                                      2017 IL App (1st) 153533
                                           No. 1-15-3533
                                            June 20, 2017

                                                                              SECOND DIVISION



                                               IN THE

                                APPELLATE COURT OF ILLINOIS

                                          FIRST DISTRICT


     THE PEOPLE OF THE STATE OF ILLINOIS, )                Appeal from the Circuit Court
                                          )                Of Cook County.
          Plaintiff-Appellee,             )
                                          )                No. 02 CR 28384
          v.                              )
                                          )
     SEAN GUNDERSON,                      )                The Honorable
                                          )                Earl Hoffenberg,
          Defendant-Appellant.            )                Judge Presiding.



                  JUSTICE NEVILLE delivered the judgment of the court, with opinion.
                  Presiding Justice Hyman and Justice Pierce concurred in the judgment and
       opinion.


                                            OPINION

¶1        In 2005, a court found Sean Gunderson, charged with attempted murder, not guilty by

       reason of insanity. Gunderson petitioned for discharge from the custody of the Department of

       Human Services (DHS) in 2015. The trial court denied the petition. On appeal, Gunderson

       argues that section 5-2-4(g) of the Unified Code of Corrections (Code) (730 ILCS 5/5-2-4(g)

       (West 2014)) violates his right to due process, because it requires him to prove by clear and
     No. 1-15-3533


        convincing evidence that he no longer suffers from a mental illness. We find the statute

        constitutional. Accordingly, we affirm the trial court’s judgment.

¶2                                         BACKGROUND

¶3         In 2002, Gunderson cut the throats of his mother, his father, and his grandmother.

        Prosecutors charged him with attempted murder and aggravated battery. Following a bench

        trial, the court found Gunderson not guilty by reason of insanity. He has remained in the

        custody of DHS since the trial.

¶4         In April 2015, Gunderson filed a motion for discharge from DHS, or for on-grounds pass

        privileges. At the hearing on the motion, Gunderson’s mother testified that she spoke with

        and visited Gunderson frequently throughout his confinement, and she believed that he had

        recovered from his illness. She believed that he did not present a threat of harm to anyone. If

        DHS released Gunderson, Gunderson could live with his parents.

¶5         Dr. Vikramjit Gill, who began treating Gunderson in July 2014, recommended the on-

        grounds pass privileges. According to Dr. Gill, Gunderson no longer showed any symptoms

        of mental illness. Dr. Gill had not prescribed any medication for Gunderson. Dr. Gill

        described Gunderson as a high-functioning patient, with schizophrenia in remission, who had

        progressed well without medication since 2011.

¶6         Faye Edlund, a social worker who had served on Gunderson’s treatment team since

        February 2013, testified that no one on the treatment team recommended discharge for

        Gunderson. Edlund never saw Gunderson act aggressively, and she saw no overt signs or

        symptoms of schizophrenia. She signed onto the recommendation for on-grounds passes, so

        that the treatment team could assess how well Gunderson could handle increased freedom.

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¶7           Martha Welch, a psychologist who reviewed the treatment team’s recommendation,

          agreed that Gunderson should have on-grounds passes. She interviewed Gunderson and

          members of the treatment team and concluded that Gunderson presented little risk of violent

          behavior.

¶8           Dr. Mathew Markos, who examined Gunderson four times in 2003 and 2004, interviewed

          Gunderson briefly in April 2015 to determine whether to support the treatment team’s

          recommendation. In Dr. Markos’s opinion, schizophrenia is always a lifelong illness that

          patients can control only with antipsychotic medication. Dr. Markos found that Gunderson

          showed several signs of continuing schizophrenia. First, Gunderson spoke rapidly during the

          interview. Dr. Markos asked Gunderson whether Gunderson had a mental illness. Dr. Markos

          testified that Gunderson answered, “I have disconnections with reality I tend to attribute to

          spiritual reasons; when I was 17, I wasn’t living healthy. There was an unresolved spiritual

          crisis.” Dr. Markos characterized the response as “delusional.” Dr. Markos added, “He’s not

          in touch with reality. He lacks insight. He will not take his medication, and that’s just not the

          way to proceed with schizophrenia illness.” Dr. Markos could not understand why Dr. Gill

          decided not to prescribe antipsychotic medication for Gunderson.

¶9           Dr. Markos did not know of any studies that support his assertions, but he knew of no

          instance in which a schizophrenic patient recovered without remaining on antipsychotic

          medication for life. Because Dr. Gill did not prescribe antipsychotic medication for

          Gunderson, Dr. Markos opposed the request for on-grounds pass privileges.

