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PUBLIC UTIL. COMMISSION v. ATTLEBORO STEAM & ELECTRIC CO.
[273 U.S. 83, 84] Messrs. R. W. Boyden, of Boston, Mass., Arthur M. Allen and Charles P. Sisson, both of Providence, R. I., and Frank D. Comerford, of Boston, Mass., for petitioners.
Messrs. Robert G. Dodge, of Boston, Mass., Archibald C. Matteson, of Providence, R. I., and Harold S. Davis, of Boston, Mass., for respondent.
This case involves the constitutional validity of an order of the Public Utilities Commission of Rhode Island putting into effect a schedule of prices applying to the sale of electric current in interstate commerce.
The Narragansett Electric Lighting Company is a Rhode Island corporation engaged in manufacturing electric current at its generating plant in the city of Providence and selling such current generally for light, heat and power. The Attleboro Steam & Electric Company is a Massachusetts corporation engaged in supplying electric current for public and private use in the city of Attleboro and its vicinity in that state.
In 1917 these companies entered into a contract by which the Narragansett Company agreed to sell, and the Attleboro Company to buy, for a period of twenty years, all the electricity required by the Attleboro Company for its own use and for sale in the city of Attleboro and the adjacent territory, at a specified basic rate; the current to be delivered by the Narragansett Company at the state line between Rhode Island and Massachusetts and carried over connecting transmission lines to the station of the Attleboro Company in Massachusetts, where it was to be metered. The Narragansett Company filed with the Public Utilities Commission of Rhode Island a schedule setting out the rate and general terms of the contract and was authorized by the Commission to grant the [273 U.S. 83, 85] Attleboro Company the special rate therein shown; and the two companies then entered upon the performance of the contract. Current was thereafter supplied in accordance with its terms; and the generating plant of the Attleboro Company was dismantled.
In 1924 the Narragansett Company-having previously made an unsuccessful attempt to obtain an increase of the special rate to the Attleboro Company 1-filed with the Rhode Island Commission a new schedule, purporting to cancel the original schedule and establish an increased rate for electric current supplied, in specified minimum quantities, to electric lighting companies for their own use or sale to their customers and delivered either in Rhode Island or at the state line.
The Commission thereupon instituted an investigation as to the contract rate and the proposed rate. After a hearing at which both companies were represented, the Commission found that, owing principally to the increased cost of generating electricity, the Narragansett Company in rendering service to the Attleboro Company was suffering an operating loss, without any return on the investment devoted to such service, while the rates to [273 U.S. 83, 86] its other customers yielded a fair return; that the contract rate was unreasonable and a continuance of service to the Attleboro Company under it would be detrimental to the general public welfare and prevent the Narragansett Company from performing its full duty to its other customers; 3 and that the proposed rate was reasonable and would yield a fair return, and no more, for the service to the Attleboro Company. And the Commission thereupon made an order putting into effect the rate contained in the new schedule.
From this order the Attleboro Company prosecuted an appeal to the Supreme Court of Rhode Island which-considering only one of the various objections urged-held, on the authority of Missouri v. Kansas Gas Co., 265 U.S. 298 , 44 S. Ct. 544, that the order of the Commission imposed a direct burden on interstate commerce and was invalid because of conflict with the commerce clause of the Constitution; and entered a decree reversing the order and directing that the rate investigation be dismissed. 46 R. I. 496, 129 A. 495.
It is conceded, rightly, that the sale of electric current by the Narragansett Company to the Attleboro Company is a transaction in interstate commerce, notwithstanding the fact that the current is delivered at the state line. The transmission of electric current from one state to another, like that of gas, is interstate commerce, Coal & Coke Co. v. Pub. Serv. Comm., 84 W. Va. 662, 669, 100 S. E. 557, 7 A. L. R. 108, and its essential character is not affected by a passing of custody and title at the state boundary not arresting the continuous transmission to the intended destination. People's Gas Co. v. Pub. Serv. Comm., 270 U.S. 550, 554 , 46 S. Ct. 371. [273 U.S. 83, 87] The petitioners contend, however, that the Rhode Island Commission cannot effectively exercise its power to regulate the rates for electricity furnished by the Narragansett Company to local consumers, without also regulating the rates for the other service which it furnishes; that if the Narragansett Company continues to furnish electricity to the Atteboro Company at a loss this will tend to increase the burden on the local consumers and impair the ability of the Narragansett Company to give them good service at reasonable prices; and that, therefore, the order of the Commission prescribing a reasonable rate for the interstate service to the Attleboro Company should be sustained as being essentially a local regulation, necessary to the protection of matters of local interest, and affecting interstate commerce only indirectly and incidentally. In support of this contention they rely chiefly upon Pennsylvania Gas Co. v. Pub. Serv. Com., 252 U.S. 23 , 40 S. Ct. 279; and the controlling question presented is whether the present case comes within the rule of the Pennsylvania Gas Co. Case or that of the Kansas Gas Co. Case upon which the Attleboro Company relies.
In the Pennsylvania Gas Co. Case, the company transmitted natural gas by a main pipe line from the source of supply in Pennsylvania to a point of distribution in a city in New York, which it there subdivided and sold at retail to local consumers supplied from the main by pipes laid through the streets of the city. In holding that the New York Public Service Commission might regulate the rate charged to these consumers, the court said that while a state may not 'directly' regulate or burden interstate commerce, it may in some instances, until the subjectmatter is regulated by Congress, pass laws 'indirectly' affecting such commerce, when needed to protect or regulate matters of local interest; that the thing which the New York Commission had undertaken to regulate, while part of an interstate transmission, was 'local in its na- [273 U.S. 83, 88] ture,' pertaining to the furnishing of gas to local consumers, and the service rendered to them was 'essentially local,' being similar to that of a local plant furnishing gas to consumers in a city; and that such 'local service' was not of the character which required general dn uniform regulation of rates by congressional action, even if the local rates might 'affect' the interstate business of the company.
It is clear that the present case is controlled by the Kansas Gas Co. Case. The order of the Rhode Island Commission is not, as in the Pennsylvania Gas Co. Case, a regulation of the rates charged to local consumers, having merely an incidental effect upon interstate commerce, but is a regulation of the rates charged by the Narragansett Company for the interstate service to the Attleboro Company, which places a direct burden upon interstate commerce. Being the imposition of a direct burden upon interstate commerce, from which the state is restrained by the force of the commerce clause, it must necessarily fall, regardless of its purpose. Shafer v. Farmers' Grain Co., 268 U.S. 189, 199 , 45 S. Ct. 481; Real Silk Mills v. Portland, 268 U.S. 325, 336 , 45 S. Ct. 525; Di Santo v. Pennsylvania, 273 U.S. 34 , 47 S. Ct. 267, 71 L. Ed. -, this day decided. It is immaterial that the Narragansett Company is a Rhode Island corporation subject to regulation by the Commission in its local business, or that Rhode Island is the state from which the electric current is transmitted [273 U.S. 83, 90] in interstate commerce, and not that in which it is received, as in the Kansas Gas Co. Case. The forwarding state obviously has no more authority than the receiving state to place a direct burden upon interstate commerce. Pennsylvania v. West Virginia, 262 U.S. 553, 596 , 43 S. Ct. 658, 32 A. L. R. 300. Nor is it material that the general business of the Narragansett Company appears to be chiefly local, while in the Kansas Gas Co. Case the company was principally engaged in interstate business. The test of the validity of a state regulation is not the character of the general business of the company, but whether the particular business which is regulated is essentially local or national in character; and if the regulation places a direct burden upon its interstate business it is none the less beyond the power of the state because this may be the smaller part of its general business. Furthermore, if Rhode Island could place a direct burden upon the interstate business of the Narragansett Company because this would result in indirect benefit to the customers of the Narragansett Company in Rhode Island, Massachusetts could, by parity of reasoning, reduce the rates on such interstate business in order to benefit the customers of the Attleboro Company in that state, who would have, in the aggregate, an interest in the interstate rate correlative to that of the customers of the Narragansett Company in Rhode Island. Plainly, however, the paramount interest in the interstate business carried on between the two companies is not local to either state, but is essentially national in character. The rate is therefore not subject to regulation by either of the two states in the guise of protection to their respective local interests; but, if such regulation is required it can only be attained by the exercise of the power vested in Congress. See Covington Bridge Co. v. Kentucky, 154 U.S. 204, 220 , 14 S. Ct. 1087; Hanley v. Kansas City S. Ry. Co., 187 U.S. 617, 620 , 23 S. Ct. 214.
