Appendix — Nelson v. Murphy

Supreme Court brief1995

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FILED

942053 WN 8 = 1995

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~~ OFFICE OF THE CLERA

In The

Supreme Court of the United States

October Term, 1994

WAYNE NELSON and ANTHONY MANOS,

Individually and on behalf of all others

similarly situated,

Petitioners,

vs.

WILLIAM MURPHY, Acting Director

Department of Mental Health and

Developmental Disabilities; ROALDA J.

ALDERMAN, Facility Director, Elgin

Mental Health Center; and TERRY BRELJE,

Associate Director for Forensic

Services, Department of Mental Health

and Developmental Disabilities,

Respondents.

PETITION FOR WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE SEVENTH CIRCUIT

APPENDIX TO

PETITION FOR WRIT OF CERTIORARI

MARK J. HEYRMAN

COUNSEL OF RECORD

Edwin F. Mandel Legal Aid Clinic

of the University of Chicago Law School

and United Charities of Chicago

6020 South University Avenue

Chicago, Illinois 60637-2786

(312) 702-9611

Attorney for Petitioner

3n the

United States Court of Appeals

Hor the Seventh Circuit

No. 94-1764

WAYNE NELSON and ANTHONY MANOos,

Plaintiffs-Appellants,

WILLIAM Murpny, Acting Director of the Department of

Mental Health and Developmental Disabilities, et al.,

Defendants-Appellees.

Appeal from the United States District Court ,*.

for the Northern District of Illinois, Eastern Division:

No: 90 C 3920—John A. Nordberg, Judge. 1' ;

ARGUED OCTOBER 25, 1994—Decipep JANUARY 4, 1995

Before CUDAHY, ESCHBACH, and EASTERBROOK,

Circuit Judges.

EASTERBROOK, Circuit Judge. When a jury in Illinois

returns a verdict of not guilty by reason of insanity, the

criminal court commits the defendant for a mental exam-

ination. 730 ILCS 5/5-2-4(a). If after receiving the results

of this examination the judge decides that the person is

mentally ill and dangerous, the judge must order the per-

son confined “in a secure setting”. Ibid. “Such defendants

placed in a secure setting shall not be permitted outside

the facility’s housing unit unless escorted”. Ibid. Notwith-.

standing this command, a court may permit a confined

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2 No. 94-1764

€rson to move freely on and off the facility’s grounds.

very 60 days the director of the mental health facility

“shall file a treatment plan with the court. . . . Such plan

may .. . include unsupervised on-grounds privileges, off-

grounds privileges (with or without escort .. .), home visits

and participation in work programs’’. 730 ILCS 5/5-2-4(b).

Wayne Nelson and Anthony Manos were found not guil-

by reason of insanity. Nelson had been charged with

murder, Manos with attempted murder. Each was found

mentally ill and dangerous, ordered confined “in a secure

setting’, and sent to the Elgin Mental Health Center. On

the recommendation of a treatment plan, both received

passes for on- and off-grounds travel. In December 1988

the criminal court approved a treatment plan that per-

mitted Nelson to move on-grounds from one activity to

another, and to leave the grounds on supervised travel

twice a month (but not to visit his home). In January 1988

the criminal court approved a treatment plan that gave

bn-grounds privileges, and in September

1989 the court granted Manos’s motion for supervised off-

grounds travel (but he, too, was not to visit his home).

In May 1990 two persons confined at Elgin escaped while

traveling on off-grounds passes. William Murphy, then the

I ded that security needed improve-

ment. He canceled all off-grounds passes and curtailed un-

escorted movement within the grounds while the facility

federal court under 42 U.S.C. §1983, contending that the

because it was a response to a breach of security rather

than an outgrowth of an individual evaluation. See Young-

berg v. Romeo, 457 U.S. 307 (1982). Litigation is proper

under §1983, rather than 28 U.S.C. §2254, because the

Scope of passes may be understood as a condition of con-

finement. See Graham v. Broglin, 922 F.2d 379 (7th Cir.

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No. 94-1764 3

1991) (request for placement in a work release program

may be adjudicated under §1983).

Plaintiffs believe that the due process clause forbids any

decisions applicable across the board to all inmates. They

sought injunctive relief and damages on behalf of a class

of all persons confined at Elgin after acquittal by reason

of insanity. The fence was completed in March 1991, but

on-grounds unsupervised travel has not been fully restored;

most inmates’ movement is supervised. In March 1994 the

district court dismissed the suit without prejudice to its

renewal in state court, concluding that abstention is ap-

propriate. 1994 U.S. Dist. Lexis 2896.

“As soon as practicable after the commencement of an

action brought as a class action, the court shall determine

by order whether it is to be so maintained.” Fed. R. Civ.

P. 23(cX1). This case was active on the district court’s

docket for three years and four months, but despite two

motions for class certification and full briefing by;the par-

ties the court never decided whether it could be maintained

as a class action. The court did not give a reason for this

inaction, and we do not perceive one. Prompt decision one

way or the other is imperative not only so that the par-

ties know whose interests are at issue but also so that

representative plaintiffs with live claims may be substi-

tuted. For a properly certified class action survives the

mootness of the original representative’s claims, while an

individual action must be dismissed in identical circum-

stances. Compare Sosna v. Iowa, 419 U.S. 398 (1975), with

Board of School Commissioners v. Jacobs, 420 U.S. 128

(1975). Both plaintiffs have been released from confine-

ment at Elgin—Manos in December 1990 and Nelson in

April 1993. See People v. Nelson, 244 Ill. App. 3d 356,

614 N.E.2d 277 (1st Dist. 1993). The district court did not

mention these releases, which moot plaintiffs’ request for

injunctive relief. Although each plaintiff is subject to re-

commitment for future misbehavior, that possibility was _

held insufficient to satisfy Article III in Weinstein v. Brad-

ford, 423 U.S. 147 (1975), which concluded that reléase

on parole moots a dispute about the procedures the state

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4 No. 94-1764

uses to make parole decisions. See also Murphy v. Hunt,

455 U.S. 478 (1982). A decision on class certification could

permit other inmates to carry on the quest for injunc-

tive relief, Parole Commission v. Geraghty, 445 U.S. 388

(1980), but two considerations counsel against a remand.

First, the small size of the putative class (fewer than 85

at all pertinent times) coupled with the fact that each in-

mate was entitled to (and several received) individual con-

sideration in state court suggests that the conditions for

class certification have not been met. Second, Nelson and

Manos have a live dispute with the defendants about dam-

ages, and our resolution of this dispute shows that class

certification would be imprudent.

The district court abstained under the principles of Bur-

ford v. Sun Oil Co., 319 U.S. 315 (1943). Burford held

that a federal court should abstain when the federal case

depends on the resolution of unsettled questions of state

law within the competence of an administrative agency—in

Burford itself, an agency regulating the oil industry. Plain-

tiffs observe that directives affecting passes from a single

state mental facility are some distance from a statewide

program of oil and gas regulation, and they add that noth-

ing in this case depends on the resolution of an unsettled

question of state law. The district court conceded all this

but thought Burford applicable because the rules govern-

ing the treatment of mentally ill persons are important to

the state. Although Illinois does not handle these matters

through an agency with statewide power, or even a court

of specialized jurisdiction, the district judge thought that

the criminal court supervising each person’s custody spe-

cializes in the details of that case: “While the Illinois cir-

cuit courts can hardly be said to [be] courts of technical

specialization, in this instance they are courts of individual

specialization.” }

Plaintiffs see this as proof that Burford cannot apply.

No agency, no Burford abstention. This oversimplifies mat-

— Five years ago the Court recapitulated the Burford

octrine: “t 9

No. 94-1764 +)

Where timely and adequate state-court review is avail-

able, a federal court sitting in equity must decline

to interfere with the proceedings or orders of state

administrative agencies: (1) when there are “difficult

questions of state law bearing on policy problems of

substantial public import whose importance transcends

the result in the case then at bar’; or (2) where the

“exercise of federal review of the question in a case

and in similar cases would be disruptive of state ef-

forts to establish a coherent policy with respect to

a matter of substantial public concern.”

New Orleans Public Service, Inc. v. New Orleans, 491

U.S. 350, 361 (1989) (VOPSDJ (citations omitted). This lan-

guage suggests that Burford is limited as plaintiffs pro-

pose. Yet two years ago the Court suggested that the

Burford doctrine might justify abstention in a domestic

relations case otherwise within the diversity jurisdiction,

when a state court is available to resolve difficult ques-

tions of state law. Ankenbrandt v. Richards, 112 S. Ct.

2206, 2216 (1992). If Burford abstention might be apt in

a domestic-relations dispute, an agency’s role cannot be

essential.

Still, it is hard to fit this dispute within Burford. Its

outcome does not depend on the answer to some unsettled

issue of state law. And far from using a single agency

or specialized court to “establish a coherent policy with

respect to a matter of substantial public concern”, Illinois

has divided responsibility among the many criminal courts

throughout the state. A decade ago, when a state judge

issued an injunction governing the handling of escape risks

at mental institutions, the Supreme Court of Illinois re-

versed on the ground that each judge supervising a per-

son in custody after an insanity acquittal is entitled to

consider the subject independently. People v. Roush, 101

Ill. 2d 355, 462 N.E.2d 468 (1984). Rowsh establishes that

Illinois does not seek a uniform policy toward all persons

situated similarly to plaintiffs, which makes the Burford

doctrine inapplicable.

PU tanta atest in hla Lar DO

6 No. 94-1764

In the district court defendants relied not only on Bur-

ford but also on Younger v, Harris, 401 U.S. 37 (1971).

The district court thought Younger irrelevant “because

plaintiffs do not seek to enjoin any state court proceeding.

Co. v. Texaco, Inc., 481 U.S. 1 (1987) (treating an injunc-

tion against execution of a money judgment rendered by

a state court as no better than an injunction against the

continuation of the state proceedings).

Illinois requires the criminal court to Supervise the con-

finement of persons found not guilty by reason of insan-

ity. Both Nelson and Manos were active litigants in state

court. As we have recounted, Nelson was especially ac-

the orders approving earlier treatment plans and thus con-

stituted contempt of court. No one doubts that the state

courts had jurisdiction to consider the precise constitu-

tional claims that have been raised in this litigation. The

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No. 94-1764 7

cases pending in the courts of Illinois are continuations

of the original criminal prosecutions, and preserving a

state’s right to litigate criminal cases in its own courts

is the core of the Younger doctrine. Instead of present-

ing objections to the treatment plans, plaintiffs filed an

independent suit in federal court. Their briefs imply that

they made this choice because they were dissatisfied with

the relief that state courts had afforded to other inmates

at Elgin. But the limited relief may reflect not any restric-

tions on the state tribunal’s power, or any unwillingness

to entertain constitutional claims, but the shakiness of

plaintiffs’ arguments on the merits. We do not share plain-

tiffs’ apparent view that dissatisfaction with state courts’

handling of an issue justifies carting one’s claim off to fed-

eral court. a

There are exceptions to the Younger principle, but plain-

tiffs do not contend that any is applicable; they rest with

the district court’s conclusion that by not seeking an ex-

plicit injunction against the state court’s role they have

avoided Younger, and that conclusion is incorrect. Plain-

tiffs’ litigation strategy creates another potential argument.

Because they have been released, plaintiffs are not now

litigants in active criminal proceedings; the staff at Elgin

does not file new treatment plans, and there. is no state

forum in which plaintiffs may litigate their defenses to

the details of these plans. But the Supreme Court long

ago held that — may not avoid Younger by withhold-

ing defenses from the state proceeding and commencing

the federal suit as soon as the state case ends. Huffman

v. Pursue, Lid., 420 U.S. 592, 607-11 (1975).

“Federal post-trial intervention, in a fashion designed

to annul the result of a state trial, . . . deprives the States

of a function which quite legitimately is left to them, that

of overseeing trial court dispositions of constitutional is-

sues which arise in civil litigation over which they have

jurisdiction.” Jd. at 609 (footnote omitted). See also NOPSI,

491 U.S. at 369. What Huffman decried is, however, ex-

actly what plaintiffs want. Treatment plans to which ‘they

made no objection in the state tribunals supervising their

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8 No. 94-1764 1

treatment were put into effect; then plaintiffs sought to

annul this result in federal litigation. Younger bars such

a step.

