In re Benny M. , 104 N.E.3d 313 ( 2017 )

2017 IL 120133
IN THE
SUPREME COURT
OF
THE STATE OF ILLINOIS
(Docket No. 120133)
In re BENNY M. (The People of the State of Illinois, Appellant, v.
Benny M., Appellee).
Opinion filed November 30, 2017.
JUSTICE KILBRIDE delivered the judgment of the court, with opinion.
Chief Justice Karmeier and Justices Freeman, Thomas, Garman, Burke, and
Theis concurred in the judgment and opinion.
OPINION
¶1 In this case, the trial court permitted the respondent to remain shackled during a
hearing on the State’s petition seeking to administer psychotropic medication
involuntarily. The trial court granted the State’s petition. The appellate court
reversed the trial court’s judgment, holding that the trial court erred in allowing
respondent to be physically restrained during the hearing. For the following
reasons, we reverse the appellate court’s judgment.
¶2 I. BACKGROUND
¶3 After being found unfit to stand trial on a charge of domestic battery against his
mother, the respondent, Benny M., was admitted involuntarily to the Elgin Mental
Health Center. Respondent was medicated involuntarily and later found fit to stand
trial. Respondent was transferred to the jail, stopped taking his psychotropic
medication, and was again found unfit to stand trial. Respondent was then
transferred back to the Elgin Mental Health Center, and the State filed the petition
at issue in this case seeking to administer psychotropic medication involuntarily.
¶4 A hearing was held in Kane County circuit court on the petition on two separate
days. On the first day, respondent was physically restrained while being
transported, but the shackles were removed before he entered the courtroom. Dr.
Donna Luchetta testified that she was a treating psychiatrist at the Elgin Mental
Health Center and diagnosed respondent with schizoaffective disorder. Respondent
suffered from several symptoms, including delusions that he did not have a mental
illness and a belief that he did not need medication. Respondent also experienced
severe mood swings with depressive periods followed by “elevated” periods when
he would attempt to grab and kiss female interns.
¶5 Dr. Luchetta testified that respondent’s condition and ability to function
deteriorated when he did not take his medication. She noted that an order to treat
respondent involuntarily expired the previous day and respondent was refusing
medication. Following Dr. Luchetta’s direct examination, the hearing was
continued for two weeks.
¶6 When the hearing resumed, respondent was physically restrained, and his
attorney asked for the shackles to be removed. The trial court inquired whether the
shackles were necessary for security. The security officer stated that respondent
was “listed as high elopement risk” and submitted a “patient transport checklist” to
the court. The checklist was not admitted into evidence and is not included in the
record on appeal. In response to the trial court’s inquiry, respondent’s attorney
stated she had not reviewed the document. Respondent then stated,
“I just want to say something. High risk case for elopement, where am I
going to go? I’m trapped. *** I said I wanted to be here, and I was willing to
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even be present in this crap. This is kind of interesting. I mean I can laugh about
it, too. I have a sense of humor.”
The trial court then stated, “I will leave him in custody in the shape he is in now.
The request is denied.”
¶7 Respondent’s attorney asked if respondent’s right hand could be released to
take notes and communicate with her during the hearing. Respondent interjected,
“Do you think I am going to take the pen or something and try to stab someone with
it?” The trial court stated, “There’s obviously got to be a balance of whatever
security feels is necessary and his ability to participate. Do you feel that he is
unable to participate in the court proceedings *** with his hands restrained?”
Respondent’s counsel replied that respondent was unable to participate with his
right hand restrained. When the trial court asked respondent if he was right-handed,
respondent stated he used both hands and asserted,
“I would try to use my left hand as well because I’m not saying most or
everyone, but people tend to try different things, have to learn how to write with
both. *** If one hand is hurting or whatever, or for some reason, like if
someone loses their hand *** through amputation, they may be forced to use
their left hand.”
¶8 At that point, the trial court stated, “If there is need to take notes, I will consider
your request.” Respondent replied, “I’m speaking, which is even better.” The trial
court asked respondent’s attorney to begin her cross-examination of Dr. Luchetta.