The business of the Narragansett Company is an intrastate one. The only electricity sold for use without the state is that agreed to be delivered to the Attleboro Company. That company takes less than 3 per cent. of the electricity produced and manufactured by the Narragansett, which has over 70,000 customers in Rhode Island. The problem is essentially local in character. The Commission found as a fact that continuance of the service to the Attleboro Company at the existing rate would prevent the Narragansett from performing its full duty towards its other customers and would be detrimental to the general public welfare. It issued the order specifically to prevent unjust discrimination and to prevent unjust increase in the price to other customers. The Narragansett, a public service corporation of Rhode Island, is subject to regulation by that state. The order complained of is clearly valid as an exercise of the police power, unless it violates the commerce clause.
The power of the state to regulate the selling price of electricity produced and distributed by it within the state and to prevent discrimination is not affected by the fact that the supply is furnished under a longterm contract. Union Dry Goods Co. v. Georgia Public Service Corporation, 248 U.S. 372 , 39 S. Ct. 117, 9 A. L. R. 1420. If the commission lacks the power exercised, it is solely because the electricity is delivered for use in another state. That fact makes the transaction interstate commerce, and Congress has power to legislate on the subject. It has not done so, nor has it legislated on any allied subject, so there can be no contention that it has occupied the field. Nor is this a case in which it can be said that the silence of Congress is a command that the Rhode Island utility shall remain free from the public regulation-that it shall be free to discriminate against the citizens of the state by which it was incorporated and in which it does business. That [273 U.S. 83, 92] state may not, of course, obstruct or directly burden interstate commerce. But to prevent discrimination in the price of electricity wherever used does not obstruct or place a direct burden upon interstate commerce. Such regulation or action is unlike the burden imposed where a transportation rate is fixed, Wabash, St. Louis & Pacific R. Co. v. Illinois, 118 U.S. 557 , 7 S. Ct. 4; or where property moving in interstate commerce is taxed. Champlain Realty Co. v. Brattleboro, 260 U.S. 366 , 43 S. Ct. 146, 25 A. L. R. 1195. The burden resulting from the order here in question resembles more nearly that increase in the cost of an article produced and to be delivered which arises by reason of higher taxes laid upon plant, operations or profits, Old Dominion S. S. Co. v. Virginia, 198 U.S. 299, 305 , 25 S. Ct. 686, 3 Ann. Cas. 1100; American Mfg. Co. v. St. Louis, 250 U.S. 459 , 39 S. Ct. 522; or which arises by reason of expenditures required under police regulations. Pittsburg & Southern Coal Co. v. Louisiana, 156 U.S. 590 , 15 S. Ct. 459; Sligh v. Kirkwood, 237 U.S. 52 , 35 S. Ct. 501; Merchants' Exchange v. Missouri, 248 U.S. 365, 368 , 39 S. Ct. 114. It is like the regulation sustained in Pennsylvania Gas Co. v. Public Service Commission, 252 U.S. 23 , 40 S. Ct. 279, where an order of the New York Public Service Commission fixed the rates at which gas piped from without the state and delivered directly to the consumers might be sold.
The case at bar seems to me distinguishable from others in which the state regulation has been held precluded by the commerce clause. In Missouri v. Kansas Natural Gas Co., 265 U.S. 298 , 44 S. Ct. 544, this court held void a regulation which fixed the rates at which gas piped from without the state and delivered to distributing companies could be sold to the latter. The Pennsylvania Gas Co. Case was distinguished, in that there 'the things done were local. ... The business of supplying, on demand, local consumers is a local business, even though the gas be brought from another state and drawn for distribution directly from interstate mains. ... In such case the local interest [273 U.S. 83, 93] is paramount. ... But here the sale of gas is in wholesale quantities, not to consumers, but to distributing companies for resale to consumers in numerous cities ... in different states. ... The paramount interest is not local but national. ...' Page 309 (44 S. Ct. 546). It was there emphasized that the 'business of the Supply Company, with an exception not important here, (was) wholly interstate.' Page 306 (44 S. Ct. 545). In Shafer v. Farmers' Grain Co., 268 U.S. 189, 192 , 45 S. Ct. 481, 482 (69 L. Ed. 909) where a North Dakota regulation was held invalid, 'about 90 per cent. (of the wheat was) sold within the state to buyers who purchase for shipment, and ship, to terminal markets outside the state' and the 'price paid at the country elevators rises and falls with the price at the terminal markets.' In these two cases the burden was deemed a direct one because the businesses were essentially interstate. In Pennsylvania v. West Virginia, 262 U.S. 553 , 43 S. Ct. 658. 32 A. L. R. 300, the state regulation was held void as discriminating against interstate commerce.
In my opinion the judgment below should be reversed.
[ Footnote 1 ] In 1921 the Commission had authorized the Narragansett Company to put into effect a schedule increasing the special rate to the Attleboro Company; but its enforcement had been enjoined on the ground of the lack of an essential finding by the Commission. Attleboro Steam & E. Co. v. Narragansett E. Light Co. (D. C.) 295 F. 895.
[ Footnote 2 ] No other electric lighting company supplied by the Narragansett Company required, either then or prospectively, the quantity of current necessary to make the proposed rate applicable. The Commission stated that the Attleboro Company was the only customer of the Narragansett Company affected by the proposed rate; and the brief for the petitioners states that the Attleboro Company was the only customer then falling within the schedule class.
[ Footnote 3 ] The evidence showed that in 1923 the Narragansett Company had 71, 554 customers, and that about one thirty-fifth of the current which it produced went to the Attleboro Company.

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Appeal from the United States District Court for the District of Columbia(No. 92cv02494)Robert D. Joffe argued the cause for appellee. With him on the briefs was Henk Brands. Stuart W. Gold entered an appearance.
Jacob M. Lewis, Attorney, U.S. Department of Justice, argued the cause for appellant. With him on the brief were David W. Ogden, Acting Assistant Attorney General, Mark B. Stern, Attorney, Wilma A. Lewis, U.S. Attorney, Christopher J. Wright, General Counsel, Federal Communications Commission, Daniel M. Armstrong, Associate General Counsel, and James M. Carr, Counsel. William E. Kennard, General Counsel, and C. Grey Pash, Jr., Counsel, entered appearances.
Andrew Jay Schwartzman, Angela J. Campbell and Randi M. Albert were on the brief for amici curiae Center for Media Education, Association of Independent Video and Filmmakers, National Association of Artists' Organizations, National Alliance for Media Arts and Culture, Consumer Federation of America, National Council of Senior Citizens, and Office of Communication, Inc. of the United Church of Christ.
The Time Warner Entertainment Company and the United States appeal from portions of the judgment in Daniels Cablevision, Inc. v. United States, 835 F. Supp. 1 (D.D.C. 1993). At issue is the facial constitutionality of two provisions of the Cable Television Consumer Protection and Competition Act of 1992, Pub. L. No. 102-385, 106 Stat. 1460 (1992 Cable Act). The "subscriber limits provision" directs the Federal Communications Commission to limit the number of subscribers a cable operator may reach.47 U.S.C. S 533(f) (1) (A). The "channel occupancy provision" directs the Commission to limit the number of channels on a cable system that may be devoted to video programming in which the operator has a financial interest. Id. S 533(f) (1) (B). Time Warner argues that both provisions facially--that is, no matter how sensitively or sensibly they might be implemented--violate the First Amendment to the Constitution of the United States; the Commission argues the opposite. We conclude that both provisions are facially constitutional.
