered from mild retardation. He found that although coherent and oriented, Reliford's vocabulary and general fund of information was limited, and that he had a speech defect which made communication difficult. Siomopoulous said that Reliford also had a seizure disorder which was being successfully treated with medication.
It was Siomopoulous' opinion that Reliford would not be able to provide for his own needs if he were not hospitalized. According to Siomopoulous, Reliford's stealing habits are related to a "social-cultural factor." He hypothesized that the stealing was a means by which Reliford gained esteem among his peers. Siomopoulous said that he had no information about Reliford's "family constellation" and that he disagreed with the other two doctors, saying that even in the absence of the thievery, he would recommend institutionalization. Siomopoulous specifically named the Kankakee State Hospital, a developmental disability facility, as the place in which to situate Reliford. However, Siomopoulous had no specific contact with that hospital and was recommending it only because he believed they treated mentally retarded patients.
The State presented no other evidence. Reliford's motion to dismiss the petition was denied. Reliford presented no evidence. The hearing was continued on the court's motion for further evaluation of the appropriate facility for Reliford.
The second hearing, held two weeks later, was presided over by a different judge. The State informed the court that Reliford's attorney was not present due to illness but that she was in accord with the suggestion that Reliford be placed in the Kankakee Development Center if he were to be institutionalized. Doctors Wellens and Siomopoulous both testified, repeated their diagnosis of mental retardation and the antisocial personality disorder, and both suggested institutionalization at Kankakee. A recommendation by Doctors Wellens and Cafill from the Illinois Institute for Developmental Disabilities was read into the record by the State's Attorney. It said that Reliford would benefit from placement in the Kankakee Development Center because it had a program for higher functioning "DD" (developmentally disabled) patients with a "workshop." It also would be most able to program for Reliford's secondary diagnosis of antisocial personality disorder. In reply to the court's inquiry, Reliford said that he was aware of the nature of the proceedings. The court entered an order stating that Willie Reliford was mentally retarded, in need of hospitalization, and should be placed in the behavioral control unit at the Kankakee Development Center.
Several cases have considered the constitutionality of the Mental Health Code as it relates to those with mental disorders. (See, e.g., People v. Sansone (1974), 18 Ill. App.3d 315, 309 N.E.2d 733; In re Stephenson (1977), 67 Ill.2d 544, 367 N.E.2d 1273.) We have found no case, however, which examined it in relation to those who are mentally retarded. This case, then, presents the question: When is it constitutionally permissible for a State to involuntarily institutionalize a person as mentally retarded.
1 A finding of mental retardation does not necessarily mean that a person loses his rights and responsibilities under the law. (Peach v. Peach (1966), 73 Ill. App.2d 72, 218 N.E.2d 504.) To the fullest extent possible, mentally retarded individuals possess the same rights as other individuals. (See Boyd v. Board of Registrars (1975), 368 Mass. 631, 334 N.E.2d 629.) People diagnosed as mentally retarded are a heterogeneous group, ranging in abilities from those who are "trainable," living relatively normal lives, to those who are profoundly retarded, unable to communicate or care for themselves. (See C. Murdock, Civil Rights of the Mentally Retarded, 48 Notre Dame Law. 133 (1972).) These differences among the mentally retarded may necessitate a variety of procedures for dealing with their problems and a flexible concept of what is their "best interest." The role of a guardian in seeing to their welfare may require several approaches to analyzing their rights. (See, e.g., In re Roger S. (1977), 19 Cal.3d 921, 569 P.2d 1286, 141 Cal.Rptr. 298, which deals with the rights of a guardian to hospitalize a minor or incompetent.) However, "the principles of equality and respect for all individuals" require the recognition of certain constitutional and personal rights in those that are mentally retarded, and the application of due process safeguards to protect those rights. Superintendent of Belchertown State School v. Saikewicz (1977), ___ Mass. ___, ___, 370 N.E.2d 417, 427.
Preeminent among these rights is personal liberty, the right to live in freedom from unwarranted interference by the State. Involuntary commitment of any person disrupts this freedom, entailing a "massive curtailment of liberty." (Humphrey v. Cady (1972), 405 U.S. 504, 509, 31 L.Ed.2d 394, 402, 92 S.Ct. 1048.) Forced institutionalization can only be justified by a recognized and substantial government interest. O'Connor v. Donaldson (1975), 422 U.S. 563, ...