People v. Britz

JUSTICE HARRISON, specially concurring:

I agree with the result reached by the majority, but write separately because I disagree with the reasoning employed by my colleagues in rejecting petitioner’s Brandon claim.

In People v. Brandon, 162 Ill. 2d 450, 461 (1994), decided just two years ago, this court declared the language of section 104 — 21(a) of the Code of Criminal Procedure of 1963 (Ill. Rev. Stat. 1983, ch. 38, par. 104— 21(a)) to be clear and unambiguous. Now my colleagues have abruptly decided that a phrase in that statute, "other medications under medical direction,” cannot be plainly understood. This contention is untenable. As with the remainder of the text, there is nothing the slightest bit confusing about this phrase. It is perfectly straightforward. "Other medications under medical direction” means simply medications, other than psychotropic drugs, taken under the direction of medical personnel.

Obviously unhappy with such a construction, my colleagues attempt to find refuge in Latin, invoking the phrase ejusdem generis. This phrase is a familiar one in law, but has nothing to do with this case. When used as a canon of statutory construction, ejusdem generis means that when a statute lists several classes of persons or things and is followed by a general reference supplementing the enumeration, the general words will be construed as applying only to "others such like” the enumerated persons or things (Board of Trustees of Southern Illinois University v. Department of Human Rights, 159 Ill. 2d 206, 211 (1994)), i.e., persons or things of the same general class as those listed (Black’s Law Dictionary 517 (6th ed. 1990)).

In this case, ejusdem generis is inapplicable for the obvious reason that there is no listing of several classes of persons or things followed by a general reference. While "other medication” may be general, it is not proceeded by the enumeration of several classes or persons or things. Only one item comes before it and that is "psychotropic drugs.” Accordingly, the doctrine cannot support the majority’s conclusion that "other medication” is limited in meaning to other medication like psychotropic drugs. "Psychotropic drugs” is an alternative to "other medication” and in no way qualifies that term.

The fallacy in the majority’s position becomes further apparent when one considers how medication could possibly be psychotropic-like without qualifying as psychotropic itself. The basic definition of "psychotropic” is simply "acting on the mind” (Webster’s Third New International Dictionary 1834 (1986)), and there is no statutory basis for assigning it anything more than this generic meaning. If medication affects one’s mind, it is psychotropic under this definition. If it does not, it is not. There is no middle ground.

Because the specific term "psychotropic drugs” embraces the entire class of drugs that act on the mind, the general term "other medications” must be given a meaning beyond that class. Otherwise, the term would add nothing to the statute. It would be mere surplusage, thus violating the more important rule of construction that a statute should be construed so that no word or phrase is rendered superfluous or meaningless. See In re Special Education Placement of Walker, 165 Ill. App. 3d 846, 851 (1987), rev’d on other grounds, 131 Ill. 2d 300 (1989).

The majority asserts that construing the statute to require a fitness hearing even where the medication is not psychotropic or psychotropic-like would be absurd. This argument is based on a fundamental misunderstanding of the import of the statute. The idea behind the law is not that the medication itself is disabling, although it may be, but that the need for medication is indicative of the presence of an underlying condition which may prevent a defendant from being able to fully participate in his defense.

The General Assembly has expressly recognized that a defendant’s ability to understand and assist the defense may be impaired by physical conditions as well as mental ones. See Ill. Rev. Stat. 1983, ch. 38, pars. 104 — 10, 104 — 13, 104 — 15, 104 — 17. If a defendant cannot see because of vision problems, or cannot breathe because of respiratory ailments, or cannot concentrate because of fever, pain or other illness, his ability to defend himself may be every bit as compromised as a defendant who is depressed or delusional. The General Assembly included the "other medications” language in section 104 — 21(a) (Ill. Rev. Stat. 1983, ch. 38, par. 104— 21(a)) to cover such physical conditions, just as it included the "psychotropic drug” language to cover mental conditions. The notion behind the statute is that whichever type of problem afflicts a defendant, if it is serious enough to require medication under medical direction, it is serious enough to warrant a hearing on his fitness. The type of medication is irrelevant. As long as it is taken under medical direction, a fitness hearing is necessary.

There is nothing inherently absurd or irrational about this arrangement. One may disagree with it as a matter of policy, but the policy judgment was for the legislature to make. I note, in this regard, that the legislature has now apparently concluded that its policy decision was unsound and has therefore amended the statute to delete the reference to "other medications.” Pub. Act 89 — 428, eff. December 13,1995 (amending 725 ILCS 5/104 — 21 (West 1994)). That amendment, however, is further proof that the majority’s construction of the law is incorrect.

When the legislature amends an act by deleting certain language, there is a presumption that it intended to change the law in that respect. Board of Trustees of Community College District No. 508 v. Burris, 118 Ill. 2d 465, 475 (1987). If the majority were correct and "other medications” meant simply "other psychotropic-like medications,” there would have been no need to change the law here. To the contrary, the amendment would have been completely nonsensical, because in terms of assessing a defendant’s fitness, there is no rational basis for differentiating drugs that are actually psychotropic from drugs that may not be psychotropic but have the same kinds of effects on a defendant’s mind.

Although the majority has thus misinterpreted the statute, I nevertheless agree that the petitioner in this case is not entitled to a fitness hearing under Brandon, 162 Ill. 2d 450 , and its progeny. The mere fact that a defendant has taken medication under medical direction at some point during the pendency of the case is not sufficient to trigger the requirements of section 104 — 21(a) (Ill. Rev. Stat. 1983, ch. 38, par. 104 — 21(a)). Administration of the medication must have been proximate in time to the trial or entry of a guilty plea and sentencing. See People v. Kinkead, 168 Ill. 2d 394, 414 (1995). That was not the case here. Petitioner took the medication approximately one month before the trial commenced, and there is no indication in the record that anything was occurring at the time, in terms of defense preparation, that required decisionmaking or assistance on his part. It is for this reason that the court is correct in rejecting petitioner’s request for a fitness hearing.

In all other respects, I join in the majority’s opinion.