source: Caselaw Access Project

author: JUSTICE DUNN PRESIDING JUSTICE INGLIS,

license: Public Domain

text:
    ROGER KNICELEY, Plaintiff-Appellant, v. JAMES J. MIGALA, Defendant-Appellee.
    Second District
    No. 2—91—1192

    Opinion filed November 6, 1992.
    Rehearing denied December 15, 1992.

      INGLIS, P.J., dissenting.
    David B. Selig and Salvatore Indomenico, both of Sussman, Selig & Ross, of Chicago (Michael W. Rathsack, of counsel), for appellant.
    Mark C. Meyer, of O’Reilly, Cunningham, Norton & Mancini, of Wheaton (William F. Cunningham, of counsel), for appellee.

      Subsequent opinion published at 272 Ill. App. 3d 427, as a result of remand by Illinois Supreme Court for reconsideration of Rule 220 issue.

   JUSTICE DUNN

delivered the opinion of the court:

Plaintiff, Roger Kniceley, filed a medical malpractice action against defendant, James Mígala, M.D. Following a jury trial, the circuit court of Du Page County entered judgment in defendant’s favor, and plaintiff now appeals. The issues are as follows: (1) whether two physicians who examined plaintiff for the purpose of determining whether he was disabled for worker’s compensation purposes should have been allowed to provide opinion testimony as to the cause of plaintiff’s injury and the standard of care applicable to defendant when neither was disclosed within the deadlines set forth in Supreme Court Rule 220 (134 Ill. 2d R. 220); (2) whether it was error to permit defendant, a physician, to testify about the standard of care applicable to surgical technologists; (3) whether testimony by defendant that he had never experienced a breakage problem with a certain surgical device was relevant; and (4) whether certain references by the defense to collateral source payments were prejudicial and require a new trial. We reverse and remand.

Plaintiff was a police officer for the Village of Villa Park. On July 10, 1985, he twisted his left knee while walking up a steep incline. After seeing one physician, he was referred to defendant, an orthopedic specialist.

Plaintiff first saw defendant on July 30, 1985. Defendant believed that plaintiff had suffered a torn medial meniscus. During a subsequent visit, plaintiff informed defendant that the pain had not subsided. Plaintiff agreed to undergo arthroscopic surgery, which was scheduled for September 5, 1985.

The initial arthroscopy revealed that plaintiff’s medial meniscus was not damaged. Instead, he had suffered a lateral subluxating patella, which means that his kneecap was not properly aligned. Defendant performed a procedure called a retinacular release in order to realign the kneecap.

A few weeks after the surgery, plaintiff noticed that he would sometimes feel a small hard object about the size of a jelly bean toward the surface of his left knee. The object would cause a great deal of pain. Plaintiff, however, was always able to push it back inside the knee, and the pain would subside.

Plaintiff saw defendant again on October 11, 1985. Defendant felt that plaintiff may have had a loose body in his knee. A loose body is an item such as a piece of bone or cartilage that somehow breaks off. Defendant scheduled plaintiff for a second arthroscopy on October 31, 1985.

Defendant did not discover a loose body during the second arthroscopy. He did, however, remove a synovial plica from the knee. Synovial plica is a fold consisting of tissue. By early December, plaintiff was improving and only experiencing a little pain. His knee locked on January 30, 1986, and plaintiff reported this when he saw defendant the next day. Defendant believed that a loose body was present, and he scheduled plaintiff for a third arthroscopy on February 18,1986.

During the third arthroscopy, defendant found a one-inch piece of plastic in plaintiff’s left knee. He removed the object and discovered that it was the tip from a cannula, a device used in arthroscopies. After the cannula is placed inside the knee during an arthroscopy, water tubing is hooked up to the cannula so that a saline solution can be circulated through the knee during the operation. Defendant admitted that the piece from the cannula must have broken off during one of the prior arthroscopies, most likely the first.

Plaintiff underwent physical and occupational therapy, but was unable to return to work as a police officer because of recurrent difficulties with his left knee which resulted from damage to the articular cartilage. Dr. Gerald Kane, an orthopedic surgeon who testified as an expert witness on plaintiff’s behalf, stated that he believed the damage to the articular cartilage resulted from the cannula tip that was left in plaintiff’s knee. Dr. Kane further testified that defendant deviated from the applicable standard of care by failing to inspect the cannula after the operation. Kane stated that all surgical instruments placed inside the patient’s body should be inspected following surgery because instruments can break while inside the patient.

Frank Cassara, a certified surgical technologist, assisted defendant in all three arthroscopies. Cassara testified that he performed the duties of what is commonly referred to as a scrub nurse. He was not a registered nurse, however. Nancy Germany, a licensed registered nurse who had assisted as a scrub nurse during hundreds of arthroscopies, testified that, in her opinion, Cassara had deviated from the applicable standard of care by failing to inspect the cannula at the end of the operation. Plaintiff did not sue Cassara, but did allege in his complaint that defendant was vicariously liable for the negligence of Cassara, who was defendant’s employee.

Defendant testified that, in his opinion, the applicable standard of care did not require him to inspect a plastic cannula after it was removed from a patient during an arthroscopy. He explained that a cannula is not like surgical instruments that are used to probe or cut into a patient’s knee. Instead, the cannula is merely a device that is placed in the patient’s knee during the operation. Defendant stated, over plaintiff’s objection, that, as of the time of the initial arthroscopy performed on plaintiff, he had never heard that plastic cannulas have any tendency to break and that none had ever broken during arthroscopies in which he had used them.

Defendant further testified as follows. In his opinion, Frank Cassara did not deviate from the standard of care applicable to surgical technicians by failing to inspect the plastic cannula after the operation. Furthermore, in his opinion, the damage to plaintiff’s articular cartilage resulted from the original injury rather than the presence of the cannula tip inside plaintiff’s knee.

Dr. Robert Stone, an orthopedic physician, testified as follows. Plaintiff visited his office once a year between 1987 and 1989 for the purpose of having his left knee examined. Dr. Stone diagnosed plaintiff as suffering from complications relating to a subluxated patella. After each visit he prepared and signed a letter stating that plaintiff was unable to return to work as a result of the trouble with his knee. Dr. Stone did not know at the time of these examinations that a cannula tip had been left in plaintiff’s knee for several months. He was not sure if this caused any of the damage to plaintiff’s knee. He stated that the damage was consistent with the original injury that plaintiff suffered.

Dr. Satya Kaushal, an orthopedic physician who examined plaintiff’s knee on April 28, 1987, testified as follows by means of an evidence deposition. In his opinion, the damage to plaintiff’s left knee resulted from the original injury rather than the cannula tip that had been left in the knee. Originally, Dr. Kaushal stated that he was not sure if he had Dr. Mígala’s office records at the time he examined plaintiff. After having his recollection refreshed, Dr. Kaushal stated that he did have those records at the time and would have therefore been aware that the cannula tip had been in plaintiff’s knee for several months.

Dr. Kaushal further testified that the applicable standard of care did not require orthopedic surgeons to inspect instruments following an operation. Instead, this function was to be performed by operating room technicians or nurses. Plaintiff objected to the proffered testimony of Dr. Kaushal and Dr. Stone on the basis that neither had been disclosed as an expert witness within the deadlines established in Supreme Court Rule 220 (134 Ill. 2d R. 220). The trial court overruled the objections and allowed them to testify.

Dr. Timothy Payne testified that he examined plaintiff and had tests performed to evaluate plaintiff’s knee in July 1986. Dr. Payne believed there was permanent damage to the knee. He testified that the damage suffered by plaintiff was consistent with the original injury. He further testified, over plaintiff’s objection, that the applicable standard of care did not require an orthopedic surgeon who performed an arthroscopy to inspect a plastic cannula after the surgery. Despite his trial objection, plaintiff raises no issue on appeal with respect to Dr. Payne’s testimony.

The jury determined that defendant was not liable to plaintiff. Plaintiff now appeals.

Plaintiff first contends that Dr. Kaushal and Dr. Stone should not have been allowed to give opinion testimony concerning the cause of plaintiff’s condition and the applicable standard of care because defendant did not disclose them as expert witnesses within the deadlines set forth in Supreme Court Rule 220(b)(1) (134 Ill. 2d R. 220 (b)(1)). Rule 220(b)(1) states in part that “an expert who is retained to render an opinion at trial” must be disclosed either within 90 days of the date on which the substance of the expert’s opinion is first known to the party or the party’s attorney or at the first pretrial conference, whichever is later. (134 Ill. 2d R. 220(b)(1).) The rule also states that, as to any experts not disclosed previously, the trial court shall establish a schedule of dates by which they must be disclosed and shall choose dates which will ensure that discovery of all experts will be completed at least 60 days prior to trial. 134 Ill. 2d R. 220(b)(1).

There is no dispute that if the Rule 220(b)(1) deadlines are applicable, the trial court should have barred the opinion testimony of Kaushal and Stone. There is also no dispute that Kaushal and Stone were expert witnesses as that term is defined in Supreme Court Rule 220(a)(1) (134 Ill. 2d R. 220(a)(1)). Defendant argues, however, that they were not expert -witnesses whose disclosure was required under Rule 220(b)(1).

In Tzystuck v. Chicago Transit Authority (1988), 124 Ill. 2d 226, 234-35, our supreme court held that the disclosure requirements of Rule 220(b)(1) do not apply to a treating physician who is asked to give a medical opinion at trial which was developed in the course of treating a party. In so holding, the court stated, “While treating physicians may give opinions at trial, those opinions are developed in the course of treating the patient and are completely apart from any litigation.” Tzystuck, 124 Ill. 2d at 234.