Heck v. Humphrey, 114 S. Ct. 2364 (1994), holds that

a prisoner may not obtain damages for allegedly uncon-

stitutional conviction or imprisonment unless the convic-

tion or sentence has been reversed—a step that for state

Tine” entails exhaustion of state remedies under 28

‘S.C. §2254. Younger supports a complementary holding

for conditions of confinement that are actively supervised

by state courts. This is not at all to create an exhaustion

requirement for conditions-of-confinement litigation under

§1983. Felder v. Casey, 487 U.S. 131, 147-48 (1988), and

Patsy v. Board of Regents, 457 U.S. 496 (1982), hold that

there is none. But it is to say that an inmate already par-

ticipating in state litigation must make his Stand there

rather than areeapt the equivalent of federal-defense re-

moval by filing’an.independent §1983 suit. Actually these

plaintiffs are attempting state-defense removal too, argu-

ing that the revocation of the passes violated the courts’ -

earlier orders approving treatment plans that provided for

passes. Violation of a state court’s order is contempt of

court, not a violation of the Constitution. Pacelli v, deVito,

972 F.2d 871, 876 (7th Cir. 1992), By stressing the ten-

sion between defendants’ directives and the orders of the

state courts, plaintiffs make pellucid the fact that their

arguments should have been presented to the state courts.

We know from Deakins v. Monahan, 484 U.S. 193 (1988), ’

—_—— ee ee - «ngs eee “se se ©

and treatment) are heard by judges of the circuit courts,

which possess general jurisdiction. If a single wrong leads -

A-8

No. 94-1764 9

to both equitable relief and damages, judges of the cir-

cuit courts are empowered to provide both remedies. The

judge not only could have ordered the restoration of passes

but also could have made a monetary award for the period

between their revocation on May 30, 1990, and the date

of their restoration. Because the state courts were em-

wered to award both equitable and monetary relief,

ounger obliged plaintiffs to make all of their arguments

there. Any other approach would tolerate exactly the sort

of end run that Huffman forbids.

{ |

Younger is hardly the only doctrine designed to -protect

state forums. Res judicata (claim preclusion) and collateral

estoppel (issue preclusion) are fully applicable under §1983,

Migra v. Warren City School District Board of Educa-

tion, 465 U.S. 75 (1984), and may have undercut plain-

tiffs’ claims. They had an. opportunity to litigate, and their

failure to poy approval of the treatment plans’ does not

avoid the fact that they were approved. Harris Trust &

Savings Bank v. Ellis, 810 F.2d 700, 704-05 (7th Cir. 1987)

(Illinois law). Preclusion is, however, an affirmative defense,

which the defendants did not invoke. See David P. Cur-

rie, Res Judicata: The Neglected Defense, 45 U. Chi. L.

Rev. 317 (1977). Nelson and Manos might have been able

to avoid issue preclusion because their very quiescence

in the state proceedings meant that the approval was un-

contested, and issue preclusion rests on the disposition

of a contested element of the claim. Then there is the

Rooker-Feldman doctrine, which establishes that aggrieved

litigants may not use §1983 to contest the outcome of state

litigation. Rooker v. Fidelity Trust Co., 263 U.S. 413 (1923);

District of Columbia Court of Appeals v. Feldman, 460

U.S. 462 (1983). Plaintiffs avoid this rule, however, be-

cause they challenge the alteration of their passes inde-

pendently of the courts’ approval of that alteration. GASH

Associates v. Village of nated 995 F.2d 726, 728 (7th

Cir. 1993). Younger and Huffman complete the picture. *:

Even when res judicata, Rooker-Feldman, and the exhaus-

tion doctrine of §2254 are inapplicable, a litigant dppos-

ing the state, in state court, on a subject of importance

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10 No. 94-1764

to the state, must use that forum for resolution of con-

stitutional defenses. Plaintiffs had, and did not use, a state

forum in which they could have presented the arguments

they now urge. Their deliberate bypass of the opportunity

to litigate in state court forecloses them from litigating

in federal court. Our conclusion that Younger rather than

Burford supplies the proper ground of decision does not

affect the district court’s judgment: the complaint must

be dismissed.

AFFIRMED

CupDAHY, Circuit Judge, concurring in part and dissent-

ing in part. _

This is in some respects a puzzling case, but I believe

we must start with first principles. It is a grave matter

to shut the federal courthouse doors in the face of litigants

who present claims over which there is federal jurisdic-

tion. Abstention is ‘an extraordinary and narrow excep-

tion” permissible only in “rare’”’ cases and then only on

grounds clearly recognized as adequate by the Supreme

Court. Allegheny County v. Masheda, 360 U.S. 185, 188

(1959); see also Trust & Investment Advisors, Inc. v. Hog-

sett, No. 93-2117, slip op. at 7 (7th Cir. Dec. 19, 1994).

In the matter before us I think that the district court

made bad law out of what may be a hard case. The ma-

jority, in an effort to devise a policy for what is at least

an unusual case, makes equally bad law. It would require

a stretch far beyond any recognized principles to see this

as a case for Burford abstention and the majority cor-

rectly addresses this issue. But, in so doing, it provides

an expansive interpretation of Younger which would au-

thorize closing the courthouse doors almost at will. eg ae

There are several reasons why Younger has no appli--. ae

cation here. First, this is not a case of a federal court ~

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No. 94-1764 11

attempting to enjoin a state proceeding. See Trust & In-

vestment Advisors, Inc., slip op. at 8 (Younger absten-

tion involves enjoining “judicial or judicial in nature” state

proceedings). Here there are at worst potentially parallel

proceedings and there is no showing that the federal pro-

ceedings will, “damage [] the state interest” as the ma-

jority suggests.

Second, there are no ongoing or pending state proceed-

ings to be interfered with here. Under Illinois law, the

Department of Mental Health (Department) is required

to file a treatment plan for each NGRI inmate with the

state court every 60 days. That plan, if the Department

so chooses, can recommend that an inmate be given on-

or off-grounds passes. If the court approves the treatment

plan, then the Department may allow the inmates to use

their passes. Both plaintiffs in this case had passes orig-

inally, but after two inmates escaped from Elgin, those

passes were summarily taken away by the Department

without any individual review administratively or by the

state courts. Passes were also taken away from the other

NGRI’s. After a security fence was built, some NGRI’s

were again given passes, but the passes now only allowed

movement in the very small area within the fence, and

only for a short time.

The majority implies that the plaintiffs have litigated

this issue and others relating to their confinement in state

court, with plaintiff Manos being so active that he even-

tually obtained his release. But the Magistrate Judge’s

findings of fact say that it was the Department which sub-

mitted a plan that “restored” the new passes to the plain-

tiffs and which suggested the release of plaintiff Manos.

In other words, the plaintiffs were not actively litigating

this issue; rather the status quo of the Department’s sug-

gesting treatment plans and the court’s approving them

simply continued. The Department decided what to sug-

gest as treatment, and it was the Department which-de- . ..

cided to remove passes without individual revjew, the

Department which decided that when it reintroduced passes *

they would be much more restrictive and the Department

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;

12 ‘No. 94-1764

which decided not to suggest any more less-restrictive

passes. The plaintiffs are challenging the Department’s

decision to do away with their court-approved (and less-

restrictive) passes, not a decision by the state courts. Their

reason for going to federal court may simply reflect a con-

cern that the state courts may too routinely approve the

recommendations of Department employees.

It is true that the state courts retain jurisdiction of the

inmates at Elgin and must reapprove treatment plans every

60 days. The a retains some discretion in im-

plementing the plans. It is also true that the Department

may not be able to exercise its discretion should the court

order it to provide all the privileges approved in the plan.

But the fact that there may be a state remedy in exis-

tence but not invoked is certainly not grounds for Younger

or any other species of abstention. Not infrequently, fed-

eral and state courts may have jurisdiction to address

similar problem${but, unless federal méasures disrupt on-

going state proceedings, there are generally no grounds

for abstention.

Abstention is for the rare case, and this case surely fits

into the federal §1983 jurisprudence. We have also decided

similar cases brought by Elgin inmates in this court in

the past, and saw no reason to abstain then. For exam-

ple, in Johnson v. Brelje, 701 F.2d 1201 (7th Cir. 1983),

individuals found “unfit to stand trial” (USTs) brought

a §1983 claim against the Department of Mental Health

for its practice of assigning all USTs to a more secure

facility, for its failure to allow access to telephones and

for unduly restricting the movements of inmates around

the facility. In Maust v. Headley, 959 F.2d 644 (7th Cir.

1992), an Elgin inmate who had been transferred to the

more secure Chester Mental Health Center brought a

$1983 claim against the Department of Mental Health,

saying that the transfer and visitation restrictions imposed

by the Department violated his right to due process. In

both of these cases, the plaintiffs’ confinement was gov-

erned by a statute which required approval of UST treat-

ment plans by the state court, just like the statute at

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No. 94-1764 13

issue here governing NGRIs. Thus the plaintiffs in John-

son and Maust presumably had the same “ongoing rela-

tionship” with the state courts that plaintiffs here do. Yet

in both these cases we reached the merits with no talk

of abstention or Younger.

I do not therefore agree that Younger abstention ap-

plies, and I respectfully dissent.

A true Copy:

Teste:

Clerk of the United States Court of

Appeals for the Seventh Circuit

" |

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USCA AOTXXXC-92-001—Midwest Law Printing Co., Inc., Chicago—1-4-95

A-13

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3n the .

United States Court of Appeals

For the Seventh Circuit

No. 94-1764

WAYNE NELSON and ANTHONY MANOS,

a Plaintiffs-Appellants,

Vv.

WILLIAM Murpuy, Acting Director of the Department

of Mental Health and Developmental Disabilities, et al.,

Defendants-Appellees.

On Petition for Rehearing ri

Decipep Marcx 13, 1995

Before CupAHy, ESCHBACH, and EASTERBROOK, Circuit

Judges.

EASTERBROOK, Circuit Judge. One of the arguments in

the petition for rehearing leads us to elaborate on our

initial opinion. Younger v. Harris, 401 U.S. 37 (1971), ap-

lies to plaintiffs’ claim for damages only if the state

orum could have entertained a request for damages. We

wrote that, in Illinois, “{iJf a single wrong leads to both

equitable relief and damages, judges of the circuit courts -

are empowered to provide both remedies. The judge not

only could have ordered the restoration of passes but also

could have made a monetary award for the period be-

tween their revocation on May 30, 1990, and the date of

their restoration.” Slip op. 8-9. Plaintiffs insist that this

is incorrect—that only the state’s Court of Claims may

A-14

ts Sgt in RIN

2 No. 94-1764

award damages. If that is so, then Deakins v. Monahan,

484 US. 193 (1988), entitles plaintiffs to pursue damages

in federal court free from any inhibition of the Younger

doctrine.

The petition for rehearing asserts that “damage claims

against the State of Illinois and its employees can only

be maintained in the Illinois Court of Claims.” The asser-

tion is wrong. That court possesses exclusive jurisdiction

of all claims against the state itself, 705 ILCS 505/8, but

not of claims against state employees. Illinois deems some

suits against employees to be suits against the state, and

therefore to come within the Court of Claims’ exclusive

jurisdiction, but the Supreme Court of Illinois makes the

same distinction as the Supreme Court of the United

States did in Ex parte Young, 209 U.S. 123 (1908), and

Kentucky v. Graham, 473 U.S. 159, 169-70 (1985): suits

against a public employee in his official capacity are suits

against the state; suits against the employee in his per-

sonal capacity are not suits against the state; and a suit

seeking damages for misconduct (in particular, for a viola-

tion of the Constitution) usually is a personal-capacity suit.

The circuit courts, rather than the Court of Claims, possess

jurisdiction “‘when it is alleged that the State’s agent

acted in violation of statutory or constitutional law, or in ~

excess of his authority”. Healy v. Vaupel, 133 Ill. 2d 295,

308, 549 N.E.2d 1240, 1247 (1990). See also, e.g., Senn

Park Nursing Center v. Miller, 104 Ml. 2d 169, 188, 470

N.E.2d 1029, 1038-39 (1984). Plaintiffs allege that their

jailers acted in violation of the Constitution of the United

States and the laws of Illinois. The circuit court therefore

could have awarded damages, if plaintiffs were entitled

to that relief on the merits. But plaintiffs never presented

their arguments to the state tribunals, and as our orig-

inal opinion explains they may not disdain opportunities

in ongoing state litigation and later seek relief in federal

court.

The petition for rehearing is denied. No judge in ac-

tive service has called for a vote on the suggestion sof

rehearing en banc, which is rejected. ad

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No. 94-1764 3

Cupany, Circuit Judge, Dissenting.

I dissented in the main case, Nelson v. Murphy, 44 F.3d

497 (7th Cir. 1995), from the remarkable conclusion that

Younger abstention could apply when there was no federal

attempt to enjoin a state proceeding, and, in fact, where

there was no ongoing or pending state proceeding with

which to interfere. There are more fundamental reasons

to reject the majority’s view here than whether these

damage claims may be brought exclusively in the Court

of Claims. Therefore, with the utmost respect, I dissent

from the present opinion and order and would grant the

petition for rehearing.

