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06/24/97 C. RODNEY YODER (C. RODNEY YODER v. PEOPLE

June 24, 1997

IN RE C. RODNEY YODER (C. RODNEY YODER, PETITIONER-APPELLANT,
v.
THE PEOPLE OF THE STATE OF ILLINOIS, RESPONDENT-APPELLEE).



Appeal from the Circuit Court of Randolph County. No. 96-MH-3. Honorable William A. Schuwerk, Jr., Judge, presiding.

Rule 23 Order Redesignated Opinion and Ordered Published June 19, 1997.

The Honorable Justice Chapman delivered the opinion of the court. Goldenhersh, J., concurs. Welch, J., concurring in part and dissenting in part.

The opinion of the court was delivered by: Chapman

JUSTICE CHAPMAN delivered the opinion of the court:

Petitioner Claude Rodney Yoder appeals from the May 29, 1996, order of the Randolph County circuit court granting the State's motion for a directed finding on his petition for discharge from the custody of the Chester Mental Health Facility. He asserts that the court erred because it (1) failed to appoint an independent examiner to assess his mental status, (2) denied his request for a jury trial, (3) refused to allow him to waive counsel and represent himself, and (4) granted the State's motion for a directed finding on his petition. He also asserts that appointed counsel provided him with ineffective assistance. We hold that petitioner failed to make a prima facie case for discharge, and that the court properly found him unable to either waive counsel or represent himself, but that the court erred in denying his request in regard to an independent examination and in denying his request for a jury trial. In view of our rulings on these issues, we need not pass upon the issue of the effectiveness of counsel.

In a jury trial conducted on March 26, 1996, petitioner was found to be a person in need of continued involuntary commitment due to his presentation of a threat of danger to others. On May 23, 1996, he filed a pro se petition for discharge or modification of his commitment order, pursuant to the Mental Health and Developmental Disabilities Code (Code). 405 ILCS 5/1-100 et seq. (West 1994). The petition, which was unsupported by affidavits, alleged that the Department of Mental Health (Department) was no longer providing him with appropriate therapy as of March 28, 1996; that he had been removed from the case load of Sydelle C. Warshauer and placed in treatment with a therapist and a psychiatrist he described as "two litigants with [petitioner]"; that he was being provided with custodial care only; that mental health advocates were currently attempting to get appropriate care for him; that bogus allegations of misconduct had been made against him, thwarting a transfer to another unit in the system; that his current caregivers were attempting to prescribe inappropriate drug treatment for his mental problems; and that his mental status did not warrant his confinement in his current, restrictive placement. He demanded that his petition be set for a trial by jury, that counsel be appointed to represent him, and that an independent examiner be appointed to assess him.

The petition was set for hearing on May 29, 1996. Petitioner was represented by Rayburn Fricke, his appointed counsel at the time of the trial at which his involuntary commitment was continued. Counsel informed the court that during his discussion with petitioner prior to the appearance, petitioner told him that he wished to represent himself and that he wanted a jury trial on the petition. The demand for a jury trial was denied by the court after the State asserted that the applicable statutes did not provide for a jury trial on petitions for discharge and counsel could cite no authority for petitioner's position. Petitioner's demand to represent himself was denied without the court making inquiry of petitioner.

When the court asked petitioner if he wished to testify, he asserted that he did want to do so, "but in a real legal proceeding, not a kangaroo proceeding." Petitioner, having told the court that he wanted to be represented by counsel, but not the one appointed for him, then left the courtroom. He asserted prior to his departure that he was not waiving any of his rights, but that the court was waiving them for him, and that he wanted to leave. Counsel presented no evidence, and the court granted the State's motion for a directed finding and denied the petition for discharge, based on petitioner's failure to present any evidence to substantiate the allegations of the petition.

I.

Petitioner maintains that under section 3-804 of the Code (405 ILCS 5/3-804 (West 1994)), he had a right to be examined by an independent examiner to determine whether discharge or modification of his treatment was warranted. The State contends that, because petitioner failed to properly support his petition for discharge and present a prima facie case for discharge which the State would then be compelled to counter, the court was under no duty to appoint an independent examiner.

Petitioner cites the decision in In re Katz, 267 Ill. App. 3d 692, 642 N.E.2d 893, 205 Ill. Dec. 28 (1994), and the decision in In re Barnard, 247 Ill. App. 3d 234, 616 N.E.2d 714, 186 Ill. Dec. 524 (1993), in support of his assertion that he was entitled to an independent examiner. In Katz, although the reviewing court found that the respondent did not establish a prima facie case for discharge via her petition and testimony, it held that "nothing in the format for the procedure for a discharge hearing negates application of section 3-804 of the Code to entitle a respondent to an examination by an independent expert before a hearing on a petition for discharge." (Emphasis added.) Katz, 267 Ill. App. 3d at 696, 642 N.E.2d at 896. In Barnard, the respondent appealed from a finding that he was subject to continued involuntary admission to a mental health facility and raised, inter alia, the issue of whether he was entitled to an examination by an independent examiner who was not an employee of the Department of Mental Health. This court held that "section 3-804 of the Code applies with equal force to both petitions for discharge and petitions for involuntary admission" (emphasis added) ( Barnard, 247 Ill. App. 3d at 249, 616 N.E.2d at 725) and found that an employee of the Mental Health Department was capable (if performing an impartial examination. See also our decision in In re Pates, 99 Ill. App. 3d 847, 850, 426 N.E.2d 275, 278, 55 Ill. Dec. 300 (1981), where the respondent filed a petition for discharge on September 25, 1981, a State-employed psychologist examined him on September 30, 1981, and on October 1, 1981, defense counsel sought the appointment of an "impartial medical expert" to aid in the preparation for a hearing on his petition for discharge. We found that it was proper for an examiner employed by the State to provide an independent examination, in the absence of questions about his competence, his impartiality, or the thoroughness of his examination. Pates, 99 Ill. App. 3d at 850, 426 N.E.2d at 278.

We do not believe, given the precedent in Katz, that it is necessary for petitioner to first establish a prima facie case for discharge before he is entitled to appointment of an independent expert to examine him. However, we do not feel compelled to follow the court's holding in Katz that the State must pay for an examiner chosen by a party petitioning for discharge, at State expense, who is not an employee of the Department of Mental Health. Our decision in Barnard reflects our continuing conviction that such a party is not entitled to choose his own appointed examiner, and that an examiner who is affiliated with the Department of Mental Health is a proper, impartial examiner, in the absence of evidence to the contrary.

We find that petitioner was entitled to the appointment of an independent examination prior to the hearing on his petition for discharge, and that the trial court ...


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