¶ 10         Dr. Toby Watson, who has a degree in clinical psychology, testified about long-term

          studies of schizophrenia. Dr. Watson said that every controlled study of patients treated for

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          more than one year showed that schizophrenic patients given minimal medication, or no

          medication at all, had much better recovery rates than patients treated regularly with

          antipsychotics. Dr. Watson explained that antipsychotic medication blocks dopamine, and

          thereby produces the immediate effect of reducing hallucinations and delusions. But after

          extended dopamine deprivation, the brain compensates by finding ways to produce more

          dopamine. To continue controlling the brain, doctors usually need to increase the dosage of

          antipsychotics. The antipsychotics have side effects that damage the brain. Dr. Watson

          testified that “outcome studies have been showing that people who stay on medication can

          chronically become disabled and mentally ill potentially for life.”

¶ 11         Dr. Watson said that he found no studies showing that treatment for more than one year

          with antipsychotics improved results for schizophrenic patients. In response to a question

          from Gunderson’s attorney, Dr. Watson said, “What do you call it if somebody believes

          something and all the overwhelming evidence says contrary to that? *** I mean, it’s

          delusion.” Dr. Watson then related the course of his own beliefs on the issue. All of his

          professors taught that one must use antipsychotic drugs to treat schizophrenia, and he fully

          accepted the teaching. His opinion gradually changed in light of the studies he read. The

          prosecutor, claiming that Dr. Watson’s testimony implied that Dr. Markos suffered from

          delusions about the nature of schizophrenia, asked Dr. Watson whether doctors should

          prescribe medication for Dr. Markos to help control his delusions. Dr. Watson answered,

          “He, obviously, has not seen *** the same research that I’ve seen and reviewed.”

¶ 12         Dr. Watson tested and interviewed Gunderson. Dr. Watson found that Gunderson no

          longer met the criteria for a diagnosis of schizophrenia. Dr. Watson concurred with the

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          recommendation for on-grounds passes, adding that the treatment team would need to assess

          Gunderson’s response to the increased freedom. In Dr. Watson’s opinion, Gunderson

          presented only a low level of risk for adverse behavior with more freedom.

¶ 13         The trial judge found Dr. Watson not credible, especially because the judge believed Dr.

          Watson called Dr. Markos delusional. The trial judge also gave little weight to the testimony

          of Dr. Gill, Welch, and Edlund. Instead, the judge relied on his interpretation of Edlund’s

          body language and the testimony of Dr. Markos. The judge believed that Edlund felt very

          uncomfortable with the recommendation for on-grounds passes. Although the judge relied on

          Dr. Markos’s opinion, the judge expressly said that Dr. Markos did not convince him that

          patients must have antipsychotic drugs for life to control schizophrenia. The judge denied the

          motion for on-grounds passes and the motion for discharge.

¶ 14         Gunderson filed a motion for reconsideration, appending to the motion studies and

          articles supporting the conclusion that schizophrenics have a better chance of recovery when

          doctors treat them with minimal drug therapy, eliminating the use of antipsychotics as soon

          as possible. Gunderson also argued that the statute requiring him to prove by clear and

          convincing evidence that he had no mental illness violated his right to due process. The trial

          judge denied the motion for reconsideration. Gunderson now appeals.

¶ 15                                             ANALYSIS

¶ 16         Gunderson has abandoned his pursuit of on-grounds passes. He challenges only the

          constitutionality of section 5-2-4 of the Code. 730 ILCS 5/5-2-4(g) (West 2014). Gunderson

          contends that, if he presents a prima facie case to show that he no longer suffers from a

          mental illness, the due process clause requires the burden to shift to the State to prove that he

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          meets the criteria for involuntary commitment. If the State cannot meet that burden, it must

          release him from confinement.

¶ 17         Our supreme court has instructed us not to address arguments challenging the

          constitutionality of statutes unless we find that we cannot resolve the case on

          nonconstitutional grounds. People v. Hampton, 225 Ill. 2d 238, 243-44 (2007). The State

          argues that regardless of the burden, the State would not have released Gunderson because no

          one on his treatment team recommended discharge. But Gunderson argues that the

          constitution requires release as long as he makes a prima facie case that he no longer suffers

          from a mental illness and the State fails to prove that he meets the statutory criteria for

          involuntary commitment, even if no one on his treatment team recommends discharge. None

          of the witnesses other than Dr. Markos saw any symptoms of schizophrenia for several years.