Vhs: Bate 2 ad AE NIB att ASG LY OBL Re THAAD CAN IONS

A true Copy:

i Teste:

Clerk of the United States Court of

Appeals for the Seventh Circuit

Pe aRiahal DE raed oy)

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USCA AOTXXXC-92-001—Midwest Law Printing Co., Inc., Chicago—3-13-95

A-16

IN THE UNITED STATES DISTRICT COURT

: FOR THE NORTHERN DISTRICT OF ILLINOIS

EASTERN DIVISION

WAYNE NELSON, et al.,

J Plaintiffs,

nies

Vv. No. 90 C 3920

WILLIAM MURPHY, et al.

Defendants.

MEMORANDUM OPINION AND ORDER

BACKGROUND

GE GEE cit PB DG NA SARE AGEL LSA EASE:

Plaintiffs Anthony Manos and Wayne

q Nelson were both charged with crimes

under Illinois law but found not guilty

by reason of insanity. Pursuant to

Illinois' Criminal Code, Ill. Rev. Stat.

ch. 38, para. 1005-2-4, plaintiffs were

separately admitted to the Elgin Mental

Health Center, a state-run facility, as

| forensic patients. Under the terms of §

1005-2-4 the director of the Elgin

A-17

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Pace eM hat sh oe

a hates: iain WASe

Cie tad atlas hs

Le POE LARS endian OWI wee

;

Center, a defendant in this case, is

required to submit a treatment plan to

the court for each forensic patient

every sixty days, evaluating the

patient's progress and the extent to

which they are benefitting from

treatment. The treatment plan may also

include privileges to move about the

grounds of the facility unsupervised, or

leave the facility with or without

Supervision for limited periods of time,

provided they have been approved by

specific court order. In issuing such an

order, the supervising court is entitled

to impose such conditions as are aud

necessary to assure the patient's

Satisfactory progress in treatment, and

the safety of the patient and others.

Tll. Rev. Stat. ch. 38, para. 1005-2-

A-18

coppsstinsesa alla

4(b). Forensic patients at Elgin Mental

Health Center received passes for on or

off-grounds privileges only after a

thorough, multi-tiered assessment of

their propriety in each individual case.

Prior to May 1990, plaintiffs,

along with other forensic patients at

the facility, had been granted such

passes. On May 30, 1990, after two

patients escaped through the use of off-

grounds passes, all passes of forensic

patients at the center were summarily

suspended. Plaintiffs have never

received another individualized review

to determine whether they were still

appropriate candidates for passes.

Subsequently, the center has issued on-

grounds passes which allow forensic

patients to move within a fenced-in

A-19

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space of the facility under supervision,

allowing unsupervised movement only for

extremely limited periods of time.

Plaintiffs have filed suit against

defendants, the director and associate

director of the Illinois Department of

Mental Health, and the director of the

Elgin Mental Health Center, alleging the

suspension of their passes, without any

subsequent hearing to determine the

appropriateness of the suspension,

violates their rights under the Due

Process Clause. Plaintiffs have asked

for monetary and injunctive relief.

PROCEDURAL HISTORY

This case was initially assigned to

Judge Bua. At its inception, plaintiffs

moved for certification of a class of

A-20

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ve ae

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nt} 2. eee”

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all individuals admitted to Elgin Mental

Health Center pursuant to § 1005-2-4 in

possession of on or off-grounds passes

which were revoked on or about May 31,

1990. Plaintiff's motion for class

certification is still pending before

the court. Plaintiffs had also moved

for a preliminary injunction restoring

all passes suspended at the end of May

30, 1990, and prohibiting future

suspensions of passes for periods of

greater than 72 hours without a judicial

hearing. In their response to

plaintiffs' motion, defendants raised

the question of whether abstention was

appropriate in this case under either

Younger v. Harris, 401 U.S. 37 (1971),

Or Bucford v. Sun Oil, 319 U.S. 315

(1943). Judge Bua referred those

A-21

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; — : mT, 7 x ~ : :

aban

rolvae

rea

portions of the motion addressing the

factual basis for a preliminary

injunction to Magistrate Judge

Pallmeyer.

The magistrate judge held an

evidentiary hearing and issued a report

and recommendation concluding that

plaintiffs were entitled to a

preliminary injunction. A search of the

official case record reveals that the

abstention question has yet to be

resolved. Pragmatism dictates the court

address it now.

ANALYSIS

Lack of subject-matter jurisdiction

is never waivable. U.S, v. Stillwell,

900 F.2d 1104, 1110 (7th Cir. 1990);

cert. denied, 498 U.S. 838 (1990). The

court may examine the question of its

A-22

jurisdiction and dismiss an action, be

it via the suggestion of the parties or

otherwise, at any time. Fed. R. Civ. P.

12(h)(3).’ Consideration of defendants’

motion to abstain from the exercise of

jurisdiction is therefore appropriate

despite the passage of time since the

filing of this case, and its progress on

the merits. Further, it is more than

appropriate, it is necessary. A judge

has no power to decide a case over which

he lacks subject-matter jurisdiction.

Stauffacher v, Bennett, 969 F.2d 455,

459 (7th Cir. 1992), cert. denied, 113

S. Ct. 814 (1992).

' In any event, it can not be argued

that defendants waived this issue by

failing to base an objection to the

report and recommendation on this

ground, because the issue of abstention

was never before the magistrate judge

for consideration.

A-23

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The federal courts have a

"virtually unflagging obligation" to

exercise the jurisdiction given them.

District v, U.S,, 424 U.S. 800, 817

(1976). Abstention from the exercise of

such ju sdiction is the exception, not

the rulc Id., at 813. Defendants

nevertheless suggest that two of the

four permissible forms of abstention are

appropriate here. First, defendants

suggest that the court should refrain

from the exercise of jurisdiction under

Younger abstention, which indicates a

federal court should abstain from

exercising its jurisdiction when it has

been invoked to restrain a state

criminal proceeding. Although Younger

abstention may be applied to suits to

A-24

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enjoin state civil proceedings if the

state's interest in the proceeding is

important enough to implicate federal-

state comity, Pennzoil Co, y. Texaco.

Znc., 481 U.S. 1, 11 (1987); see also

Huffman v. Pursue, Ltd., 420 U.S. 592,

594 (1975), it is inapplicable here

because plaintiffs do not seek to enjoin

any state court proceeding. It is true

plaintiffs seek injunctive relief, but

against Illinois' Department of Mental

Health, not the Illinois courts.

Defendant's second assertion, that

Burford abstention applies, presents an

altogether more serious basis for

declining jurisdiction. Burford

abstention is appropriate either where

the court is presented with difficult

questions of state law bearing on policy

A-25

sii abs

away Cahie

CER MONS pe ce EN Oe No te

wie

PAR aa PR Seo ic ate a

¥,

problems of substantial import whose

importance transcends the result in the

case at bar, or where the exercise of

federal review of the question in a case

and in similar cases would be disruptive

of state efforts to establish a coherent

policy with respect to a matter of

substantial public concern. Colorado

River. 424 U.S. at 814. This case

presents a claim for the second type of

Burford abstention.

The burden of the circumstances

requiring Burford abstention lies with

the proponent of abstention. Property £&

Casualty Insurance Limited v. Central

National Insurance Companv of Omaha, 936

F.2d 319, 326 (7th Cir. 1991). The

presence of federal question

jurisdiction may raise the level of

A-26

a |

justification needed for abstention,

Colorado River, 424 U.S. at 815, n. 21,

but it does not preclude abstention.

See also New Orleans Public Services.

inc, Vv. Council of City of New Orleans

(*"NOPSI*), 109 S. Ct. 2506, 2516 (1989)

(mere assertion of a federal

ro)

6p)

ltutional challenge along will not

compel exercise of jurisdiction).

ndeed, one of the bases for

Jurisdiction in Burford was a claim

Court upheld the decision of the Fifth

Circuit that this was not fatal to

Burford abstention, which could be based

on reluctance to intrude into a complex

regulatory scheme of paramount local

concern which demands local expertise.

Mores, £09 S. Ct. at 2514.' Instead, the

court declined to exercise Burford

abstention on the basis that taking

jurisdiction would not disrupt state

efforts at uniform treatment of a local

problem because a bare facial inquiry

indicated that federal preemption

applied. TId., at 2515. These

circumstances are not applicable here.

Factors to be considered in

determining whether to apply Burford

abstention include 1) whether the suit

1s based on a cause of action which is

A-28

exclusively federal, 2) whether

difficult or unusual state laws are at

issue, 3) whether there is a need for

coherent state doctrine in the area, and

4) whether state procedures indicate a

desire to create special state fora to

adjudicate the issues presented.

General Railway Signal Co. v. Corcoran,

921 F.2d 706, 709 (7th Cir. 1991). The

last of these factors has more recently

been elevated to the level of a

prerequisite for abstention. That is,

the state must provide a forum which

Stands in a special relationship to

technical oversight or concentrated

review to evaluation of the claims at

issue. Property & Casualtv Insurance,

$36 F.2a at 323.

A-29

The court finds tnat defendants

have met this prerequisite. A circuit

court judge maintains jurisdiction over

a patient he or she commits to a mental

institution pursuant to § 1005-2-4.

People v. Roush, 101 I11.2d 355, 462

N.E.2d 468, 472 (1984). This

jurisdiction continues even after the

expiration of a term of a conditional

release, Ill. Rev. Stat. ch. 38, para.

1005-2-4-(h). People v. Butler, 194

Iii. ADp.3d 297, $50 N.E.2d 1250, 1253

(1 Dist. 1990). Further, the clear

intent behind the provision of §§ 1005-

2-4(b)&(h), requiring submission of

regular treatment plans to the court and

providing for orders of conditional

release, was to enable the circuit court

judge to monitor the progress in

A-30

: 4 56) © ‘bs Ngee

AG Age eA el

VEC AIR

Sehr ee eR Set eis Ae al

eS PEG. eta RE eet tana aCe ACNE ALAA ane aera entpaanan tape sivencatmendpernaamnrnentet dquo Te <> me

treatment of defendants committed under

this section, and to give the court

authority to direct the Department of

Mental Health in performing its duties

in this regard. People v. Valdez, 79

Til .2a 74, 402 8.8.24 167,: 1593-11980) .

While the Illinois circuit courts can

hardly be said to courts of technical

specialization, in this instance they

are courts of individual specialization.

The system of judicial oversight erected

by § 1005-2-4 provides that treatment

and commitment decision for a defendant

under the section are reviewed by judges

intimately and continuously involved

with the facts of that particular case.

This is sufficient to constitute the

kind of technical oversight contemplated

by the Property £ Casualty Insurance

A-31

rae

0 ahi a Ri IRS “

Fett eel

court.

Turning to the other factors

employed in deciding questions of

Burford abstention, the state and

federal courts have concurrent

jurisdiction over plaintiffs' due

process claim.* On the other hand,

Illinois law on the commitment of

defendant found not guilty by reason of

insanity is neither difficult nor

unusual, although as discussed supra,

NOPSI shows that this is not

particularly crucial. Hence,

application of Burford abstention turns

on the existence of Illinois need for

coherent doctrine in the area of the

—

Rather than being merely a factor

in deciding whether to apply Burford

abstention, the existence of concurrent

jurisdiction should be a prerequisite as

well.

A-32

€

aNd Ne aes dates ¥

yo 0 oan

treatment of § 1005-2-4 defendants.

When inquiring into the

substantiality of a state's interest in

its proceedings, the court does not

dwell on the state's interest in the

outcome of a particular case, but on the

importance of the generic proceedings to

the state. NOPSI, 109 S. Ct. at 2516.

In this case, the state of Illinois’

rcenaiie in enacting § 1005-2-4 were to

protect society from potentially

dangerous mentally ill persons and

protect these persons from themselves,

to treat them for their illness, and to

prevent them from being

institutionalized indeterminately.

People v. Winston, 191 Ill. App.3d 948,

548 N.E.2d 406, 414 (1 Dist. 1989),

disapproved on other grounds People y

A-33

°, ee

ash. .

Palmer, 148 I11.2d 70, 592 N.E.2d 940

(1992); People v. Williams, 140 I1l.

App.3d 216, 488 N.E.2d 649, 653 (1 Dist.

1986); Beople v. Largoo, 132 :111.:-App.3d

594, 478 N.E.2d 439, 444 (1 Dist. 1985),

disapproved on other grounds People y

Palmer, 148 I11.2d 70, 592 N.E.2d 940

(1992); People v. Hampton, 121 111.

App.3d 273, 459 N.E.2d 985, 987 (1 Dist.

1983). These are certainly interests of

substantial importance. Further the

State has created a system of

Supervision of § 1005-2-4 defendants

which prohibits major changes in a

defendant's treatment plan or status

without individual review by a judge

already familiar with the history of

that defendant.

