In the Matter of Lomax

HARRIS’, Associate Judge,

with whom Associate Judge NEBEKER concurs, dissenting:

The majority opinion is akin to a murder mystery which remains unsolved, or to a shell game without a pea. It patently is devoid of a rationale.

There is no need to develop an in-depth analysis at this stage; my views on both the appealability question and the merits of the case are fully set forth in the original majority opinion which the en banc court has chosen to nullify. In re Lomax, D.C.App., 367 A.2d 1272 (1976). It should be noted, however, that the differences between Judge Mack’s earlier dissent ( 367 A.2d at 1283 ) and the current majority opinion are striking. While the major portion of the original dissent reflected disagreement with the stay which had been *1190 granted by a motions division of this court, that dissent also reflected its author’s apparent belief in the existence of constitutional barriers to the government’s right to appeal from an adverse result in a civil commitment proceeding. Those purported barriers have vanished in the interim.

Two facts are inescapable in this proceeding. The Superintendent of Saint Eliza-beths Hospital (hereinafter the government) was the moving party in the trial court, and the government lost the case. By any proper standard, those facts make the government the party aggrieved by the outcome of the trial, and entitle it to take an appeal “as of right” pursuant to § 11-721(b) of the District of Columbia Code. The majority opinion cites no statutory or constitutional bar to the government’s right to appeal, but sets forth instead homilies such as “it is difficult to see how any party can be ‘aggrieved’ by another’s release from detention . . . .” Equally unpersuasive from a jurisdictional standpoint is the majority’s reliance upon the fact that the government had as a potential alternative to an appeal the initiation of a new civil commitment proceeding. The government felt that it erroneously had been denied a fair trial, and it is not our role to question the wisdom of its seeking appellate review rather than some other remedy of supposedly equal efficacy.

Notably vague in the majority opinion is its statement “that the design and intent of [the civil commitment] legislation operate to defeat this appeal just as certainly as the double jeopardy clause does in the criminal law context.” Initially, I note that the double jeopardy clause does not constitute a per se bar to the government’s right to appeal in a criminal case. Irrespective of such statutory provisions as those which specify the government’s right to appeal from certain adverse rulings either before or during a criminal trial (see D.C.Code 1973, § 23-104), the following propositions which were set forth in footnote 6 to the now-vacated prior majority opinion remain valid:

The double jeopardy clause is directed against multiple criminal prosecutions, not against government appeals. United States v. Wilson, 420 U.S. 332, 342 , 95 S.Ct. 1013 , 43 L.Ed.2d 232 .. . (1975). However, within such a context, where a government appeal would require a new trial if successful, it is that clause which acts as the constitutional impediment to the initiation of appellate review by the government. See United States v. Jenkins, 420 U.S. 358, 369 , 95 S.Ct. 1006 , 43 L.Ed.2d 250 . . . (1975). [ 367 A.2d at 1278 n. 6.]

The current majority opinion quite properly stops short of asserting that double jeopardy principles have any real applicability here, for unquestionably they do not. The Supreme Court stated in United States v. Wilson, supra, 420 U.S. at 344 n. 13, 95 S.Ct. at 1022:

On a number of occasions, the Court has observed that the Double Jeopardy Clause “prohibits merely punishing twice, or attempting a second time to punish criminally for the same offense.” Helvering v. Mitchell, 303 U.S. 391, 399 , 58 S.Ct. 630 , 82 L.Ed. 917 (1938). [Further citations omitted.]

Assuredly a mental health proceeding must be classified as noncriminal. Illustratively, the circuit court has noted: “The purpose of involuntary hospitalization is treatment, not punishment.” Rouse v. Cameron, 125 U.S.App.D.C. 366 , 367, 373 F.2d 451, 452 (1966). See also Gomes v. Gaugham, 471 F.2d 794, 797 (1st Cir. 1973).

In its concluding paragraph, the majority opinion states in part “that allowance of an appeal in this case would serve no legitimate purpose . . . ." However, we are not dealing here with one of those limited situations in which a party may obtain our review of an adverse trial court judgment only by having an application for allowance of an appeal granted. See D.C. Code 1973, § 11 — 721(c). In all other cases, Congress has given a losing party an appeal “as of right”' by § ll-721(b) [see also § ll-721(a)(l)].

*1191 The majority opinion does more than decline to allow an appeal; it takes away a right to appeal which specifically is afforded by the Code. What the majority does today is to create the wholly incongruous situation in which only one party to a proceeding under the Hospitalization of the Mentally Ill Act — the respondent — may appeal from an adverse result. It does so without there being any statutory (or constitutional) support for such a ruling. The majority’s suggestion that legal error in a civil commitment proceeding may be handled by resort to professional discipline is specious. The government’s basic position here (which I still consider to be eminently sound) is that the trial judge erred in denying a motion for a mistrial, not that respondent’s trial counsel violated the Code of Professional Responsibility. Today’s holding (assuming a result in favor of a respondent) precludes appellate review of any error by the trial court, no matter how egregious or how harmful the result thereof may be to the respondent or the community. Henceforth even a manifestly erroneous ruling by a trial judge in a civil commitment proceeding (e. g., an unwarranted directed verdict in favor of a respondent) is immune from appellate review. This scarcely comports with the system of balances which has been built so carefully into our judicial processes.

A knowledgeable observer undoubtedly will conclude that the absence of a discernible rationale for the majority’s dismissal of this appeal is not to be attributed to a lack of effort by the able judge who authored the majority opinion, but rather to the inescapable fact that there is no valid, articula-ble legal theory which can attain the support of a majority of the en banc court. I firmly believe that sound jurisprudence demands more than decision by a mere preference for a particular result. Accordingly, I respectfully dissent.