Time Warner and other owners of cable television systems challenged the constitutionality of the subscriber limits, the channel occupancy, and various other provisions of the 1992 Cable Act in Daniels Cablevision. Upon cross-motions for summary judgment, the district court held that the subscriber limits provision is unconstitutional, see 835 F. Supp. at 10, but the channel occupancy provision is constitutional, see id. at 7 & n.11.* The Government appealed the former ruling while Time Warner appealed the latter.
We consolidated both appeals with Time Warner's petition to this court for review of the regulations the Commission had promulgated to implement the two provisions. See Time Warner Entertainment Co., L.P. v. Federal Communications Comm'n (Time Warner), 93 F.3d 957, 979-80 (D.C. Cir. 1996).In September 1999, however, after the consolidated cases had been scheduled for oral argument, the Commission initiated further rulemaking proceedings with respect to the two provisions. Consequently, we severed Time Warner's statutory challenges from its petitionfor review of the regulations, held the latter in abeyance pending the completion of the further rulemaking, and heard oral argument on the constitutionality of the two statutory provisions that we address today.
Time Warner argues that the subscriber limits provision is a content-based restriction of its ability to communicate with its audience, and as such is subject to strict scrutiny. See Turner Broadcasting System, Inc. v. Federal Communications Comm'n (Turner I), 512 U.S. 622, 642 (1994) (Court has applied "the most exacting scrutiny to regulations that suppress, disadvantage, or impose differential burdens upon speech because of its content"). The Government denies that the subscriber limits provision is content-based, and argues for an intermediate level of scrutiny. See id.
In order to determine the applicable standard of review, then, we must decide whether the subscriber limits provision is content-based. In general, the "principal inquiry in determining content neutrality ... is whether the government has adopted a regulation of speech because of [agreement or] disagreement with the message it conveys." Id. (quoting Ward v. Rock Against Racism, 491 U.S. 781, 791 (1989)). A law that singles out speech based upon the ideas or views expressed is content-based, whereas a law that "confer [s] benefits or impose [s] burdens on speech without reference to the ideas or views expressed" is most likely content-neutral. Id. at 643; see also id. at 661 (law that does not "pose ... inherent dangers to free expression, or present ... potential for censorship or manipulation, [will not] ... justify application of the most exacting level of First Amendment scrutiny").
As a cable operator, Time Warner exercises editorial discretion in selecting the programming it will make available to its subscribers. Time Warner argues that the congress limited its ability to speak by restricting the number of subscribers--and therefore potential viewers--it may reach with the programming it has selected. That this limitation is content based, according to Time Warner, is evident from the Senate Report that accompanied the final version of the 1992 Cable Act. See H.R. Conf. Rep. No. 102-862, at 81-82 (1992), reprinted in 1992 U.S.C.C.A.N. 1133, 1133, 1263-64 (adopting provisions of Senate Bill, as described in Senate Report, S. Rep. No. 102-92, at 32 (1991) [hereinafter S. Rep.]).
Time Warner contends that the Congress's concern that media gatekeepers would "slant" information or fail to provideoutlets for "unorthodox" speech reflects a preference for one type of content and an intent to suppress another, namely, the speech of cable operators. The Company likens the Congress's efforts to limit its speech to the restraints the Supreme Court held unconstitutional in Buckley v. Valeo, 424 U.S. 1 (1976), and First National Bank of Boston v. Bellotti, 435 U.S. 765 (1978). Buckley involved a federal campaign finance law aimed at "equalizing the relative ability of individuals and groups to influence the outcome of elections" by limiting their political expenditures. Id. at 48. The Court rejected "the concept that government may restrict the speech of some elements of our society in order to enhance the relative voice of others [as] wholly foreign to the First Amendment." Id. at 48-49. Bellotti similarly involved a state statute that prohibited certain types of businesses from making contributions or expenditures for the purpose of influencing particular ballot initiatives. The Court reiterated the point it had made in Buckley: A state's effort to control some voices in order to "enhance the relative voices" of less influential speakers "contradicts basic tenets of First Amendment jurisprudence." Bellotti, 435 U.S. at 791 n.30 (noting exception "in the special context of limited access to the channels of communication" and citing Red Lion Broadcasting Co. v. FCC, 395 U.S. 367 (1969)).
The expenditure limit at issue in Buckley, like the prohibition at issue in Bellotti, was content-based because it "was concerned with the communicative impact of the regulated speech." Turner I, 512 U.S. at 658. As the Supreme Court made quite clear in Turner I, however, making way for some speakers, in the cable context where that necessarily means limiting the speech of others, is not inherently content-based. Id. at 643-45. There the Court determined that the "mustcarry" provision of the 1992 Cable Act, which required cable operators to "carry the signals of a specified number of local broadcast television stations," id. at 630, was not content-based, and applied intermediate scrutiny in its review of that provision. Although the must-carry obligation restricted cable operators' speech by limiting the number of channels they could program at will, it did so in a content-neutral fashion and for a content-neutral reason, namely, to protect the interests of non-cable subscribers in maintaining the viability of the television broadcasting industry. Id. at 646.
According to Time Warner, the subscriber limits provision expresses a hostility to the content of large cable operators' speech that did not underlie the must-carry obligation: The subscriber limits are meant to restrict large cable operators from presenting information in accord with their own "biases," in order thereby to promote a diversity of views in cable programming. Increasing the diversity of programming is not, Time Warner argues, among the ends the Supreme Court deemed content-neutral in Turner I.
Time Warner is correct that the Court's acceptance of the must-carry obligation as content-neutral rested in large part upon the Court's understanding that the purpose of the statute was to maintain the availability of broadcast television for those without cable; that does not render Turner I wholly inapplicable, however. The Court also identified the "bottleneck monopoly power" of the cable operator, arising out of the operator's "control over most (if not all) of the television programming that is channeled into the subscriber's home," as the threat to broadcast television. 512 U.S. at 656-57, 661.In enacting the subscriber limits, the Congress was concerned that cable operators might use that same bottleneck power to exclude other providers of cable programming. As with the must-carry obligation, its concern was not with what acable operator might say, but that it might not let others say anything at all in the principal medium for reaching much of the public. See id. at 657 ("The First Amendment's command that government not impede the freedom of speech does not disable the government from taking steps to ensure that private interests not restrict, through physical control of a critical pathway of communication, the free flow of information and ideas"). The must-carry obligation and the subscriber limits provision both preserve for consumers some competition in the provision of programming. The must-carry obligation preserves competition between broadcasters and the cable operator, while the subscriber limits preserve competition between the cable operator and its affiliated programmers on the one hand and unaffiliated providers of cable programming on the other. By placing a value upon diversity and competition in cable programming the Congress did not necessarily also value one speaker, or one type of speech, over another; it merely expressed its intention that there continue to be multiple speakers.
Finally, Time Warner argues that the subscriber limits provision improperly singles out for regulation the cable medium, as opposed to other video programmers such as Direct Broadcast Satellite (DBS) operators. Here it refers us to Turner I, 512 U.S. at 659, where the Court observed, "Regulations that discriminate among media, or among different speakers within a single medium, often present serious First Amendment concerns." According to Time Warner, with the subscriber limits the Congress "targeted a small number of [the various] speakers" capable of purchasing and providing video programming, id. at 660, without providing any justification for limiting the regulation to the cable medium.