          Dr. Watson expressly found that Gunderson no longer met the criteria for a diagnosis of

          schizophrenia. While Dr. Gill diagnosed Gunderson’s condition as schizophrenia in

          remission, that diagnosis remains compatible with a finding that Gunderson no longer suffers

          from a mental illness. Levine v. Torvik, 986 F.2d 1506, 1513-14 (6th Cir. 1993) overruled in

          part on other grounds by Thompson v. Keohane, 516 U.S. 99, 111 (1995).

¶ 18         The doctors in Foucha v. Louisiana, 504 U.S. 71, 74 (1992), described Foucha as

          mentally ill with his illness in remission. The Supreme Court of the United States accepted

          the State of Louisiana’s concession that the testimony showed that Foucha no longer suffered

          from any mental illness. Foucha v. Louisiana, 504 U.S. at 85. We find that Gunderson

          presented a prima facie showing that he no longer suffers from a mental illness. Thus, we

          must address Gunderson’s constitutional argument.

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¶ 19         Section 5-2-4 provides that every person committed to the custody of DHS following a

          finding of not guilty by reason of insanity may petition for discharge. 730 ILCS 5/5-2-4(e)

          (West 2014). Subsection (g) provides that when a defendant files a petition for discharge,

          “[t]he findings of the Court shall be established by clear and convincing evidence. The

          burden of proof and the burden of going forth with the evidence rest with the defendant ***

          when a hearing is held to review a petition filed by or on behalf of the defendant.” 730 ILCS

          5/5-2-4(g) (West 2014). Thus, section 5-2-4(g) requires a defendant who seeks discharge to

          prove, by clear and convincing evidence, either that he has no mental illness or that he is not

          dangerous. See People v. Wolst, 347 Ill. App. 3d 782, 790 (2004).

¶ 20         The defendant in Wolst also argued that section 5-2-4(g) violated his rights to substantive

          and procedural due process. The Wolst court first dismissed the substantive due process

          argument, finding that “the burden of proof at a commitment hearing is an issue of procedure

          not substance.” Wolst, 347 Ill. App. 3d at 805.

¶ 21         The decision in United States v. Wattleton, 296 F.3d 1184 (11th Cir. 2002), guided the

          Wolst court’s resolution of the procedural due process argument. Wolst, 347 Ill. App. 3d at

          807-08. Wattleton challenged the constitutionality of a federal statute similar to section 5-2-

          4(g). A person committed to a hospital following a federal court’s finding of not guilty by

          reason of insanity may petition for release. 18 U.S.C. § 4243 (2000). “Section 4243(d)

          provides that a defendant found not guilty by reason of insanity of an offense involving

          bodily injury, serious damage to another’s property, or substantial risk of such injury or

          damage has the ‘burden of proving by clear and convincing evidence that his release would

          not create a substantial risk of bodily injury to another person or serious damage of property

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No. 1-15-3533


   of another due to a present mental disease or defect.’ 18 U.S.C. § 4243(d).” Wattleton, 296

   F.3d at 1197. The Wattleton court reviewed the applicable law:

         “[T]he two circuits that have examined the constitutionality of § 4243(d) have

         both found no due process violations. [Citations.]

                *** [I]n determining whether procedures in the civil context satisfy due

         process, this Court traditionally has balanced the three factors set forth in

         Mathews v. Eldridge, 424 U.S. 319, 96 S.Ct. 893, 47 L.Ed.2d 18 (1976). These

         three Mathews factors are (1) ‘the private interest that will be affected by the

         official action’; (2) ‘the risk of an erroneous deprivation of such interest through

         the procedures used, and the probable value, if any, of additional or substitute

         procedural safeguards’; and (3) ‘the Government’s interest, including the function

         involved and the fiscal and administrative burdens that the additional or substitute

         procedural requirement would entail.’ Id. at 335, 96 S. Ct. 893. After balancing

         these factors, as outlined below, we conclude that § 4243(d) is constitutional.

                As to the first Mathews factor, ‘[i]t is clear that “commitment for any purpose

         constitutes a significant deprivation of liberty that requires due process

         protection.” ’ Jones v. United States, 463 U.S. 354, 361, 103 S.Ct. 3043, 77

         L.Ed.2d 694 (1983) (quoting Addington v. Texas, 441 U.S. 418, 425, 99 S.Ct.

