Lynch v. Baxley

VARNER, District Judge

(dissenting):

Differing from parts of the opinion of the majority of this Court, I respectfully dissent from several aspects thereof.

I am gravely concerned that the majority opinion would strip the State of any functional statute for commitment of any but the criminally insane 1 and would force the release of some persons dangerous to themselves or others. It is inconceivable to me that the Legislature intended to leave this State without a legally sufficient procedure for committing the needy insane or the dangerous insane. 2 I would, therefore, construe as facially constitutional that part of the commitment statutes which are not constitutionally inappropriate for the purpose of allowing commitment of insane persons and hold void only those parts thereof which are clearly constitutionally offensive.

Approaching the question of severability of the constitutionally offensive clauses of the questioned statutes, the test is whether or not the statute, absent the offensive portions, can be so applied as to accomplish the legislative purpose. 3

*398 I conceive Alabama Code, Title 45, § 208, as being facially constitutional except for the phrase “or not, as he sees fit,” allowing the judge to determine suitability of a subject for application to an insane hospital either by examining witnesses or not without any standards governing the exercise of his discretion. This phrase, in my judgment, offends the Equal Protection Clause of the Constitution, but it may be stricken from the statute without doing violence to the obvious legislative intent.

To the extent that Alabama Code, Title 45, § 210, contemplates commitment after inquisition proceedings conducted pursuant to constitutionally appropriate inquisition statutes, I find it not constitutionally offensive. However, to the extent that it allows the Probate Court to grant or deny the right of confrontation and to grant or deny a jury hearing “* -* * either with or without a jury, and either with or without the presence in court of the person * * * ”, I agree with the majority that it is offensive to the “equal protection” clause of the Constitution. Aboli-' tion of this phrase would not do violence to the legislative intent. The above quoted phrase should, therefore, be stricken, and I agree that the right to a jury and to be present at the hearing must be preserved to the extent provided by the opinion of the majority.

Title 15, § 432, gives considerable difficulty in that the first sentence thereof seems to imply that any officer or person is qualified to make the initial decision that a subject is insane. Secondly, the first sentence, by the use of the verb “shall issue”,, seems to imply that the probate judge has a statutory mandate to immediately issue the preliminary commitment. A reading of the third and fourth sentences of the section, however, demonstrates that the judge of probate is not obligated to issue a commitment unless he has reasonable doubt as to the sanity of the subject. I suggest that the distinction between the requirement for temporary commitment to jail in a criminal case — “probable cause to believe”— and the requirement for temporary commitment of an allegedly insane person— “á reasonable doubt as to his sanity” — is justified by the fact that the State interest in the insanity case involves the safety of the subject as well as the public interest. This, I think, is a reasonable basis for the distinction. The standard “a reasonable doubt of his sanity” is comparable to the standard for continued commission of the insane convicted criminal whose sentence is about to expire ( 18 U.S.C. § 4247 ) if his release “will probably endanger the safety of the officers, the property, or other interests of the United States.” See Jackson v. Indiana, 406 U.S. 715, 732 , 92 S.Ct. 1845 , 32 L.Ed.2d 435 ; Greenwood v. United States, 350 U.S. 366, 373-374 , 76 S.Ct. 410 , 100 L.Ed. 412 . Presumably, the decision (reasonable doubt as to sanity) should be made in a constitutional manner, the statute itself not directing otherwise. The obvious import of the first part of the first sentence is that, where reasonable cause appears to believe that an insane person is at large and not under the control, restraint or management of any person, he may be taken into custody by any person and carried immediately to the probate judge of the county who, after due consideration of the matter as provided by the Constitution (if he finds from competent evidence a reason to doubt sanity, that is, a reasonable ground to believe the subject to be insane), may temporarily commit the person and ultimately institute inquisition proceedings of lunacy as otherwise provided by law. 4

*399 The standard of proof required by the section is not specifically designated by the term “satisfied” so, if there is a constitutional requirement as to the standard of proof, that standard should be applied by judges of probate committing pursuant to the statute.

Thus stripped of constitutionally offensive phrases, the statutes in question should be found constitutional in my opinion.

