Opposition Brief — Bane v. Superintendent of Boston State Hospital

fb tstam eye ME Office Supreme Conrt, US.

del ace a | 7 FILED’

SEP 71968

JOHN F. DAVIS, CLERK

- Supreme Court of the United States. —

OctosER TERM, 1966. ») : 8

No. 425. | reper: .

° . ~ BERNARD BANE, o

| Petitioner,

2: — .

v.

SUPERINTENDENT OF BOSTON STATE ‘HOSPI:

TAL, -

"Respondent.

BRIEF FOR RESPONDENT IN OPPOSITION.

Epwarp W.: Brooxg,

Attorney General,

Wut J. Davis,

Assistant Attorney General,

State House,

Boston, Massachusetts 02138.

% ADDISON C, GETCHELL @ SON, INC., LAW PRINTERS, BOSTON.

- |Table of Contents.

Opinions below © | :

Jurisdiction —

Questions presented

Constitutional provisions and statutes involved

_ Statement of thecase- Es

-. Argument

tie 1. The Supreme Court ‘of ‘the United States does °

not have jurisdiction to hear a case in which the /*

_ alleged federal issue involved was not raised or |

decided i in the State Court

2. Massachusetts G.L. c. 111, § 70, is: ccsstite-

tional and does not deny the petitioner equal i

protection of the laws.

Conclusion

Appendix .

ai : . Table of ‘Authorities Cited:

a _ Cases. .

Congress of Industrial Organisations v. McAdory,

3825 U.S. 472-(1945) -

Ellis v. Dixon, 349 U.S. 458 (1959)

Goésaert v. Cleary, 335 U.S. 464 (1948)

_ Griffin v. Illinois, 351 U.S. 12 (1956)

~ Herndon v. Georgia, 295 U.S. 441 (1935)

Kessler v. Strecker, 307 U.S. 22 (1939). -

‘Kotch v. Board of River Port Pilot Commifdioners

of New Orleans, 330: U.S. 552 ( 1947)

Lovell v. Griffin, 303 U.S. 444° (1938) Ee

¥e | era,

13°

?

ii TABLE OF AUTHORITIES CITED

McGoldrick v. Compagnie Generale o Sraonatianitiges,

309 U.S. 430 (1940) 6

McGowan v. Maryland, 366 U.S: 420 (1961) 10 «

Michel v. Louisiana, 350 U.S. 91 (1955) , 5

Morey ' v. Doud,-354 U.S, 457 (1957) 11

| Shelley v. Kraemer, 334 U.S. 1 (1948) a

Tigner v. Texas, 310 U.S..141 (1940) — 11

Unitéd “Brotherhood tof Carpenters & Joiners of

_ America v. United States, 330 U.S. 395 (1947)¥ 4

Walters v. City of St. Louis, 347 U. S. 231 (1954) im)

Ward v. Board of County Commissioners of Love _.

County, Oklahoma, 253 U.S. 17 (1920) 9°

Williams v. Kaiser, 323.U.S, 471 (1945) ° 8

Williamson v. Lee Optical ‘of Oklahoma, Inc, 348 Sl.

———-*US. 483 (1955) ; , 10

Wilson v. Cook, 327 U.S. 474 ( 1946) e 45

” a%

Srarurtes, Erc. }

U.S. Constitution, Fourteenth Amendment 2, 6, 11

28 U.S. Code, § 1257 (3) . 7 a

{ P,

Mass. G.L. ¢. 111,-§ 70. : ore * 3, 9

xs

<

No. 425.

Supreme Court of the United States.

Ocroser Term, 1966.

BERNARD BANE,

Petitioner,

we

SUPERINTENDENT OF BOSTON STATE HOSPI-

TAL,

Respondent.

BRIEF FOR RESPONDENT IN OPPOSITION.

e on ane Below.

The opinion of the Supreme Judicial Court of Massachu-

setts (App. infra, p. 13) is reported at Massachusetts Ad- |

vance Sheets (1966), p. 693.

Jurledietion. ae

.

The petitioner invokes the jurisdiction of this Court un-

" “der 28 U.S. Code, § 1257 (3).

1. Does the United States’Supreme Court have jurisdic-

¢ tion of a case in which the petitioner has not’ expressly

- Ameena =

2

raised a federal question in the Court of the first instance, |

nor has the highest Court of the State passed upon this-

issue in its disposition of the case, but where the petitioner

raises this point for the first time i in his petition - a writ

- of certiorari?