When respondent continued to speak, the trial court urged him to listen to his
attorney and stated, “If there is a need for you to be writing down some notes or
things of that nature, I will consider it at that time. I’m trying to do the best to
balance both the security information given to me and your ability to participate.”
¶9 During cross-examination, Dr. Luchetta testified that respondent had refused to
take his medication since the last involuntary treatment order expired 15 days prior
and his condition was deteriorating. Respondent interrupted occasionally and
commented on Dr. Luchetta’s testimony. The trial court told respondent that his
attorney was there to represent him and admonished respondent several times that
he would be removed from the courtroom if he kept interrupting.
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¶ 10 During his own testimony, respondent asserted that he had not been taking his
medication because he did not have a mental illness. Respondent commented about
the shackles, stating they were “very restrictive.” When the judge told respondent
he could step down from the witness stand, respondent stated, “If I am still able to
walk. I just got up.”
¶ 11 In its closing argument, the State observed that respondent’s condition had
deteriorated since the original hearing date two weeks earlier. The State noted that
respondent was able to sit still without interrupting at the first hearing date, but he
interrupted repeatedly when the hearing resumed following the continuance. When
the State referred to respondent kissing an intern on the cheek without her consent,
respondent interrupted the State’s argument. The trial court advised respondent that
he would be removed from the courtroom the next time he interrupted. The
following exchange then occurred:
“[RESPONDENT]: It’s crazy.
THE COURT: I will ask him to leave now, please.
[RESPONDENT’S ATTORNEY]: Judge, just for the record, he’s been
complaining about the shackles the whole hearing.
THE COURT: I have not heard that.
[RESPONDENT’S ATTORNEY]: He’s been complaining to me.
THE COURT: I have heard him complain about the language that’s being
used to describe people. I have heard him interrupt and criticize or comment on
what Dr. Luchetta has testified to. I have not heard that. I have heard out loud
comments unrelated to the shackles.”
¶ 12 The trial court added that “none of those items have ever been a problem for
me.” Respondent’s counsel asserted, “But he has had to stand up because he’s been
in pain.” Respondent stated, “I was talking about the peck I gave on the cheek,” and
the trial court asserted, “See what I mean? That’s not shackle related.” Respondent
then complained that his restraints had been “tightened” and asked if they could be
removed. As the security officer led respondent out of the courtroom, he asserted,
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“This is why I’m suffering and deteriorating. I mean look at this. I’m
walking like a cripple, and I’m not. As soon as I’m out of here, I will probably
be back to being an athlete again, but I mean a little bit of pain, for sure, which
I’m not going to be able to take medication for.”
¶ 13 The State then finished its argument. In her closing argument, respondent’s
attorney asserted that respondent complained about the restraints, stood up several
times during the hearing, and indicated he was having cramps. The trial judge
responded, “I’m certain that those comments are not part of the record. I would
have possibly addressed them if he had made them or you had made them on his
behalf directly to me.” Respondent’s attorney stated, “I apologize. I should have.”
The trial court subsequently granted the petition allowing involuntary
administration of psychotropic medication for a period not to exceed 90 days.
¶ 14 Respondent appealed the trial court’s judgment, contending that he was denied
a fair trial because he was shackled during the hearing. The appellate court
acknowledged that the appeal was moot but agreed with respondent that it fell
within both the public interest exception to mootness and the exception for issues
capable of repetition, yet evading review. 2015 IL App (2d) 141075, ¶ 19. The
appellate court held that the trial court abused its discretion in shackling respondent
because the court did not conduct an independent assessment of the factors bearing
on that decision or make explicit findings that shackling was necessary. 2015 IL
App (2d) 141075, ¶ 33. The appellate court further concluded that the error could
not be considered harmless beyond a reasonable doubt. 2015 IL App (2d) 141075,
¶ 36. Accordingly, the trial court’s judgment was reversed. 2015 IL App (2d)
141075, ¶ 38.