PRETRIAL RIGHT TO LIST OF WITNESSES: I dissent from the conclusion of my brothers that the right to counsel involves the furnishing of a list of the names and addresses of witnesses to be used. I know of no constitutional requisite, and I find none satisfactory to my mind in Sarzen v. Gaughan, 489 F.2d 1076, 1085, 1086 , cited therefor by the majority, that a defendant, either in a criminal case or a civil commitment, be furnished a list of the names of witnesses who will testify against him. The knowledge that such a list would be furnished to certain dangerous insane persons might well decrease the number of examining physicians and others who would be willing to testify and might endanger the lives of any persons willing to testify against dangerous insane persons.

STANDARD FOR COMMITMENT-DANGER AND AVAILABLE TREATMENT: I concur, for other reasons than those mentioned by the majority, with the language stating that a subject must be both dangerous and subject to treatment before he may be committed. I think those limitations are statutory rather than constitutional. The Alabama statute, Title 45, § 205, limits admission to State insane hospitals to those sufficiently deficient or defective mentally to require that, for his own or others’ welfare, he be moved to the insane hospital for restraint, care and treatment. The Supreme Court in Jackson v. Indiana, supra, 406 U.S. at 728 , 92 S.Ct. at 1853 found that a similarly worded statute providing detention “in the interest of the welfare of such person or others”, requires a showing of danger to that welfare. The Alabama statute requires proof of danger and availability of treatment, but I hesitate to say that those are constitutional requisites as I think the majority implies.

I question that the direct quotations from Humphrey v. Cady, 405 U.S. 504, 509 , 92 S.Ct. 1048 , 31 L.Ed.2d 394 (1972), and Donaldson v. O’Connor, 493 F.2d 507, 520 (5th Cir. 1974), necessarily mean that, in order that a person may constitutionally be committed civilly for his insanity, he must be dangerous to others or that he must be subject to treatment. 5

It seems to me that, what the eases generally say is that, before one’s rights to liberty may be infringed either by a civil or a criminal commitment, there must be a controlling State interest which requires subversion of the subject’s interest in his liberty. This controlling State interest may be any one of several things, such as the desirability of punishing a criminal or setting an example for other potential crimi *400 nals, the desirability of restraining a person who may be dangerous to himself or to others so that he may not harm the possible victim, the desirability of providing care, treatment or training for those who, because of insanity or mental illness, are unable to form a valid opinion or consent to custodial care or treatment. The cases seem uniformly to agree that, if the basis of the State’s interest (the quid pro quo as it is sometimes referred to),terminates, then the basis for the commitment terminates, and the subject must be released unless another basis for commitment is recognized by another judicial determination.

In the case of Jackson v. Indiana, supra, 406 U.S. at 720-722 , 92 S.Ct. at 1850 , the Court implicitly expresses approval of the Indiana statute for commitment of the feeble-minded pursuant to the quid pro quo — referring to:

“ * * * the duty of the State to provide care for its citizens who are ‘feeble-minded and are, therefore, unable properly to take care of themselves’.”

That Court, at page 738, note 25, 92 S.Ct. 1845 , suggested that Jackson or the State might seek his commitment under the statute for commitment of the feeble-minded. The opinion suggests that the feeble-minded are not dangerous and might even be able to care for themselves under certain circumstances. The Court in that case specifically states that:

“The bases that have been articulated (for involuntary civil commitments) include dangerousness to self, dangerousness to others, and the need for care 6 , or treatment or training.” Jackson v. Indiana, supra, at page 737, 92 S.Ct. at page 1857. (emphasis qdded)

To my mind, the Supreme Court gives no indication that one who, because of insanity is in need of care which is otherwise unavailable, may not be constitutionally committed for that purpose.

I, therefore, suggest that the State’s interests which may constitutionally be protected by infringing on the insane person’s right not to be deprived of his freedom, include, in addition to dangerousness and the need for treatment, the need for care and the need for training.

As pointed out heretofore and in the majority opinion, there is language in Jackson v. Indiana, supra, at page 728, 92 S.Ct. at page 1853, indicating that the Court construed a statute authorizing commitment of a person “in the interest of the welfare of such person or * * * others * * * ”, to require an independent showing of dangerousness. That observation appears to me to have been limited to the particular facts of that case and the application of the statute involved to those facts. 7 As herein otherwise demonstrated, the Court implicitly recognized that, under a different statute, a feeble-minded person might be committed independent of dangerousness so as to serve the State's *401 “parens patriae" interest in caring for those unable to care for themselves.