In Turner I, however, the Court rejected Turner Broadcasting's claim of discrimination, stating that " [i]t would be error to conclude ... that the First Amendment mandates strict scrutiny for any speech regulation that applies to one medium (or a subset thereof) but not others." Id. at 660.Indeed, the same unique characteristic of the cable medium that justified the imposition of the must-carry obligation is also invoked by the Government to justify the subscriber limits, namely, "the bottleneck monopoly power exercised by cable operators." Id. at 661. In Turner I this bottleneck power was seen to jeopardize the viability of broadcast television; in this case, it arguably threatens diversity and competition in the provision of cable programming. As the Government notes, other video programmers such as DBS lack the bottleneck power of cable operators; nor do they reach nearly as many households as does cable.
A content-neutral regulation of speech "will be sustained under the First Amendment if it  advances important governmental interests unrelated to the suppression of free speech and  does not burden substantially more speech than necessary to further those interests." Turner Broadcasting System, Inc. v. Federal Communications Comm'n (Turner II), 520 U.S. 180, 189 (1997) (citing United States v. O'Brien, 391 U.S. 367, 377 (1968)). If a regulation on speech is intended to redress an actual or an anticipated harm to an important governmental interest, then the Government "must demonstrate that the recited harmsare real, not merely conjectural, and that the regulation will in fact alleviate these harms in a direct and material way." Turner I, 512 U.S. at 664. Our review of the Congress's predictive judgments is deferential; we ask only whether, "in formulating its judgments, Congress has drawn reasonable inferences based on substantial evidence." Turner II, 520 U.S. at 195. Finally, we will uphold a regulation if the important governmental interest in question "would be achieved less effectively absent the regulation" and the regulation does not "burden substantially more speech than is necessary to further that interest." Id. at 213-14 (quoting Turner I, 512 U.S. at 662).
As to advancing an important governmental interest, the Congress enacted the subscriber limits based upon two stated concerns: that cable operators would impose their own biases upon the information they disseminate, and that a few dominant cable operators might preclude new programming services from attaining the critical mass audience necessary to survive. See S. Rep. at 32-33. Time Warner does not argue that the Congress failed to identify an important governmental interest, but rather faults the Congress for having acted without having made findings, and without having evidence upon which it could have made findings, that either of these problems is a real one. See, e.g., Reno v. American Civil Liberties Union, 521 U.S. 844, 117 S. Ct. 2329, 2348 (1997) (invalidating portion of Communications Decency Act "in the light of the absence of any detailed findings by the Congress, or even hearings addressing the special problems of the CDA").
According to Time Warner, cable operators in fact can neither bias the flow of information nor obstruct the expression of unpopular speech because other statutory provisions require them to carry independent programming, including public, educational, and governmental (PEG) programming, and the programming on leased access channels and local broadcast stations. See 47 U.S.C. SS 531, 532, 534 & 535. As for the concern that cable operators might erect barriers to the entry of new programming services, Time Warner argues that the Congress did not establish either that cable operators have attempted to exclude new cable programmers, or that they have an incentive to do so.
The Government responds that the promotion of diversity in ideas and speech, as well as the preservation of competition, are important governmental interests, and that the Congress reasonably viewed increased concentration in the cable industry as a threat to both diversity and competition. The Government acknowledges that the 1992 Cable Act requires cable operators to carry PEG and several other types of local programming, but argues that these requirements were not meant directly to preserve competition, nor do they promote diversity in the sources of cable programming at the national level.
The Senate Report accompanying the 1992 Cable Act noted that concentration of ownership had increased dramatically: by 1990, the five largest cable operators served nearly half the country's cable subscribers. S. Rep. at 32. Witnesses testified that as a result of this increase in concentration "the large MSOs [multiple system operators] have the market power to determine what programming services can 'make it' on cable." S. Rep. at 33. Based upon this and related evidence, the Congress found that " [t]he potential effects of ... concentration [in the cable industry] are barriers to entry for new programmers and a reduction in the number of media voices available to consumers." 47 U.S.C. S 521(a) (4).It also found that " [t]here is a substantial governmental and First Amendment interest in promoting a diversity of views provided through multiple technology media." Id. § 521(a) (6). We conclude that the Congress drew reasonable inferences, based upon substantial evidence,that increases in the concentration of cable operators threatened diversity and competition in the cable industry. See Turner II, 520 U.S. at 195-96 (discussing deference due to Congress's findings).
As to burdening more speech than necessary, Time Warner argues that subscriber limits will not increase the diversity of information sources available to the public in any locale. Nor, we are told, are subscriber limits necessary in order to promote competition; the antitrust laws, as well as the anti-discrimination provision of the 1992 Cable Act, see 47 U.S.C. S 536(a) (3), provide a sufficient check upon any potentially anticompetitive conduct by cable operators.
Although we cannot say that a national ownership cap will surely increase the diversity of programming available at the local level, neither are we required to do so in order to uphold the statute as constitutional. See, e.g., United States v. Albertini, 472 U.S. 675, 689 (1985) ("The validity of [a] regulation [ ] does not turn on a judge's agreement with the responsible decisionmaker concerning the most appropriate method for promoting significant government interests"). It is enough that, having determined that " [c]oncentration has grown dramatically in the cable industry," S. Rep. at 32, the Congress reasonably concluded that this concentration threatened the diversity of information available to the public and could form a barrier to the entry of new cable programmers. That is hardly an unreasonable inference. See Federal Communications Comm'n v. National Citizens Committee for Broadcasting, 436 U.S. 775, 780 (1978); Phillip E. Areeda et al., Antitrust Law p 420a (1995).
Nor is it a fatal flaw that the subscriber limits provision focuses upon behavior already arguably proscribed by other laws. In the subscriber limits provision the Congress took a structural approach to the regulation of cable operators, whereas the anti-discrimination provision of the 1992 Cable Act and the antitrust laws are behavioral prohibitions. As a structural limitation, the subscriber limits provision adds a prophylaxis to the law and avoids the burden of individual proceedings to remedy particular instances of anticompetitive behavior. Cf. Turner II, 520 U.S. at 222-23 (dismissing petitioner's suggestion that antitrust enforcement or an administrative complaint procedure is an adequate alternative to must-carry obligation: "Congress could conclude ... that the considerable expense and delay inherent in antitrust litigation, and the great disparities in wealth and sophistication between the average independent broadcast station and average cable system operator, would make these remedies inadequate substitutes"). In sum, Time Warner has not demonstrated that the subscriber limits provision is on its face either unnecessary or unnecessarily overburdensome.
Vertical integration in the cable industry .... gives cable operators the incentive and ability to favor their affiliated programming services. For example, the cable operator might give its affiliated programmer a more desirable channel position than another programmer, or even refuse to carry other programmers [The channel occupancy provision] is designed to in-crease the diversity of voices available to the public. Some [MSOs] own many programming services. It would be unreasonable for them to occupy a large percentage of channels on a cable system.
The intent of this provision is to place reasonable limits on the number of channels that can be occupied by each MSO's programming services.
S. Rep. at 25, 80.
Time Warner argues that because the Congress expressed concern that cable operators might favor their affiliated programming services the legislature's "stated design was to suppress cable operators' speech," and to advance the speech of nonaffiliated programmers. Again analogizing itself to a newspaper publisher, see Miami Herald Publishing Co. v. Tornillo, 418 U.S. 241, 255-56 (1974), Time Warner argues that a cable operator has a constitutional right to favor its own speech. By interfering with that right in order to alter the mix of programming available on cable, the Congress has impermissibly regulated the content of cable operators' speech.
A cable operator is unlike a newspaper publisher, however, in the one respect crucial to the Congress's reason for enacting the channel occupancy provision: A newspaper publisher does not have the ability to exclude competing publications from its subscribers' homes. The cable operator's bottleneck monopoly is a physical and economic barrier to such intra-medium competition. The channel occupancy provision responds in kind, without regard to the content of either the cable operator's speech or that of the unaffiliated programmer for which it secures an outlet. See Turner I, 512 U.S. at 656.