¶ 15 We allowed the State’s petition for leave to appeal (Ill. S. Ct. R. 315 (eff. Jan. 1,
2015)).
¶ 16 II. ANALYSIS
¶ 17 Initially, we must consider our own jurisdiction over this appeal as a threshold
inquiry. The existence of an actual controversy is essential to appellate jurisdiction.
In re Lance H., 2014 IL 114899, ¶ 12. Courts of review generally will not decide
abstract, hypothetical, or moot questions. In re James W., 2014 IL 114483, ¶ 18. An
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appeal is moot when the issues involved in the trial court no longer exist because
intervening events have made it impossible for the reviewing court to grant the
complaining party effectual relief. In re Andrea F., 208 Ill. 2d 148, 156 (2003).
¶ 18 Here, the involuntary treatment order entered on October 3, 2014, was effective
for a period not to exceed 90 days. The order expired long ago, and it is impossible
for this court to grant effective relief from that order. Accordingly, this appeal is
moot.
¶ 19 We must, therefore, determine whether a mootness exception applies. In re
Linda B., 2017 IL 119392, ¶ 17; In re Lance H., 2014 IL 114899, ¶ 13. The State
contends the appellate court correctly held that both the public interest exception
and the exception for issues capable of repetition yet evading review apply to this
case. We first consider the mootness exception for issues capable of repetition yet
evading review. That exception has two elements. First, the challenged action must
be too short in duration to be litigated fully prior to its cessation. In re Alfred H.H.,
233 Ill. 2d 345, 358 (2009) (citing In re Barbara H., 183 Ill. 2d 482, 491 (1998)).
The first element has been met in this case because the 90-day duration of the order
was too brief to allow appellate review. See In re Alfred H.H., 233 Ill. 2d at 358.
¶ 20 The second element of the exception requires a reasonable expectation that the
same complaining party will be subject to the same action again. In re Alfred H.H.,
233 Ill. 2d at 358 (citing In re Barbara H., 183 Ill. 2d at 491). Respondent contends
that although he was the complaining party in the appellate court, the State is now
the complaining party for purposes of establishing this mootness exception because
the State is the appellant before this court. According to respondent, he “has his
resolution” of the issue, and the State is not entitled to further review because there
is no reasonable expectation that it will be subject to the same action again.
¶ 21 Viewing the State as the complaining party would be nonsensical, however,
because it is obviously never subject to shackling and would have no reason to
complain of that action. In Barbara H., this court applied the capable of repetition
yet evading review exception in a similar procedural context. There, as in this case,
the respondent was the appellant in the appellate court, and the State was the
appellant before this court. This court, nonetheless, viewed the respondent as the
complaining party for purposes of applying the mootness exception, holding there
was a reasonable expectation that she would be subject to the same action again
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because she had a history of mental illness and hospitalization, including
involuntary hospitalization. In re Barbara H., 183 Ill. 2d at 492. Consistent with
Barbara H., we view respondent as the complaining party in applying this
mootness exception.
¶ 22 This court has explained that the capable of repetition yet evading review
exception applies when resolution of the issue “would be likely to affect a future
case involving respondent.” In re Alfred H.H., 233 Ill. 2d at 359. There must be a
substantial likelihood that resolution of the issue presented would have some
bearing on a similar issue raised in a subsequent case. In re Alfred H.H., 233 Ill. 2d
at 360. This court held the capable of repetition yet evading review exception did
not apply in Alfred H.H. because the respondent claimed on appeal that there was
insufficient evidence to order his involuntary commitment and there was no clear
indication of how resolution of that fact-specific issue could be used by the
respondent in future litigation. In re Alfred H.H., 233 Ill. 2d at 360.
¶ 23 In contrast, this case involves the standards and procedure for allowing a
respondent to remain shackled in an involuntary treatment proceeding. The State
and respondent disagree on whether the trial court must state on the record its
reasons for imposing restraints. Respondent also contends the appellate court failed
to recognize that his attorney should be given an opportunity to present reasons for
removing the restraints. Thus, there is a dispute on the procedure used in the trial
court for ordering restraints in these cases.