I believe that the majority are misled by the language in Donaldson v. O’Connor, supra, as follows:

“In summary, we hold that where a nondangerous patient is involuntarily civilly committed to a state mental hospital, the only constitutionally permissible purpose of confinement is to provide treatment, and that such a patient has a constitutional right to such treatment as will help him to be cured or to improve his mental condition.”

That language, without more, would certainly indicate that involuntary civil commitment is constitutionally limited to dangerous patients or patients committed for their treatment; however, that language must be considered in the light' of the language of the commitment statute, the facts of the case wherein the observation was made, and the prior language of the same Court in the same case at page 522 of 493 F.2d in explaining the necessity for the showing of a governmental interest superior to the right of the defendant not to be confined. After discussion of the necessary requirements for a criminal commitment, the Court stated that:

“There must be a quid pro quo extended by the government to justify confinement. And the quid pro quo most commonly recognized is the provision of rehabilitative treatment, or where rehabilitation is impossible, minimally adequate habilitation and care, beyond the subsistence level custodial care that would be provided in a penitentiary.” (emphasis added)

By the emphasized clause, the Court demonstrated its approval of the language in Jackson v. Indiana, supra, recognizing the State’s duty to provide care for its citizens unable to care for themselves. It must be remembered that the facts under which Donaldson was committed were that the “committing judge told Donaldson that he was being sent to the hospital for ‘a few weeks’ to ‘take some of this new medication’ ”, and that he was certain that Donaldson would be all right and would come back soon. That statement, indicating a temporary commitment for treatment, was made at the commitment hearing in 1957, and Donaldson was finally released in 1971 after having brought a suit seeking his release from what the trial judge had articulated 14 years theretofore as a temporary commitment for treatment. It was clear that Donaldson was committed for the purpose of treatment, and though he refused certain treatment because of religious beliefs, the jury decided that he was denied other treatment available for his problems. Under those facts, the language of the Fifth Circuit to the effect that the “only constitutionally permissible purpose of confinement” was “to provide treatment”, was accurate if confined to the facts of that case. If intended to apply to cases in general, it was dicta and not binding on this Court.

The federal statutes for commitment of insane persons which have been approved in Greenwood v. United States, supra, and implicitly in Jackson v. Indiana, supra, at page 731 et seq., do not necessarily involve a finding of dangerousness or necessity for treatment. The Court in Jackson recognizes a rule of reasonableness ( 406 U.S. at page 733 , 92 S.Ct. 1845 ) to the effect that the terms of any such commitments are limited to a reasonable time to effect the purpose for which the defendant was committed and, if he were committed for the purpose of observation to determine his capacity to stand trial and if it appears after reasonable observation that he will not attain competency, he must be released from his commitment under § 4247 but, if he is then a dangerous insane person, he may be recommitted to effect the government’s purpose of protecting its property and employees from dangerous insane people. If he is committed because he is dangerous and for some reason he ceases to be dangerous, his commitment may last no longer than the government’s interest which was protected by the commitment. The com *402 mitment (the deprival of liberty) is without constitutional authority when the governmental purpose for the commitment is no longer in existence. As stated in Jackson v. Indiana, supra, at page 738, 92 S.Ct. at page 1858:

“At the least, due process requires that the nature and duration of commitment bear some reasonable relation to the purpose for which the individual is committed.”

STANDARD OF PROOF: While I have no disagreement with the majority’s decision as to the requisite standard of proof, I question that the Constitution requires any particular standard of proof for commitment even in criminal cases. This, in my opinion, should be a legislative decision. I, therefore, dissent therefrom.

SELF-INCRIMINATION: I have questions that the proposed opinion is not sufficiently clear about the extent of the applicability of the privilege against self-incrimination 8 in this type proceeding. The mentally ill person, unlike a criminal, must be judged to some extent from opinions of experts rather than from statements of eye witnesses. Therefore, the privilege should not be construed to avoid psychiatric examination entirely. While I think the privilege is obviously available to the subject to the extent that any evidence that he might give to the doctor which might conceivably incriminate him would be inadmissible in any trial against him, I believe that it should be made plain that the privilege should be restricted to matters concerned with criminal activity, and the subject should not be allowed to refuse on the ground of the Fifth Amendment privilege to submit himself for a psychological examination to determine, not his criminality but, his sanity.