2. Is any portion of Mass. G.L. c. 111, § 70, unconsti-

tutional as denying petitioner the equal protection of the

laws under the Fourteenth Amendment?- °

?

/

Constitutional Provisions and Statutes. Involved. -

1. Constrrution or THE Uniteb States, AMENDMENT XIV.

‘“‘Szorton 1. All persons born or naturalized in .the

United States, and subject to the jurisdiction thereof, are

citizens of the United States and of the State wherein they

reside. No State..shall make or enforce any law which

shall abridge the privileges and immunities of citizens of

the United States; nor shall any State deprive any person

of ‘life, liberty, or&property, without due process -of law;

nor deny to any person within its jurisdiction the equal

protection of the laws.’’

2. 28 Unrrep States Cope, Secrion 1257 (3).

‘Final judgments or decrees rendered by the highest

Court of a State in which a decision could be had, may be

reviewed by the Supreme Court as follows: ,

‘*By writ of certiorari, where the validity of a treaty or

statute of the United States is drawn in. question or where

the validity of a State statute is drawn in question on the

ground of its being repugnant to the Constitution, treaties

or laws of the United States, or where any title, right, .

privilege or immunity is specially, set up or claimed under. -

3

held or authority /exercised under, the United States.

the pepe or statutes of, or commission

(Tune 25, 1948, chi. 646, 62 Stat. 929.) ”

3. Mass4cHuserts GenrERaL Laws, Cuapter 111, Section

gre 70.

‘Hospitals; dispensaries or clinics, and sanatoria li- .

censed by the department of public health or supported in

whole or in part by the commonwealth shall keep records

of the treatment of the cases under their care and the medi-

_ eal history of the same. Such records may be made in

- handwriting, or in print, or by typewriting, or by the

photographic or microphotographic process, or any com- —

bination of the same. Whenever pre-existing records shall

-. have been photographed or microphotographed and the.

photographs or microphotographs shall have been duly in-

~’ dexed and: filed, such hospital, dispensary or clinic, or sana-

torium, upon notifying in. writing the supervisor of public —

records referred to in chapter sixty-six, may destroy the

original records so photographed or microphotographed,

and such-photographs or microphotographs shall have the

same force or effect as.the original records from which

they were made. Such records shall be in the custody of ©

such hospital, dispensary or clinic, or sanatorium. Séction

_ ten of. chapter sixty-six shall not in to such records; |

provided that such records and similar records kept by

such hospital, dispensary or clinic, or sanatorium, except

a hospital or clinic under the control of the department of

mental health, may be inspected by the patient to: whom

-they relate or by his attorney upon delivery of a written

authorization from the said patient, and a copy shall be

furnished upon his request and a payment of a reasonable

fee; and provided, further, that:'upon proper judicial or-

.

der, whether in connection with pending judicial proceed-

. ings or otherwise, or, except in the case of records of hos-

’ pitals under the control of the department of mental

’ health, upon order of the head of the’ state department

which issues the license or of the head of the state depart-

ment having jurisdiction or control of such hospital, dis-.

pensary or clinic, or sanatorium and in compliance with ~

the terms of said order, such records may. be inspected and

copies furnished on payment of a reasonable fee. Any

such record or any part or portion thereof may be de-

stroyed fifty-five years after the discharge or the final

treatment therein of the patient. to whom it relates.” (As ©

amended by St. 1963, c. 23; St. 1964, c. 653.)

Statement of the Case.

It is agreed on behalf of the respondent that the State-

ment of the Case as it appears in the Petition for Writ of. .

Certiorari of the petitioner at page 4 is correct and ap- |

plicable to this brief for respondent as’ well.

Argument.

1. The Supreme Court of. the United States’ does not

have jurisdiction to hear a case in which the. alleged fed-

eral issue involved was not raised or decided i in the State

Court.

‘The petitioner invokes the jurisdiction of the Supreme

Court to hear this case under 28 U.S. Code, § 1257 (3).

However, it is well settled that, where the State Supreme

Court did not pass on the question now urged, and where

it does not appear to have been properly presented to that

Court for decision, the Supreme ‘Court. is ‘without juris-

’

diction to-consider it in the first instance. Congress of

Industrial Organizations v. McAdory, 325 U.S. 472, 477

(1945). See also Shelley v. Kraemer, 334 U.S. 1, 8-9

(1948); Walters ve City of St. Louis, 347 U.S. 231, 233

(1954); Michel v. Louisiana, 350 U.S. 91, 101 (1955) ;. Mc-

Goldrick v. Compagnie Generale Transatlantique, 309 U.S.

