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In re David D.

August 31, 1999

IN RE DAVID D., ALLEGED TO BE A PERSON SUBJECT TO INVOLUNTARY PSYCHOTROPIC MEDICATION
(THE PEOPLE OF THE STATE OF ILLINOIS, PETITIONER-APPELLEE, V. DAVID D., RESPONDENT-APPELLANT).
IN RE DAVID D., ALLEGED TO BE A PERSON SUBJECT TO INVOLUNTARY ADMISSION
(THE PEOPLE OF THE STATE OF ILLINOIS, PETITIONER-APPELLEE, V. DAVID D., RESPONDENT-APPELLANT).



Appeal from the Circuit Court of Kane County. No. 98--MH--171 Honorable Karen Simpson, Judge Presiding. Appeal from the Circuit Court of Kane County. No. 98--MH--215 Honorable Karen Simpson, Judge Presiding.

The opinion of the court was delivered by: Justice Galasso

IN THE COURT OF APPEALS OF THE STATE OF ILLINOIS

JUSTICE GALASSO delivered the opinion of the court:

Respondent, David D., appeals from orders of the circuit court finding him to be subject to involuntary commitment to the Elgin Mental Health Center (EMHC) and subject to the involuntary administration of psychotropic medication. On the State's motion, this court consolidated the appeals. The primary issue in each case is whether the trial court improperly denied respondent his right to a jury trial. Respondent also contends that the order for involuntary commitment must be reversed because the State failed to establish that hospitalization was the least restrictive alternative available for respondent.

On June 12, 1998, the State's petition to administer psychotropic medication was called for hearing. Respondent was not present but was represented by a public defender. The public defender asked for and received a continuance because defendant was not present and had refused to speak with her.

The State later filed a petition for involuntary commitment. The trial court heard this petition on June 26, 1998. Again, respondent was not present but was represented by a public defender. The attorney stated that different public defenders had tried to speak with respondent three times, but he had refused to speak with them. The public defender said that she had informed respondent that the hearing would go on in his absence. The matter then proceeded as a bench trial.

Dr. Alesia Martin, a psychiatrist at EMHC, testified that respondent suffered from schizophrenia, paranoid type, a serious mental illness. Respondent was paranoid and guarded and exhibited catatonic behavior, posturing, rigidity, and mutism. Martin concluded that respondent would be unable to meet his basic needs.

Immediately thereafter, the court conducted a bench trial on the petition for psychotropic medication. The parties stipulated to the testimony at the previous hearing. Additional testimony tended to show that respondent would benefit from receiving psychotropic medication. However, he refused to take it. Martin concluded that respondent did not have the capacity to make a reasoned decision about, and could not understand the risks and benefits of, such medication.

The court granted both petitions. Respondent filed timely notices of appeal.

In his initial briefs, respondent contended that the trial court erred by conducting bench trials on the two petitions where respondent did not explicitly waive jury trials. The State responded that express waivers were not required and that respondent had to demand a jury in order to invoke the right.

In his reply brief, respondent acknowledges that a demand is necessary to invoke the statutory right to a jury trial in mental health cases. Respondent argues that the trial court's orders must still be reversed because the record does not show that respondent was informed of his right to a jury trial and, therefore, the implicit waiver of that right by his attorney is invalid.

Generally, issues raised for the first time in a reply brief are waived. 177 Ill. 2d R. 341(g); see Neri v. J.I. Case Co., 207 Ill. App. 3d 409, 413-14 (1991). However, because the involuntary administration of mental health treatment represents a substantial deprivation of an individual's liberty interests (In re C.E., 161 Ill. 2d 200, 213 (1994)), we will consider respondent's argument.

Section 3--802 of the Mental Health and Developmental Disabilities Code (the Code) provides as follows:

"The respondent is entitled to a jury on the question of whether he is subject to involuntary admission. The jury shall consist of 6 persons to be chosen in the same manner as are jurors in other civil proceedings." 405 ILCS 5/3--802 (West 1996). Section 2--107.1 of the Code makes this provision applicable to proceedings for the ...


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