Tzystuck does not apply here because Dr. Stone and Dr. Kaushal were examining physicians, not treating physicians. Although defendant concedes that this is the case, he argues that the Rule 220(b)(1) disclosure requirements are inapplicable under this court’s opinion in Beiermann v. Edwards (1990), 193 Ill. App. 3d 968. The trial judge relied on Beiermann in ruling that defendant could present opinion testimony from Stone and Kaushal.

The plaintiff in Beiermann filed an action to recover for injuries suffered in an automobile accident with the defendant. At the time of the accident, the plaintiff was engaged in his duties as an employee of the State of Illinois, which filed a complaint for intervention. The State had the plaintiff see a physician for the purpose of evaluating the worker’s compensation claim and recommending treatment and therapy. The trial court allowed the defendant to present opinion testimony from that physician despite the fact that he had not been disclosed as an expert witness. Beiermann, 193 Ill. App. 3d at 971-74.

This court affirmed, stating that the physician’s relationship with the plaintiff “was more in the nature of a treating physician than a physician hired to give an opinion at trial.” (193 Ill. App. 3d at 978.) We pointed out that the physician was hired “to evaluate Beiermann’s problem and to recommend possible treatment.” (Emphasis added.) (193 Ill. App. 3d at 978.) Here, Dr. Stone and Dr. Kaushal were not consulted for the purpose of treating plaintiff or recommending treatment. The sole purpose for their examinations was to certify plaintiff’s continuing inability to work so he could continue to receive worker’s compensation payments. Therefore, unlike Beiermann, the doctors whose testimony is at issue here cannot be considered treating physicians.

One of the primary purposes of Rule 220 is to assure that the parties and their attorneys are “adequately advised regarding the critical opinions which may be offered in support of their opponent’s claims or defenses.” (Ill. Ann. Stat., ch. 110A, par. 220, Committee Comments, at 438 (Smith-Hurd 1985), quoted in Oldenburg v. Hagemann (1991), 207 Ill. App. 3d 315, 326.) The rule is designed to prevent surprise opinion testimony. (Wakeford v. Rodehouse Restaurants of Missouri, Inc. (1991), 223 Ill. App. 3d 31, 40.) In order to comply with the rule, a party must reveal the identity of the witness and specifically reveal an intention to call that witness as an expert. (Illinois State Toll Highway Authority v. West Suburban Bank (1991), 208 Ill. App. 3d 923, 926.) In the case at bar, plaintiff was undoubtedly aware of the existence of Dr. Stone and Dr. Kaushal prior to trial. Their depositions made plaintiff aware of the substance of their opinions. Plaintiff was not advised within the deadlines set forth in the rule, however, that those opinions would be used as evidence against him. The rule was intended to prevent this type of surprise employment of expert testimony.

We are aware that in a number of cases courts have extended the Tzystuck rationale to experts who were not treating physicians. (See, e.g., Moore v. Roberts (1991), 217 Ill. App. 3d 446, 453-54 (horse owner and jockey); Voyles v. Sanford (1989), 183 Ill. App. 3d 833, 836 (truck driver); Smith v. Central Illinois Public Service Co. (1988), 176 Ill. App. 3d 482, 494-95 (engineer).) These cases, in our view, have unnecessarily eroded Rule 220’s general rule requiring disclosure of the identity of experts, the intention to call them as witnesses, and the substance of their opinions within the established deadlines. (See Wakeford, 223 Ill. App. 3d at 39-40.) We therefore decline to rely on these cases to further extend Tzystuck to examining physicians.

Defendant contends that applying. Rule 220 to examining physicians would place defense counsel in an untenable position. This is because the attorney is forbidden from having contact with the plaintiff’s examining physicians outside the normal channels of discovery in order to preserve the physician-patient privilege. (Karsten v. McCray (1987), 157 Ill. App. 3d 1, 13-14.) According to defendant, this would make it difficult for defense attorneys calling examining physicians as experts to comply with Rule 220(c), which requires parties to disclose the opinions of their disclosed expert and the basis of those opinions upon an interrogatory propounded for that purpose. (134 Ill. 2d R. 220(c)(2).) The answers to these interrogatories must be supplemented as further information becomes available to the party or the party’s counsel. 134 Ill. 2d R. 220(c)(3).

In our view, the above problem is not insurmountable and does not require recognition of an exception to the disclosure requirements of the rule. If the defendant initiates discovery early, he or she can discover the identities of any examining physicians. Taking their depositions promptly will enable the defendant to discover the substance of any expert opinions in time to permit compliance with the disclosure requirements of Rule 220 if the defendant decides to use the expert testimony of an examining physician at trial.

For these reasons, we conclude that the disclosure requirements of Rule 220(b)(1) apply when a party seeks to employ the expert testimony of an examining physician. Because defendant did not comply with these requirements, plaintiff’s motion to bar the expert testimony of Stone and Kaushal should have been granted. (See Oldenburg v. Hagemann (1991), 207 Ill. App. 3d 315, 327; Phelps v. O'Malley (1987), 159 Ill. App. 3d 214, 223-24.) Defendant argues that, even if the trial court committed error in this respect, plaintiff has failed to establish any prejudice and is therefore not entitled to a new trial. We disagree.

An erroneous evidentiary ruling at trial will not result in reversal and a new trial unless it could have affected the outcome of the trial. (Leary v. Eng (1991), 214 Ill. App. 3d 279, 284; Green v. Cook County Hospital (1987), 156 Ill. App. 3d 826, 829-30.) In the case at bar, expert testimony was crucial to the jury’s determination of the two major issues in the case, whether the failure of defendant or Cassara to inspect the plastic cannula was a deviation from the standard of care and whether the permanent damage to plaintiff’s knee was caused by the original injury or by the presence of the cannula tip. Accordingly, the erroneous admission of expert testimony relating to these issues cannot be considered harmless. We therefore reject this contention and conclude that plaintiff is entitled to a new trial.

We will consider the other issues raised by plaintiff because they may recur at the new trial. Plaintiff contends that it was error to permit defendant, a physician, to testify as to the applicable standard of care for scrub nurses. Plaintiff argues that, under our supreme court’s decision in Dolan v. Galluzzo (1979), 77 Ill. 2d 279, the only permissible expert testimony on the above matter would have been testimony from a nurse.

In Dolan, the court held that an orthopedic surgeon could not be permitted to testify as to the standard of care applicable to a podiatrist. (Dolan, 77 Ill. 2d at 285.) The court noted that the legislature had provided distinct licensing and regulatory requirements for various schools of medicine. (77 Ill. 2d at 284.) The court further stated as follows:

“We simply are not disposed to provide for what, in effect, may result in a higher standard of care when the legislature, by recognizing various schools of medicine, has not done so. To do so would not only be unfair to podiatrists (i.e., to allow practitioners of other schools to testify regarding the standard of care podiatrists owe), but it would also assume that science and medicine have achieved a universal standard of treatment of disease or injury. Such is not the case.” 77 Ill. 2d at 284.

The court therefore reached the conclusion in Dolan that “in order to testify as an expert on the standard of care in a given school of medicine, the witness must be licensed therein.” (77 Ill. 2d at 285.) Plaintiff’s argument that, under Dolan, only a licensed nurse could testify about the standard of care applicable to Cassara is without merit because Cassara himself was not a licensed nurse; he was a certified surgical technician. Although he was referred to as a scrub nurse, it is clear from the evidence that this term referred generally to operating room assistants, some of whom were not nurses.

According to the trial testimony, Illinois has no licensing requirements for surgical technicians. Therefore, the Dolan rule cannot be applied here and the general rules relating to the admissibility of expert testimony are applicable. The general rule is that the trial judge has broad discretion in determining whether a witness is qualified to testify as an expert about a particular matter. (Valiulis v. Scheffels (1989), 191 Ill. App. 3d 775, 785.) In order to lay a proper foundation for such testimony, a party must show that the expert has specialized knowledge or experience in the area in which the expert expresses his or her opinion. Valiulis, 191 Ill. App. 3d at 785.

Here, the defendant was an experienced orthopedic0 surgeon. The trial court could reasonably have concluded that he was familiar with the standard of care applicable to an individual who assisted him during surgery and who was under his direction. The trial court did not err by allowing defendant to testify about the standard of care applicable to Cassara.

Plaintiff next argues that it was error to permit defendant to testify that, prior to the initial arthroscopy performed on plaintiff, defendant had never had a plastic cannula break during an operation and had never heard of one breaking. Plaintiff argues that such evidence was irrelevant because defendant’s own experiences and knowledge had nothing to do with the relevant standard of care.

Evidence should be admitted only if it is material. (O’Brien v. Walker (1977), 49 Ill. App. 3d 940, 952.) Evidence is relevant or material if it tends to prove a fact in controversy or makes a contested matter more or less probable. (Wimberley v. Material Service Corp. (1973), 12 Ill. App. 3d 1051, 1056.) In our view, the testimony in question was relevant as it tended to support defendant’s testimony that the applicable standard of care did not require the inspection of plastic cannulas after surgery. Dr. Kane, plaintiff’s expert, testified that the standard of care required the surgeon’s inspection of all instruments following surgery because pieces of instruments can break off when they are inside the patient. Defendant explained that a cannula is not used for cutting or as a probe like certain instruments. Instead, it is a device that stays in one place during an arthroscopy, thereby diminishing the chances of breakage. He also made the statements that are at issue here regarding his lack of awareness of any breakage problem with plastic cannulas.

In our view, defendant’s testimony was relevant because it tended to rebut Dr. Kane’s foundational testimony for his conclusion as to the applicable standard of care. Dr. Kane based his conclusion in this regard upon the fact that instruments could break while inside the patient. Defendant’s testimony, taken as a whole, tended to show that the standard attested to by Dr. Kane for inspection of instruments in general was not applicable to this particular device because there was no reason to believe it might break. We therefore conclude it was relevant and material.