430, 433 (1940); and. Wilson v. —_ 327 U.S. 474, 482 |

(1946). ’

The petitioner has never, by his own admission, ex-

pressly invoked federal protection in the Courts below

(Petition, pp. 2,5). Therefore the United States Supreme

Court has no jurisdiction to consider the case.

The petitioner alleges that a federal question was raised

before the Supreme Judicial Court of Massachusetts by

the respondent in his brief.. The specific. — — on

by petitioner is as follows: , 7

“The statute involved does not deprive the peti-

tioner of any right guaranteed “under the Constitu- ~

tion of the Commonwealth or the United States of

America. To invoke Constitutional principles some

right of the petitioner relating to life, liberty or prop-

erty must have been — away; injuréd | or threat-

ened.’’ 2)

Numerous cases indicate that this. allegation is without —

merit. See Ellis v. Dixon, 349 U.S. 458 (1955) and Hern-

don v. Georgia, 295 U.S. 441 (1935).

In Ellis v. Dixon, supra, the petitioners had expressly

raised a constitutional issue before the New York Court

of Appeals. However, they failed to specify the facts nec- .

' essary to show discrimination. The Court held that what

was alleged was entirely too amorphous to permit adjudi-

.cation of the constitutional issues asserted; further, that, °

.

za because the ioudines were insufficient. in this respect, the

Court. did not have: jurisdiction to hear the case, since the .

New York Court of Appeals might have based its dismissal

Oni an’ adequate: non-federal .ground,' Td. 462.

In the case of Herndon v. Georgia, . supra; the petitioner

was convicted of attempting to incite insurrection. in ,vio-

‘lation of a state statute. There was a preliminary attack |

upon the indictment in. the trial court on the ground,

- among others, that the statute was in violation of the Con-

_ stitufion of the United States. This contention was over- -

-ruled. No exception was taken to this ruling, nor was it

_ assigned as error in the bill of exceptions ‘as the rules of

_ the state practice required. In this-situation, the State

Supreme Court declined to review the rulings. The Court,

in holding that it was without jurisdiction to hear the case,

stated at page 442:.

“We find it annecessary to review the points made,

since this court,is without jurisdiction for the reason

a

that no federal question was seasonably raised in the ~~

court below or passed upon by that court.” —

The Ellis and Herndon cases tend to\Giscredit petition-

er’s reliance on a single phrase in his adversary’s brief as

’ a sufficient basis for the proper presentation to a. Court.

- of a constitutional issue. }

The four cases relied. on by petitioner to support his

jurisdictional argument (Petition, p pp. 6, 7) are clearly

| distinguishable and do not apply to the facts of the instant

case.

In Lovell v. Griffin, 303 U.S. 444, 448 (1938), the appel-

_lant, with permission of the Court, moved to dismiss the

“charge on the ground, among others, that the ordinance

in question violated the Fourteenth Amendment in abridg-

wu

=

ing ‘‘the freedom of the press”’ and prohibiting ‘‘the free

exercise of petitioner’s religion.’’ The Georgia Court of

Appeals overruled these objections and sustained the con-

‘stitutional validity.of the ordinance. The Court found

that the appellant ’s constitutional objection was sufficiently

specific and was definitely — upon. At page 450 the

‘ Court states:

‘We think that this question was died pre-

sented and was decided in the instant case. Whether

it'was so presented and was decided is itself a federal

question.’ =

The petitioner undoubtedly relies on the above statement

to support his allegation. However, in the Lovell case -

_ there was a substantial and adequate evidentiary basis for

the Court’s finding that the constitutional issue was prop-

erly raised ay a on both the trial and the appellate levels.

In the instant case there is not a shred of evidence, other

than the statement in Respondent’s Brief, that any federal

issue was being serail either explicitly or widened

by the Court.

In the case of United Brotherhood of Oniganters é Join-

ers. of America v. United States, 330 U.S. 395 (1947), the

Court states at page 412:

. ‘We have the power to notice a‘‘plain error’ though

it i is not assigned or meet - |

The petitioner has stansana to substantiate .his allega.

tions with this statement. However, in this case lack of

. jurisdiction was not an ‘issue. The Court asserted its

power to reverse because of the failure of the trial judge

to charge the jury correctly, even if no objection was

then. made to the charge. Thus the Court reiterated its

8 08

own power, ‘as a reviewing tribunal, i. notice glaring

errors not pointed out by the parties. This power has

- never been. questioned. However, such noticé can be taken

only when the case is already properly before the Court.

