It has to be on purpose

Last week on Thursday, May 5, 2016, at about 10:30 AM, a patient at Elgin Mental Health Center was told by staff that the best way to get permission to have an MP-3 player would be to go to court and sue the state for that privilege. Supposedly, "No MP-3 players allowed" is policy.

But... the same patient has had an MP-3 player before at Elgin Mental Health Center. That was on a different clinical unit, so maybe the "policy" isn't facility-wide. Maybe it's just "policy" for the unit this patient is on now. Or maybe it's a new "policy". Of course, any policy that is real is written. People often say ""It's policy," when the truth is, it's arbitrary retribution or the decision of one person about one other person or one situation in one moment.

Of course, written policy, officially adopted pursuant to administrative codes and statutes by a state agency, if it were unjust or unnecessarily in violation of rights, would call for litigation. One goes to court to deal with such official conflicts. But civil litigation is expensive, and almost any predictable conflict can be resolved by cheaper means. When it comes to states, here are many developed avenues for conflict resolution. This is because states don't want to spend taxpayer money unnecessarily.

A recent Federal Appeals Court decision highlights this situation in Illinois. In Hughes v. Scott, 2016 U.S. App. LEXIS 5349, Richard Posner wrote the opinion overturning a lower court's dismissal of the plaintiff's claim that his First Amendment right to petition the government for redress of grievances had been violated by staff at an Illinois forensic psychiatric institution.

The defendant had argued, and the lower court had agreed, that Hughes' due process rights had not been abridged, because he was able to sue. It was substantially the same argument as that of the Elgin staff member on Thursday: if you want an MP-3 player on this clinical unit, go ahead and sue us for it!

Never mind that the only reason a state mental health employee ever says that is, it's a very easy presumption that the patient will not sue. Forensic psychiatric patients just about never have the resources to hire attorneys for every little complaint. Nobody wants to know or mess with what happens on a daily basis inside state mental hospitals, either. So, "Sue me," really, is kind of like just the common, "F___ you!"

Well, in the one case, Hughes did sue. In his opinion overturning the lower court's dismissal of that suit, Judge Posner wrote,

"(P)erhaps the most remarkable feature of this case is the defendants' insistence in defiance of the Illinois Administrative Code that Hughes has no need to invoke grievance procedures because he can always sue, as he has done. What makes this contention remarkable is the

fact that the interests of Rushville (the state institution), of the Illinois Department of Human Services, and of the taxpayers of this almost bankrupt state, obviously are best served if grievances are handled at the facility level rather than by the court system, which is far more costly. Does Rushville have an unlimited budget, so that it can pay lawyers to defend against lawsuits brought only because the institution refuses to obey the Administrative Code and respond to Hughes' grievances, preferring instead to ridicule him and drive him to sue Rushville staff?

"We don't get it. But we have said enough to require that the judgment of dismissal be vacated and the case returned to the district court to try to make sense of the conduct of the defendants and their institution, and to determine whether they are in fact improperly impeding the plaintiff's constitutional right to petition government for redress of grievances."

So, what do you know? The staff member who told a patient last week to sue for an MP-3 player was glibly, arrogantly, refusing to respond a grievance. Clearly the interests of Elgin Mental Health Center, the Illinois Department of Human Services, and the taxpayers of this almost bankrupt state, are remarkably contrary to what this staff member did, exactly as in the Hughes v. Scott case.

Perhaps we will see whether this was a violation of the patient's constitutional rights.