The final argument raised by plaintiff is that he was prejudiced by certain references during trial to collateral source payments. At one point, defense counsel briefly displayed a document to the jurors that mentioned worker’s compensation. The trial judge asked each juror what he or she remembered about the contents of the document. None of the jurors mentioned anything about worker’s compensation. Additionally, defendant mentioned that a certain bill he was questioned about was an insurance statement.

It is not disputed that these references to collateral source payments were improper. (See Foster v. Lanciault (1979), 70 Ill. App. 3d 962, 966.) The only dispute is whether they entitle plaintiff to a new trial. In light of our prior holding that plaintiff must receive a new trial, we need not resolve this issue. The improper references should be avoided at the new trial.

For these reasons, the judgment of the circuit court of Du Page County is reversed, and the cause is remanded for a new trial.

Reversed and remanded.

DOYLE, J., concurs.

PRESIDING JUSTICE INGLIS,

dissenting:

I disagree with the majority’s conclusion that the trial court erred by allowing the opinion testimony of Drs. Kaushol and Stone and therefore respectfully dissent.

The majority opinion is an overly technical approach to Supreme Court Rule 220 (134 Ill. 2d R. 220) and focuses on form over substance. The record shows that plaintiff knew the identity of the two doctors, the opinions they held regarding plaintiff’s injuries, and that defendant was likely to call them to testify at trial. However, defendant did not inform plaintiff that he intended to call either or both doctors to testify. The real question is whether a litigant must inform opposing counsel which experts, of those that have been identified and fully deposed, he intends to call to testify at trial.

In this case, plaintiff’s counsel supplied the names of the two doctors to defendant in answer to pretrial interrogatories. Plaintiff knew their qualifications and opinions regarding plaintiff’s injuries since both were deposed by defendant. In fact, defendant took an evidence deposition of Dr. Kaushol which should have alerted plaintiff to the possibility that defendant would use Dr. Kaushol’s testimony at trial. Lastly, plaintiff vigorously argued a motion in limine on the first day of trial to bar all opinion testimony of the two doctors, which is an indication that plaintiff had anticipated that their testimony would be offered by defendant.

In its most basic form, Rule 220 requires each party to inform the other of the identities of testifying experts and allow for the discovery of their opinions regarding the case. (134 Ill. 2d R. 220.) All that plaintiff was missing was a sheet of paper from defendant 60 days before trial stating that pursuant to Rule 220 he was going to call the two doctors to testify at trial. I do not believe a reversal is an appropriate sanction in this case, since plaintiff has failed to show prejudice or surprise. See Vallejo v. Mercado (1991), 220 Ill. App. 3d 1, 8 (“purpose of a sanction for a violation of Rule 220 is not to punish but to insure fair discovery and a trial on the merits”).

Since the majority reversed on this issue alone, I limit my dissent to it notwithstanding the other issues raised.


author: JUSTICE NICKELS

text:
      In re MARRIAGE OF JOYCE B. RIZZA, n/k/a Joyce B. Olsewski, Petitioner-Appellee, and JAMES F. RIZZA, Respondent-Appellant.
    Second District
    No. 2—91—1408
    Opinion filed November 6, 1992.

      Neal W. Cerne, of Mirabella & Kincaid, P.C., of Wheaton, for appellant.
    Jeanne E. Galvin, of Caluwaert, Panegasser, Hancock & Schousen, of Elmhurst, and Mark E. Kowalczyk, of Glen Ellyn, for appellee.
   JUSTICE NICKELS

delivered the opinion of the court:

On September 4, 1991, the circuit court entered an order quashing a previously issued writ of attachment for petitioner, Joyce Rizza (n/k/a Joyce Olsewski), and relinquishing jurisdiction to the courts of Louisiana over a custody dispute between the parties concerning their two minor children. Respondent, James Rizza, appeals that order and asserts: (1) such order was void because it was entered without notice to James; and (2) the circuit court erred in relinquishing custody to Louisiana because the circuit court failed to comply with the Uniform Child Custody Jurisdiction Act (Ill. Rev. Stat. 1987, ch. 40, par. 2101 et seq.). We affirm.

At the onset, we note that our review is complicated by the less than complete record in this proceeding. In 1989, the circuit court agreed to relinquish jurisdiction to the Louisiana courts in a telephone conversation during which all parties were represented. However, no order reflecting that determination was entered. Nor is the supplemental record provided by Joyce complete, despite the inclusion of James’ 1990 petition to the Louisiana courts. The order that resulted from such petition is present in the supplemental record as is the order entered in a prior proceeding in Louisiana. However, the pleadings from that prior proceeding were not so included. Because it was James’ burden to provide the record, we construe any doubts arising from omissions in the record against him and presume that the court below acted in conformity with the law. Foutch v. O’Bryant (1984), 99 Ill. 2d 389, 391-92; Frisch Contracting Service Co. v. Personnel Protection, Inc. (1987), 158 Ill. App. 3d 218, 221.

An order of dissolution was entered dissolving the marriage of the parties in 1987 and awarding sole custody of the two minor children to Joyce. On August 1, 1989, James sought a restraining order, which was granted August 23, 1989, to prohibit Joyce from removing the children from Illinois. Sometime prior to October 3, 1989, James was informed by the circuit court clerk child support division that Joyce had moved to Louisiana with the children in violation of the circuit court’s August order. James thereafter sought custody of the children and a rule to show cause why Joyce should not be held in contempt for failure to obey the circuit court’s restraining order. The circuit court granted James temporary custody of the two children on October 23, 1989, and, after Joyce failed to appear on the rule to show cause, issued a writ of attachment. In March 1990, the circuit court granted James’ subsequent petition to terminate his child support obligation. However, the children remained in Louisiana with Joyce throughout this entire time.

On May 22, 1990, James petitioned the Louisiana courts for a rule to show cause against Joyce alleging as a basis the outstanding Illinois warrant for her arrest, which stemmed from criminal charges also based on her removal of the children from Illinois. In addition, James sought temporary custody of the children to be placed with the children’s division of the Louisiana department of social services, which was immediately granted. Based on James’ subsequent petition to consolidate such petition with one pending before the Louisiana court, we concluded that Joyce had previously invoked the jurisdiction of Louisiana. However, prior to such consolidation, the Louisiana court considered the merits of Joyce’s petition and entered an order on July 19, 1990, finding it in the best interests of the children to assume jurisdiction, denying James’ exception to jurisdiction, and returning temporary custody of the children to Joyce.

In September 1991, Joyce surrendered to the Du Page County sheriff pursuant to a writ of extradition on the criminal charges pending against her. The criminal court released Joyce on her own recognizance. She then appeared, while still in the custody of the sheriff’s office and without notice to James, before the civil circuit court pursuant to its October 23, 1989, writ of attachment. Joyce presented an uncertified copy of the Louisiana court’s order assuming jurisdiction, denying James’ exceptions to such jurisdiction, and granting her temporary custody of the children, in addition to letters from her physicians detailing physical limitations due to Joyce’s high-risk pregnancy. The court noted that it had issued the writ of attachment in 1989 and neglected to vacate it for the sole purpose of insuring that the custody issues would be addressed if Joyce returned to Illinois. However, in light of the pending criminal matter based on the same conduct, on which the criminal court had decided to allow a personal recognizance bond, and because of Joyce’s condition and its prior agreement to relinquish jurisdiction to the Louisiana court, the circuit court vacated its writ of attachment. It, therefore, included in its written order the finding that Louisiana had accepted jurisdiction, to. which the circuit court had previously agreed, pursuant to the Uniform Child Custody Jurisdiction Act.

James subsequently petitioned to vacate that order, for the first time raising the issue of jurisdiction before the circuit court. The circuit court denied James’ petition to vacate and also denied his petition for rehearing.

At the hearings on those motions, James’ attorney and the court both acknowledged the telephone call that occurred between the judge of the circuit court and the Louisiana judge on the subject of jurisdiction. Both recalled that the conversation took place in 1989 at the time of James’ petition for custody and issuance of the writ of attachment, and the circuit court further recalled that the Louisiana court had initiated the contact. The Louisiana court could not initiate a call prior to any attempt to invoke its jurisdiction, and, therefore, we have concluded that Joyce had already initiated proceedings in Louisiana at that time. The substance of the conversation was that the Louisiana court had assumed jurisdiction as in the best interests of the children, who continued to remain in Louisiana, and that the Louisiana court would not relinquish such jurisdiction. Therefore, the circuit court had exercised its discretion and had agreed to relinquish its own jurisdiction.

James appeals and asserts that the circuit court’s order of September 4, 1991, quashing its writ of body attachment and memorializing its 1989 agreement to relinquish jurisdiction to the Louisiana court was void because James was not notified of the matter. James also asserts that the Illinois court relinquished jurisdiction to Louisiana in contravention of the purposes of the Uniform Child Custody Jurisdiction Act, and, therefore, such order was an abuse of discretion and should be reversed.

The purpose of civil contempt is to coerce compliance with the order of a court. (In re Marriage of Logston (1984), 103 Ill. 2d 266, 289; In re Marriage of Betts (1990), 200 Ill. App. 3d 26, 44.) Both a rule to show cause and a writ of attachment are merely means by which to bring an alleged contemnor before the court when the failure to comply with an order of the court is the alleged contemptuous behavior. (See In re Marriage of Betts, 200 Ill. App. 3d at 52-53; Ex Parte Petrie (1865), 38 Ill. 498, 501-02.) A finding of civil contempt is not proper unless the means to purge the alleged contempt is within the power of the contemnor, and, therefore, a finding of civil contempt cannot survive the dismissal of the underlying action that was its basis. (In re Marriage of Logston, 103 Ill. 2d at 289.) Thus, if the circuit court properly exercised its discretion in agreeing to relinquish jurisdiction to the Louisiana court at the time of James’ Illinois petition in 1989, there was no longer an underlying custody action in Illinois, no means by which Joyce could purge herself of the alleged contempt, and no basis to find Joyce in contempt or to support a writ of attachment. Therefore, we must first determine if the circuit court properly relinquished its jurisdiction to the courts of Louisiana.