Nor does the Congress's wanting to ensure a multiplicity of voices on cable inherently bespeak a preference for or a bias against the content of any speech. That is why, in Time Warner, we upheld under intermediate scrutiny the "leased access provision" of the 1992 Cable Act. That provision requires cable operators to set aside a percentage of their channels for commercial use by unaffiliated programmers in order both to bring "the widest possible diversity of information sources" to cable subscribers and "to promote competition in the delivery of diverse sources of video programming."93 F.3d at 968-69. In that case, we rejected Time Warner's argument that the leased access provision was a content based restriction, and therefore subject to strict scrutiny, because nothing in the statute favored or disfavored speech on the basis of its content: "The statutory objective ... [is] framed in terms of the sources of information rather than the substance of the information." Id. at 969 (citing Associated Press v. United States, 326 U.S. 1, 20, 65 (1945)).
Time Warner now argues that whereas the objective of the leased access provision was to promote speech from various sources without regard to content, the channel occupancy provision is meant to limit speech from a particular type of source and therefore necessarily imposes a content-based restriction. Here it refers us to the statement in the Senate Report that cable operators may have "the incentive and ability to favor" their own or an affiliate's speech. S. Rep. at 25. In response, the Government explains, and we agree, that the legislative concern was not with the speech of a particular source but solely with promoting diversity and competition in the cable industry. Like the leased access provision, that is, the focus of the channel occupancy provision is upon the source of speech, not its content. See Time Warner, 93 F.3d at 969 (the "qualification [of nonaffiliates] to lease time on [a cable operator's] channels depends not on the content of their speech, but on their lack of affiliation with the operator, a distinguishing characteristic stemming fromconsiderations relating to the structure of cable television").
We recognize, of course, the possibility that a seemingly neutral limitation may have been crafted in such a way as to single out for regulation the speech of some group that the legislature finds objectionable. See Minneapolis Star & Tribune Co. v. Minnesota Comm'r of Revenue, 460 U.S. 575, 580, 592 (1983) (noting that result in Grosjean v. American Press Co., 297 U.S. 233 (1936), "may have been attributable in part to the perception on the part of the Court that the State imposed the tax with an intent to penalize a selected group of newspapers"). There is not a shred of evidence, however, that such an illicit consideration underlies the channel occupancy provision, and indeed Time Warner stops well short of claiming otherwise. We are therefore confident that the channel occupancy provision is content-neutral and subject only to intermediate scrutiny.
In applying intermediate scrutiny, we inquire "not whether Congress, as an objective matter, was correct" that the channel occupancy provision is necessary to increase the diversity of voices available to the public via cable, but rather "whether the legislative conclusion was reasonable and supported by substantial evidence in the record before Congress." Turner II, 520 U.S. at 211. Time Warner argues that the Congress's reason for enacting the channel occupancy provision--to prevent cable operators from favoring affiliated programmers and possibly even excluding others--addresses only a speculative harm because the Congress had no evidence that such exclusionary conduct actually had occurred. On the contrary, Time Warner contends, a cable operator has an incentive to contract with unaffiliated programmers to the extent that doing so will increase the attractiveness of the video programming packages it offers to subscribers; this incentive is reinforced by increased competition from DBS and other alternative providers of video programming.
47 U.S.C. S 521(a) (5). The Senate Report accompanying the Act discusses the evidence upon which the Congress based these conclusions. Time Warner is of course correct that a cable operator has an incentive to offer an attractive package of programs to consumers, but the company does not deny that a cable operator also has an incentive to favor its affiliated programmers; where the two forces are in conflict, the operator may, as a rational profit-maximizer, compromise the consumers' interests. Hence, the concern of the Congress is well grounded in the evidence and a bit of economic common sense.
Finally, Time Warner argues that the channel occupancy provision is unnecessary in light of the anti-discrimination provision of the 1992 Cable Act as well as the antitrust laws. As we noted earlier, however, a prophylactic, structural limitation is not rendered unnecessary merely because preexisting statutes impose behavioralnorms and ex post remedies. Cf. Turner II, 520 U.S. at 222-23.
The district court at least appears to have found the channel occupancy provision constitutional on its face. The court noted in a footnote that " [l]ike the other vertical integration restrictions, the channel occupancy limits appear unrelated to content. Whether or not the regulations ultimately promulgated by the Commission will pass constitutional muster under [intermediate scrutiny] is, of course, at this point unclear." 835 F. Supp. at 7 n.11.


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The Fourth District reversed trial court’s orders for involuntary admission and involuntary treatment for “egregious” and “cumulative” violations of section 2-107(a) of the Mental Health and Developmental Disabilities Code (Code). 405 ILCS 5/2-107(a). ¶3, 59, 67.
After 34 days after respondent’s admission to a mental health facility, a hearing on the State’s petitions for involuntary admission and involuntary treatment (psychotropic medication and 12 sessions of electroconvulsive therapy - ECT) commenced. ¶2, 10, 16. A week prior to the hearings, respondent’s counsel pointed out the lengthy period of time respondent had been hospitalized while awaiting a hearing and emphasize the importance of moving forward with the hearings as soon as possible due to the State’s administration of psychotropic medication and ECT without respondent’s consent. ¶13. Respondent’s counsel further argued that the administration of the medication and ECT violated section 2-107 of the Code because no emergency situation necessitated that administration of medication prior to the hearing, as medical records showed respondent was eating regularly with prompting. ¶13. Respondent’s counsel asserted, as a result of the delayed proceedings, the mental health facility would be nearly finished with respondent’s ECT treatments before she received a hearing, which circumvented the provisions of the Code and respondent’s rights. ¶13. Respondent’s counsel also stated that she would ask for a temporary restraining order to prevent the further administration of medication, but suddenly halting the medication would place respondent’s health at risk. ¶13.
Respondent declined to attend the hearings. ¶17, 28. The treating psychiatrist testified that upon respondent’s admission, respondent was delusional and displayed catatonic symptoms (staring, engaging in repetitive behaviors, exhibiting bizarre behaviors, displaying waxing flexibility, and refusing to eat or cooperate with treatment plans). ¶18. One of the psychiatrist’s biggest concerns was respondent’s inconsistent eating, as she would sometimes eat nothing and sometimes would eat everything on her tray. ¶18. “She required prompting from staff to eat.” ¶18. The psychiatrist opined that respondent lacked the capacity to consent to treatment. ¶19. Because she lacked capacity, the psychiatrist determined that she also lacked the capacity to refuse treatment. ¶19. Therefore, starting on the day of her admission, the psychiatrist authorized the administration of three psychotropic medications without respondent’s consent. ¶17, 19. At the time, the psychiatrist admitted respondent’s condition would not cause serious and imminent physical harm to herself or others. ¶19, 33. The psychiatrist provided respondent with written documentation of the side effects of every recommended medication approximately four days after beginning treatment. ¶31.
Thirteen days after respondent’s admission and 21 days prior the hearings, the psychiatrist found respondent posed a risk of serious and imminent physical harm to herself by her failure to eat and engage in basic hygiene. ¶20, 33. He therefore ordered ECT on an emergency basis four days later for three times per week. ¶20. By the date of the hearing, she had completed 8 of 12 rounds of ECT, some of which were administered despite her resistance. ¶20, 33, 35. The psychiatrist opined that respondent lacked the capacity to refuse. ¶35. In justifying the emergency ECT, the psychiatrist explained that a person could die of malnutrition in a matter of weeks or months. ¶21. He testified that respondent’s eating was inconsistent and that from the date of her admission, she had lost 5 pounds – from 160 pounds down to 155 pounds. ¶21. At 5 feet 4 inches tall, respondent’s ideal weight was 120 pounds. ¶21. He testified that respondent’s condition was not so serious as to warrant a feeding tube and that she would eat when prompted. ¶21. Although respondent had developed depressive symptoms such as hopelessness and passive thoughts of death (such as hoping to die), she never expressed any desire or intention to kill herself and did not require any one-on-one monitoring. ¶22.