In Rousn, the Illinois Supreme

A-34

aoa titieathPNNb a Pe alates dah WARS

\ Reid Se ec Aaa aR aes GN saa bee

eangntte aan cekdd b

“—

Court reviewed two lower court decisions

concerning the same problem presented

here, the escape of § 1005-2-4

defendants. See also People v. Schyve,

bia 2hhe Bopeee@ 777, 445 N.E.2d 1261 (1

Dist. 1983). In particular, the facts

in the Roush case involved an inmate at

the Manteno Mental Health Center who

escaped while out on an unsupervised on-

grounds pass with his parents. The

circuit court judge in Schyve issued

Orders requiring the Department of

Mental Health to identify all § 1005-2-4

defendants who were dangerous to others,

segregate them in a secure area, and

given ten days notice to the court

before transferring any of them to a

less secure area. The Supreme Court

held that since the orders were directed

A-35

at all patients in Illinois, most of

whom had never appeared before the judge

and were committed to institutions by

other judges, they were invalid. Roush

case indicates that by seeking

generalized injunctive relief in federal

court, the very kind of relief Roush

prohibits, plaintiffs lawsuit disrupts

Illinois' efforts to establish a

coherent policy in the treatment of §

1005-2-4 defendants.

This result appears to be

counterintuitive at first glance,

because a general injunction would

produce uniform results for all § 1005-

2-4 defendants. However in this case,

general orders-of relief are

antithetical to a state system based on

individualized review of each patient by

A-36

a particular judge.* The members of the y

purported plaintiff class, who are

provided counsel by the statute, Ill.

Rev. Stat. ch. 38, para. § 1005-2-4, may

receive the injunctive relief they seek

before the circuit judge who committed

them to the Elgin Mental Health Center,

with or without raising their due

process claim.

Plaintiffs' only rejoinder to this

conclusion, raised indirectly in their

reply brief to the motion for class

certification, is that presentation of

the factual issues involved before the

appropriate circuit court judge would be

‘The irony, of course, is that the

gravamen of plaintiffs' due process

Claim is the alleged lack of such

individualized review in defendants’

decisions to suspend on and off-grounds

passes.

A-37

em SR Em eatnaeniednnss ad emteneeteate ne ee —

futile because the Department of Mental

Health has already indicated they will

not comply with any court order

reinstating on or off-grounds passes.

Plaintiffs only evidence of this

allegation is a memorandum from

defendant Brelje Stating the Department

of Mental Health's grounds for the

Suspension of passes, and Opining that

issuing unsupervised passes would not be

a good idea until a security fence is

constructed. This is hardly sufficient

evidence that defendants will refuse to

comply with an order from the Circuit

court. Further, the law is clear that

defendants cannot do so. Valdez, 402

N.E.2d at 193. tI¢£ they do so wilfully,

they may be found in criminal contempt

Of court. Roush, 462 N.E.2d at 472.

A-38

a te tee ee et Ce Te ee

Plaintiffs' support for their

assertions that they have not waived the

Opportunity to raise the issues of

passes before the state court, or that

forensic patients holding passes have

not been allowed to use them, is equally

unimpressive. Plaintiff Nelson also

asserts in an affidavit that he has

never waived an opportunity to get back

his on or off-grounds passes or told

anyone he did not want his passes back.

However, affidavit also states that

plaintiff declined to participate ina

hearing about his passes. Further, the

affidavit of Mr. Nelson's attorney at

the hearing does not state that the

issue of passes has been raised.

The only support for the argument

that patients, Specifically one Curtis

A-39

Littrice, have not been able to use

their passes is a statement in Mr.

Nelson's affidavit that he has never

seen Mr. Littrice leaving the building

in which they are both housed. Unless

Mr. Nelson spends his days with his face

pressed to the window this does not

create a particularly strong inference.

The absence of an affidavit from Mr.

Littrice himself is notable.

CONCLUSION

“9

The court finds that the exercise

of its jurisdiction over this case would

be disruptive of state efforts to

establish a coherent policy with respect

to a matter of substantial public

concern. Accordingly, the court

abstains from the exercise of

jurisdiction. Plaintiffs’ complaint is

A-40

dismissed without prejudice.‘

Plaintiffs' motions for class

certification and for a preliminary

injunction are denied as moot.

ENTER:

JOHN A. NORDBERG

United States District Judge

DATED:

* The court does not retain

jurisdiction over the case, and the

parties must look to the state courts to

resolve this dispute. Gordon G. Young

Federal Court Abstention and State

Administrative Law From Burford to

Ankenbrandt: Fifty Years of Judicial

Federalism Under Burford v. Sun Oi] Co.

and Kindred Doctrines, 42 DePaul L. Rev.

859, 870-71 (1993). The only further

federal court involvement would be

certiorari from the state court

proceedings to the Supreme Court. Id,

at Gri, n. 38.

A-41

NO. 90 C 3920

UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF ILLINOIS

EASTERN DIVISION

WAYNE NELSON and ANTHONY MANOS,

Individually and on behalf of all

others similarly situated,

Plaintiffs,

Vv.

)

WILLIAM MURPHY, Acting Director, )

Department of Mental Health and )

Developmental Disabilities; and )

ROALDA J. ALDERMAN, Facility )

Director, Elgin Mental Health )

Center; and TERRY BRELJE, PH.D., )

Associate Director for Forensic )

Services, Department of Mental )

Health and Developmental )

Disabilities, )

)

Defendants.

REPORT AND RECOMMENDATION

In May 1990, Plaintiffs Wayne

Nelson and Anthony Manos were "forensic

patients" at the Elgin Mental Health

Center, a state-run mental health

facility. Forensic patients are persons

A-42

charged with or convicted of a crime who

have been committed to the care of the

State because of a judicial

determination that they are not fit to

Stand trial or not guilty by reason of

insanity. Despite this status, prior to

May 1990, Nelson and Manos, as well as

other forensic patients, were granted

court-approved passes to walk without

Supervision for limited periods on the

grounds of the Elgin facility ("grounds

passes") and to travel with others for

limited periods away from the facility

(“off -grounds passes"). On May 30, ‘

1990, state officials abruptly suspended

the passes for all forensic patients.

Nelson and Manos bring this action on

behalf of themselves and Similarly

Situated forensic patients against

A-43

directors of the Illinois Department of

Mental Health and Developmental

Disabilities (hereinafter, "“DMHDD" or

“the Department"), challenging the

department's decision to Suspend passes

as a deprivation of liberty without due

process.°

Plaintiffs' complaint, brought

pursuant to 42 U.S.C. § 1983 ("Section

1983") sounds in three counts. Count I

alleges a deprivation of Plaintiffs’

* Plaintiffs seek to represent a

class of forensic patients who enjoyed

grounds passes and off-grounds passes

prior to May 31, 4990, but the class has

not been certified, nor has the class

certification motion been briefed.

Moreover, the motion for class

certification has not been referred.

Therefore this report addresses only

individual Plaintiffs' claims for

relief, but recognizes that much of what

1s concluded here may well be applicable

to circumstances involving other

forensic patients.

A-44

Statutory right to treatment in the

"lease restrictive environment" as a

result of Defendants' failure to provide

Plaintiffs with a hearing individualized

determination, or professional judgment

regarding whether they continued to

qualify for a grounds pass or an off-

grounds pass prior to the suspension of

their pass privileges. Count II asserts

that Plaintiffs were deprived of their

Statutory right to adequate and humane

Services pursuant to an individualized

treatment plan when Defendants failed to

provide them with an individualized

determination based upon professional

judgment that they no longer qualified

for the passes. Count III alleges a

deprivation of Plaintiffs'

constitutional right to freedom from

A-45

unreasonable restraint resulting from

pete decision to suspend the pass

privileges without exercise of a

qualified professional judgment.

On November 15, 1990, District

Judge Nicholas J. Bua referred the case

to Magistrate Judge Joan B. Gottschall

for a report and recommendation on

Plaintiffs' motion for preliminary

injunction.® In January 1991,

Plaintiffs moved to compel responses to

* In his minute order dated November

15, 1990, Judge Bua directed that the

parties present evidence at a hearing

before the magistrate judge on a number

of specific issues, including the

Procedures for obtaining or for revoking

a grounds or off-grounds pass; whether

any passes had been reinstated; and the

extent to which Elgin residents are

permitted on the grounds without passes.

The court expressly reserved ruling on

Plaintiffs' motion for class

certification pending the magistrate

judge's report and recommendation on the

Preliminary injunction motion.

A-46

WHEN

AND

EE GEN RET Rey 1: ee RTE eaten gS POLLAN A RA PTET Re NR ee

3 . /

(i scovery requests. On October 10,

ae the referral was transferred to

these chambers. Defendants did not

ae fully with outstanding discovery

pntil directed to do so by this court in

January 1992. Parties presented

evidence on Plaintiffs' motion for

preliminary injunction on June 3 and 4,

992, and submitted post-hearing

remoranda on June 22, 1992.

| Before the court is Plaintiffs'

rotion for a preliminary injunction

Sibi fie that this court isgue an

order which restores to Plaintiffs all

basses Suspended on May 30, 1990 and

Enjoins defendants from suspending such

passes in the future in the absence of a

Predeprivation hearing which complies

Wich due process.

A-47

FINDINGS OF FACT

Evidence presented at a two-day

hearing in June 1992 supports the

following findings:

Elgin Mental Health Center

("Elgin") is a facility of the Illinois

DMHDD that houses approximately 300

forensic residents. The forensic unit

at Elgin is composed of individuals

found not guilty by reason of insanity

("NGRI") and/or unfit to stand trial

ie?! eae ae

a At ail relevant times,

Defendant William Murphy was the

Director of the Illinois DMHDD.

Defendant Terry Brelje was the Associate

Director for Policy and Special Programs

of the DMHDD. Defendant Roalda Alderman

was the Facility Director at Elgin.

A-48

Lenulsinytnedidenbaumanukdn ee

re At all times relevant to this

motion, named Plaintiffs Wayne Nelson

and Anthony Manos were confined to Elgin

as unfit to stand trial or as not guilty

by reason of insanity. Under Ill. Rev.

Stat. ch. 38 4 104-17, a defendant

unfit to stand trial by reason of mental

disability “shall be placed in a secure

setting” in the custody of DMHDD. Under

Ill. Rev. Stat. ch. 38 4 1005-2-4, a

defendant found not guilty by reason of

insanity and in need of mental health

services likewise “shall be placed in a

secure setting” in the custody of DMHDD.

Manos was committed as UST from January

1986 and as NGRI from October 1986.

Nelson was committed as NGRI in October

1986. Both Nelson and Manos were placed

in the forensic unit at Elgin.

A-49

Re re te eee a

ial, hae ea Ne Mn a Se.

4. Illinois law requires that the

DMHDD file a treatment plan for each

forensic patient every 60 days with the

court. Ill. Rev. State. ch 38, 4g 1005-

2-4(b). The statute provides expressly

that the plan may include pass

privileges, “but only where such

privileges have been approved by

specific court order, which order may

include such conditions on the defendant

as the Court may deem appropriate and

necessary to reasonably assure

progress in treatment and the safety of

the defendant and others." Id.

~ Ernest Marquez, the Assistant

Facility Director responsible for

administering the forensic treatment

program at Elgin, described the

following DMHDD procedures for

A-50

requesting a court-authorized grounds

pas or off grounds pass for a forensic

patient. First the patient's treatment

team (consisting of the patient's unit

director, a psychiatrist, psychologist,

social worker, and other nursing or

Paraprofessional staff) reviews records

and considers the appropriateness of

pass privileges for a particular patient

in light of the team's knowledge of, and

experience with, that patient. If the

team determines that a pass is

appropriate, then a staff meniber

prepares a packet of information for,

review by Dr. Marquez. -If Dr. Marquez

approves the request Foe a pass, he in

turn submits the package to Defendant

Roalda Alderman, the Facility Director.

Following her review, the materials are

A-51

submitted to the Department's Associate

Director, Defendant Brelje. Upon Dr.

Brelje's approval, the packet of

materials is returned to the facility,

anata, under Ms. Alderman's direction,

the materials are used for preparation

of a court petition. A judge of the

Circuit Court must review and approve

the petition before a pass is issued for

any forensic patient.

6. Plaintiff Anthony Manos, a

graduate of the University of Illinois

who served in Army ROTC, was admitted to

Elgin as unfit to stand trial in January

1986. Six months later, Mr. Manos was

found not guilty by reason of insanity

and returned to Elgin in October 1986.

In January 1988, following the

procedures described above, Defendant

A-52

Alderman submitted a petition to the

Circuit Court of Cook County seeking

approval of a grounds pass for Plaintiff

eos: In February 1988, the Circuit

Court issued an order granting Manos a

grounds pass. Manos used this pass to

be on the grounds of Elgin unaccompanied

for gradually increasing periods of

time. His longest periods spanned up to

three hours, during which he went to the

commissary or the workshop, or engaged

in various educational, social and

recreational activities. Manos

testified that his pass helped him to

maintain and establish family

relationships. Specifically, he used

his grounds pass to visit weekly with

his parents in a cafeteria at Elgin.