The purposes of the Uniform Child Custody Jurisdiction Act are primarily to avoid jurisdictional competition and conflicts with other States, to protect the best interests of the child, and to discourage forum shopping. (In re Marriage of Mauro (1989), 187 Ill. App. 3d 794, 796; Ill. Rev. Stat. 1987, ch. 40, par. 2102.) If another State in substantial accordance with the jurisdictional standards of the Uniform Child Custody Jurisdiction Act modifies a custody order, Illinois courts will recognize and enforce such modification. Jennings v. Jennings (1985), 133 Ill. App. 3d 753, 755.

The jurisdictional standards of the Uniform Child Custody Jurisdiction Act permit the exercise of jurisdiction on four bases. First, a court has jurisdiction based on being a child’s home State, either at the time the proceeding was commenced or within the prior six months if one parent continues to reside within the State and the other parent removed the child from the State. (Ill. Rev. Stat. 1987, ch. 40, par. 2104(a)(1).) A forum may also exert jurisdiction if it is in the best interests of the child either because one of the contestants or the child has significant contacts with the forum, or because the necessary evidence is located there. (Ill. Rev. Stat. 1987, ch. 40, par. 2104(a)(2).) If a child has been abandoned in a State or there is an emergency requiring protection. of the child, such State may exert jurisdiction. (Ill. Rev. Stat. 1987, ch. 40, par. 2104(a)(3).) Finally, if no other State has jurisdiction based on the above factual situations or has declined jurisdiction and it is in the best interests of the child, a forum may exercise its jurisdiction. Ill. Rev. Stat. 1987, ch. 40, par. 2104(a)(4).

We first note that Louisiana obtained jurisdiction in substantial compliance with the Uniform Child Custody Jurisdiction Act because Louisiana was the home State of both Joyce and the children at the time she commenced a proceeding in that forum. (See Ill. Rev. Stat. 1987, ch. 40, par. 2104(a)(1)(i).) The Louisiana court considered and denied James’ exceptions to its jurisdiction on the merits, and it made a specific finding that it was in the best interests of the children that it exercise jurisdiction (Ill. Rev. Stat. 1987, ch. 40, par. 2104(a)(2)), which arguably could have been based either on the evidence present in the forum concerning the children’s interests (Ill. Rev. Stat. 1987, ch. 40, par. 2104(2)(i)) or on the connection of the children or Joyce to the forum (Ill. Rev. Stat. 1987, ch. 40, par. 2104(2)(ii)). In addition, in 1990 at which time James commenced a proceeding for custody in Louisiana, that forum had been the home State of Joyce and .the children for over six months. (See Ill. Rev. Stat. 1987, ch. 40, par. 2104(a)(1)(ii).) Thus, the question becomes whether, in light of such jurisdiction, the circuit court properly found that Illinois was an inconvenient forum.

Considerations similar to those to obtain jurisdiction are relevant to a determination to relinquish or defer jurisdiction to another forum.(Ill. Rev. Stat. 1987, ch. 40, par. 2108.) The child’s home State, the location of necessary evidence of the child’s well-being, and the significant relationships of the child or parties to the competing States are considerations to be weighed in determining whether Illinois is an inconvenient forum. (Ill. Rev. Stat. 1987, ch. 40, par. 2108.) However, James argues that it is the final consideration of whether the exercise of jurisdiction contravenes any of the purposes of the Uniform Child Custody Jurisdiction Act that should control. (See Ill. Rev. Stat. 1987, ch. 40, par. 2108(c)(5).) Specifically, James asserts that the purpose of the Uniform Child Custody Jurisdiction Act to discourage removal from the State by a noncustodial parent is paramount. Ill. Rev. Stat. 1987, ch. 40, par. 2102(a)(5).

Although we condemn in no uncertain terms Joyce’s conduct in removing the parties’ children from the State in violation of the circuit court’s order, she had custody of the children at the time. Therefore, she did not unilaterally remove the children from Illinois for the purpose of obtaining custody. (See Ill. Rev. Stat. 1987, ch. 40, par. 2102(a)(5).) In addition, we note that such removal alone would be an insufficient basis on which to alter a custody decision. (In re Marriage of Gunter (1981), 93 Ill. App. 3d 1043, 1049.) Further, all of the purposes of the Uniform Child Custody Jurisdiction Act must be considered within the confines of the conduct of both the parties, and, contrary to James’ assertion, the paramount consideration remains the best interests of the child (In re Marriage of Doekner (1991), 215 Ill. App. 3d 570, 572).

Although the Uniform Child Custody Jurisdiction Act (Ill. Rev. Stat. 1987, ch. 40, par. 2104 et seq.) provides guidelines by which conflicts in'jurisdiction may be resolved (In re Marriage of Thompson (1983), 96 Ill. 2d 67, 76-77, cert. denied (1983), 464 U.S. 895, 78 L. Ed. 2d 232, 104 S. Ct. 242), a court does not act improperly with regard to the exercise of its jurisdiction where the issue is not raised until the cause has been heard on the merits (In re Marriage of Thompson, 96 Ill. 2d at 77-78; see also In re Marriage of Mauro, 187 Ill. App. 3d at 797). Rather, Illinois courts are required to give full faith and credit to such a determination on the merits. (Klumpner v. Klumpner (1989), 182 Ill. App. 3d 22, 29; Ill. Rev. Stat. 1987, ch. 40, par. 2113.) Nor can a party who has invoked the jurisdiction of a forum in compliance with the Uniform Child Custody Jurisdiction Act later be heard to complain of the exercise of such jurisdiction. Jennings, 133 Ill. App. 3d at 756.

In In re Marriage of Thompson, the mother took the parties’ son to her parents’ home in Michigan prior to the husband’s filing for dissolution and temporary custody of the child, which was granted. Five days later, the mother obtained an order from the Michigan court granting temporary custody of the child to her. Several weeks later, the father kidnapped the child from the mother in Michigan. During closing arguments on the father’s petition for dissolution over a year after these events began, the mother for the first time asserted that Illinois had improperly exerted its jurisdiction and should have deferred to Michigan, which the circuit court properly declined to do. In re Marriage of Thompson, 96 Ill. 2d at 77-78.

Similarly, in Jennings, the mother, who resided in Illinois and had permanent custody of the parties’ children, chose the courts of Kansas, which had made the original custody determination and remained the father’s home State and where the children spent summers and had significant contacts, to determine a subsequent disputed custody issue. The Illinois court thereafter properly declined to exercise its jurisdiction to modify such custody determination relying in significant part on the mother’s invocation of the jurisdiction of the complained-of forum. Jennings, 133 Ill. App. 3d at 756.

Under these facts and in reliance on In re Marriage of Thompson and Jennings, we find dispositive James’ presence in 1989 when the circuit court verbally agreed to relinquish jurisdiction to the Louisiana forum and his initiation of and participation in the proceedings in that forum in 1990, which included a consideration of his exceptions to jurisdiction and the finding that it was in the best interests of the children that Louisiana exert its jurisdiction. James does not dispute that the Louisiana court assumed jurisdiction over this matter in 1989. James’ counsel was present during the telephone conversation in which the jurisdictional dispute was resolved in favor of the Louisiana forum. Louisiana determined that it was in the best interests of the children that it assume jurisdiction, which the Illinois circuit court therefore agreed to relinquish. In addition, James himself invoked the jurisdiction of the Louisiana court in 1990 and presented his exceptions to the jurisdiction of that court at that time, which the Louisiana court heard and rejected.

We conclude that in 1989, with James’ knowledge and participation, the Louisiana courts acquired sole jurisdiction over this custody matter, and James participated in a determination of the merits of his jurisdictional claims in that forum in 1990. Thus, the circuit court’s written order of September 4, 1991, did no more than memorialize its 1989 agreement to relinquish jurisdiction to Louisiana and was not the entry of a new order requiring notice to James. (See Maras v. Bertholdt (1984), 126 Ill. App. 3d 876, 881 (alteration of oral order requires notice).) The circuit court did not abuse its discretion in refusing to again consider James’ jurisdictional challenge, the merits of which the Louisiana court already determined. See In re Marriage of Thompson, 96 Ill. 2d at 77-78.

Thus, we find that at the time it quashed its writ of attachment and entered its order memorializing its prior agreement to relinquish jurisdiction, the circuit court had already determined that the Louisiana court had jurisdiction in substantial accordance with the Uniform Child Custody Jurisdiction Act and that Illinois was an inconvenient forum. As a further result of relinquishing its jurisdiction to Louisiana, there was neither an underlying action nor the possibility that Joyce could purge herself of the alleged contempt, and the circuit court was required to quash its improperly entered writ of attachment. See In re Marriage of Logston, 103 Ill. 2d at 289.

The order of the circuit court quashing the writ of attachment for petitioner and relinquishing jurisdiction of the custody dispute between the parties to the Louisiana forum is affirmed.

Affirmed.

INGLIS, P.J., and DOYLE, J., concur.


author: PRESIDING JUSTICE INGLIS

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellant, v. NICHOLAS KOLOMIS, Defendant-Appellee.
    Second District
    No. 2—91—1442
    Opinion filed November 25, 1992.