The trial court found the State violated section 2-107(a) of the Code by administering psychotropic medication to respondent without her consent when there was no threat of serious and imminent physical harm. ¶2, 40, 405 ILCS 5/2-107(a). However, the court found the violation to be harmless and granted both orders for a period not to exceed 90 days. ¶2. Respondent appealed both orders, asserting violations under section 2-107 of the Code. ¶3.
Respondent’s appeal centered on the State’s involuntary administration of medication in violation of section 2-107 of the Code and the consequences that can arise from such a violation. ¶47. The appellate court found that this question is of a public nature and likely to recur in the future, as the State’s application and interpretation of the Code affects any patient involuntarily admitted. ¶47. Thus, there exists a need for an authoritative determination to guide mental health professionals and the State when those professionals decide to administer involuntary treatment prior to the trial court entering an order authorizing the treatment.” ¶47. Respondent argued that the State’s administration of involuntary treatment prior to the involuntary-admission proceedings affected her due-process rights by altering her mood and behavior prior to her opportunity to be heard. ¶49. The appellate court concluded that, under these circumstances, the public-interest exception to the mootness doctrine applied for both the involuntary admission and involuntary treatment orders. ¶49.
“Involuntary-admission proceedings implicate an individual’s liberty interest.” ¶51, In re Torski C., 395 Ill. App. 3d 1010, 1017 (4th Dist. 2009). “The Code’s procedural safeguards are not mere technicalities but essential tools to safeguard these liberty interests.” ¶51, In re John R., 339 Ill. App. 3d 778, 785 (5th Dist. 2003).
Absent a situation where respondent posed a threat to cause serious and imminent physical harm to herself or others, the psychiatrist lacked a legal basis to administer the medication. ¶54. The psychiatrist began administering three psychotropic medications to respondent on the date of her admission, despite his belief that she was not at risk for serious and imminent physical harm at that time. ¶54. “He did this under the belief that respondent’s lack of capacity rendered her ‘unable to refuse’ treatment.” ¶54. The appellate court found that the psychiatrist’s “opinion that he could administer treatment to respondent because she was incapable of refusing is a gross misinterpretation of section 2-107(a) of the Code.” ¶55. Under the psychiatrist’s logic, “when a patient lacks capacity, regardless of whether that patient’s condition may cause serious and imminent physical harm, he may choose whatever treatment he deems appropriate prior to any court hearings because the patient can neither consent to nor refuse his decision.” ¶55. “Here, because respondent lacked the capacity to consent to treatment and her condition did not require administration of medication to prevent her from causing serious and imminent physical harm to herself or others, the trial court properly found the State violated section 2-107(a).” ¶55, 405 ILCS 5/2-107(a).
The appellate court noted that the Code sets no specific remedies for violation of section 2-107(a). ¶57, 405 ILCS 5/2-107(a). It rejected the State’s argument that section 2-107(a) violation constituted harmless error as to respondent’s involuntary admission where respondent is unable to demonstrate prejudice. ¶57. Instead, it agreed with respondent that “the egregious, cumulative errors” in this case were not harmless and, instead, violated respondent’s due-process rights. ¶59.
First, the psychiatrist administered psychotropic medication when respondent’s condition did not require the administration of medication to prevent respondent from causing serious and imminent physical harm to herself or others. ¶59. Following the harmless-error analysis (citation omitted), the appellate court noted that respondent was not in a position to make a timely objection to the involuntary administration of treatment because, at the time the psychiatrist authorized the medication, the court proceedings and appointment of counsel would not commence for more than three weeks. ¶59. Moreover, in the psychiatrist’s own words, “respondent’s lack of capacity rendered her incapable of refusing any medication he chose to administer.” ¶59. “Given these circumstances, the violation of section 2-107(a) could not be easily cured.” ¶59. As noted by respondent’s counsel, respondent had been administered psychotropic medication for more than three weeks by the first court appearance, and such medication could not be suddenly stopped without placing respondent’s health at risk. ¶59.
The appellate court rejected the State’s assertion that the violation of section 1-107(a) made no difference in the end, as the trial court granted the petitions. ¶60. The appellate court was not willing to accept the argument that “the ends justify the means” in this situation. ¶60. It noted that by placing respondent on psychotropic medication when she did not pose a risk to cause serious and imminent physical harm to herself or others, the trial court lost the ability to determine respondent’s mental capacity for itself. ¶60. “In this situation, we have evidence the medication altered respondent’s mood and behavior” and “we cannot say the premature administration of medication ‘made no difference.’” ¶60. The court noted, for example, that although respondent self-reported as “happy” at the time of her admission, by the hearing date, her mental state had declined to the point that she hoped to die. ¶60.
Second, the appellate court found that the State’s delay in filing its amended petition left respondent involuntarily admitted for more than a month before she received a hearing date. ¶61. During this time the psychiatrist subjected respondent to psychotropic medications in the face of no evidence that the medication was necessary to prevent respondent from causing serious and imminent physical harm and subjected respondent to undergo eight rounds of ECT – which required anesthesia and triggered seizures – on the basis that she was a serious and imminent threat to herself, as she was not eating properly or bathing regularly. ¶61.
The appellate court held that the legislature could not have contemplated that a patient would wait over a month for a hearing, all the while being administered medication involuntarily. ¶62. “Where a respondent lacks the capacity to consent, she relies on the Code to protect her rights.” ¶62. A delay of over a month nearly permitted the mental health facility to circumvent the Code by treating and releasing respondent before she had the opportunity for a hearing. “Such a delay is inexcusable and shows a complete disregarding for respondent’s liberty interests.” ¶62.
Third, the psychiatrist admitted that he did not initially provide respondent with written information regarding the risks, benefits, side effects, and alternative treatment prior to starting the psychotropic-treatment regimen when respondent was first admitted. ¶64. The appellate court rejected the State’s argument that the delay was de minimis, as she received the written documentation prior to her hearing. ¶64. It noted that the psychiatrist failed to gather that “[t]he rights provided in the statute were not placed in the Code to ensure that a respondent understands a medication’s side effects but to ensure a respondent’s due process rights are met and protected.” ¶64, In re John R., 339 Ill. App. 3d 778, 784 (5th Dist. 2003).
The appellate court found that the trial court was charged with determining whether respondent possesses the capacity to make a reasoned decision about her treatment. ¶65. Here, respondent was deprived of her opportunity to refuse the medication, and because she was already on medication for a significant period of time prior to the long-delayed hearing, the trial court had no way of determining whether respondent lacked the capacity to consent at the time of her admission. ¶65. The appellate court also found that whether the side effects of the medications were worth the risk was an issue for the trial court, yet the psychiatrist took it upon himself to decide that the possible side effects—which included death for dementia patients, heart attack, and suicidal behavior—were worth the risk. ¶66. “Respondent was entitled to her day in court before the long-term administration of mind—and behavior—altering medication.” ¶66.
The appellate court declined to find the error harmless, and accordingly reversed the trial court’s involuntary-admission order. ¶67. Further, because the appellate court reversed the trial court’s involuntary-admission order, respondent no longer qualified as a “[r]ecipient of services” for the administration of involuntary treatment under section 1-123 of the Code. ¶67, 405 ILCS 5/1-123, citing In re John N., 364 Ill. App. 3d 996, 998 (3rd Dist. 2006). The appellate court therefore also reversed the court’s involuntary-medication order. ¶67.