¶ 24 There is also a reasonable expectation that respondent will be subjected to
restraints again in an involuntary commitment or treatment proceeding. Dr.
Luchetta testified that respondent believes he does not have a mental illness and
that he does not need medication. Respondent confirmed those statements when he
testified that he had refused medication because he did not have a mental illness.
The record establishes a pattern of respondent refusing to take medication followed
by the deterioration of his condition, eventually ending in involuntary commitment
and treatment proceedings. The record further shows respondent was transported in
restraints to both hearing dates on this petition, even though they were removed
without objection before the first hearing date. Thus, it appears that restraints were
used as a matter of course in transporting respondent. We believe there is a
reasonable expectation that respondent will be subjected to restraints again, given
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his history of mental illness and involuntary admission and treatment. See In re
Barbara H., 183 Ill. 2d at 492. A resolution of the issues presented in this appeal
will likely have some bearing on future litigation involving respondent. See In re
Alfred H.H., 233 Ill. 2d at 360. Accordingly, we conclude this appeal satisfies both
requirements of the mootness exception for issues capable of repetition yet evading
review.
¶ 25 On the merits, the State contends the appellate court erred in holding that the
trial court must state explicitly its reasons for shackling a respondent. According to
the State, the trial court’s reasons for imposing restraints should be clear from the
record, but there is no requirement for the court to state those reasons explicitly.
The State maintains that the trial court’s basis for imposing restraints is clear from
the record and the court did not err in permitting respondent to remain shackled.
¶ 26 Respondent contends the trial court erred because it failed to make an
independent determination of whether shackles were necessary, failed to allow
counsel an opportunity to provide reasons for removing the shackles, and did not
state on the record any reason for imposing restraints during the hearing.
Respondent asserts that the trial court simply deferred to the security officer and the
patient transport checklist. Respondent, therefore, maintains that the appellate court
did not err in reversing the trial court’s judgment.
¶ 27 We have not previously considered the standards or procedure for imposing
restraints in involuntary admission or treatment proceedings. We have considered
the issue of physical restraints in criminal proceedings, however, and have long
held that they may be used only upon a showing of manifest necessity. People v.
Allen, 222 Ill. 2d 340, 347 (2006) (citing People v. Boose, 66 Ill. 2d 261, 265-66
(1977)). In criminal cases, this court has determined it is impermissible to impose
unnecessary restraints even when there is no jury because they hinder the
defendant’s ability to assist counsel, run afoul of the presumption of innocence, and
demean both the defendant and the proceedings. Allen, 222 Ill. 2d at 346. This court
has stated,
“ ‘In the absence of exceptional circumstances, an accused has the right to stand
trial “with the appearance, dignity, and self-respect of a free and innocent man.”
[Citation.] It jeopardizes the presumption’s value and protection and demeans
our justice for an accused without clear cause to be required to stand in a
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courtroom in manacles or other restraints while he is being judged.’ ” Allen,
222 Ill. 2d at 346 (quoting In re Staley, 67 Ill. 2d 33, 37 (1977)).
¶ 28 The Supreme Court has further explained that judges must seek to maintain a
dignified judicial process, including the respectful treatment of defendants. Deck v.
Missouri, 544 U.S. 622, 631 (2005). The courtroom’s formal dignity reflects the
importance of the matter at issue and a seriousness of purpose that helps to inspire
confidence in the judicial system. Deck, 544 U.S. at 631. “[T]he use of shackles at
trial ‘affront[s]’ the ‘dignity and decorum of judicial proceedings that the judge is
seeking to uphold.’ ” Deck, 544 U.S. at 631 (quoting Illinois v. Allen, 397 U.S. 337,
344 (1970)). Accordingly, physical restraints should be avoided whenever possible,
and a criminal defendant may be shackled only when there is reason to believe he or
she may try to escape or may pose a threat to the safety of people in the courtroom,
or when necessary to maintain order during the trial. In re Staley, 67 Ill. 2d at 38
(citing Boose, 66 Ill. 2d at 266).