         1804, 60 L.Ed.2d 323 (1979)). The private interest at issue is also the ‘stigma’ of

         being placed in a mental institution for an indefinite duration. See Addington, 441

         U.S. at 425-26, 99 S.Ct. 1804.



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                Countervailing factors, however, ameliorate the negative effects on

         Wattleton’s private interests. While committed in a ‘suitable facility,’ Wattleton

         will receive the benefits of hospitalization, care, and treatment, since a ‘suitable

         facility’ is one ‘that ... provide[s] care or treatment given the nature of the offense

         and the characteristics of the defendant.’ 18 U.S.C. § 4247(a)(2); [citation].

         Moreover, the duration of Wattleton’s confinement is restrained by due process.

         *** Since an insanity acquittee is confined to treat a mental illness and to

         safeguard society from danger, Wattleton may be confined only as long as he is

         both mentally ill and dangerous. [Citation.] Because the jury’s verdict already

         labeled Wattleton insane, any additional social stigma due to confinement is

         minimal. [Citation].

                Turning to the second Mathews factor, Wattleton argues that placing the

         burden of proof on the insanity acquittee increases the risk of erroneous

         confinement decisions because, as revealed in the scientific literature, mental

         health experts are unable to accurately predict future dangerousness. The flaw in

         this argument is that the difficulty of predicting dangerousness exists regardless of

         which party has the burden of proof. ***

                In fact, the risk of an erroneous decision is significantly reduced because a

         § 4243 hearing arises only after a jury finds a defendant not guilty by reason of

         insanity and only after all the procedural protections have been afforded the

         defendant in a criminal trial. *** [T]he insanity verdict in and of itself supports



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         the conclusion that the insanity acquittee continues to be mentally ill and

         dangerous.

                In addition, practical considerations support allocating the burden of proof to

         the insanity acquittee at the dangerousness hearing. In making its decision, the

         court relies on mental health experts’ recommendations and reports concerning

         the insanity acquittee’s mental condition. Mental health experts formulate their

         conclusions as to an insanity acquittee’s dangerousness and mental illness in part

         by examining the insanity acquittee. If the government were to bear the burden of

         proof, the accuracy of risk assessments could be impeded by an acquittee who

         was reluctant or unwilling to cooperate in the mental examination. By

         comparison, an insanity acquittee with the burden of proof has an incentive to

         cooperate in the mental examination.

                The last Mathews factor is the government’s interests, including its fiscal and

         administrative burdens. The government undoubtedly has a strong interest in

         safeguarding society from individuals who pose a danger to persons or property

         because of their mental illness. In addition, the government has an interest in

         avoiding relitigation of the trial at the dangerousness hearing. [Citation.]

         Furthermore, as described earlier, the government potentially could confront an

         insanity acquittee who is unwilling to cooperate in a mental examination that is

         necessary to obtain crucial medical information.” Wattleton, 296 F.3d at 1198-

         1201.



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¶ 22         The Wolst court found the reasoning of Wattleton fully applicable to the argument

          concerning the constitutionality of section 5-2-4(g). Gunderson argues that we should not

          follow the decisions in Wattleton and Wolst because of new research concerning

          antipsychotic medications and new research suggesting that “schizophrenia” does not label a

          single disease. Rather, psychiatrists use the label for several different diseases “with quite

          different trajectories,” properly treated by very different medical regimens.

¶ 23         Gunderson presented evidence of the research to the trial court. We do not see any

          grounds for holding that the scientific research affects the question of whether the due

          process clause requires the State to bear the burden of proof in proceedings for discharge. If

          the scientific evidence provides grounds for changing the burdens established in section 5-2-

          4, Gunderson should present the evidence and argument to the General Assembly and seek

          an amendment of section 5-2-4.

¶ 24         We agree with the Wolst court and the reasoning of Wattleton. We find section 5-2-4(g)

          of the Code constitutional. Accordingly, we affirm the trial court’s decision denying

          Gunderson’s motion for discharge.

¶ 25                                           CONCLUSION

¶ 26         Gunderson’s evidence makes a prima facie showing that he no longer suffers from a

          mental illness. Thus, we must address his argument that section 5-2-4 of the Code violates

          Gunderson’s right to due process because it requires him to present clear and convincing

          evidence that he no longer meets the criteria for involuntary commitment before he can

          obtain discharge from the custody of DHS. Following Wolst and Wattleton, we hold that



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          section 5-2-4 of the Code does not violate Gunderson’s right to due process. Accordingly, we

          affirm the trial court’s judgment.

¶ 27         Affirmed.




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