The First District Court affirmed a trial court’s denial of Petition for Discharge from the custody of Department of Human Services (DHS) for a recipient found not guilty by reason of insanity on an attempted murder charge. ¶1. Gunderson-petitioner argued that section 5-2-4(g) of the Unified Code of Corrections (Code) violated his right to due process, because it requires him to prove by clear and convincing evidence that he no longer suffers from a mental illness. ¶1, 730 ILCS 5/5-2-4(g). The appellate court found the statute constitutional. ¶1.
In 2002, following a bench trial, petitioner was found not guilty by reason of insanity on attempted murder and aggravated battery charges. ¶2. In 2015, Gunderson filed a motion for discharge from DHS, or for on-grounds pass privileges. ¶4. At the hearing on the motion, petitioner’s mother testified that she believed that he had recovered from his illness, that he did not present a threat of harm to anyone, and that he could live with his parents. ¶4. Petitioner’s treating psychiatrist recommended on-grounds pass privileges. ¶5. The treating psychiatrist testified that petitioner no longer showed any symptoms of mental illness – with schizophrenia in remission, that he was not prescribe any medication, and that he progressed well without medication since 2011. ¶5. Petitioner’s social worker testified that although no one on the treatment team recommended discharge for him, she never saw petitioner act aggressively, saw no signs or symptoms of schizophrenia, and signed onto the recommendation for on-grounds passes to assess how well defendant could handle increased freedom. ¶6. A psychologist, who reviewed the treatment team’s recommendations, agreed that petitioner should have on-grounds passes and that petitioner presented little risk of violent behavior. ¶7. Another psychiatrist who examined petitioner in 2003 and 2004 and briefly in 2015, opined that schizophrenia is always a lifelong illness that patients can control only with antipsychotic medication. ¶8. The psychiatrist 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. ¶9. He found that petitioner showed several signs of continuing schizophrenia and opposed the request for on-grounds pass privileges. ¶8, 9. Finally, a clinical psychologist testified that according to every controlled study of patients treated for schizophrenia for 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. ¶10. The clinical psychologist tested and interviewed petitioner, found that he no longer met the criteria for a diagnosis of schizophrenia. ¶12. He opined that petitioner presented only a low level of risk for adverse behavior with more freedom and concurred with the recommendation for on-grounds passes to assess his response to increased freedom. ¶12.
The trial judge found the clinical psychologist not credible and gave little weight to the testimony of his treatment team. ¶13. Instead the judge relied on his interpretation of petitioner’s body language and the testimony of the second psychiatrist. ¶13. Although the judge relied on the second psychiatrist’s opinion, the judge expressly said that he was not convinced that patients must have antipsychotic drugs for life to control schizophrenia. ¶13. The judge denied the motion for on-grounds passes and the motion for discharge. ¶13.
Whether section 5-2-4 of the Code, which requires petitioner found not guilty by reason of insanity to present clear and convincing evidence that he no longer meets the criteria for involuntary commitment before he can obtain discharge, is unconstitutional. 730 ILCS 5/5-2-4(g). ¶16, 26. Petitioner abandoned his pursuit of on-grounds passes. ¶16.
The appellate court found that petitioner presented a prima facie showing that he no longer suffered from a mental illness. ¶18. (While the treating psychiatrist diagnosed petitioner’s condition as schizophrenia in remission, that diagnosis remained compatible with a finding that he no longer suffered from a mental illness. ¶17, 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). See also Foucha v. Louisiana, 504 U.S. 71, 85 (1992). ¶18.) However, section 5-2-4(g) requires a petitioner who seeks discharge to prove, by clear and convincing evidence, either that he has no mental illness or that he is not dangerous. ¶19. See People v. Wolst, 347 Ill. App. 3d 782, 790 (2004). The appellate court agreed with the Wolst court and its underlying reason under United States v. Wattleton, 296 F.3d 1184 (11th Cir. 2002), and held that section 5-2-4 of the Code does not violate petitioner’s right to due process. ¶21, 26. Affirmed. ¶27.
After Jackson-defendant called 911 for an ambulance, paramedics arrived to find him “agitated,” “nervous,” “irrational,” and “very uncooperative,” suffering from some type of psychological issue and with an “altered” mental state. ¶1. The paramedics then called for police assistance. ¶1. After the police arrived, defendant screamed and flailed. ¶1. One police officer used his 50,000 volts taser on defendant, striking him 10 times, and the other officer tried to grab defendant and was kicked in the shins. ¶1, 3. Ultimately, the police subdued him and placed him into an ambulance to be transported to a hospital. ¶1. Defendant was charged with battery and resisting arrest, and after a jury trial, was convicted of the charges. ¶1.
The appellate court found that the evidence was insufficient to support a finding that defendant had the requisite mental state to commit the crimes of battery and resisting a peace officer. ¶24, 26. Rather, there was an abundance of evidence – almost all of it from the State witnesses – defendant was not “knowingly” acting during the incident. ¶26. Both paramedics, observed, on their arrival, that defendant was “nervous” and “agitated”. ¶26. One paramedic though defendant was suffering from some type of psychological issue and the other paramedic though that defendant’s mental state was altered. ¶26. For example, though the paramedics were in uniform, and driving a vehicle distinctively marked as an ambulance, defendant repeatedly denied they were paramedics and continued to call 911. ¶26. Although defendant exhibited verbal coherence, it does not indicate a “knowing” state of mind indicating that he understood what was happening to him. ¶26. The appellate court did not know the cause of defendant’s behavior (i.e., epilepsy, drug intoxication, some undiagnosed mental illness, or being tasered 10 times), but did not need to know. ¶27. The appellate court found the State’s evidence establishing defendant’s mens rea or mental state, here his knowledge, was so conflicting, so unsatisfactory, as to create reasonable doubt of defendant’s guilt. ¶31. Accordingly, the evidence was insufficient to support defendant’s conviction. ¶31.
Supreme Court Rule 431(b) mandates that a trial court ask potential jurors whether they “understand [ ] and accept [ ]” these four principles: (i) the defendant is presumed innocent; (ii) the State must prove the defendant guilty beyond a reasonable doubt; (iii) the defendant is not required to offer any evidence on his or her own behalf; and (iv) the defendant’s failure to testify cannot be held against him or her. ¶37, Ill. Sup. Ct. R. 431(b), People v. Thompson, 238 Ill.2d 598, 606-07 (2010). Failure to question the jurors on each of these four principles violated the rule. ¶37, citing Thompson 238 Ill. 2d 607. During voir dire, the trial court neglected to use the words “understand and accept,” but rather asked potential jurors if they disagreed with the four principles or would be unable to follow them. ¶38. The appellate court found that the State rightly conceded error on this issue. ¶38.
“Other-crimes” evidence may not be admitted to prove a defendant’s propensity to commit a crime because a jury might convict the defendant not based on the evidence, but that the defendant deserves punishment. ¶40, People v. Placek, 184 Ill.2d 370, 385 (1998). Nonetheless, this type of evidence can be admitted to prove intent, modus operandi, identity, motive, absence of mistake, or any material fact other than propensity that is relevant to the case. ¶40, People v. Donoho, 204 Ill.2d 159, 170 (2003). Even when the evidence is admissible, the trial court must weigh its prejudicial effect versus its probative value, and exclude it if too prejudicial ¶40, Placek, 184 Ill.2d 385.
Although the State argued that the testimony regarding a cannabis smell was relevant to the “continuing narrative” of defendant’s arrest as it informed the actions of both the police and paramedics, the appellate court found that none of the evidence presented regarding the cannabis smell was, in fact, part of any continuing narrative. ¶41. Even crimes that occur in close proximity will not be admitted as part of a continuing narrative “if the crimes are distinct and undertaken for different reasons at a different place at a separate time.” ¶41, (internal quotations and citations omitted) People v. Adkins, 239 Ill.2d 1, 33 (2010). The appellate court found that assuming the cannabis smell indicated that defendant had illegally used marijuana, no medical evidence was introduced as to when or where he had used it, or that he was still under its influence during the incident. ¶41. There was nothing linking possible marijuana use with defendant’s behavior, and there was nothing to indicate that the marijuana smell impacted anyone’s actions, either the defendant’s, the police’s and the paramedics’. ¶41, 42. The witnesses consistently testified that defendant was irrational, uncooperative, and agitated, and that they were not sure why he was behaving the way he did. ¶42. “Admission of this evidence was error.” ¶43.