¶ 29 The determination of whether and how to restrain a criminal defendant is left to
the trial court’s discretion. Allen, 222 Ill. 2d at 348. The defendant’s attorney
should be given an opportunity to present reasons for removing the restraints, and
the trial court should state on the record its reasons for permitting the defendant to
remain shackled. Boose, 66 Ill. 2d at 266. A trial court’s failure to follow the
procedure set forth in Boose before ordering restraints results in a due process
violation. Allen, 222 Ill. 2d at 349; see also Deck, 544 U.S. at 632 (“given their
prejudicial effect, due process does not permit the use of visible restraints if the trial
court has not taken account of the circumstances of the particular case”).
¶ 30 This court subsequently codified its holdings in Boose and Allen in Illinois
Supreme Court Rule 430 (eff. July 1, 2010). Rule 430 requires the trial court in a
criminal proceeding to conduct a separate hearing after becoming aware of
restraints to determine whether they are necessary. The trial court must consider the
following enumerated factors taken from our decision in Boose:
“(1) the seriousness of the present charge against the defendant;
(2) defendant’s temperament and character known to the trial court either
by observation or by the testimony of witnesses;
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(3) defendant’s age and physical attributes;
(4) defendant’s past criminal record and, more particularly, whether such
record contains crimes of violence;
(5) defendant’s past escapes, attempted escapes, or evidence of any present
plan to escape;
(6) evidence of any threats made by defendant to harm others, cause a
disturbance, or to be self-destructive;
(7) evidence of any risk of mob violence or of attempted revenge by others;
(8) evidence of any possibility of any attempt to rescue the defendant by
others;
(9) size and mood of the audience;
(10) physical security of the courtroom, including the number of entrances
and exits, the number of guards necessary to provide security, and the adequacy
and availability of alternative security arrangements.” Ill. S. Ct. R. 430 (eff.
July 1, 2010).
Rule 430 provides that, “[a]fter allowing the defendant to be heard and after
making specific findings, the trial judge shall balance these findings and impose the
use of a restraint only where the need for restraint outweighs the defendant’s right
to be free from restraint.” Ill. S. Ct. R. 430 (eff. July 1, 2010).
¶ 31 This court recently adopted a separate rule for the use of restraints in juvenile
delinquency proceedings. In determining whether restraints are necessary, Rule
943 requires the court to consider enumerated factors bearing upon the risk of
escape and threats to the safety of people in the courtroom. Ill. S. Ct. R. 943(a) (eff.
Nov. 1, 2016). Trial courts must also consider whether there are any less restrictive
alternatives to restraints, and if restraints are imposed, they must be the least
restrictive ones available to restrain the minor. Ill. S. Ct. R. 943(a), (c) (eff. Nov. 1,
2016). Rule 943 sets forth the same basic procedure for making a decision on
restraints as Illinois Supreme Court Rule 430 and our criminal cases. The rule
states, “The court must provide the minor’s attorney an opportunity to be heard
before the court orders the use of restraints. If restraints are ordered, the court shall
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enter an order setting forth its findings of fact.” Ill. S. Ct. R. 943(b) (eff. Nov. 1,
2016).
¶ 32 In In re Mark P., our appellate court considered the issue of restraints in
involuntary admission proceedings. The precise issue presented in that appeal was
whether a person appearing for trial before a judge should be shackled without
good cause shown on the record. In re Mark P., 402 Ill. App. 3d 173, 176 (2010).
On that point, the appellate court held that “[a]t minimum, a respondent appearing
before a judge for trial or hearing should not be shackled without good cause shown
on the record.” In re Mark P., 402 Ill. App. 3d at 178. The appellate court
concluded that the trial court erred by failing to exercise its discretion and
determine whether the respondent should be restrained. In re Mark P., 402 Ill. App.