      John M. Mullen, of Libertyville, for the People.
    Daniel R. Zeit, of Ori, Fox, Lunardi & Zeit, and Douglas E. Zeit and Suzanne A. Lindsay, both of Rosing, Applehans, Smith, Ericksen & Zeit, Ltd., both of Waukegan, for appellee.
   PRESIDING JUSTICE INGLIS

delivered the opinion of the court:

The State appeals after the trial court dismissed a complaint against defendant, Nicholas Kolomis, for operating a vehicle that exceeded the registration weight limits in violation of section 15—112(f) of the Illinois Vehicle Code (Code) (Ill. Rev. Stat. 1991, ch. 95½, par. 15—112(f)). The issue on appeal is whether a truck driver who operates a vehicle without a valid registration also can be fined for exceeding the registered weight limit. We reverse and remand.

On October 9, 1991, defendant was stopped by a Kildeer police officer while driving westbound on Route 22 at Krueger Road in Kildeer, Illinois. Defendant was ticketed for having no valid registration in violation of section 3—701 of the Code (Ill. Rev. Stat. 1991, ch. 95½, par. 3—701), no valid safety test in violation of section 13—111 of the Code (Ill. Rev. Stat. 1991, ch. 95½, par. 13—111), and exceeding the registration weight limit in violation of section 15—112(f) of the Code (Ill. Rev. Stat. 1991, ch. 95½, par. 15—112(f)). The State claims that defendant pleaded guilty to the no valid registration and no valid safety test violations, and fines were imposed.

A hearing was held on the exceeding the registered weight limit charge (overweight charge). The parties agreed that the “Truck Overweight Violation” ticket accurately assessed the truck’s gross weight at the time of the traffic stop at 62,800 pounds. It was also stipulated that defendant’s truck had a “V” license the previous year and that defendant was within the appropriate weight range for a “V” registration at the time of the traffic stop. The trial court dismissed the overweight charge, finding that the facts of the case did not constitute a violation of section 15—112(f) of the Code (Ill. Rev. Stat. 1991, ch. 95½, par. 15—112(f)). The State thereafter filed a timely notice of appeal.

The State contends that defendant can be fined for no valid registration and exceeding the registered weight limit. The State claims that section 15—112(f) of the Code states that an overweight fine can be assessed “in addition to any other violation or penalty.” (Ill. Rev. Stat. 1991, ch. 95½, par. 15—112(f).) The State also argues that the legislature could not have intended that a driver with no valid registration be fined less than a driver who has an “underweight” registration. The State concludes that every pound of an unregistered truck must be considered overweight.

Defendant contends that his vehicle was not overweight, so the overweight charge was properly dismissed. Defendant claims that the plain meaning of section 15—112(f) of the Code requires a vehicle to be 2,001 pounds or more over the registration limits. Defendant concludes that because the parties agreed that his truck’s weight was within the weight range of “V” registration, the truck was not overweight as defined under section 15—112(f).

“The primary rule of statutory construction is that the court must ascertain and give effect to the intent of the legislature.” (People v. Ullrich (1990), 135 Ill. 2d 477, 483.) Legislative intent is determined by first examining the statutory language. (Hernon v. E.W. Corrigan Construction Co. (1992), 149 Ill. 2d 190, 194.) Statutory terms are to be given their plain and ordinary meaning. (Hernon, 149 Ill. 2d at 194-95.) In construing a statute, the reviewing court must consider the entire statute as well as the evil to be remedied and the objective to be attained. People v. Palmer (1992), 148 Ill. 2d 70, 85.

Section 15—112(f) of the Code states:

“Whenever the gross weight of a vehicle exceeds the registration weight limits established under Article VIII of Chapter 3 of the Code, by 2,001 lbs. or more, the driver or owner, in addition to any other violation or penalty, shall be fined in accordance to the schedule enumerated in Section 15—113 of this Chapter.” (Ill. Rev. Stat. 1991, ch. 95½, par. 15—112(f).)

Section 15—113 of the Code, in pertinent part, imposes fines according to the following schedule:

“from 5001 or more pounds overweight
=
the fine shall be computed by assessing $750 for the first 5000 pounds overweight and $75 for each additional increment of 500 pounds overweight or fraction thereof.”

Ill. Rev. Stat. 1991, ch. 95½, par. 15—113.

We have found no cases in which a defendant was ticketed for both lacking a valid registration in violation of section 3—701 and exceeding the registered weight limit in violation of section 15—112(f). However, a few cases are analogous and are instructive. In People v. White (1990), 206 Ill. App. 3d 15, the defendant was ticketed for violating a permit for excess weight issued pursuant to section 15—301 of the Code (Ill. Rev. Stat. 1987, ch. 95½, par. 15—301) and exceeding the statutory gross weight limitations in violation of section 15—111(g) of the Code (Ill. Rev. Stat. 1987, ch. 95½ par. 15—111(g)). The defendant argued that a violation of section 15—301 subjects the permittee to only a minimal fine under section 15—301(j) of the Code (Ill. Rev. Stat. 1987, ch. 95½, par. 15-301(j)). (White, 206 Ill. App. 3d at 18-19.) The court found that acceptance of this theory would lead to an absurd result. Drivers could obtain a permit to carry excess weight that restricted travel to a certain roadway and then drive on any roadway, knowing that a fine could be imposed based only on the weight in excess of the permitted weight. (White, 206 Ill. App. 3d at 19.) Thus, the court held that a driver can be prosecuted for exceeding the statutory gross weight limitations even when a permit has been obtained to exceed that limitation if the driver does not follow the route restrictions set forth in the permit. White, 206 Ill. App. 3d at 20.

The State cites People v. Kueper (1969), 111 Ill. App. 2d 42, a case in which the defendant also was charged with operating his truck in violation of a permit for excess weight and operating an overweight truck by violating the rear tandem axle limitation imposed by statute. (Kueper, 111 Ill. App. 2d at 43-44.) One issue on review was whether the defendant could be prosecuted for violating statutory weight limitations after pleading guilty and paying a fine for violating a permit for excess weight. The court found that section 230(g) of the Act (Ill. Rev. Stat. 1965, ch. 95½, par. 230(g)), the section dealing with violation of a permit for excess weight, provided that penalties for violating a permit for excess weight “shall be in addition to any penalties imposed for violation of other sections of this Act.” (Kueper, 111 Ill. App. 2d at 46.) The court held that prosecution for violation of a permit for excess weight did not bar prosecution for violation of the weight limitations. Kueper, 111 Ill. App. 2d at 46.

The holding of Kueper was adopted by this court in People v. Freehill (1970), 129 Ill. App. 2d 234. There, the defendant was also fined for violating a permit for excess weight and for operating an overweight vehicle. (129 Ill. App. 2d at 236.) However, the court also stated:

“We do not consider it unjust, absurd, or unreasonable to impose a larger fine on a permittee who exceeds the permit weight than one who does not apply for a permit at all, as defendant suggests. The permittee is one who has been given a special permission or privilege to exceed the statutory limits and is not one who has made a greater effort to comply with the law as [defendant] suggests. Under defendant’s theory, a wilful violator could seek a permit so as to minimize the fine for a premeditated violation.” Freehill, 129 Ill. App. 2d at 239-40.

On its face, this statement seems to suggest that a defendant who failed to obtain a permit would not be prosecuted for also exceeding the statutory weight limitation. However, the court does not preclude prosecution of both violations. In fact, the same concern of the courts in White and Freehill, defendant’s disincentive to obey regulations, exists in the case at bar. Here, if we followed defendant’s reasoning and upheld the dismissal of the overweight charge, there would be an incentive for truck drivers to drive with no registration, which is a petty offense subject to a $500 fine (see Ill. Rev. Stat. 1991, ch. 95½, par. 3—834(b); Ill. Rev. Stat. 1991, ch. 38, par. 1005—9—1), instead of driving with a valid registration, whether or not it be for the proper weight classification. A $500 fine is less than any fine for vehicles not exceeding 5,001 pounds overweight under the schedule of fines in section 15—113 of the Code (Ill. Rev. Stat. 1991, ch. 95½, par. 15—113), less than the $1,802 fee for a “V” registration (see Ill. Rev. Stat. 1991, ch. 95½, par. 3—815), and significantly less than the $9,450 fine the State sought here from defendant. We believe that the legislature did not intend such a result, which is evident by the statement in section 15—112(f) of the Code that an overweight charge is imposed “in addition to any other violation or penalty.” (Emphasis added.) Ill. Rev. Stat. 1991, ch. 95½, par. 15—112(f).

Defendant’s argument that his truck was not overweight because it was within the weight limit for a “V” registration, the previous registration obtained by defendant, must also fail. There exists no presumption that a defendant’s vehicle should be classified as operating under the registration class of his or her previous registration. The fact is that at the time defendant was stopped by the police he was not registered for any weight class. Thus, defendant was in violation of section 15—112(f) because the gross weight of his vehicle exceeded the registered weight limit, in his case zero, by 2,001 pounds or more. (Ill. Rev. Stat. 1991, ch. 95½, par. 15—112(f).) This decision is in accordance with the plain meaning of the statute. People v. Ullrich (1990), 135 Ill. 2d 477, 483.

We further conclude that, as the State argues, the fine imposed for exceeding the registered weight limit should be $9,450. Defendant’s vehicle was not registered, so it was permitted to carry zero pounds. Defendant’s truck weighed 62,880 pounds at the time of the stop. Therefore, defendant came within the parameters of section 15—112(f) because the gross weight of the vehicle exceeded the registered weight by 2,001 pounds or more. Section 15—113 of the Code is then used to calculate the fine. The entire gross weight is figured into the equation in determining the fine of $9,450. Because the statutory schedule in section 15—113 is mandatory, this fine may not be reduced by the sentencing court. See Ullrich, 135 Ill. 2d at 487-88.