Further, while exercising his pass

A-53

privileges in 1988, Manos met Linda

Turner, a non-forensic patient, whom

Manos plans to marry in 1993. At the

preliminary injunction hearing, Manos

recalled crying with joy when he first

received his pass. He testified to his

saond memories" of "many, many times on

the grounds" at Elgin exercising pass

privileges.

os In March 1990, Defendant

Alderman petitioned the Circuit Court of

Cook erie for approval of an

unsupervised off-grounds pass for Manos.

As described earlier, the request was

reviewed first by staff, then ay OS.

Marquez, and finally by Dr. Brelje.

The Circuit Court issued an order

authorizing an off-grounds pass for

Manos. This pass permitted Manos to be

A-54

off the grounds of Elgin once a week for

periods of up to six or seven hours,

provided that Manos gave Elgin staff a

schedule in advance of is departure.

Manos used his off-grounds pass

approximately three times a month to

visit family members and to go to

movies, bowling alleys, and stores.

8. Wayne Nelson is a 1975 high

school graduate who was honorably

discharged from the United States Air

Force in 1979. In 1980, Nelson killed

his girlfriend and attempted suicide.

Nelson was found not guilty of criminal

charges against him by reason of

insanity and was committed to the

forensic unit at Elgin in 1986. In

November 1988, following the procedures

describe above, Defendant Alderman

A-55

proposed to the Circuit Court that

Plaintiff Nelson be given both a grounds

pass and supervised off-grounds pass.

The Circuit Court issued an order

granting Nelson the passes on December

20, 1988.

9. The grounds pass permitted

Nelson to be on the grounds of Elgin

unaccompanied for periods of up to one

hour at a time and allowed Nelson to go

to the commissary, library, and

education center. The grounds pass

also allowed Nelson to participate in

other recreational and social activities

such as walking, jogging, bike riding,

guitar playing, and meeting with

friends. Nelson utilized his off-

grounds pass to visit family, go to

movies, and attend social events at the

A-56

V.F.W.

10. Approximately 80 patients at

Elgin had grounds or off-grounds passes

on May 30, 1990. Each of these passes

had been issued only after all of the

procedures described above had been

Satisfied -- in other words, the Circuit

Court issued each pass only after

recommendations had been supplied by

treatment staff. Dr. Marquez, Dr.

Brelje, and Director Alderman.

11. In May 1990, two persons

acquitted by reason of insanity escaped

from Elgin during the exercise of their

pass privileges. Although one was

apprehended quickly, another remained at

large and has not to date been

apprehended. Only days before his

escape, this second individual had

A-57

warned Elgin staff of his intention to

leave. In spite of the warning, no ,

action was taken to suspend this

individual's pass privileges. The

escapes generated a large amount of

negative publicity for DMHDD. Within a

couple of days of the escapes, Defendant

Murphy met with other members of the

DMHDD staff, including Defendant Brelje.

Murphy concluded that staff

determinations regarding pass privileges

were not guided by any "set criteria, "

and that the forensic treatment program

should now become a "separate

freestanding program." Murphy decided

to suspend all grounds and off grounds

pass privileges for all forensic

patients, effective May 30, 1990.

Plaintiffs Nelson and Manos, and

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Rg ste ae ne a ee

approximately 80 other NGRI' or USTs,

lost their pass privileges.

12. It is undisputed that prior to

Suspending the passes, state officials

made no individualized determination

that Nelson, Manos, or any of the other

insanity acquittees were no longer

appropriate candidates for the passes.

In fact, state officials did not conduct

a hearing of any kind to determine

whether Plaintiffs remained qualified to

exercise pass privileges. It is

undisputed that no deterioration in

either Manos' or Nelson's mental health

condition had been observed prior to the

suspension.

13. Subsequent to the suspension

of passes, after years of effort,

Defendant Alderman received funding

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authorization for construction of a

fence around the Elgin forensic unit in

the summer of 1990. DMHDD completed

construction of the fence which enclosed

the Forensic Treatment at Elgin in March

1991. Beginning in March 1991, some

members of the proposed Plaintiff class

were issued new “grounds passes" which

allowed them to be outdoors yet still

within the enclosed area, an area

approximately one-tenth the size of the

80-acre Elgin facility. Even within the

fenced-in area, however, the movement

permitted by these new passes‘is far

more restrictive than that permitted

under the passes suspended on May 30,

1990 (“old passes"). The new passes

restrict Plaintiffs to the enclosed area

and do not permit them to be

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unsupervised even within the enclosed

area for more than five minutes. Prior

to the preliminary injunction hearing,

even state officials themselves were

unaware that patients have new grounds

passes are not permitted to walk freely

on fenced-in grounds. The restrictions

which the new passes place on

Plaintiffs' freedom of movement contrast

starkly with the freedom Plaintiffs

enjoyed under their old passes, under

which Plaintiffs were free to roam the

80-acre Elgin campus without

supervision. The only liberty now

dominios to an inmate holding a new pass

that 1s not accorded to an inmate

without such a pass is that the pass

holder may walk from one building to

another, within the fenced-in area (a

A-61

five-minute walk), without escort.

14. Beginning in July 1990, staff

at Elgin reviewed patient records for

each of the forensic patients who had

enjoyed pass privileges prior to May

1990. Defendants concluded that both

Plaintiffs Nelson and Manos should have

their passes restored once the fence was

constructed. As of the date of the

preliminary injunction hearing, no

members of the proposed class enjoy the

freedoms they exercised under the old

passes.

15. In December 1990, the Elgin

Mental Health Facility released

Plaintiff Manos pursuant to a petition

filed by Department personnel. At some

time prior to the preliminary injunction

hearing, staff at Elgin proposed that

A-62

Plaintiff Nelson also be conditionally

released.

DISCUSSION

Standards for Preliminary Iniunctive

Relief

A district court must consider four

factors in deciding whether a

preliminary injunction should be

granted. These factors are:

; whether plaintiff has a

reasonable likelihood of

Success on the merits;

me whether plaintiff will have an

adequate remedy at law or will

be irreparably harmed if the

injunction does not issue;

: whether the threatened injury .

to plaintiff outweighs the

threatened harm the injunction

may inflict on defendant;

4. whether the granting of the

preliminary injunction will

disserve the public interest.

X b-63

Kellas v. Lane, 923 F.2d 492 (7th Cir.

1990); Fabeem-EF] v Eisecar. 641 ¥. 34

thé, F28 (TCH Cir. 2968). The

“likelihood of success" factor is a

threshold inquiry; a finding against

Plaintiffs will obviate the need for

further analysis. Adams v. Attorney

Registration and Disciplinary Comm'n,

801 F.2d 968, 971 (7th Cir. 1986)

(quoting Q’Connor vy. Board of Educ., 645

F.2d 578, 580 (7th Cir.), cert. denied,

454 U.S. 1084 (1981)). In this case,

the central inquiry for determining

Plaintiffs' likelihood of success is

whether they have a liberty interest in

the passes which aes Summarily revoked

on May 30, 1990.

Plaintiffs argue that they have

three protected liberty interests in the

A-64

passes. First, Plaintiffs contend that

they have a liberty interest in

receiving treatment in the "least

restrictive environment. " (Complaint,

G4 27.) Second, Plaintiffs assert a

liberty and/or property interest in

“adequate and humane care and services

pursuant to an individual services plan"

(Complaint, { 32.) Third, Plaintiffs

argue for a liberty interest in "freedom

from unnecessary restraint."

(Complaint, { 35.)

A state statute creates a protected

liberty interest when that interest is

defined by mandatory language and a

Substantive standard. Hewitt v. Helms,

A-65

459 U.S. 460, 471-72 (1983)

(Pennsylvania statutes and procedures

setting forth procedures for confining

an inmate to “administrative separation"

created liberty interest in inmates

remaining in the general prison

population); Woods vy. Thieret, 903 F.2d

1080, 1082 (7th Cir. 1990). In Count I,

Plaintiffs contend that a liberty

interest in receiving treatment in the

least restrictive environment is created

Dy til; Revi: Stat. ch: 91.5. 9 3-

102(a), which states that "a recipient

of services shall be provided with

adequate and humane care and services in

the least restrictive environment." In

support of Count I, Plaintiffs rely on

Jobnson v. Brelie, 701 F.24 1201 (7th

Cir. 1983).

A-66

In Johnson, criminal defendants who

were found unfit to stand trial

challenged DMHDD's practice of assigning

all male USTs to the Chester Mental

Health Center ("Chester"), a maximum

security facility “Significantly more

restrictive than some other DMHDD

facilities." Jd. at 1205. Plaintiffs

argued that this automatic restrictive

assignment violated their due process

rights because it was made without any

hearing or other individual

determination of their treatment needs.

Id.

Under the Criminal Code, Ill. Rev.

Stat. ch. 38, 4 104-17(b), the Jobnson

court noted, a criminal defendant found

unfit to stand trial because of a mental

deficiency ‘could be:placed in the

A-67

OOF al tOT ee Saleh a, Mame

custody of the DMHDD. 701 F.2d at 1206

n.4. In 1977, the DMHDD began the

practice of assigning all male USTs to

Chester. Seventh Circuit concluded

that this practice violated plaintiffs'

procedural due process rights because

plaintiffs were not provided with a

hearing regarding their treatment needs

prior to their placement in Chester.

Id. at 1206-07. Defendants in Johnson

did not challenge the specific

procedures that had been ordered by the

district court; thus, the Seventh

Circuit's inquiry was limited to the

scope of the liberty interest created by

the Illinois Mental Health and

Developmental Disabilities Code ("Mental

Health Code"), Ill. Rev. Stat. ch. 91-

1/2 § 2-102 (1981), which provided for

A-68

treatment “in the least restrictive

environment." 701 F.2d at 1206. The

court reasoned that Section 2-102 of the

Mental Health Code was applicable to

plaintiffs, who, having been remanded to

the custody of DMHDD for treatment

pursuant to paragraph 104-17(b) of the

Criminal Code, are considered

"recipients of services" under Section

1-123 of the Mental Health Code.

Finally, the court noted that the

Illinois legislature intended that the

Criminal and Mental Health Codes

together would govern a UST's treatment

and confinement. _ The court based this

observation on paragraph 104-29 of the

Criminal Code, which states that in the

event of a conflict with the Mental

Health Code, the Criminal Code provision

~ ,

A-69

shall apply. 701 F.2d at 1206. Because

Section 2-102 of the Mental Health Code

did not conflict with the Criminal Code,

USTs were, in the court's judgment,

entitled to treatment in the “least

restrictive environment." Jd.

Although the Johnson case provides

authority for Plaintiffs: argument that

State law prohibits Defendants'

Suspension of Plaintiffs' pass

privileges without a hearing, the

seventh Circuit recently diluted the

protections provided in Section 2-102.

In Maust vy. Headley, 959 F.2d 644, 648

(7th Cir. 1992), the court held that

Section 2-1023 no longer provides

forensic patients with a liberty

interest in receiving treatment in the

least restrictive environment. In

A-70

Maust, a criminal détendent found unfit

to stand trial claimed that his liberty

interest in receiving treatment in the

least restrictive environment was

violated when he was not granted a

hearing prior to his transfer to a more

secure mental health center. Jd. at

646. Invoking Johnson, the criminal

defendant in Maust asserted that Section

2-102 should be construed to create a

liberty interest in being confined in

the least restrictive setting. Jd. at

647.

In Maust, however, the Seventh

Circuit did not agree that Section 2-102

created a liberty interest in the least

restrictive environment. The Maust

court found that amendatory provisions

in paragraphs 104-17(b) and 104-31 of

A-71

¥.

the Illinois Criminal Code, enacted

after Johnson, eliminated a defendant's

liberty interest in the least

restrictive environment.’ Jg. at 648.

Specifically, the amendatory provision

in paragraph 104-17(b) provides:

If the defendant is placed in the

custody of the Department of Mental

Health and Developmental

Disabilities, the defendant shall

be placed in a secure setting

unless the court determines that

there are compelling reasons why

such placement is not necessary.

” Because the plaintiffs in both

Johnson and Maust were USTs, paragraph

104-17(b) of the Criminal Code

establishes their general treatment plan

and paragraph 104-31 governs the extent

to which they must be escorted by

Department personnel when they are

Outside a facility building. Ill. Rev.

Stat. ch. 38, 4 104-17(b) and GY 104-31.

A-72

Eee

Tll. Rev. Stat. ch. 38, 4 104-17(b).?