3d at 177-78. Instead, the trial court simply deferred to the deputy’s preference for
the respondent to remain shackled. In re Mark P., 402 Ill. App. 3d at 177. In the
course of its decision, the appellate court observed that some aspects of Rule 430
and our decisions in Boose and Allen are “classically criminal” and cannot be
applied to involuntary admission cases. In re Mark P., 402 Ill. App. 3d at 175. The
court stated there was no precedent on whether a Boose hearing was required in an
involuntary commitment proceeding and that question was not raised or preserved
for review. In re Mark P., 402 Ill. App. 3d at 176-78.
¶ 33 A review of the case law, therefore, establishes that routine imposition of
restraints is prohibited because it diminishes a defendant’s or respondent’s ability
to assist counsel, undermines the presumption of innocence, and demeans both the
defendant or respondent and the judicial process. Deck, 544 U.S. at 630-31; Allen,
222 Ill. 2d at 346; Boose, 66 Ill. 2d at 265. While involuntary treatment proceedings
do not involve a presumption of innocence, the other concerns weighing against
unnecessary use of restraints in criminal and juvenile delinquency proceedings also
apply here. A respondent’s ability to assist counsel and the dignity of the court
proceedings are important concerns in involuntary treatment proceedings, and
those interests may be impacted by unnecessary restraints the same as in criminal
and juvenile delinquency proceedings.
¶ 34 Accordingly, we hold that, as in criminal and juvenile delinquency cases, trial
courts may order physical restraints in involuntary treatment proceedings only
upon a finding of manifest necessity. Trial courts must exercise their discretion and
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make an independent determination on whether to impose physical restraints. A
finding of manifest necessity for restraints must be based on the risk of flight,
threats to the safety of people in the courtroom, or maintaining order during the
hearing. See In re Staley, 67 Ill. 2d at 38 (citing Boose, 66 Ill. 2d at 266).
¶ 35 The parties disagree on the procedural requirements for imposing restraints in
involuntary treatment proceedings. Respondent contends the trial court must allow
the respondent’s attorney an opportunity to be heard on restraints and make explicit
findings on whether restraints should be imposed.
¶ 36 As explained above, our case law and Illinois Supreme Court Rules 430 and
943 consistently provide that the defendant’s or respondent’s attorney must be
given an opportunity to be heard on reasons for removing the restraints and the trial
court must state on the record its reasons for allowing the defendant to remain
shackled. Those requirements promote a considered decision by the trial court on
the use of physical restraints. They also facilitate appellate review of the trial
court’s decision by ensuring that the reasons for imposing restraints are clear from
the record. The fact that those requirements are included in this court’s case law and
Rules 430 and 943 shows that they are important to any decision on the use of
restraints. Given the benefits of those requirements and the consistency of their use
in other types of proceedings, we see no reason to exclude them from involuntary
treatment cases. Accordingly, we hold that before ordering restraints in involuntary
treatment proceedings, the trial court must give the respondent’s attorney an
opportunity to be heard and must state on the record the reasons for allowing the
respondent to remain shackled.
¶ 37 We do not attempt to list the factors to be considered in making this decision.
We agree with the appellate court’s decision in Mark P. that not all aspects of our
criminal case law and Rule 430 naturally apply to involuntary admission and
treatment cases. In re Mark P., 402 Ill. App. 3d at 175. Thus, some of the factors
from Boose that were subsequently incorporated into Rule 430 may not be relevant
to involuntary treatment proceedings.
¶ 38 While respondent urges this court to adopt Rule 943 for involuntary treatment
cases, that rule governs the physical restraint of minors in juvenile delinquency
proceedings, and the factors considered in those cases may not necessarily be
relevant here. The medical and therapeutic considerations involved in mental
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health cases may not be present in adult criminal or juvenile delinquency
proceedings. We, nonetheless, reiterate that any factors considered in determining
whether physical restraints are necessary should bear on the risk of flight, threats to
people in the courtroom, or maintaining order during the hearing.
¶ 39 In this case, respondent contends the trial court failed to make an independent
determination on whether the restraints were necessary and its decision amounted
to “blind deference” to the security officer. We disagree with respondent’s
characterization of the trial court’s decision.
