No Mootness, No Waiver, No Rehearing In Psychotropic Drug Case

Unfit to stand trial for telephone harassment, Leslie H. was admitted to the Elgin Mental Health Center. Her psychiatrist petitioned to involuntarily administer psychotropic medication to her. A public defender represented her on the petition to administer the drugs. Leslie’s attorney in the criminal defense matter was not given notice of the psychiatrist’s petition.

The trial court granted the petition, and Leslie appealed. The Second District Illinois Appellate Court ruled that the dispute was not moot, even though the waiting period after the order authorizing administration of the drugs passed. The court invoked the public interest exception to the mootness doctrine. (Question of a public nature; authoritative ruling could help guide public officers; issue likely to recur.)

Because the public defender did not challenge the lack of notice to Leslie’s criminal defense lawyer at the hearing on the petition, the State argued waiver. The appellate court overlooked the waiver “in order to achieve a just result … especially in a case where the State seeks to involuntarily administer psychotropic medication.”

The State tried to supplement the record on rehearing to show that Leslie’s criminal defense attorney did receive notice of the petition. But the court “simply cannot consider such evidence.” Supreme Court Rule 367 requires a party to state the points the appellate court “overlooked or misapprehended.” The rule does not provide a mechanism for using new evidence that was available at trial and during the appeal.

The order allowing the petition to administer the drugs was reversed. The whole case, In re Leslie H., No. 2-05-0648 (1/5/07), is available right here.