Dixon v. Jacobs, 23378.

• Decision Date: 10 April 1970
• Docket Number: No. 23378.,23378.
• Citation: 138 US App. DC 319,427 F.2d 589
• Parties: Dennis A. DIXON, Appellant, v. Louis JACOBS, Superintendent of Saint Elizabeths Hospital.
• Court: U.S. Court of Appeals — District of Columbia Circuit

138 US App. DC 319, 427 F.2d 589 (1970)

Dennis A. DIXON, Appellant, v. Louis JACOBS, Superintendent of Saint Elizabeths Hospital.

No. 23378.

United States Court of Appeals, District of Columbia Circuit.

Order February 5, 1970.

Opinion April 10, 1970.

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Messrs. Charles R. Halpern and Stephen B. Rosenberg, Washington, D. C., with whom Mr. David J. Newberger, Washington, D. C., was on the motion, for appellant.

Messrs. Thomas A. Flannery, U. S. Atty., John A. Terry, Oscar Altshuler, and Gregory C. Brady, Asst. U. S. Attys., were on the motion, for appellee.

Before BAZELON, Chief Judge, and LEVENTHAL and ROBB, Circuit Judges, in Chambers.

BAZELON, Chief Judge:

This case presents several questions concerning the procedure to be followed by Saint Elizabeths Hospital and the District Court when a patient involuntarily committed desires his release. The appellant here was committed to the hospital in 1964, after his acquittal on grounds of insanity of charges of murder and assault with intent to commit carnal knowledge. On May 29, 1969, he petitioned the District Court pro se for a writ of habeas corpus, seeking release from confinement primarily on the ground that he had recovered his sanity and was no longer dangerous to himself or others.¹ 24 D.C.Code § 301(g) (1967); 21 D.C.Code §§ 546-549 (1967); Bolton v. Harris, 130 U.S.App.D.C. 1, 11-13, 395 F.2d 642, 652-654 (1968). The District Court ordered the hospital to show cause why the writ should not issue. On June 10, the hospital responded, alleging that appellant's initial commitment was lawful; noting that previous applications for release had been determined adversely to appellant in October of 1966 and July of 1968;² and moving to dismiss the petition "on the ground that the petitioner has failed to exhaust his administrative remedies."³ The District Court, without holding a hearing or acting upon appellant's motion for the appointment of counsel, dismissed the petition without explanation.⁴ Appellant, now represented by volunteer counsel, appealed to this court. We believe the hospital's response was insufficient as a matter of law to support dismissal; consequently, we reverse the judgment and remand the case to the District Court for further proceedings.

I.

One preliminary matter requires mention. The government, conceding that nonexistent administrative remedies need not be exhausted, has moved that this case be remanded to the District Court to determine the existence and adequacy of the asserted remedies. We do not believe, however, that it would be proper for us so to dispose of this case. The government's concession of error does not relieve us of the responsibility for decision.⁵ And several factors make this case inapposite for an unexplicated remand. We should not require a mental patient to shuttle back and forth between courts as his case is disposed of in piecemeal fashion.⁶ Full treatment of this case will not require the decision of any constitutional questions.⁷ It appears that the District Court does not normally make a practice of appointing counsel to represent indigent patients seeking release until the questions involved here have been passed.⁸ Although the government has admitted that there is a serious question whether the claimed administrative remedies exist, it has continued to suggest to the District Court that petitions for release be summarily dismissed for failure to exhaust administrative remedies.⁹ Under these circumstances, we cannot in conscience avoid the questions before us.

II.