¶ 40 The record shows that the trial court questioned the security officer after
respondent’s attorney asked for removal of the restraints. The security officer stated
respondent was “listed as a high elopement risk” and provided the court with a
“patient transport checklist.” The trial court made several statements in the course
of discussing the matter with respondent and his attorney, including a statement
about balancing “whatever security feels is necessary and [respondent’s] ability to
participate.” Ultimately, however, the trial court concluded, “If there is a need for
you to be writing down some notes or things of that nature, I will consider it at that
time. I’m trying to do the best to balance both the security information given to me
and your ability to participate.”
¶ 41 Throughout the hearing, the trial court made statements indicating it was
considering the information and making an independent determination. The trial
court expressly stated it was balancing the available information. Notably, there
was no authority requiring the trial court to consider the Boose factors in this type
of proceeding. In Mark P., the appellate court did not adopt those factors for
application in involuntary commitment proceedings or determine that a Boose
hearing was required. We conclude that the record, read in its entirety, shows the
trial court did not simply defer to the security officer but weighed the information
provided and made an independent determination that the restraints were
necessary.
¶ 42 Respondent also contends that the trial court erred by failing to allow his
attorney an opportunity to be heard on reasons for removing the shackles and by not
making explicit findings on the record. In this case, we have held that those Boose
hearing requirements apply to involuntary treatment proceedings. After becoming
aware of the shackles, the trial court should have given respondent’s attorney an
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opportunity to present reasons for removing them and stated on the record its
reasons for allowing respondent to remain shackled.
¶ 43 The State, however, contends that respondent forfeited his arguments on the
procedure used by the trial court by failing to object during the hearing. The failure
to object to an alleged error at trial ordinarily results in forfeiture of the issue on
appeal. Allen, 222 Ill. 2d at 350.
¶ 44 In Mark P., the respondent’s attorney pointed out that the respondent was in
handcuffs and asked the trial court to remove them. When the trial court denied that
request, the respondent’s attorney stated, “ ‘Can I make an objection on the record?
I do object. He is not charged with a crime. It’s a civil matter. It seems prejudicial to
continue to have him in restraints essentially given the nature of this case.’ ” In re
Mark P., 402 Ill. App. 3d at 174. The appellate court held that the respondent
forfeited the issue of whether a Boose hearing or a hearing under Rule 430 was
required because he did not request a hearing or a factual basis for the trial court’s
refusal to remove the restraints. In re Mark P., 402 Ill. App. 3d at 177.
¶ 45 Here, respondent’s attorney asked for the shackles to be removed. When the
trial court denied that request, respondent’s attorney asked if respondent’s right
hand could be released. Respondent’s attorney did not, however, object to the
procedure used by the trial court in making its decision, ask for any additional
opportunity to be heard, or request findings of fact or an explicit statement of the
trial court’s reasons for permitting respondent to remain shackled. Rather,
respondent deferred to the procedure used by the trial court. We conclude that a
more specific objection was required to preserve respondent’s procedural
arguments for review given that the procedure for allowing restraints in involuntary
treatment proceedings was not established at the time of the hearing in this case. As
in Mark P., respondent’s arguments on the procedure used by the trial court were
not preserved for review.
¶ 46 Respondent has not made any argument to excuse the forfeiture. Accordingly,
we find respondent forfeited his challenge to the specific procedure used by the trial
court in this case by failing to object during the hearing.
¶ 47 Finally, we note that respondent does not make a separate argument that the
trial court abused its discretion in deciding not to order removal of the restraints.
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Even if it were raised, the record in this case would not permit review of that
argument because there is no statement of the trial court’s reasons for allowing
respondent to remain shackled.
¶ 48 III. CONCLUSION
¶ 49 For the foregoing reasons, the judgment of the appellate court is reversed, and
the circuit court’s judgment is affirmed.
¶ 50 Appellate court judgment reversed.
¶ 51 Circuit court judgment affirmed.
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