Examining Section 2-102 of the Mental

Health Code in light of 104-17(b) of the

Criminal Code, the Maust court believed

it “highly unlikely that the Illinois

General Assembly intended to create a

right to be confined in the ‘least

estrictive, secure environment.'" 959

F.2d at 648. The court also noted that

the "degree of supervision" over

defendants governed by paragraph 104-31

"would scarcely qualify as that found in

the ‘least restrictive environment. '"

* Although paragraph 104-17 of the

Criminal Code applies only to defendants

found unfit to stand trial, the same

“secure setting" language is contained

in a companion amendment, paragraph

1005-2-4, added after Johnson, that

applies to defendants found not guilty

by reason of insanity. Seventh

Circuit's decision in Maust, therefore

applies to the universe of plaintiffs in

the proposed class.

A-73

ia.” The court then stated that any

conflicts between the Mental Health Code

and the Criminal Code "must be resolved

in favor of the Criminal Code." pi B

The court based this assertion on Ili.

Rev. Stat. ch. 38 4 104-29, which

provides that "in the event of any

conflict between this Article and the

‘Mental Health and Developmental

Disabilities Code,' the provisions of

this Article shall govern." The court

also noted that in the title to the

» Paragraph 104-31 provides in part:

"No defendant placed in a secure setting

Shall be permitted outside the

facility's housing unless escorted or

accompanied by personnel of the

Department of Mental Health and

Developmental Disabilities. Nor shall

such defendant be permitted any off-

grounds privileges ... or on-grounds

Privileges, unless such . . - Privileges

have been approved by specific court

Order." Ill. Rev. Stat. ch. 38, ¥ 104-

31.

A-74

legislation amending paragraph 104-17 of

the Criminal Code, “the Mental Health

Code is expressly listed as one of the

statutes affected by the legislation."

Id.

Plaintiffs cite Yiadom v. Kiley,

204 Ill. App.3d 418, 562 N.E.2d 310 (1st

Dist. 1990), for the proposition that

Johnson remains good law. In Yiadom, a

habeas corpus petition was brought

seeking the shianan. teen the Department

of a defendant found unfit to stand

trial. Jd. at 422, 562 N.E.2d.at 312.

In considering whether the inmate was

denied due process by the Department

regarding his treatment plan, the

Illinois appellate court cited Johnson

and observed that "defendants adjudged

unfit to stand trial have a state-

A-75

eS oe

created liberty in treatment in the

least restrictive environment." Jg. at

428, 562 N.E.2d at 316. Yiadom's

precedential value is compromised,

however, by the fact that, although the

case was decided after the amendments to

paragraphs 104-17 and 104-31, there is

no mention of these amendments in the

court' analysis. Yiadom court paid

little heed to the issue of whether

defendants had a liberty interest in the

least restrictive environment. Instead,

after citing Johnson the Yiadom court

proceeded directly to a discussion of

what process was due. Seventh Circuit

in Maust, in contrast, engaged in a

reasoned analysis of whether defendants

retained a liberty interest in the least

restrictive environment. Maust,

A-76

therefore, deserves greater precedential

value than Yiadom. Under controlling

authority, Plaintiffs here appear to

have no state-created liberty interest

in receiving treatment in the "least

restrictive environment," and cannot

pursue a claim for injunctive relief to

enforce any such interest.

2. Adequate and Humane Care

In Court II, Plaintiffs argue that

the suspension of their passes

constituted a violation of their state-

created liberty interest in receiving

adequate and humane care pursuant to an

individualized service plan. Paragraph

2-102 of the Mental Health Code provides

that "a recipient of services shall be

provided with adequate and humane care

pursuant to an individual service

A-77

pian.* Ill. Rev. Stat. ch, 91.5, 4 2-

102 (a). As previously noted, a statute

saeabae a liberty interest when that

interest is defined by mandatory

language and a substantive standard.

Hewitt v. Helms, 459 U.S. 460, 471-72

(1983). Paragraph 20102 satisfied the

Hewitt standard because it uses

mandatory language ("shall") and

substantive standard ("adequate and

humane care").

Defendants do not dispute that

Plaintiffs have a liberty interest in

receiving adequate and humane care

pursuant to an individualized service

plan. Defendants argue, however, that

this right was not violated when the

passes were suspended.

A-78

Illinois does not recognize pass

privileges as a mandatory form of mental

health treatment. This is evident from

the provision authorizing the issuance

of passes. Section 1005-2(b) of the

Criminal Code provides:

The defendant shall not be

permitted to be in the community in

any manner, including but not

limited to off-grounds privileges

unsupervised on-grounds

privileges, discharge or

conditional or temporary release,

except by a plan as provided in

this Section . . . such plan may

also include unsupervised on-

grounds privileges, off-grounds

privileges . . . but only where

such privileges have been approved

by specific court order.

Ill. Rev. Stat. ch. 38 4 1005-2(b).

Thus, a defendant may have pass

privileges but only if granted by court

order. See generally People v. Reed,

126 Ill. App.3d 1020, 467 N.E.2d 1158

(2nd Dist. 1984). Where the Illinois

A-79

legislature did not make pass privileges

mandatory, it could not have intended to

make pass privileges a required

component of adequate and humane care in

Illinois.

The case histories of Nelson and

Manos further demonstrate that pass

privileges are not required for adequate

and humane care at Elgin. Plaintiffs'

pass privileges were revoked on May 30,

1990 and have never been reinstated. In

the meantime, Manos was released from

the custody of DMHDD and Nelson was

recommended for conditional release from

Elgin to a half-way house. Thus, even

without their passes, Manos successfully

completed treatment for his mental

lllness and Nelson has taken a

Significant step toward completion.

This progress in Manos' and Nelson's

mental health demonstrates that they

have received adequate and humane

treatment without pass privileges.

improvement in the named Plaintiffs'

mental health, which took place without

passes, bears witness to the fact that

they did receive adequate and humane

treatment. Thus, Plaintiffs' claim that

the pass suspension violated their right

to receive adequate and humane treatment

must fail.

3. Reasonable Freedom of Movement

In Count III, Plaintiffs raise

their strongest constitutional

Challenge: they allege that the

Suspension of their passes violated

their constitutional right to reasonable

freedom of movement. Defendants do not

A-81

dispute that Plaintiffs have a liberty

interest in freedom from unreasonable

restraint. They argue, however, that the

decision by DMHDD to suspend the passes

did not constitute an unreasonable

restraint on Plaintiffs' movement.

Supreme Court has recognized that

"freedom from bodily restraint has

always been the core of the liberty

protected by the Due Process Clause from

arbitrary governmental action." Foucha

uw. Louisiana, 112 S.ct. 1780, 1785

(1992). This liberty interest in

freedom from bodily restraint survives

involuntary commitment. Youngberg vy.

Romeo, 457 U.S. 307, 316 (1982). This

interest is not absolute; there are

occasions when the state has a

legitimate interest in restraining the

A-82

movement of individuals placed in its

institutions. Jd. at 320. In seeking

to balance these interests, an

individual's liberty interest must be

weighed against the state's asserted

reasons for restraining liberty. Jd.

Supreme Court has established that the

appropriate standard to apply in

balancing these two interests is whether

| professional judgment was exercised

| prior to the restraint. Jd. at 324.

The right of an institutionalized

inmate to freedom from unnecessary

restraint was articulated by the Court

in Youngberg v. Romeo, 457 U.S. 307

(1982). In Youngberg, the mother of a

profoundly retarded adult filed suit

against the state institution in which

her son was confined, Claiming that the

A-83

State defendants had infringed her son's

constitutional rights to safe conditions

of confinement, freedom from bodily

restraint, and training. Ig. at 309,

310. Plaintiff asserted, specifically,

that her son's right to be free from

bodily restraint was violated when

institution staff restrained him by

applying what the Court referred to as

"soft" restraints to his arms. Jd. at

311.

The Youngberg Court recognized the

right to freedom from bodily restraint

and established that this right "must

also survive involuntary confinement."

id. at 316. Court then articulated a

Standard to balance this liberty

interest against legitimate state

concerns for public safety and effective

A-84

treatment. Under this standard, the

Court concluded, the state "May not

restrain residents except when and to

the extent professional judgment deems

this necessary to assure such safety or

to provide needed training." Jg. at

324.

Defendants insist that Youngberg

does not control the Outcome here. They

note that Youngberg involved actual

physical restraint; here, Defendants'

action only imposes limitations on

Plaintiffs' movement within the

institution. Defendants correctly

observe the degree of physical restraint

waS more severe in Youngberg than in the

Present case. They err, however, in

assuming that the Supreme Court's

holding in Youngberg hinged upon the

A-85

unique degree of physical restraint in

that case. The Supreme Court's recent

opinion in Foucha v. Louisiana., 112

S.Ct. 1780 (1992), demonstrates that the

right to liberty from bodily restraint

means more than simply a prohibition

against actual physical restraint of the

body .

In Foucha, petitioner had been

acquitted of aggravated battery and

illegal discharge of a firearm by reason

of insanity. He was committed to a

psychiatric hospital pursuant

Louisiana law. Four years late:

hospital review commit

. \

that he be conditional! Ne

Two court-appointed doc refused tc

certify that plaintif¢ yer

dangerous, however, and the state trial

A-86

court denies his release. This result

comported with Louisiana law which

required that a defendant found not

guilty by reason of insanity be

committed to a psychiatric hospital

until he can prove that he is not

dangerous, regardless of the current

diagnosis of his mental condition. 112

ost. Qt 276i.

The Supreme Court struck down the

Louisiana statute as unconstitutional.

112 S.Ct. at 1787. A majority of the

Court concluded that the statute

violated the Sue Process Clause because

it allowed an insanity acquittee to be

committed to a mental institution until

he is abie to demonstrate that he is not

dangerous to himself and others, even

though he does not suffer from any

A-87

mental illness. Jd. In so holding, the

Court recognized that freedom from

bodily restraint is a liberty interest

that applies to insanity acquittees, Jd.

at 1785 (citing Youngberg v. Romeo, 457

U.S. 307, 316 (1982)), and that

"commitment for any purpose constitutes

a Significant deprivation of liberty

that requires due process protection. '"

Id. at 1785, (quoting Jones vy. United

xtates, 463 U.S. 354, 361 (1983)).

Thus, Plaintiffs enjoy a liberty

interest in freedom of movement that

need not be limited to freedom from

actual physical restraint of the body .

Further support for Plaintiffs'

argument that they have a liberty

interest in freedom of bodily movement

is provided by the Seventh Circuit's

A-88

decision in Johnson v. Brelijie, 701 F.2d

at 1201.*° In addition to arguing that

they had an interest in receiving

treatment in the "least restrictive

environment," plaintiffs in Jobnson

argued that they had a liberty interest

in freedom of movement. Plaintiffs

attached the DMHDD's practice of

confining them indoors except on rare

occasions. Jd. at 1208. Citing

Youngberg, the Johnson court held that

the plaintiffs “retain liberty interests

in freedom from such restraints

{confinement indoors] ." Id.

'° Although the Seventh Circuit in

Maust overruled Johnson's discussion of

Section 2-102 and the "least restrictive

environment," Johnson's consideration of

the restrictions that DMHDD placed on

forensic patients' freedom Of movement

remains good law.

A-89

hve

Aes

pet

ss]

BE:

3°.

Plaintiffs clearly have a

constitutionally protected liberty

interest in freedom of movement.

Plaintiffs must also establish, however,

that the DMHDD's suspension of their

passes constituted a violation of that

liberty interest. This determination

requires a balancing of Plaintiffs'

liberty interest in freedom of movement

against DMHDD's legitimate interest in

restraining their movement for the

safety of Plaintiffs themselves and the

general public. In balancing these

interests, Youngberg directs that the

court make certain that DMHDD exercises

professional judgement in deciding that

restraint of Plaintiffs through

Suspension of their passes is necessary

to assure safety. 457 U.S. 324.

A-90

DMHDD suspended Plaintiffs' passes

on May 30, 1990 after two forensic

patients used their unsupervised grounds

passes to escape from Elgin. In a memo

written to all of the state court judges

who had approved passes, Defendant

Brelje explained that the Department was

temporarily suspending all unsupervised

grounds passes pending the completed

construction of a security fence. Dr.

Brelje explained that utilization of the

passes under existing conditions

"presented an unacceptable danger, both

to the individual recipients and the

community at large." (Defendants'

Response to Plaintiff's Motion for

Preliminary Injunction, Ex. E.)

Plaintiffs emphasize that one of these

escapees was apprehended quickly and the

A-91

other had warned Elgin staff of his

intention to flee prior to his escape.

Further Plaintiffs have presented

Statistical data which they believe

demonstrated there had been no increase

in the number of NGRIs or USTs escaping

from confinement during exercise of pass

privileges over many months prior to May

1990. Nevertheless, for purposes of the

preliminary injunction proceeding, this

court will assume that DMHDD's initial

Suspension of the passes was reasonable

because a professional decision (albeit

not an individualized one) was made that

restricting Plaintiffs' freedom of

movement promoted legitimate safety

concerns.

