Plaintiffs argue their right of access demands more assistance from the DMHDD than is currently provided.
Defendants argue that even if plaintiffs have a right of access of the courts, the NGRI statute's provision of counsel satisfies any such right. Defendants argue it would be an unwarranted burden on the DMHDD to impose a requirement that the DMHDD's non-lawyer forensic staff "help NGRI patients practice law, or routinely transport dangerous patients to court . . . or do the many other things plaintiffs seek that would put the federal courts in constant oversight of the hospital." Defs.' Mem. at 13. Defendants cite Murray v. McDonald, 1992 U.S. Dist. LEXIS 7564, 91 C 5200, 1992 WL 137385 (N.D. Ill. June 1, 1992), in which Judge Conlon dismissed a similar action brought by committed acquittees.
The Murray case involved claims by acquittees that the DMHDD failed to provide adequate procedures for judicial review of plaintiffs' confinement and treatment under the NGRI statute. The Murray plaintiffs sought relief almost identical to the relief sought in the instant case. The Murray complaint sought injunctive relief in the form of: (1) notice to plaintiffs of their right to file petitions, (2) notice of the procedures for filing petitions, (3) the provision of petition forms, (4) help from DMHDD staff in completing these forms, (5) help in filing the petitions with the court, (6) help from DMHDD staff in obtaining court dates, and (7) transportation to court or appearances by DMHDD staff, in court, on plaintiffs' behalf. The court dismissed the Murray case for failure to present a case or controversy because the requested injunctive relief would not have redressed the alleged injury.
Unlike the instant plaintiffs, each of the Murray plaintiffs had already successfully completed and filed petitions for release but had received no responses. The Murray plaintiffs' petitions requested hearings, the appointment of counsel and independent psychiatric evaluations. Despite the relief requested, the allegations of the complaint showed that each of the plaintiffs had, indeed, been notified or learned of the right to petition the court, the procedures necessary to complete and file those petitions, that plaintiffs had been provided proper forms and had competently completed those petitions for filing. The Murray court noted that it was the responsibility of the court, not DMHDD, to set hearings and give notice of them, appoint counsel and order impartial psychological examinations. The circuit courts, not the DMHDD, were apparently disregarding those petitions. Furthermore, the Murray court noted that even if DMHDD staff were to appear on acquittees' behalf, it was unclear whether the court would schedule a hearing date within the 30 days. Any suggestion that DMHDD's appearance or the requested relief would remedy plaintiffs' serious problems were merely "speculative."
The instant case does not suffer from this defect. Plaintiffs argue that without minimal assistance from DMHDD staff, acquittees are effectively denied access to the courts because they are unable to petition the court, even for appointment of counsel, as guaranteed under the NGRI statute. The Supreme Court has held that the right of access to the courts requires the detaining authority to assist the detained individual in the preparation and filing of meaningful legal papers. Bounds, 430 U.S. at 828; DeMallory v. Cullen, 855 F.2d 442, 446 (7th Cir. 1988); Hatch, 809 F. Supp. at 61 (applying Bounds to NGRI acquittees' claims for stamps, envelops and law books or advice from patient advocates). The Seventh Circuit has characterized the right of access as "the most fundamental right" a detained individual has. DeMallory, 855 F.2d at 446. That acquittees, by virtue of their illness, are especially in need of assistance in exercising their rights is reflected in the NGRI statute's grant of representation "in all proceedings." 730 ILCS 5/5-2-4(c). Such a generous provision is illusory, however, if acquittees are never or inconsistently made aware of their right to petition for appointment of counsel, to petition for relaxed supervision or release, not provided with the necessary forms for such petitions and given no assistance in preparing and filing those forms. Plaintiffs' complaint properly states a claim for deprivation of their right of access to the courts.
Defendants also argue the court should abstain from deciding the merits of this case under Burford v. Sun Oil, 319 U.S. 315, 87 L. Ed. 1424, 63 S. Ct. 1098 (1943) and New Orleans Public Svc., Inc. v. Council of City of New Orleans, 491 U.S. 350, 105 L. Ed. 2d 298, 109 S. Ct. 2506 (1989). Defendants argue that despite the constitutional issues raised, Illinois' desire to create a special state fora to adjudicate NGRI issues justifies such abstention. Notwithstanding the procedures outlined in the NGRI statute, Illinois created no special forum for NGRI petitions. In support, defendants cite Nelson v. Murphy, 1994 U.S. Dist. LEXIS 2896, 90 C 3920, 1994 WL 86011 (N.D. Ill. Mar. 11, 1994). In Nelson, patients at the same Elgin facility alleged the summary suspension of their grounds passes violated their due process rights. Judge Nordberg dismissed the case on Burford abstention grounds, holding that a generalized injunction on suspension of grounds passes would be "antithetical to a state system based on individualized review of each patient by a particular judge." Burford abstention may be appropriate to avoid interference with state efforts to establish coherent policy with respect to matters of substantial public concern or to avoid difficult questions of state law bearing on substantial public policies transcending the result in the present case. Property & Cas. Ins. v. Central Nat'l Ins., 936 F.2d 319, 322-23 (7th Cir. 1991). Unlike the Nelson case, however, neither Burford rationale applies to this case.
A finding that current DMHDD practice violates acquittees' right of access to the courts would not necessarily interfere with Illinois' complex NGRI system. That statute, as comprehensive as it is and providing for the appointment of counsel, does not address the nuts and bolts of acquittees' initial access to the courts, a constitutional issue appropriate for this court. Nor need any potential solution necessarily interfere with any part of the system already established by statute. As in Bounds, the state might simply be required to work a suitable solution. Therefore, defendants' motion to dismiss will be denied.
IT IS THEREFORE ORDERED that defendants' motion to dismiss  is denied. Defendants are ordered to answer by July 1, 1994.
William T. Hart
UNITED STATES DISTRICT JUDGE
Dated: JUNE 23, 1994