Lay witnesses can testify based on a rational perception if it is helpful for the determination of a fact in issue. ¶48, Ill. R. Evid. 701(a), (b); People v. Donegan, 2012 IL App (1st) 102325, ¶42. But, lay witnesses cannot testify to an opinion based on scientific, technical, or other specialized knowledge. ¶48, Ill. R. Evid. 701 (c); Donegan, 2012 IL App (1st) 102325, ¶42. The paramedics’ lay opinion testimony was improper under Illinois Rule of Evidence 701, since they were not properly qualified as an expert witness on seizures. ¶51, 53, Ill. R. Ev. 702. If the paramedics had limited their testimony to their own observations or defendant’s behavior, it would have been admissible. ¶54. The appellate court held that the admission of these lay opinions was error because it violated Illinois Rule of Evidence 701 and went to the ultimate question of fact to be decided by the jury. ¶57, People v. Brown, 200 Ill. App. 3d 566, 579 (1st Dist. 1990).
(5) The prosecutor made improper comments during closing argument.
The appellate court found that the prosecutor made improper comments during closing argument about the marijuana smell and the opinion testimony. ¶75. However, it was not so serious that they denied defendant a fair trial or cast doubt on the reliability of the judicial process. ¶75.
The appellate court reversed the trial court’s conviction. ¶81. The appellate court noted that battery against a police officer is a serious charge, but being kicked in the legs by a mentally unstable person (causing no serious injury) is not the type of touching that requires either specific or general deterrence. ¶3. The appellate court also noted that the officers should receive training in how to de-escalate such a situation and that the prosecution was a waste of time and money. ¶3, 4.
The Third District Court reversed orders for involuntary admission and for administration of psychotropic medication. ¶1. The appellate court found that respondent’s counsel’s performance was deficient for not objecting to State’s omission of testimony of an expert who had not personally examined respondent. ¶23. The State’s expert psychiatrist testified that she had not personally examined respondent. ¶23. Counsel’s omission prejudiced the outcome of proceedings, as respondent could not be subject to involuntary admission without testimony of expert who had personally examined her. ¶23. Counsel’s performance was also deficient for not raising omission of any written information on one of the medications (lithium) it had ordered. ¶26.
On the date of the hearing for involuntary admission, a psychiatrist, the State’s expert witness, testified that although the expert witness had reviewed respondent’s medical records, she had not personally examined respondent. ¶6. The trial court found respondent subject to involuntary admission and then proceeded to a hearing on the State’s petition for involuntary treatment. ¶9. After a hearing involving the testimony of the same psychiatrist, the trial court found respondent subject to involuntary treatment for a period of up to 90 days. ¶10-12. There was no record that respondent was given written information about one of the medications (lithium) ordered by the circuit court. ¶26. Respondent appealed. ¶12.
In addressing the mootness issue, the appellate court emphasized the importance of respondent’s legal counsel in mental health proceedings. ¶17. “Absent ineffective assistance of counsel review, the statutory guarantee of counsel is rendered a ‘ “hollow gesture serving only superficially to satisfy due process requirements.” ’ ” ¶17, In re Carmody, 274 Ill. App. 3d 46, 55 (4th Dist. 1995) (quoting In re Commitment of Hutchinson, 421 A.2d 261, 264 (Pa. Super. Ct. 1980)). ¶17. “Counsel’s actions protect respondent’s constitutionally protected liberty interest to refuse the administration of psychotropic drugs.” ¶17, U.S. Const., amend. XIV; see also In re C.E., 161 Ill.2d 200, 214 (1994) (holding that “mentally ill or developmentally disabled [persons] have a Federal constitutionally protected liberty interest to refuse the administration of psychotropic drugs”); In re Benny M., 2015 IL App (2d) 141075, ¶ (noting “like defense counsel in a criminal proceeding, the respondent’s counsel in a mental health proceeding plays an essential role in ensuring a fair trial”).
“Generally, court of review do not decide moot questions.” ¶16, In re Alfred H.H., 233 Ill. 2d 345, 351 (2009). “However, the ‘capable of repetition yet avoiding review’ exception permits review of an otherwise moot issue.” ¶16, Id. At 358. This mootness exception has two elements: (1) the challenged action is of a duration too short to be fully litigated prior to its cessation; and (2) there is a reasonable expectation that the complaining party will be subject to the same action again. ¶16, Id. At 358. The parties agreed that the present issue (ineffective assistance of counsel) satisfied the first prong. ¶16. However, the State argued that there was not a reasonable expectation that respondent would be subject to the same action again. ¶16.
The appellate court found that respondent’s ineffective assistance of counsel issue satisfied the second prong. ¶17. The record established that respondent had a 10-year history of mental illness, which included two prior hospitalizations. ¶17. The appellate court noted that there was no evidence presented that the proposed treatment plan would alleviate respondent’s mental illness entirely. ¶17. “Rather, the evidence showed that her cognitive function would be stabilized once the treatment was in full effect.” ¶17. However, respondent had discontinued treatment in the past. ¶17. “Therefore, it is very likely that respondent will face future involuntary hospital admission or involuntary administration of psychotropic medication proceedings.” ¶17. “As respondent is statutorily entitled to counsel during these proceedings (405 ILCS 5/3-805), ineffective assistance of counsel issues are likely to recur.” ¶17.
Section 3-807 of the Mental Health and Developmental Disabilities Code (Code) provides, “No respondent may be found subject to involuntary admission on an inpatient or outpatient basis unless at least one psychiatrist, clinical social worker, clinical psychologist, or qualified examiner who has examined the respondent testifies in person at the hearing. The respondent may waive the requirement of the testimony subject to the approval of the court.” ¶21. (Emphasis added.) 405 ILCS 5/3-807.
In this case, the expert’s testimony established that she had not personally examined respondent. ¶23. Respondent did not waive the testimony of the expert and the expert’s review of respondent’s medical records did not satisfy this statutory requirement. ¶23, In re Michelle J., 209 Ill. 2d 428, 437 (2004) (reviewing a respondent’s medical records does not satisfy the statutory requirement that the expert examine the respondent prior to the hearing). “Therefore, counsel’s performance was deficient for not objecting to the State’s omission of testimony of an expert who had not examined respondent.” ¶23. Counsel’s omission prejudiced the outcome of the proceedings as respondent could not be subject to involuntary admission without testimony of an expert examiner who actually examined her. ¶23, 405 ILCS 5/3-807.
“Section 2-102 of the Code requires that State to notify the recipient of involuntarily administered psychotropic medication with written notice of the “side effects, risks, and benefits of the treatment as well as alternatives to the proposed treatment.”” ¶25, 405 ILCS 5/2-102(a-5). Such information is required for respondent to make an informed decision on treatment and verbal advice does not satisfy this statutory requirement. ¶25, In re Vanessa K., 2011 IL App (3d) 100545, ¶20.
The State conceded that respondent did not receive written information about one of the medications (lithium) it was requesting. ¶26. The appellate court accepted the State’s confession and found that there was no indication that respondent received written notice of the side effects, risks, benefits, and alternative treatments of lithium. ¶26. “As respondent could not be compelled to take lithium without receiving the statutorily required written information, counsel’s performance was deficient for failing to raise this issue.” ¶26, 405 ILCS 5/2-102(a-5).