By March 1991, however, a security

fence completely enclosed the forensic

A-92

unit. Once the security fence was

completed, continued suspension of

Plaintiffs' passes no longer represented

a reasonable restriction on Plaintiffs’

freedom of movement. As early as July

1990, Department staff had made written

recommendations to the Circuit Court

that Plaintiffs Manos and Nelson (and

other forensic patients) have their pass

privileges restored upon the completion

of the fence. After the fence was

built, however, Plaintiffs’ pass

privileges were not restored. This

unnecessary restriction of Plaintiffs’

movement is precisely the type of

arbitrary state action that the Due

Process Clause was intended to prevent.

Department staff did, as required by

Youngberg, make a professional

determination that Plaintiffs should

have their passes restored. But the

Department never did restore them.

Defendants provide no rational

explanation why Plaintiffs should not

now enjoy the same freedoms they had

prior to the suspension of pass

privileges. Prior to the original

issuance of passes, the Department

completed a three-tier determination

that Plaintiffs Nelson and Manos did not

present a security threat to themselves

or the public.'! Further the

Department's release of Manos and its

recommendation that Nelson be

'' As described in paragraph 5 of the

Findings of Fact, supra, before a

forensic patient receives a pass, the

patient's treatment team, Dr. Marquez,

and Roalda Alderman must determine that

the patient is not a security risk.

A-94

conditionally released to a half-way

house demonstrate that the Department

itself recognizes that both Manos and

Nelson can responsibly exercise freedom.

The Department's failure to restore

Plaintiffs' passes after the completion

of the fence unreasonably restricted

Plaintiffs' liberty interest in freedom

of movement.

The second step in examining

Plaintiffs' "likelihood of Success" is

to determine whether Defendants afforded

Plaintiffs adequate due process

Protection of their liberty interest in

the passes. Due process is "a flexible

concept that varies with the particular

Situation." Zjnermon Vv. Burch, 494 u.s.

A-95

113, 127 (1990). A court must weigh

several factors to determine what

procedural protections are required in a

particular case:

First, the private interest that

will be affected by the official

action; second, the risk of an

erroneous deprivation of such

interest through the procedures

used, an the probable value, if

any, Of additional or substitute

procedural safeguards; and finally,

the Government's interest,

including the function involved and

the fiscal and administrative

burdens that the additional or

Substitute procedural requirement

would entail.

Mathews v. Eldridge, 424 u.s. 319, 335

(1976). In applying this test, the

Supreme Court “usually has held that the

Constitution requires some kind of a

hearing before the State deprives a

person of liberty or property."

Zinermon, 494 u.s. at 127.

A-96

Plaintiffs have a substantial

private interest in their passes. For

Plaintiffs, the reasonable freedom of

movement enjoyed by the passes

constitutes a liberty interest , which

"has always been at the core of the

liberty protected by the Due Process

Clause from arbitrary governmental

action." Foucha , 112 §.Ct. at 1785.

Additionally, all of the potential

Plaintiffs suffer from debilitating

mental illness. The extent of

Plaintiffs' suffering is such that they

have been adjudicated either unfit to

Stand trial or incapable of forming

Criminal intent. Plaintiffs argue that

their passes constitute a form of

therapeutic treatment and that

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suspension 3f those passes detrimentally

affects Plaintiffs' well-being and

recovery. Specifically, they argue that

Defendants’ program allowing

increasingly greater freedoms --

referred to by mental health

professionals as "progressive liberties"

-- is itself a recognized form of

treatment.

Defendants challenge the notion

that progressive liberties are necessary

Or required for effective mental health

care. They contend no empirical data

Supports a conclusion that progressive

liberties accelerate a patient's

progress. Dr. Brelje testified in fact,

that it may be that allowing patients

increasing freedoms over a period of

several months actually slows the pace

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be }2 z

* VUDist

)

analysis requires an examination of "the

risk of an erroneous deprivation of such

interest through the procedures used,

and the probative value, if any, of

additional or substitute procedural

safeguards." 424 U.S. at 355. As

previously discussed, Plaintiffs'

liberty interest in their passes

Outweighed Defendants' claimed security

needs, at the latest after the fence was

built. Thus, the procedures employed by

Defendants in determining whether to

restore Plaintiffs' passes after

construction of the fence must be

examined in order to assess the risk

that Plaintiffs were erroneously denied

pass privileges.

As noted earlier, Defendants appear

to have failed to act upon their own

A-100

recommendation that pass privileges be

restored upon completion of construction

of the fence. Not only did Defendants

bar Plaintiffs from wandering the full

range of the Elgin facility, as they had

prior to May 1990; but Defendants also

have not allowed patients having

unsupervised grounds passes to walk

without supervision for more than five

minutes, even within the fenced area.

Consequently, Defendants' procedures

erroneously denied Plaintiffs their

liberty interest.

The second prong of the Mathews

analysis also requires a determination

of "the probable value, if any, of

additional or substitute procedures

safeguards." Id. at 335. Plaintiffs

here request that prior to any future

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Suspension of pass privileges, a

qualified professional make an

individualized determination that the

patient no longer meets the criteria for

a pass. In case of an emergency,

Plaintiffs propose that Defendants be

entitled to suspend a pass without a

prior determination, as long as that

determination is made promptly after the

suspension.

The circumstances of Plaintiffs

Nelson and Manos demonstrate the

probable value of requiring Defendants

to make a pre-deprivation individual

determination that a plaintiff no longer

qualifies for a pass. On May 30, 1990,

Defendants suspended the passes of

Nelson and Manos without having made

such a determination. After conducting

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a professional individualized

determination only two months later,

however, Defendants' decided that

Plaintiffs Nelson and Manos should have

their passes restored. Had Defendants

based their initial decision on an

individualized review of Plaintiffs'

treatment needs, Plaintiffs Nelson and

Manos might never have lost their

passes.

3. Government's Interest

The third prong of the Mathews

analysis required that the probable

value of any additional safeguards be

weighed against "the Government's

interest, including the function

involved and the fiscal and

administrative burdens that the

additional or substitute procedural

A-103

requirement would entail." Id.

Defendants here argue that adoption of

Plaintiffs' suggestions would require

burdensome and expensive hearing prior

to any decision to suspend passes.

Defendants' argument fails to

acknowledge, however, that an

appropriate mechanism for conducting a

pre-deprivation hearing already exists.

Paragraph 1005-2-4(b) of the Criminal

Code, Ill. Rev. Stat. ch. 38, 4 1005-2-

4(b), requires Defendants to submit a

individualized treatment plan to the

Circuit Court for each forensic patient

every 60 days. Ill. Rev. Stat. ch. 38,

Gq 1005-2-4(b). Since 4 1005-2-4(b)

already requires Defendants to conduct a

professional individualized

determination before Suspending a

A-104

Plaintiff's pass privileges, Defendants

incur no additional cost or burden in

providing a pre-deprivation hearing.

Significantly, Plaintiffs’ request

for an individual determination imposes

a lesser procedural burden on the

Department than the requirement which

the Seventh Circuit recently imposed on

the Wisconsin prison system in Felce y,

F.2d » No. 91-3488,

Fiedler,

1992 WL 221989 (7th Cir. Sept. 15,

1992). In Felce, a mandatory parolee

argued that Wisconsin cannot condition

mandatory release parole on forced

injections of antipsychotic drugs unless

the drugs are necessary and a fair

procedure is used to determine such a

necessity. 1992 WL 221989, at *3. The

Felce court held that a parolee has a

A-105

liberty interest "in being free from the

involuntary use of antipsychotic drugs

during his period of mandatory parole."

Id. at *10. After determining that

plaintiff had a liberty interest in

refusing medication, the court

considered what procedural protections

were necessary to protect the liberty

interest. The court determined "that

the involvement of an independent

decisionmaker [in deciding whether the

antipsychotic medication was necessary]

would benefit significantly the

protection of the liberty interest at

stake without a significant burden upon

coe memes es . . 2d. at *10. In

contrast to the request in Felce,

Plaintiffs here are not requesting that

Defendants be forced to supply an

A-106

independent decisionmaker in determining

whether Plaintiffs qualify for pass

privileges. Instead, Plaintiffs merely

ask that the pass privilege

determinations be made by the same

persons who are involved in their day-

to-day treatment and who are required to

develop individual treatment plans every

60 days.

Conceivably, an emergency could

arise prior to the required 60-day

hearing that would necessitate the

Suspension of pass privileges without a

prior individualized determination. But

even in such an emergency, due process

requires the provision of some kind of a

hearing as soon as practical after the

deprivation has occurred. Parratt vy.

Taylor 451 U.S. 527, 538 (1981). Thus,

A-107

in the event Defendants are forced to

impose an emergency suspension of pass

privileges, due process requires that

Defendants conduct an individualized

determination within the next 60-day

interval.

C. Remaining Preliminary Injunction

Requirements

As Plaintiffs have demonstrated

they are likely to succeed on the merits

of their due process claim, the court

must consider whether the other

requirements for granting of preliminary

injunctive relief have been met.

Specifically, Plaintiffs must

demonstrate that they are likely to

suffer irreparable harm for which they

have no adequate remedy at law if

injunctive relief is denied; that the

A-108

harm they will suffer is greater than

the burden that injunctive relief would

impose on Defendants; and that such

relief will not jeopardize the public

interest. Faheem-F] Vv. Klincar, 841

F.2d 712, 716 (7th Cir. 1988).

Defendants have raised no genuine

objection to any of the remaining

elements of the required showing.

Plaintiffs easily meet the first of

these requirements, establishing that if

the injunction is denied, they will

suffer irreparable harm for which they

have no adequate remedy at law. Fabeem-

El, 841 F.2d at 716. Depriving

Plaintiffs of their passes is likely to

inflict irreparable harm. Because

Plaintiffs received their passes after

Defendants' determination that the

A-109

passes constituted an appropriate part

of Plaintiffs' individual treatment

plans to provide adequate and humane

care, Ill. Rev. Stat. ch. 38, 4 1005-2-

4(b) and ch. 91.5, ¥ 2-102, any

deprivation of Plaintiffs' passes may

interfere with Plaintiffs' treatment.

Since Plaintiffs cannot be released

until they recover, Ill. Rev. Stat. ch.

38, { 1005-2-4(h), inteference with

their treatment resulting from the

Suspension of passes may prolong their

confinement.

Additionally, Plaintiffs do not

have an adequate remedy at law for the

irreparable harm that deprivation of

their passes may inflict upon them.

Monetary damages, for example, will be

difficult to calculate. Nor can such

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damages make Plaintiffs "whole," if the

suspension of passes does interfere with

Plaintiffs' treatment and delay

recovery. Although Plaintiffs did

request an award of damages,’* it would

be difficult to set a price tag on the

Satisfaction Plaintiffs felt upon

learning that their passes would entitle

them to some degree of freedom of

movement or the disappointment they

experienced when their freedom was

suspended.

Next, Plaintiffs must establish

that denial of the injunction would

Plaintiff Manos contends he is

entitled to an award for pay he lost as

a result of his inability to work as a

forklift operator, but the evidence did

not permit a finding on this issue.

Manos did not recall whether he was

working in that job at the time of the

pass suspension.

A-111

inflict greater suffering on them than

the burden such relief, if granted,

would impose on Defendants. Faheem-El,

841 F.2d at 716. Defendants do not

dispute that Plaintiffs have met this

burden. If the injunction is granted,

Defendants will return to the practice

they followed prior to the supervision

of passes on May 30, 1990. Every 60

days, Defendants will be required to

make individual determinations regarding

each patient's qualifications for

receiving a pass. On the other hand,

denial of the injunction threatens harm

to Plaintiffs. The passes are part of

their treatment plan, and Plaintiffs'

recovery and eventual release from DMHDD

may be delayed if the pass privileges

are not restored.

A-112

Finally, Plaintiffs must establish

that the injunction will not disserve

the public interest. Jd. Defendants

argue that if the passes are restored,

public safety will be at risk.

Defendants have already discharged

Manos, however, and have recommended

Nelson for conditional release to a

half-way house. These determinations

demonstrate that Defendants no longer

regard Plaintiffs Nelson and Manos as

threats to public safety. Moreover,

Illinois law and Department practice

contemplate the use of passes as a form

of treatment. See Ill. Rev. Stat. ch.

38, 4 1005-2-4(b). Restoration of the

passes may enhance Plaintiffs'

Creatment; and the injunctive relief

they have requested will not disserve

A-113

the public interest.

CONCLUSION

Defendants' suspension of

Plaintiffs' pass privileges on May 30,

1990 violated Plaintiffs'

constitutionally protected liberty

interest in freedom from unreasonable

restraint on bodily movement. The court

should grant Plaintiffs' motion for a

preliminary injunction requesting

issuance of an order restoring all

passes suspended on May 30, 1990 and

requiring an individualized professional

determination prior to any future

Suspension of the passes.