For the foregoing reasons, the order of the circuit court of Lake County is reversed, and the cause is remanded with directions that the trial court order defendant to pay a fine of $9,450 for violating section 15—112(f) of the Code (Ill. Rev. Stat. 1991, ch. 95½, par. 15—112(f)).

Reversed and remanded with directions.

McLAREN and BOWMAN, JJ., concur.


author: JUSTICE BOWMAN

text:
    PAUL AKEN et al., Plaintiffs-Appellants, v. THE BOARD OF CONTROL OF LAKE COUNTY AREA VOCATIONAL CENTER, Defendant-Appellee.
    Second District
    No. 2—92—0056
    Opinion filed November 25, 1992.
    Mildred F. Haggerty, of Haggerty, Koenig & Hill, Chartered, of Chicago, for appellants.

      Alan M. Kaplan, of Brydges, Riseborough, Morris, Franke & Miller, of Waukegan, for appellee.
   JUSTICE BOWMAN

delivered the opinion of the court:

Plaintiffs, Paul Aken and Dawn Brumm, appeal from the circuit court’s order of December 16, 1991, dismissing their complaint for declaratory judgment and for injunctive relief. The plaintiffs were employees of a cooperative vocational education program under the control of defendant, the Board of Control of Lake County Area Vocational Center (the Board or defendant). Although plaintiffs were tenured teachers of the defendant Board, they were honorably dismissed from employment due to a reduction in force. In their complaint, plaintiffs sought a declaration of their tenure rights under section 24—11 of the School Code (Code) (Ill. Rev. Stat. 1991, ch. 122, par. 24—11).

Plaintiffs asserted below that under section 24—11, they had “bumping” rights or “super-tenure” in the member school districts participating in the joint education program. Plaintiffs also argued that there was no rational basis to treat them differently from special education teachers who were granted “super-tenure” rights under section 24—11 of the Code.

On appeal, plaintiffs again maintain that (1) they have “super-tenure” rights in the member school districts and that (2) a contrary construction of the statute would amount to an unconstitutional classification failing the “rational basis” test. We believe that both of these arguments are contrary to the holding of Koppi v. Board of Control of Whiteside Area Vocational Center (1985), 133 Ill. App. 3d 591. We therefore disagree with plaintiffs, and we affirm the judgment of dismissal.

The complaint states that plaintiffs were employed by defendant prior to July 1, 1987, and had attained the status of contractual continued service (tenure) employees with defendant. (Plaintiffs state in their appellate brief that teachers employed by the Lake County Area Vocational Center are not employees of any of the separate participating school districts.) The Board is authorized by law to operate the Lake County Area Vocational Center (Center). The Center’s purpose is to provide vocational education to secondary school students; it has a cooperative program involving 18 participating school districts located in Lake County. The Board is made up of the superintendents of each participating district and a representative of the regional superintendent.

In March 1991, plaintiffs were given notice of honorable dismissal by the Board due to a reduction in the number of teachers employed by the Board. The plaintiffs requested the Board to place them in any position in the participating districts of the Center for which they were legally qualified by length of continuing service over any teacher currently assigned to the position. According to plaintiffs, the Board responded that, under section 24—11, plaintiffs were not legally entitled to be placed in positions in participating districts, regardless of their qualifications and seniority. Plaintiffs sought a declaration that they should be placed in positions in the participating districts by virtue of their tenure and seniority and sought an injunction prohibiting defendant from refusing to provide information concerning available positions.

Section 24—11 of the Code provides in pertinent part:

“The employment of any teacher in a program of a special education joint agreement established under Section 3—15.14, 10—22.31 or 10—22.31a shall be under this and succeeding Sections of this Article. ***
Any teacher employed after July 1, 1987 as a full-time teacher in a program of a special education joint agreement, whether the program is operated by the joint agreement or a member district on behalf of the joint agreement, for a probationary period of two consecutive years shall enter upon contractual continued service in all of the programs conducted by such joint agreement which the teacher is legally qualified to hold. In the event of a reduction in the number of programs or positions in the joint agreement, the teacher on contractual continued service shall be eligible for employment in the joint agreement programs for which the teacher is legally qualified in order of greater length of continuing service in the joint agreement unless an alternative method of determining the sequence of dismissal is established in a collective bargaining agreement. In the event of the dissolution of a joint agreement, the teacher on contractual continued service who is legally qualified shall be assigned to any comparable position in a member district currently held by a teacher who has not entered upon contractual continued service or held by a teacher who has entered upon contractual continued service with shorter length of contractual continued service.
* * *
The employment of any teacher in a special education program authorized by Section 14—1.01 through 14—14.01, or a joint educational program established under Section 10—23.31a, shall be under this and the succeeding Sections of this Article, and such employment shall be deemed a continuation of the previous employment of such teacher in any of the participating districts, regardless of the participation of other districts in the program. Any teacher employed as a full-time teacher in a special education program prior to September 23, 1987 in which-2 or more school districts participate for a probationary period of 2 consecutive years shall enter upon contractual continued service in each of the participating districts, subject to this and the succeeding Sections of this Article, and in the event of the termination of the program shall be eligible for any vacant position in any of such districts for which such teacher is qualified.” Ill. Rev. Stat. 1991, ch. 122, par. 24-11.

Plaintiffs first argue that the above-cited provisions grant the same tenure protections to teachers in all types of joint educational agreements. Plaintiffs assert that the section references in the first above-cited paragraph to special education joint agreements (section 10—22.31), in connection with references to cooperative educational programs (section 3—15.14) and joint educational programs (section 10—22.31), show that the legislature intended to define special educational joint agreements as including all types of cooperative educational programs. This is a strained construction of that paragraph. The legislature was merely setting forth the statutes under which each type of joint agreement is established and governed. All joint agreements are not subsets of special education joint agreements, as plaintiffs would argue. Rather, the opposite is true: special education joint agreements are species of joint agreements. Special education programs differ significantly from other types of programs and are intended for particular types of students, namely, children who are handicapped or have learning disabilities. See Ill. Rev. Stat. 1991, ch. 122, par. 14—1.01 et seq.

Teachers such as plaintiffs do have tenure rights in the vocational education program as a continuation of their previous employment in the individual school districts. This is provided for in the first sentence of the last cited paragraph above of section 24—11. However, the second sentence of that paragraph provides for “super-tenure,” that is, tenure in the participating school districts under limited circumstances, only for special education teachers (see Koppi v. Board of Control of Whiteside Area Vocational Center (1985), 133 Ill. App. 3d 591, 593) and subject to the date restrictions now included in the statute. In granting “super-tenure” within participating school districts, the second sentence refers only to special education program teachers and makes no mention of other types of teachers. We believe that Koppi is controlling on this point, and we adopt the distinction made in Koppi between special education teachers and other types of teachers in construing this statute. Koppi, 133 Ill. App. 3d at 593.

We agree with Koppi that the legislature intended to treat special education teachers differently from other joint program teachers. This conclusion is bolstered by the fact that the legislature made additional distinctions regarding the tenure rights of special education teachers when it added the second-cited paragraph which became effective in 1987 after Koppi was decided; the September 23, 1987, limitation was also added by the same amendment. (See Pub. Act 85—760 §2, eff. Sept. 23, 1987.) The detailed tenure rights of special education teachers were made applicable to teachers hired after July 1, 1987, in the event of a reduction in the number of teachers in a special educational joint agreement or in the event of the dissolution of such an agreement. Grants of tenure rights are to be strictly construed. (Johnson v. Board of Education of Decatur School District No. 61 (1981), 85 Ill. 2d 338, 344.) We cannot interpret the clear language of these provisions to mean anything other than what they state. (Koppi, 133 Ill. App. 3d at 593.) It is for the legislature to enact different provisions if it disagrees with our interpretation of these provisions.

Plaintiffs also contend that, if the statute is construed to afford special tenure protection to special education teachers and not to other teachers in joint educational programs such as plaintiffs, this would render the statute unconstitutional as a violation of equal protection guarantees. Plaintiffs urge that such a distinction has no rational basis.

We believe that, in granting tenure rights, the legislature could properly distinguish between special education teachers and other classes of teachers. A legislative classification does not violate equal protection guarantees if it has a rational basis, that is, it rationally advances reasonable and identifiable governmental objectives. (Schweiker v. Wilson (1981), 450 U.S. 221, 235, 67 L. Ed. 2d 186, 198, 101 S. Ct. 1074, 1083.) Where there is no suspect classification such as race or ethnic origin, the rational relationship test applies. (Barbosa v. Committee on Accountancy (1988), 171 Ill. App. 3d 782, 786.) In order to be constitutional, a classification is not required to be scientific, logical, or consistent if it is reasonably adapted to secure the purpose for which it is intended and is not purely arbitrary. Barbosa, 171 Ill. App. 3d at 787.

In addition to general educational requirements, special education teachers have highly particularized training, experience and certification requirements not required of other teachers. (See, e.g., Ill. Rev. Stat. 1991, ch. 122, par. 14-9.01; 23 Ill. Adm. Code §25.43 (1991).) They must be prepared by education, temperament and experience to meet the specific educational needs of children with various disabilities. In order to attract and retain highly qualified professionals to meet the particular needs of these children, the legislature undoubtedly saw fit to offer special protection to this unique class of teachers. We believe that the classification rationally advances reasonable and identifiable governmental objectives.

For the foregoing reasons, we affirm the judgment of the circuit court of Lake County.

Affirmed.

