According to an informal opinion sought by the Kane County State’s Attorney’s Office, the state’s attorney is exclusively authorized by statute to present petitions for civil commitments proceedings on behalf of the people of Illinois. Therefore, private legal counsel for a hospital is precluded from doing so.

The Illinois Attorney General’s opinion, dated September 27, 2019, was drafted by Lynn E. Patton, chief of the Public Access and Opinions Division. It interprets chapter 3 of the Mental Health and Developmental Disabilities Code, 405 ILCS 5/3-100 et seq. (West 2018). Section 3-701 expressly authorizes any person 18 years of age or older to “execute” a petition asserting that another person is subject to involuntary admission on an inpatient basis, which then “shall be filed” with the court. “Prior to the expiration of the initial involuntary commitment order, if the facility director believes that the recipient of an order continues to be subject to involuntary admission on an inpatient basis, a new petition may be filed.” 405 ILCS 3-813. Relevant sections of the Act also state that “nothing herein contained shall prevent any party, including petitioner, from being represented by his own counsel,” 405 ILCS 3-101(a) (West 2018). “Any community mental health provider or inpatient mental health facility …may be represented by counsel in court proceedings if they are providing services or funding for services to respondent,” 405 ILCS 3-101(b) (West 2018). However, none of these provisions state who may present such petitions to the court.

Section 3-101(a) of the Mental Health Code states in plain and unambiguous language that the “State’s Attorneys are to represent the interests of the people of the State of Illinois in all involuntary commitment proceedings,” 405 ILCS 3-101(a). The Act further sets out the roles of state’s attorney and private legal counsel in admission, transfer, and discharge proceedings. “The State’s Attorney shall attend such proceedings either in person or by assistant, and shall ensure that petitions, reports and orders are properly prepared.” The opinion notes that the Counties Code expressly provides that it is the “duty of each state’s attorney to commence and prosecute all actions, suits, indictments and prosecutions, civil and criminal … in which the people of the State or county may be concerned” 55 ILCS 5/3-900s(a)(1). The opinion states “State’s Attorneys acting on behalf of the people of Illinois, are therefore dually charged with determining whether to proceed with petitions for civil commitment, and if they choose to do so, proving by clear and convincing evidence that the person at issue requires involuntary commitment for his or her own safety and that of all residents.” The opinion concludes that “entrusting the presentation of civil commitment petitions to private legal counsel for other interested parties would be antithetical to the affirmative duty of the State to protect the interests of both the subjects of civil commitment proceedings and the public at large.”

Kathleen Watson is a Kane County assistant state’s attorney.