ENTER :

REBECCA R. PALLMEYER

United States Magistrate Judge

Date: September 30, 1992

A-114

Within ten days of the date of

service of this report, Plaintiffs are

directed to submit to the Honorable John

A. Nordberg their proposed form

preliminary injunction order consistent

with this Report. Counsel have ten days

from the date of service to file

objections to this Report and

Recommendation with the Honorable John

A. Nordberg. See Fed. R. Civ. P. 72(b);

28 U.S.C. § 636(b) (1). Failure to

object constitutes a waiver of the right

to appeal. Eggert v. Connecticut Genera]

Life Ins. Co., 900 F.2d 1032, 1039 (7th

Cir. 1990).

A-115

730 ILCS 5/5-2-4. Proceedings After

Acquittal by Reason of Insanity

(a) After a finding or verdict of not

guilty by reason of insanity under

Sections 104-25, 115-3 or 115-4 of The

Code of Criminal Procedure of 1963, the

defendant shall be ordered to the

Department of Mental Health and

Developmental Disabilities for an

evaluation as to whether he is subject to

involuntary admission or in need of

mental health services. The order shall

specify whether the evaluation shall be

conducted on an inpatient or outpatient

basis. If the evaluation is to be

conducted on an inpatient basis, the

defendant shall be placed in a secure

setting unless the Court determines that

there are compelling reasons why such

placement is not necessary. After the

evaluation and during the period of time

required to determine the appropriate

placement, the defendant shall remain in

jail. Upon completion of the placement

process the sheriff shall be notified and

shall transport the defendant to the

designated facility.

The Department shall provide the

Court with a report of: its evaluation

within 30 days of the date of this order.

The Court shall hold a hearing as

provided under the Mental Health and

Developmental Disabilities Code to

determine if the individual is: (a)

subject to involuntary admission; (b) in

need of mental health services on an

inpatient basis; (c) in need of mental

health services on an outpatient basis;

B-1

(d) a person not in need of mental health

services. The Court shall enter its

findings.

If the defendant is found to be

subject to involuntary admission or in

need of mental health services on an

inpatient care basis, the Court shall

order the defendant to the Department of

Mental Health and Developmental

Disabilities. The defendant shall be

placed in a secure setting unless the

Court determines that there are

compelling reasons why such placement is

not necessary. Such defendants placed in

a secure setting shall not be permitted

outside the facility's housing unit

unless escorted or accompanied by

personnel of the Department of Mental

Health and Developmental Disabilities or

with the prior approval of the Court for

unsupervised on-grounds privileges as

provided herein. If the defendant is

found to be in need of mental health

services, but not on an inpatient care

basis, the Court shall conditionally

release the defendant, under such

conditions as set forth in this Section

as will reasonably assure the defendant's

satisfactory progress in treatment or

rehabilitation and the safety of the

defendant or others. If the Court finds

the person not in need of mental health

services, then the Court shall order the

defendant discharged from custody.

(1) Definitions: For the purposes

of this Section:

(A) “Subject to involuntary

admission" means: A defendant has been

B-2

Papi So,

SED AR aL Mtns,

SRO Cay T

found not guilty by reason of insanity;

and

(1) who is mentally ill and who

because of his mental illness is

reasonably expected to inflict serious

physical harm upon himself or another in

the near future; or (ii) who is mentally

ill and who because of his illness is

unable to provide for his basic physical

needs so as to guard himself from serious

harm.

(B) "In need of mental health

services on an inpatient basis means: a

defendant who has been found not guilty

by reasons of insanity who is not subject

to involuntary admission but who is

reasonably expected to inflict serious

physical harm upon himself or another and

who would benefit from inpatient care or

is in need of inpatient care.

services on an outpatient basis" means:

a defendant who has been found not guilty

by reasons of insanity who is not subject

to involuntary admission or in need of

mental health services on an inpatient

basis, but is in need of outpatient care,

drug and/or alcohol rehabilitation

programs, community adjustment programs,

individual, group, or family therapy, or

chemotherapy.

(D) “Conditional Release" means:

the release from the custody of either

the Department of Mental Health and

Developmental Disabilities or the custody

of the Court of a person who has been

found not guilty by reasons of insanity

under such conditions as the court may

B-3

impose which reasonably assure the

defendant's satisfactory progress in

treatment or habilitation and the safety

of the defendant and others. The Court

shall consider such terms and conditions

which may include, but need not be

limited to outpatient care, alcoholic and

drug rehabilitation programs, community

adjustment programs, individual, group,

family, and chemotherapy, periodic checks

with the legal authorities and/or the

Department of Mental Health and

Developmental Disabilities. The person

or facility rendering the outpatient care

shall be required to periodically report

to the Court on the progress of the

Defendant. Such conditione. release

shall be for a period of five years,

unless the defendant, the person or

facility rendering the treatment,

therapy, program or outpatient care, or

the State's attorney petitions the Court

for an extension of the conditional

release period of an additional three

years. Upon receipt of such a petition,

the Court shall hold a hearing consistent

with the provisions of this paragraph (a)

and paragraph (f) of this Section, shall

determine whether the defendant should

continue to be subject to the terms of

conditional release, and shall enter an

order either extending the defendant's

period of conditional release for a

Single additional three year period or

discharging the defendant. In no event

shall the defendant's period of

conditional release exceed eight years.

These provision for. extension of

-ynditional release shall only apply to

defendants conditionally released on or

after July 1, 1979. However the

B-4

extension provisions of this amendatory

Act of 1984 apply only to defendants

charged with a forcible felony.

(b) If the Court finds the defendant

subject to involuntary admission or in

need of mental health services on an

inpatient basis, the admission,

detention, care treatment or

habilitation, review proceedings, and

discharge of the defendant after such

Order shall be under the Mental Health

and Developmental Disabilities Code,

except that the initial order for

admission of a defendant acquitted of a

felony by reasons of insanity shall be

for an indefinite period of time. Such

period of commitment shall not exceed the

maximum length of time that the defendant

would have been required to serve, less

credit for good behavior, before becoming

eligible for release had he been

convicted of and received the maximum

sentence for the most serious crime for

which he has been acquitted by reasons of

insanity. The Court shall determine the

maximum period of commitment by an

appropriate order. During this period of

time, the defendant shall not be

permitted to be in the community in any

manner, including but not limited to off-

grounds privileges, with or without

escort by personnel of the Department of

Mental Health and Developmental

Disabilities, unsupervised on-grounds

privileges, discharge or conditional or

temporary release, except by a plan as

provided in this Section. In no event

shall a defendant's continued

unauthorized absence be a basis for

discharge. Not more than 30 days after

B-5

admission and every 60 days thereafter so

long as the initial order remains in

effect, the facility director shall file

a treatment plan with the court. Such

plan shall include an evaluation of the

defendant's progress and the extent to

which he is benefiting from treatment.

Such plan may also include unsupervised

on-grounds privileges, off-grounds

privileges (with or without escort by

personnel of the Department of Mental

Health and Developmental Disabilities),

home visits and participation in work

programs, but only where such privileges

have been approved by specific court

order, which order may include such

conditions on the defendant as the Court

may deem appropriate and necessary to

reasonably assure the defendant's

Satisfactory progress in treatment and

the safety of the defendant and others.

felony by reason of insanity and

subsequently found to be subject to

involuntary admission or in need of

mental health services shall be

represented by counsel in all proceedings

under this Section and under the Mental

Health and Developmental Disabilities

Code.

(1) The court shall appoint as

counsel the public defender or an

attorney licensed by this State.

(2) Upon filing with the court of a

verified statement of legal services

rendered by the private attorney

appointed pursuant to paragraph (1) of

this subsection, the court shall

B-6

determine a reasonable fee for such

services. If the defendant is unable to

pay the fee, the court shall enter an

Order upon the State to pay the entire

fee or such amount as the defendant is

unable to pa from funds appropriated by

the General Assembly for that purpose.

(d) When the facility director

determines that:

(1) the defendant is no longer

Subject to involuntary admission or in

need of mental health services on an

inpatient basis; and

(2) the defendant may be

conditionally released because he or she

is still in need of mental health

services or that the defendant may be

discharged as not in need of any mental

health services; or

(3) the defendant no longer

requires placement in a secure setting;

the facility director shall give written

notice to the Court, State's Attorney and

defense attorney. Such notice shall set

forth in detail the basis for the

recommendation of the facility director,

and specify clearly the recommendations,

if any, of the facility director,

concerning conditional release. Within

30 days of the notification by the

facility director, the Court shall set a

hearing and make a finding as to whether

the defendant is:

(i) subject to involuntary

admission; or

(11) in need of mental health

services in the form of inpatient care;

B-7

(111) in need of mental health

services but not subject to involuntary

admission or inpatient care; or

(iv) no longer in need of mental

health services; or

(v) no longer requires placement in

a secure setting.

Upon finding by the Court, the Court

shall enter its findings and _ such

appropriate order as provided in

ibsection (a) of this Section.

(e) A defendant admitted pursuant to

s Section, or any person on his

ilf, may file a petition for transfer

te a non-secure setting within the

Department of Mental Health and

Developmental Disabilities or discharge

or conditional release under the

standards of this Section in the court

which rendered the verdict. Upon receipt

of a petition for transfer to a non-

secure setting or discharge or

conditional release, the court shall set

a hearing to be held within 30 days.

Thereafter, no new petition may be filed

for 60 days without leave of the court.

(f) The court shall direct that

notice of the time and place of the

hearing be served upon the defendant, the

facility director, the State's Attorney,

and the defendant's attorney. 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

B-8

SDN bbe al

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.

(g) The findings of the court shall

be established by clear and convincing

evidence. The burden of proof and the

burden of going forth with the evidence

rest with the State when a hearing is

held to review the determination of the

facility director that the defendant

should be transferred to a non-secure

setting, discharged or conditionally

released. The burden of proof and the

burden of going forth with the evidence

rest on the defendant when a hearing is

held to review a petition filed by or on

behalf of such defendant. The evidence

Shall be presented in open court with the

right of confrontation and cross-

examination.

(h) If the court finds that the

defendant is no longer in need of mental

health services it shall order the

facility director to discharge the

defendant. If the Court finds that the

defendant is in need of mental health

services, and no longer in need of

inpatient care, it shall order the

facility director to release the

defendant under such conditions as the

Court deems appropriate and as provided

by this Section. Such conditional

release shall be imposed for a period of

five years and shall be subject to later

modification by the court as provided by

this Section. If the court finds that

B-9

the defendant is subject to involuntary

admission or in need of mental health

services on an inpatient basis, it shall

order the facility director not to

discharge or release the defendant in

accordance with paragraph (b) of this

Section.

(1) If within the period of the

defendant's conditional release, the

court determines, after hearing evidence,

that the defendant has not fulfilled the

conditions of release, the court shall

order a hearing to be held consistent

with the provision of paragraph (f) and

(g) of this section. At such hearing, if

the court finds that the defendant is

Subject to involuntary admission or in

need of mental health services on an

inpatient basis, it shall enter an order

remanding him or her to the Department of

Mental Health and Developmental

Disabilities or other facility. If the

defendant is remanded to the Department

cf Mental Health and Developmental

Disabilities, he or she shall be placed

in a secure setting unless the court

determines that there are compelling

reasons that such placement is not

necessary. If the court finds that the

defendant continues to be in need of

mental health services but not on an

inpatient basis, it may modify the

conditions of the Original release in

order to reasonably assure the

defendant's Satisfactory progress in

treatment and his or her safety and the

Safety of others. In no event shall such

conditional release be longer than eight

years. Nothing in this Section shall

limit a court's contempt powers or any

B-10

other powers of a court

(Jj) An order of admission under this

Section does not affect the remedy of

habeas corpus.

(k) In the event of a conflict

between this Section and the Mental

Health and Developmental Disabilities

Code or the Mental Health and

Developmental Disabilities

Confidentiality Act, the provision of

this Section shall govern.

(1) This amendatory Act shall apply

to all persons who have been found not

guilty by reasons of insanity and who are

presently committed to the Department of

Mental Health and Developmental

Disabilities.

(m) The Clerk of the court shall

after the entry of an order of transf

to a non-secure setting of t

Department of Mental Health a

Developmental Disabilities or dischar

or conditional release, transmit

certified copy of the order to the

Department of Mental Health and

Developmental Disabilities, and the

Sheriff of the county from which the

defendant was admitted. In cases where

the arrest of the defendant or the

commission of the offense took — in

any municipality with a populati of

more than 25,000 persons, the ave of

the court shall also transmit a certified

copy of the order of discharge or

conditional release to the proper law

enforcement agency for said municipality

provided the municipality has requested

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.