DUNN AND DOYLE, JJ., concur.


author: JUSTICE DOYLE

text:
      In re CHARLES JUSWICK, a Person Found Subject to Involuntary Commitment (The People of the State of Illinois, Petitioner-Appellee, v. Charles Juswick, Respondent-Appellant).
    Second District
    No. 2—92—0261
    Opinion filed November 25, 1992.

      Donald M. Tegeler, of McNamee & Mahoney, Ltd., of Dundee, for appellant. |
    Gary V. Johnson, State’s Attorney, of Geneva (William L. Browers, of State’s Attorneys Appellate Prosecutor’s Office, of counsel), for the People.
   JUSTICE DOYLE

delivered the opinion of the court:

Respondent, Charles Juswick, was found to be a person subject to involuntary commitment following a hearing on February 14, 1992. There were no objections to service of process or to the certification, and respondent was timely represented by counsel. Respondent was admitted to the Elgin Mental Health Center in 1984. The medical testimony adduced at the hearing was that respondent suffers from chronic undifferentiated schizophrenia. His symptoms included agitation, delusions, auditory hallucinations, and he had a preoccupation with fires. The attending physician testified that respondent could not care for himself and that the Mental Health Center was the least restrictive environment for treatment.

The day before the hearing, respondent was agitated and manifested an intent to assault the attending psychiatric physician. Respondent has stated that he wanted to be released so that he could commit suicide. Respondent’s own testimony included nonresponsive and illogical comments, and he thought there might be a fire in the courtroom.

The trial court found the evidence of mental illness to be clear and convincing. Based on the testimony, the court found that respondent suffered from chronic undifferentiated schizophrenia; that because of his illness he was reasonably expected to inflict serious harm upon himself or another in the near future; that he was unable to provide for his basic physical needs so as to guard himself from serious harm; and that the Center was the least restrictive environment for treatment. The court thereupon ordered respondent hospitalized in the Department of Mental Health and Developmental Disabilities. The court approved a treatment plan and provided for a review in 180 days. Respondent has filed a timely notice of appeal.

The trial court appointed counsel to represent the respondent during this appeal. Pursuant to the procedure set forth in Anders v. California (1967), 386 U.S. 738, 18 L. Ed. 2d 493, 87 S. Ct. 1396, and People v. Jones (1967), 38 Ill. 2d 384, appointed counsel has filed a motion for leave to withdraw as appellate counsel. In his motion, counsel represents that he has read the full record of this case and has not discovered any issue that would warrant relief in this court. In support of the motion, he has filed a memorandum of law which (1) accurately summarizes the proceedings in the trial court; (2) suggests two possible justiciable issues; and (3) concludes that those potential issues would be wholly frivolous and without merit.

The potential issues which appellate counsel has raised are: (1) whether the court’s order and findings were supported by clear and convincing evidence; and (2) whether the Mental Health Center was the least restrictive alternative treatment setting. Appellate counsel also represents that he has discussed the case with trial counsel as well as with the Guardianship and Advocacy Commission and has mailed a copy of the motion to respondent. The clerk of this court has also advised respondent of the motion and informed him that he would be afforded an opportunity to present, within 30 days, any additional matters to this court. Respondent has not responded or raised any additional matters in this court, and the time to respond has elapsed.

We must first consider the question of whether the procedure set forth in Anders and Jones is applicable in this context in which counsel has been appointed in a civil proceeding to represent an indigent person who has been involuntarily hospitalized. Anders set forth procedures required to permit the withdrawal of counsel appointed to represent a defendant in the appeal of a criminal case when the appeal is frivolous, and stated that those procedures would afford a convicted defendant “that advocacy which a nonindigent defendant is able to obtain.” (Anders v. California (1967), 386 U.S. 738, 745, 18 L. Ed. 2d 493, 498, 87 S. Ct. 1396, 1400.) The Appellate Court, Fourth District, has relied upon that language in concluding that the Anders procedure may be applied in the appeal of an involuntary commitment order. (In re McQueen (1986), 145 Ill. App. 3d 148.) Our independent consideration of the issue leads us to the same conclusion. We accordingly hold that the Anders procedure is applicable to the present case. See In re Keller (1985), 138 Ill. App. 3d 746; see also People v. Espinoza (1977), 54 Ill. App. 3d 36; People v. Beksel (1973), 10 Ill. App. 3d 406.

After carefully examining the record in this case, as well as the motion to withdraw and the accompanying memorandum of law, we agree with appellate counsel that there is no issue that might support an appeal.

We therefore allow the motion to withdraw as counsel in this appeal, and we affirm the judgment of the circuit court.

Affirmed.

UNVERZAGT and McLAREN, JJ., concur.


author: JUSTICE WOODWARD

text:
      In re JACQUELYN LONG, Alleged to be a Person Subject to Involuntary Admission (The People of the State of Illinois, Petitioner-Appellee, v. Jacquelyn Long, Respondent-Appellant).
    Second District
    No. 2—91—1406
    Opinion filed November 19, 1992.
    Rehearing denied December 30, 1992.

      William E. Coffin, of Guardianship & Advocacy Commission, of Chicago, for appellant.
    Gáry V. Johnson, State’s Attorney, of Geneva (William L. Browers and Marshall M. Stevens, both of State’s Attorneys Appellate Prosecutor’s Office, of counsel), for the People.
   JUSTICE WOODWARD

delivered the opinion of the court:

Respondent, Jacquelyn Long, appeals from the order of the circuit court which found her to be a person subject to involuntary commitment and which committed her to the Department of Mental Health (Department). On appeal, respondent challenges the order on the bases that the trial court erred in finding that respondent was unable to provide for her basic physical needs, and the trial court failed to order the least restrictive treatment alternative.

Respondent previously was committed involuntarily to the Department. (See In re Long (1990), 203 Ill. App. 3d 357.) Evidently, respondent had been released from the Department because she was a voluntary patient at the outset of these proceedings. On November 19, 1991, respondent requested to be discharged. (Ill. Rev. Stat. 1991, ch. 91½, par. 3—403.) The State responded with a petition for involuntary admission on the basis that respondent was unable to provide for her basic physical needs so as to guard herself from serious harm.

At the hearing, Dr. Garth Smith, a psychiatrist, testified that he diagnosed respondent as suffering from bipolar disorder, which was “at a mild manic phase.” In a severely manic state, a person suffering from bipolar disorder will not sleep, rarely eats and is hyperactive. Respondent was sleeping well, but she had accelerated speech and was “quite impulsive.” Dr. Smith characterized respondent as “very pleasant and agreeable and cooperative.” Dr. Smith opined that respondent was unable to take care of herself because:

“Her inability to think about any problems make[s] her very impulsive. She is very likely to spend money unwisely and be impulsive in other kinds of ways with respect to her behavior as it relates to her illness.”

Respondent had stopped taking her medication; she did not believe that she needed it, and she did not like lithium or sodium. According to Dr. Smith:

“[E]ven though she had taken it for some time and [it] had helped her.
With that thinking process, I think she is unable to help herself and take care of herself and exercise good judgment.”

However, Dr. Smith admitted that respondent was able to clothe and feed herself, and she had adequate personal hygiene. Dr. Smith also admitted that there are some side effects to the medication prescribed for respondent, but he “was not apparently interested in” why she stopped taking the lithium since she was not taking it when Dr. Smith saw her. For the treatment plan, Dr. Smith recommended continued hospitalization of respondent and treatment with lithium and sodium.

Saul Shorter, the caseworker assigned to respondent, testified that respondent had a pattern of not complying with her medication regimen, which resulted in the appearance of symptoms and the inability to care for herself which, in turn, led to hospitalization. Shorter stated that respondent requested to be taken off medications which, in Sherter’s opinion, were effective. Shorter explained that respondent had planned to go to Mississippi to live if she were released, but that the morning of the hearing respondent told Shorter that she intended to go to California to “surprise” her son who lives there. Respondent had $1,000 at her disposal, and, when Shorter suggested that respondent put the money in a bank account, respondent told him “she would think about it.”

Sherter related that there were discharge plans for respondent before she stopped taking her medication. Respondent was in a preplacement interview at a halfway house when she told the interviewer “that she had tried to kill herself four or five times” and that she did not like the halfway house because “it could not meet her dietary requirements.” After the interview at the halfway house, Sherter and respondent’s then-treating psychiatrist discussed an independent discharge plan for respondent. However, this plan was dropped “because of Mrs. Long’s increasingly symtomatic [sic] behavior and the fact that she declared openly that she had not been taking her medication, nor did she have any intentions of taking it *** in the future.” The objectionable behavior respondent exhibited included “flight of ideas,” i.e., “jumping from topic to topic, inappropriate emotional, effective [sic] reaction.” According to Sherter, if respondent took her medication, then the discharge plans would proceed.

Respondent testified that the reason she was hospitalized was that she was warming her hands in the Bismarck Hotel in Chicago and someone called the police. The police brought her to an emergency room, and then she was transferred to Chicago-Read Mental Health Center. At the time, respondent had been living at the Pacific Garden Mission. Respondent stated that she was separated from her husband, and she intended to get a check from him for $1,900 that he owed her. In addition, respondent received from her husband $200 per month in maintenance. Respondent had worked as a secretary to put her husband through law school. Respondent could not remember when she worked the last time.

Respondent further testified that she stopped taking her medication because it made her physically ill. The lithium made her feet “bad,” and the dietary menu at the Elgin Mental Health Center (EMHC) also contributed to her problems. When asked if she had a mental illness, respondent stated:

“No, I am sane. I always have been. When they took my rights away at Forest Hospital, they took advantage of my husband’s license. And the Judge said ‘she looks pretty good to me.’
And said to take it just for a month. I said no. And you ever have a fight with somebody and a doctor tells you to take a pill, I would rather go out and get drunk and smoke marijuana. I don’t do either. And he took my rights away. And I have been controlled by a government agency ever since.
All they do is look at my identification and, bingo, I am in the nut house.”