It cannot operate to confer jurisdiction on the Court where

the federal issue involved was not adequately raised below.

In any event, the petitioner has not established that the

Massachusetts Supreme Judicial Court has committed

‘*plain error.’’? The Court has the power to notice plain

error, but it only exercises this power in ‘‘clear cases’’

and in ‘‘exceptional circumstances.’’ Kessler v. Strechgr;

307 U.S. 22, 34 (1939). In the instant case there is noth-

ing in the record which demonstrates either a ‘‘clear case’?

or ‘‘exceptional circumstances.’’

In Williams v. Kaiser, 323 U.S. 471 (1945), the peti- |

tioner, who was denied the right to counsel, raised his con-

stitutional objections in a petitign for writ_of habeas

corpus. to the Supreme Court of Missouri. The petition

was denied for the reason that it failed to state a cause of

action. The Court held that the question whether peti-

_tioner’s federal rights had been infringed. was still open = -

for decision, since ‘‘the action of the state court was on

the ground that its statute requiring the appointment of

counsel was not violated.’’ Id., at 473. The Court did not

say, as petitioner in the instant case claims it did, ‘‘that

it will be presumed that State Court based its decision on

federal grounds’”’ (see Petition, p. 6). In the’ Williams

case the constitutional question was properly raised below

but was not decided by the State Court, so the Supreme

Court had jurisdiction. ‘In the present case the petitioner

seeks to raise a’ federal question for the first time merely

on the basis of an untenable presumption that the decision

of the Massachusetts Supreme Judicial Court is based on

federal grounds. . Evan if it can be assumed that in the

Williams case the Stat€ Court did implicitly rest its deci-

ee

\

\

9

sion on federal grounds, that implication¥a be supported

only by t act that the constitutional question involved

was property before it. Such was not the case in the sit-

uation at hand.

Similarly, Ward v. Board of: Ceuite Commissioners -

Love County, Oklahoma, 253 U.S. 17 (1920), has no ap-

plicability to the instant case. In Ward the Court: found

that the petitioner’s federal right ‘‘was specially set up

‘and claimed as such im the petition.’’ Jd., at 22. Under

these circumstances the Supreme Court does indeed have .

the power to decide whether the federal question involved -

* was given due recognition by a State Court.or was merely

~ avoided by basing its decision.on an untenable non-federal

ground. Ibid.’ In the present case the petitioner has

never, by his own admission, expressly invoked federal

protection in the Courts below (Petition, pp. 2,5). There.

was manifestly no duty on the part of the Massachusetts

Supreme Judicial.Court to pass upon.an issue not before

it,, hence, there can be no presumption that the Court.

avoided a federal question.

ional argument on a few slender reeds that cannot validly

eon is thys clear that the petitioner has based his Stats.

t

f

pport his-contention, especially when juxtaposed against

the vast array of authority to the ee

= > Massachusetts G.L. ¢. 111, § 70, is ntniidtinn and

does not deny the petitioner equal protection of the laws.

‘Assuming arguendo that the Supreme Court does*have

jurisdiction, petitioner’s substantive argument has no

merit. It is clear that Massachusetts G.L. c. 111, § 70, does

not deny citizens in poiinner ’s position the equal greree-

tion of the laws.

-The problem of legislative ‘classification is a perennial

one, admitting of doctrinaire definition. The prohibition ©

of the equal-protection clause goes no further than the

\ ~*~

¢

10

invidious discrimination. Williamson v. Lee Opticat of

Oklahoma, Inc., 348 U.S. 483, 489 -(1955)..

- In McGowan v. Maryland, 366'U.S. 420 (1961), the Court

made it very clear that a statute resulting in some inequal-

ity is not necessarily unconstitutional. At pages 425-426

the Court states: | ae

‘¢ Although no precise formula has been developed,

the Court has held that the Fourteenth Amendment

permits the States a wide scope of discretion in enact-

- ing laws whick affect some groups of citizens differ-

. ently than ‘others. The constitutional safeguard is

offended only if the classification rests on grounds

_wholly irrelevant to the achievement of the State’s ob- -

_. jective. State legislatures are presumed to have acted

' within their constitutional power despite the fact that, ’

in practice, their laws resuJt in some inequality. A

statutory discrimination will not be set. aside if any

_ state of facts reasonably may be conceived to justify

at.” (Emphasis supplied.) .

