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SIXTH DIVISION

May 24, 2002

JUSTICE O'MARA FROSSARD delivered the opinion of the court: 

Plaintiffs C.J., K.M., and Thomas Juresic filed this class action lawsuit seeking injunctiverelief against defendant, the Illinois Department of Human Services (Department). Plaintiffs arecriminal defendants found not guilty by reason of insanity (NGRIs) who were involuntarilycommitted to the Elgin Mental Health Center (Elgin). Plaintiffs filed suit challenging theDepartment's policy that did not allow any NGRI patient at Elgin to be considered orrecommended by Elgin staff for an unsupervised on-grounds pass. Plaintiffs contend that theDepartment policy deprived plaintiffs of their liberty interest in freedom of bodily movementwithout the exercise of professional judgment in violation of the due process clause of thefourteenth amendment of the United States Constitution (U.S. Const., amend. XIV). The trial court initially granted the Department's motion under section 2-619 of the Code

of Civil Procedure (735 ILCS 5/2-619 (West 1998)) to dismiss plaintiffs' complaint. On appealthis court affirmed dismissal of plaintiffs' Illinois statutory claims in counts I, II, III, IV and V. C.J. v. Department of Mental Health & Developmental Disabilities, 296 Ill. App. 3d 17, 23-27(1998). However, we reversed and remanded plaintiffs' constitutional claims. We found, as tocounts VI, VII, and VIII, that plaintiffs "adequately pled a constitutionally protected libertyinterest in freedom of bodily movement, challenging the Department's alleged policy preventingthe facility director of Elgin from considering unsupervised on-grounds passes for the plaintiffs." C.J. v. Department of Mental Health & Developmental Disabilities, 296 Ill. App. 3d 17, 29(1998). In the counts that survived the motion to dismiss, the plaintiffs alleged that theDepartment's policy restricting grounds passes violated due process because it was not based onprofessional judgment (count VI); it restricted plaintiffs' liberty interest in freedom of bodilymovement (count VII); and it was unrelated to a reasonable expectation that any NGRI patientwill inflict physical harm to others if considered for a grounds pass (count VIII).

On remand, we indicated that various questions of fact needed to be addressed by the trialcourt before it determined whether the Department violated due process by depriving plaintiffs oftheir liberty interest in freedom of bodily movement without the exercise of professionaljudgment. Based on plaintiffs' surviving allegations, we asked the trial court to resolve thefactual issues raised by the pleadings by addressing what constitutes an unsupervised on-groundspass, the nature of the plaintiffs' liberty interest in freedom of movement, plaintiffs' conditions ofconfinement, whether the Department adopted a policy prohibiting the exercise of professionaljudgment regarding considering and recommending passes, and the Department's justification interms of due process for restricting the plaintiffs' liberty. C.J., 296 Ill. App. 3d at 31-32.

The trial court on remand conducted a hearing during which it considered testimonyincluding oral and written submissions from the parties. Plaintiffs called Department employeesDr. Dinwiddie, medical director at Elgin, Dennis Headley, forensic program administrator atElgin, and Michael Howie, the forensic network manager for the Department, as adversewitnesses. Lorenzo Turner, a former NGRI patient who was discharged from Elgin in 1997,testified for the plaintiffs.

After considering the evidence and addressing the factual issues we previously identified,the court granted class action relief in favor of the plaintiffs and ordered its injunction to apply toall similarly situated current or future NGRI patients at Elgin. On November 8, 1999, the trialcourt entered a written order consistent with its oral findings granting plaintiffs relief from thepass policy directed at all NGRI patients at Elgin, which restricted their freedom of movementwithout the exercise of professional judgment. The trial court, applying the principles articulatedin Youngberg v. Romeo, 457 U.S. 307, 73 L. Ed. 2d 28, 102 S. Ct. 2452 (1982), found theDepartment deprived plaintiffs of their liberty interest in freedom of bodily movement withoutthe exercise of professional judgment and found that this deprivation of liberty violated the dueprocess clause of the fourteenth amendment. The trial court found that no legitimate interest ofthe Department would be harmed by the injunction and that plaintiffs would suffer irreparableharm if a permanent injunction were not issued. The court in granting plaintiffs injunctive reliefregarding the on-grounds passes ordered that the Department exercise "individualizedprofessional judgment in considering, reviewing, recommending and approving such passes." Plaintiffs' motion for costs and fees pursuant to 42 U.S.C.