When asked what she intended to do with the check she already had, respondent answered, “Don’t worry about my money. Worry about your own money.” When further pressed about the money, respondent indicated that she might put it into an account, but that she “only got [sic] two outfits.” Respondent did not want to live with her family, and she intended to live at various church shelters for the homeless.

Respondent stated that her preferred diet consisted of “[f]resh fruit, raw vegetables, eggs sunnyside up, cream butter, [and] Canadian water.” Respondent further explained the negative side effects of lithium as causing blindness and gas, destroying blood vessels, and eliminating sodium.

The court found that respondent suffered from a mental illness. The court then stated:

“I am concerned that her thinking has deteriorated to the point that it is not logical and systematic and that her judgment is impaired to the point that if she were released the court would believe that she would not be able to provide for her physical needs and would not be able to guard herself from serious harm.”

The court agreed with the treatment plan and found that the least restrictive alternative for respondent was to remain hospitalized. Respondent timely appealed.

On appeal, respondent does not dispute the finding that she is mentally ill. Respondent contends, however, that the trial court’s order must be reversed because the State did not prove by clear and convincing evidence that she was unable to provide for her basic physical needs so as to guard herself from serious physical harm.

The involuntary commitment procedure is founded on “society’s obligation to protect and care for those who are unable to protect or care for themselves.” (In re Splett (1991), 143 Ill. 2d 225, 230.) Because the involuntary commitment of a person entails the loss of that person’s liberty, the State must show by clear and convincing evidence (Ill. Rev. Stat. 1991, ch. 91½, par. 3—808) not only that the person is mentally ill, but also that the person cannot provide for her basic physical needs so as to guard herself from harm. (See Estate of Johnson v. Condell Memorial Hospital (1988), 119 Ill. 2d 496, 504.) The evidence to support these findings must concern the respondent’s current condition, and the decision to commit the respondent must be based on a fresh evaluation of her conduct and mental state. (In re Houlihan (1992), 231 Ill. App. 3d 677, 683.) The trial court’s decision regarding involuntary commitment is accorded great deference, and we will disturb that decision only if it is against the clear weight of the evidence. In re Long (1990), 203 Ill. App. 3d 357, 362-63.

Respondent argues that the State failed to prove that respondent could not survive safely on her own. As support for this argument, respondent assembled a list of factors for a court to consider when assessing whether a person is unable to provide for her physical needs because of a mental illness. Respondent relies on In re Doe (1978), 56 Ill. App. 3d 1052, and In re Love (1977), 48 Ill. App. 3d 517. The factors include whether: the respondent can obtain her own food, shelter, or necessary medical care (Love, 48 Ill. App. 3d at 521-22); the respondent has a place to live, or a family to assist the respondent (Doe, 56 Ill. App. 3d at 1058); the respondent is able to function in society (Doe, 56 Ill. App. 3d at 1057); and the respondent has an understanding of money or a concern for it as a means of sustenance (Doe, 56 Ill. App. 3d at 1058).

Generally, the inability to care for oneself so as to guard against physical harm is found when the illness substantially impairs one’s “thought processes], perception of reality, emotional stability, judgment, behavior, or ability to cope with life’s ordinary demands.” (In re Ingersoll (1989), 188 Ill. App. 3d 364, 368. See, e.g., In re Tally (1991), 215 Ill. App. 3d 385 (the respondent’s apartment was bug-infested, filled with rotten food and disheveled; the respondent left his stove unattended, causing a pot to catch fire; and the respondent attempted to hail a bus by standing in front of it).) In a person suffering from the manic phase of bipolar disorder, this inability to care for oneself usually manifests itself by a failure to eat or sleep, to obtain proper medical care and by excessive activity to the point of exhaustion. See In re Biggs (1991), 219 Ill. App. 3d 361, 363.

Respondent argues that the State failed to prove that she was unable to survive on her own. Respondent points to her intention of seeking shelter in missions or church-run shelters or possibly staying with one of her sons. Respondent also asserts that she recognizes the need to eat and the value of money.

Contrary to the State’s assertion, a person is free to live on the street, if the person chooses to do so. (See In re Manis (1991), 213 Ill. App. 3d 1075, 1078.) A person may not be held against her will merely to improve her standard of living or because society may find it uncomfortable to see such people on the street. (O’Connor v. Donaldson (1975), 422 U.S. 563, 575, 45 L. Ed. 2d 396, 407, 95 S. Ct. 2486, 2493-94.) However, if the person is incapable of feeding herself, she “will not be sent out to starve.” Manis, 213 Ill. App. 3d at 1078.

In finding that respondent was a person subject to involuntary admission, the trial court relied on the opinions of the psychiatrist and the social worker that respondent exhibited poor judgment which hindered her ability to take care of herself. Although we agree with respondent that the refusal to take medication may be a rational decision (Long, 203 Ill. App. 3d at 363), the catch-22 here is that, by not taking any medication to alleviate her symptoms, respondent’s judgment will become impaired as she goes through the cycle of mania and depression. Consequently, in such a situation, the refusal to take medication is not evidence of impaired judgment but the cause of it. Based on these facts, we cannot conclude that the trial court’s judgment was against the manifest weight of the evidence.

We are concerned by the apparent unwillingness of the psychiatrist and the social worker to ascertain why respondent refused to take her medication. One of the goals of the Code and a fundamental rationale for the infringement of a person’s liberty interests is to protect and care for those who cannot take care of themselves. (In re Stephenson (1977), 67 Ill. 2d 544, 554-55.) When the agents of the facility charged with caring for the patient fail to take adequate care of the patient, that goal is frustrated. Had either the psychiatrist or the social worker made the effort to figure out why respondent refused to take lithium, they would have learned that she suffered a toxic reaction to it. Presumably, then, the psychiatrist could have prescribed an alternate medication to correct the chemical imbalance in respondent’s brain. Moreover, even though the psychiatrist did not know why respondent refused to take lithium, the refusal should have been a sufficient reason to prescribe a different medication for respondent. We suspect that, like the employees of the Department of Children and Family Services in In re Ashley K. (1991), 212 Ill. App. 3d 849, 872, it was easier for the psychiatrists to follow the path of least resistance in their treatment of respondent; to prescribe the “drug of choice” for her regardless of whether it is appropriate. The end result is that the system designed to aid one in need ends up harming her. See Ashley K., 212 Ill. App. 3d at 873.

Respondent’s second appellate contention is that the court erred in finding that hospitalization in the EMHC was the least restrictive treatment alternative. After a court determines that a person is subject to involuntary commitment, the court must order the respondent’s placement in the least restrictive treatment alternative. Ill. Rev. Stat. 1991, ch. 91½, par. 3—811.

Respondent was adjudicated a person subject to involuntary admission under section 1—119(2) of the Code. (Ill. Rev. Stat. 1991, ch. 91½, par. 1—119(2).) That section expresses a preference for “some program other than hospitalization [to] meet the needs of such person with preference being given to care or treatment in his own community.” (Ill. Rev. Stat. 1991, ch. 91½, par. 1—119(2).) Respondent argues that the State failed to present any alternatives to hospitalization. Respondent refers to the testimony regarding placement of respondent in a halfway house, but no decision was reached. Respondent also points to the social worker’s failure to contact respondent’s son in California to determine whether he could take in respondent.

The State responds that respondent rejected the halfway house option and any outpatient treatment because she thought she did not need it. These reasons are insufficient. Respondent’s dislike of the halfway house is irrelevant to the court’s decision of the least restrictive treatment alternative. Sections 3—811 and 3—812 of the Code govern alternative dispositions. Section 3—811 states that the court may order the respondent to undergo alternative treatment if the facility agrees to the placement (Ill. Rev. Stat. 1991, ch. 91½, par. 3—811), and section 3—812(a) limits the placement in an alternative treatment program only in that “[alternative treatment shall not be ordered unless the program being considered is capable of providing adequate and humane treatment which is appropriate to the respondent’s condition” (Ill. Rev. Stat. 1991, ch. 91½, par. 3—812(a)); neither section requires that the respondent agree to the placement. The State presented no evidence that respondent had been rejected by any alternative treatment program.

The State relies on In re Devine (1991), 214 Ill. App. 3d 1, for the proposition that the least restrictive alternative is met when the State’s experts opine that confinement in the EMHC is the least restrictive alternative for the respondent. We agree with respondent that the State’s reliance on Devine is misplaced. Devine merely stated that the court is not required to make the explicit finding that the treatment ordered is the least restrictive alternative. Devine, 214 Ill. App. 3d at 7.

Respondent’s treatment plan consisted of hospitalization in the EMHC and continued prescription of lithium and sodium. Since respondent refused to take those medications, and stated her insistence that she would continue to refuse to take them, respondent has no reasonable possibility of being discharged.

In light of the statutory preference for treatment other than hospitalization (see Ill. Rev. Stat. 1991, ch. 91½, par. 1—119(2)) and the psychiatrist’s failure to determine whether another medication would be appropriate instead of lithium, we conclude that the trial court’s finding that hospitalization was the least restrictive alternative is against the manifest weight of the evidence. We therefore remand the cause to the trial court to conduct a hearing to determine whether alternate medication could be prescribed for respondent and whether any halfway house programs or other intermediate care facilities or alternate treatment are suitable for respondent.

The judgment of the circuit court is affirmed in part and reversed in part, and the cause is remanded with directions.

Affirmed in part; reversed in part and remanded with directions.

GEIGER and DOYLE, JJ., concur.