“

Similarly, in the case of Kotch v. Board of River Port

Pilot Commissioners of New Orleans, 330 US. 552, 556

(1947), the Court said: :

“A law which affects the activities of some groups

differently from the way in which it affects the activi-

_ ties of other groups is not necessarily banned by the

Fourteenth Amendment. [Citation omitted.} . Other-

wise, effective regulation in the public interest could

not be provided, however essential ‘that regulation

‘might be. For it is axiomatic that the consequence of

regulating by setting apart a classified group is that

those in it -will be subject. to some -restrictions or re-

* ceive certain advantages that do not apply to other © |

eas: or to all the public.”’ Roos

au

11

See pn to the same , effect: Pigies v. Texas, 310 U.S.

141, 147 (1940) ; Goesaért v. Cleary, 335 U.S. 464, 466-467 ’

(1948); Griffin’ v. Illinois, 351 U.S.°12, 21. (1956) ; ; and

” Morey v. Doud, 354 .U.S..457, 465-466 (1957).

The reason why patients who have been confined in men-

tal hospitals or: clinics are not permitted access. to their

records is to insure the continued. mental health and sta-

bility of those patients.” The records concerning mental

patients, if they are to meet the needs of the mental hos-

pital and the patient, must contain material that should be

kept. confidential. For example, the history will contain.

statements made by a wife or husband concerning various

oddities or peculiarities, whether sexual or otherwise,’ of

a patient. ‘It will contain material. concerning hallucina-

.tions and delusions. Such material read by the patient

: would be completely anti-therapeutic and might do much

harm.

The statute involved is ‘talons to protect a oaitent

_ who has been confined in a mental hospital. Therefore it

-is clearly a valid exercise of legislative power to. make an

exception of mental patients with regard to inspection of .

hospital records. Such a. classification is manifestly rea-

sonable and rational, and is therefore not repugnant in

the least to. the Fourteenth Amendment. Even if the Leg-

islature’s apprehensions might not apply to a few isolated

cases, the law must of. necessity make general classifica-

tions, and the Legislature is certainly within permissible

_ bounds in feeling that the balance of interests requires ‘a.

- complete denial- of access ‘to all records of mental hospitals

and élinics. !

~ The conclusion is thus inescapable that ih petitioner has

not been denied the equal protection of the laws wader the

* * Fourteenth Amiendment. 3

12 ra

Conclusion.

For the foregoing reasons it is respectfully submitted

that this Petition for a Writ of Certiorari should be denied.

Respectfully submitted,

_ EDWARD W. BROOKE,

Attorney General,.

WILLIE J. DAVIS, -

; . Assistant Attorney General.

On brief: + | .

Seymour Spo.rer.

~

7

13

Appendix.

BERNARD Bane vs. SupERINTENDENT or Boston Srate

Hospira..

Fildieedieaiiin Advance Sheets, es 693-694.)

+ Wuxins, C.J. The prayer im this petition for a writ of

mandamus is that the respondent superintendent of the

Boston. State Hospital be commanded to permit the peti.

‘ tioner to examine, and to obtain copies of, the records of

the petitioner’s involuntary ‘‘admission and detention’’ |

at that hospital in 1963. The petitioner appealed from a

denial of the petition.

The ‘Boston State ‘Hospital is under the control’ of the

Department of Mental Health. G.L. c. 19,.§ 5. Its records

are subject to G.L. c. 111, § 70. The petitioner relies upon

§ 70, as amended by St. 1945, ce. 291. That statute in its

present form, however, is as amended through St. 1964,

c. 653, which contains an exception expressly excluding

from inspection by a patient or his attorney ‘the records

of ‘‘a hospital or clinic under the control of the department

of mental health. 7.

‘ The petitioner con‘ends that St. 1964, c. 653, was enacted

in vidlation of Sénate Rule 50,’ but the violation is not

conceded. In any event, the statute cannot be thus im-

pugned in a court of law. Field v. Clark, 143 U..S. 649, 672.’

Sears v. Breasurer & Recr. Gen. 327 Mass. 310, 321.

Weeks v. Smith, 81 Maine, 538, 547. 81 C. J. S., States,

§ 39. Pol

There has been no violation of art. 5 of the Declaration |

of Rights of the Constitution of the Commonwealth. -

Order denying petition affirmed.

~1No motion or proposition of a subject different from that

- under consideration shall. be admitted under the color of an

amendment.’’ ( ..