CLASS ACTION: I dissent from that part of the opinion, Section II, holding that the named Plaintiffs fairly and adequately protect the interests of the class. I think we should confine our opinion to the named Plaintiffs and deny class action status. 9 There is, in my mind, a real question whether the ultimate objective sought in this case (the release of all patients) fairly represents the best interests or even the desires of each member of the class that the nominal Plaintiffs purport to represent. This Court should judicially know that in the class of Plaintiffs are hundreds of people who have no interest whatsoever in being released from the State mental institution and whose welfare demands that they be incarcerated somewhere. While there may be equal numbers who do have an interest in being released, the Plaintiffs may be more interested in technical rights than in the interests of all members of their class. While I am convinced that the original Plaintiff, Jean P. Lynch, and the Intervening Plaintiff, Jesse M. Hughes, are entitled to a declaration of their rights (release or recommitment under a constitutional process), this Court may do *403 an injustice to hundreds of other persons committed in Alabama mental institutions by ordering their release or re-commitment on a hearing without any real notice that their ouster is being considered. Conceivably, many of these people have no one who is interested in them at this point. It is doubtful that the probate judges and other State officials throughout the State could be counted on to search out and reinstitute commitment proceedings against all those people deserving commitment. Many of them are conceivably far happier, and their welfare far better provided, where they now are. Some of them know no homes and could find no homes other than in Alabama mental institutions.

A judgment of any Court is, under principles of comity and federalism, entitled to full faith and credit 10 by this Court until such time as a party to that judgment in an adversary proceeding shall attack such a judgment and have it duly set aside in this or some other court. If each member of the class were so represented and his interests were really seriously litigated in this Court, I should feel that his commitment, if shown to be unconstitutional, should be set aside. However, until the interest of each is seriously represented in this Court with legal notice to each, 11 I do not feel that we should set aside all of the commitments to Alabama’s mental institutions. I would confine a judgment and order in this case to the cases of Lynch and Hughes, who have real notice of this cause of action, with process or otherwise.

The representative parties Plaintiff, in my opinion, do not, within the meaning of Federal Rules of Civil Procedure, Rule 23(a)(4), “fairly and adequately protect the interests of the class”. In my judgment, this, is not a proper class action.

. Criminally insane persons are generally defined as persons who, because of deficient or defective mentality, are unable to determine right from wrong or, being able to so determine, are unable to refrain from doing wrong.

. However, the Alabama Legislature has limited commitment to insane hospitals in Alabama by the provisions of Title 45, § 205, to patients who “are sufficiently deficient or defective mentally to require that, for his own or others’ welfare, he be moved to the insane hospital for restraint, care and treatment.” Irrespective of constitutional requirements, patients not in need of treatment may not be committed under the Alabama civil statute.

. If the objectionable parts of a statute are severable from the rest in such a way that the Legislature would be presumed to have enacted the valid portion without the invalid, the statute may be enforced as to those portions of it which are constitutional. Lynch v. United States, 292 U.S. 571 , 54 S.Ct. 840 , 78 L.Ed. 1434 ; Champlin Ref. Co. v. Corporation Com., 286 U.S. 210 , 52 S.Ct. 559 , 76 L.Ed. 1062 . If, after severing the constitu *398 tionally offensive legislation, sufficient remains to effect the legislative purpose, only the offensive portions should be rejected. There is nothing in the rule of severability which prevents the severance and elimination not only of words, clauses or sentences, but also of whole sections of laws. See 16 Am. Jur.2d, Constitutional Law, § 181, et seq.

. The constitutionality of the statutes in question should be considered in the light cast thereon by related statutes of which the constitutionality is not here in question. The inquisition proceedings of lunacy as “is now provided by law” referred to in § 432 are not here attacked. They are set out for civil inquisitions in Title 21, §§ 10-15, and *399 for criminal inquisitions in Title 15, §§ 426-430. Title 21, § 11, prescribes a maximum period of 30 days between the filing of the proceeding and the date for the inquisition. Section 11 also requires appointment of a guardian ad litem, and Section 12 provides for issuance of a writ directing the sheriff to take the subject and, “if consistent with his health or safety, have him present at the place of trial”. While this inquisition primarily contemplates determination civilly of the need for a guardian, it provides a jurisdiction and a format for inquisition proceedings not necessarily limited t# guardianship matters. Those sections may, in my opinion, be construed to implement § 432 so as to provide a method for constitutional commitments.

