# Appendix — Nelson v. Murphy

> Briefs, arguments, decisions, and more.

URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386012_1994%3A2

## Record

- **Collection:** Supreme Court brief
- **Document type:** Appendix
- **Published:** January 1, 1995
- **Citation:** 516 U.S. 1027

## Text

Soprems Coort, vu.’
FILED

942053 WN 8 = 1995

oO.
~~ 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,
v.

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

A-1l

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.

A-2

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

A-3

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

A-6

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

A-7

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

A-9

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 ~

A-10

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

A-11

i
3
5
4
;
q
a

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

A-12

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

" |

{ ‘

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

A-13

Tt
Wied : a ae We =
a ; 7 , Paes La ae 2a 2 iy cn 7
hve we
— . a
: : 7
ry ae comes a ;

Sioniee
yy Ts Er oD si haat eNGLe

_ ‘= ° — i D _ : > } 7
- = ' - ad ar
cw -
ae a) © eae ere sf Daf se? BIB aA?
: ed - Laie

en a
= _ .

Papas fl) rats

»
ane
=

©
'
. -
= nu
> 1 4
rt
; i aa
H ae

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

Ad ide!

ake hs

a

—
=

ve ae

7

~t

c

:
.

oe
=

Ae sep eatrergh

> . ae 7 Cals - in’ ia 5 7 [sace : ne = a)

Tony eae re
: ) a
~ oe
@
‘A
‘
, %
a
2
o = 7 : 7
g = ®
® ¢ 7 : : oe ang
: - 7 a ea
- so> S €¢a0 _
As 2 a :
ee oft tare ets
sz
aS Bi @ ~*a5-7 2 wy. ceYs au
; ; 2 ie ie
iS an a4 wa. = _ 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

i
4
A
8
2
x
€
4

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

3
“—
|
s
4
ss]
Z|
e
by
4
Ke
,
BE:
3S
"4
a
a
3°.
q

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

A-97

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

A-98

be }2 z
* VUDist
en
)
VU

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

A-101

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

A-102

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

A-110

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.

12

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.

(C) "In need of mental health
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

X

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.

(c) Every defendant acquitted of a
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

or

(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

aa

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386012_1994%3A2. Public record. Not legal advice.