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12/20/94 PEOPLE STATE ILLINOIS v. BRIAN BLEDSOE

December 20, 1994

THE PEOPLE OF THE STATE OF ILLINOIS, PLAINTIFF-APPELLEE,
v.
BRIAN BLEDSOE, DEFENDANT-APPELLANT.



Appeal from the Circuit Court of Cook County. The Honorable Daniel J. Kelley, Judge Presiding.

Released for Publication February 8, 1995.

Presiding Justice DiVito delivered the opinion of the court: Hartman and McCormick, JJ., concur.

The opinion of the court was delivered by: Divito

Presiding Justice DiVito delivered the opinion of the court:

The sole question in this appeal is whether section 5-2-4 of the Unified Code of Corrections requires an independent examination by a psychiatrist or clinical psychologist for a petitioner, previously found not guilty by reason of insanity, who requests such an examination in seeking release from the custody of the Department of Mental Health and Developmental Disabilities. For the reasons that follow, we hold that such an examination is required.

Petitioner Brian Bledsoe was acquitted by reason of insanity of first degree murder in January 1991, and was involuntarily confined at the Elgin Mental Health Center soon thereafter. On June 4, 1993, petitioner filed for discharge or conditional release from the Department of Mental Health and Developmental Disabilities (the Department) pursuant to section 5-2-4 of the Unified Code of Corrections (730 ILCS 5/5-2-4 (West 1992)). Petitioner simultaneously made a request for an independent psychiatric examination pursuant to section 5-2-4(f). The circuit court did not order an independent psychiatric examination, nor was one performed.

On September 2, 1993, a hearing was held on the petition for discharge or conditional release. Petitioner, the only witness to testify on his behalf, stated that he believed he was no longer a danger to himself or to others in the community; he also testified that he was willing and able to comply with any outpatient requirements imposed upon him by the court. The State's sole witness, Dr. Tyrone Hollerauer, served as petitioner's counselor and clinical team leader at the Elgin Mental Health Center. He testified that he believed petitioner was a danger to himself and others and was in need of mental health services on an inpatient basis.

The circuit court denied the petition for discharge or conditional release, concluding that petitioner was still in need of mental health services on an inpatient basis. After the court's ruling, petitioner repeated his request for an independent psychiatric evaluation. The court denied the request, and petitioner appealed.

Petitioner argues that the circuit court's failure to order an independent psychiatric examination violated section 5-2-4(f) of the Unified Code of Corrections. We agree.

A petitioner who is acquitted of a criminal charge by reason of insanity and is involuntarily committed to the custody of the Department may petition the court for release every sixty days. (730 ILCS 5/5-2-4(e) (West 1992).) The relevant portion of the Unified Code of Corrections states:

"If requested by either the State or the defense or if the Court feels it is appropriate, an impartial examination of the defendant by a psychiatrist or clinical psychologist as defined in Section 1-103 of the Mental Health and Developmental Disabilities Code who is not in the employ of the Department of Mental Health and Developmental Disabilities shall be ordered, and the report considered at the time of the hearing." (Emphasis added.)(730 ILCS 5/5-2-4(f) (West 1992).)

Petitioner contends that the statutory language is mandatory and does not allow the court discretion in granting an independent psychiatric examination to a petitioner who has requested one. The State contends that the term "shall" is not always compulsory and binding on the judiciary ( People v. Porter (1988), 122 Ill. 2d 64, 82, 521 N.E.2d 1158, 118 Ill. Dec. 465, cert. denied (1988), 488 U.S. 837, 109 S.Ct. 102, 102 L. Ed. 2d 77 (generally "shall" is found to be indicative of mandatory intent but such construction is not absolute)), and should be construed as discretionary in this instance.

A court's function in statutory interpretation is to ascertain the intention of the legislature and to give effect to it. ( Interlake, Inc. v. Industrial Com. (1983), 95 Ill. 2d 181, 192, 447 N.E.2d 339, 69 Ill. Dec. 122.) The language of the statute is the best source for determining legislative intent. ( People v. Rink (1983), 97 Ill. 2d 533, 539, 455 N.E.2d 64, 74 Ill. Dec. 34.) Generally, the word "shall" is regarded as indicative of mandatory intent. ( People v. Youngbey (1980), 82 Ill. 2d 556, 562, 413 N.E.2d 416, 45 Ill. Dec. 938.)

We believe that in the context of an individual involuntarily committed to the custody of the Department, mandatory construction is required. Oftentimes a petition for release is contested by the State and the petitioner's psychiatrist or clinical leader from the Department testifies that petitioner is still in need of mental health services. If the petitioner is unable to procure an independent examination, the court is left to consider only the petitioner's testimony in support of fitness for relief, and the psychiatrist's testimony to the contrary. Under this circumstance, the likely outcome is predictable. ...


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