. As hereinafter discussed, some language in Donaldson does, in fact, say exactly that, but other language seems to limit those words to the facts of Donaldson in the light of words of the statute under which Donaldson was committed, “for restraint, care and treatment”. Code of Alabama, Title 45, § 205.

. The Court of Appeals for the Fifth Circuit in Wyatt v. Aderholt, 503 F.2d 1305 , No. 74-2634 (5th Cir. 1974), rejected the Governor’s claim that the need for the care of an insane person is a valid basis for commitment in the Fifth Circuit. That rejection appears to be dicta as to the constitutional question since the Alabama statute, Title 45, § 205, requires both care and treatment.

. In that case, Jackson was a mentally deficient deaf mute charged with a crime. He was found by the Court to be lacking in “comprehension sufficient to make his defense”, and he was ordered by the Court to be committed to the Indiana Department of Mental Health until such time as that department should certify to the Court that the defendant is sane. The doctors testified that it was extremely unlikely that Jackson could ever learn to even communicate with others and that his “prognosis appears rather dim”. The Supreme Court’s determination that the statute authorizing commitment of Jackson “in the interest of the welfare of such person or * * * others * * requires an independent showing of dangerousness simply implied that the statute required a showing of danger to the welfare of such persons. The Court did not say or imply that there might not be some constitutionally valid reason for holding Jackson other than dangerousness.

. Amendment 5. “ * * * nor shall be compelled in any criminal case to be a witness against himself, * *

. In Wyatt v. Aderholt, supra, 503 F.2d at 1316 , a somewhat similar case, the Court of Appeals, in determining a class action appropriate, reasoned as follows: “Here the plaintiffs seek preventive relief, to assure in advance that mental patients will at least have the chance to receive adequate treatment by proscribing the maintenance of conditions that foredoom all mental patients inevitably to inadequate mental treatment. Moreover, there are special reasons why reliance upon individual suits by mental patients would be especially inappropriate. Mental patients are particularly unlikely to be aware of their legal rights. They are likely to have especially limited access to legal assistance. Individual suits may be protracted and expensive, and individual mental patients may therefore be deterred from bringing them. And individual suits may produce distortive therapeutic effects within an institution, since a staff may tend to give especially good — or especially harsh — treatment to patients the staff expects or knows to be litigious.” However, that case sought establishment of a program for all consistent with the well-being of, and “brought on behalf of all patients”. This suit seeks immediate release of each patient, without regard for or consideration of their continued well-being after release.

. The mischief associated with allowing disinterested persons to nullify judgments for and against parties to a long-determined legal proceeding has long been recognized by the courts. Many good reasons, in addition to the preferences of both parties and the necessity that controversy be finally put to rest, may exist for not setting aside a judgment. The person ordinarily entitled to vacate a judgment is the party wronged thereby. Harter Twp. v. Kernochan, 103 U.S. 562 , 26 L.Ed. 411 . An irregularity, in order to afford ground for relief from a judgment, must be prejudicial to the applicant for such relief. Ring Refrigerator & Ice Mach. Co. v. St. Louis Ice Mfg. & Cold Storage Co., 8 Cir., 67 F. 535 . One who accepts and retains the fruits of a judgment may be estopped from denying its validity. Compton v. Jesup, 167 U.S. 1 , 17 S.Ct. 795 , 42 L.Ed. 55 ; McKee v. Hassebroek, (C.A.10 Okl.) 337 F.2d 310 ; Livesay Industries, Inc. v. Livesay Window Co., (CA5 Fla.) 202 F.2d 378 . It is usually held that the validity and correctness of a judgment are rebuttably presumed. Thompson v. Thompson, 91 Ala. 591 , 8 So. 419 ; Todd v. Flournoy, 56 Ala. 99 ; Evers v. Watson, 156 U.S. 527 , 39 L.Ed. 520 , 15 S.Ct. 430 . Jurisdiction is usually presumed until the contrary appears. Milliken v. Meyer, 311 U.S. 457 , 61 S.Ct. 339 , 85 L.Ed. 278 , reh. den. 312 U.S. 712 , 61 S.Ct. 548 , 85 L.Ed. 1143 .

. Notice procedure in class actions must assure fair and full consideration of all claims and adequate protection of those persons not present but bound by the judgment. Eisen v. Carlisle and Jackquelyn, 417 U.S. 156 , 94 S.Ct. 2140 , 40 L.Ed.2d 732 .