It is clear on this record that disputed issues of fact and law were before the District Court. Confinement of the mentally ill rests upon a basis substantially different from that which supports confinement of those convicted of crime. In the latter case, with rare exceptions,¹⁰ the continuing validity of confinement rests solely on the validity of the initial commitment. Confinement of the mentally ill, however, depends not only upon the validity of the initial commitment¹¹ but also upon the continuing status of the patient. Specifically, under our statutes,¹² he must be released from the hospital if he is no longer mentally ill;¹³ if, although he remains mentally ill, he is no longer "likely to injure himself or other persons";¹⁴ or, should the patient so desire, if a course of outpatient treatment can be fashioned that will adequately protect the interests both of the patient and the public.¹⁵

Therefore, when appellant sought his release from confinement, he brought those issues before the District Court.¹⁶ Since all of the issues related to appellant's present status,¹⁷ it could hardly be said either that the merits of his claim had been determined in prior proceedings¹⁸ or that appellant's failure to present these issues in such prior proceedings as may have been had amounts to "inexcusable neglect."¹⁹ Consequently, "full consideration of the merits of the new application can be avoided only if there has been an abuse of the writ," Sanders v. United States, 373 U.S. 1, 17, 83 S.Ct. 1068, 1078, 10 L.Ed.2d 148 (1963), and in such cases "it rests with the Government to make that claim with clarity and particularity in its return to the order to show cause." Price v. Johnston, 334 U.S. 266, 292, 68 S.Ct. 1049, 1063, 92 L.Ed. 1356 (1948). Whether the record below could support dismissal on the ground of abuse of the writ is the question we next address.

III.

In its return to the order to show cause, the hospital pointed out that appellant had previously filed two petitions for release on habeas corpus, and that both had been determined adversely to him. The more recent of the two was decided in July of 1968 — some ten months before the instant petition was filed. Although the return does not so indicate, it appears from the records of the District Court that both adjudications reached the merits of appellant's claim that he was entitled to release from the hospital; that an evidentiary hearing was held in each case; and that appellant was represented in each case by assigned counsel. It is clear to us that the District Court was entitled to take notice of its own records, but even assuming the adequacy of the factfinding process in the previous hearings,²⁰ sufficient time had passed since the last determination that appellant was entitled to raise the issue anew. Judicial guidelines in this area are admittedly vague;²¹ under the circumstances, we think it is best to rely upon the standard set by Congress in analogous proceedings under 21 D.C.Code § 546 (1967). We hold, therefore, that a petition for habeas corpus by a mental patient seeking his release on the ground that his present status no longer justifies commitment may be dismissed as repetitive only if that ground was adequately heard and determined adversely to the applicant in a judicial proceeding within six months preceding the new application.²²

IV.

This court has often urged upon Saint Elizabeths Hospital its responsibility for the creation and administration of internal procedures for the review of its own decisions, as well as its statutory responsibility²³ for the maintenance of an adequate system of records to record and explain such decisions. See, e. g., Covington v. Harris, 136 U.S.App.D.C. 35, 44, 45, 419 F.2d 617, 626-627 (1969). Proper performance of these responsibilities will in many instances diminish the need for judicial review by enhancing the reliability of the decision-making process,²⁴ and at the same time both aid and limit the judicial function in those cases where judicial review is sought. Where the challenged decision relates essentially to the internal administration of the hospital — as, for example, when a patient seeks to enforce his right to adequate treatment;²⁵ when he seeks transfer to a less restrictive ward within the hospital;²⁶ and, perhaps, when he seeks conditional rather than unconditional release²⁷ — we have recognized "the responsibility the law places also upon those in charge of the institution." Covington v. Harris, supra at 47, 419 F.2d at 629 (Fahy, J., concurring). In such cases, judicial review is limited to the determination whether the administrator "has made a permissible and reasonable decision in view of the relevant information and within a broad range of discretion." Tribby v. Cameron, 126 U.S.App.D.C. 327, 328, 379 F.2d 104, 105 (1967). The underlying question is to be decided not by the court, but by the hospital; and that decision cannot be meaningfully reviewed until the administrative process has run its course.

When the patient is seeking complete release from confinement, however, the scope of judicial review is broader. In such cases the function of the court is not simply to review the hospital's decision for unreasonableness, but rather itself to decide the ultimate question: whether the present status of the patient is such that continued confinement is justifiable.²⁸ The patient need only establish, by the preponderance of the evidence,²⁹ that he is no longer likely to injure himself or other persons because of mental illness. Bolton v. Harris, 130 U.S.App.D.C. 1, 12, 395 F.2d 642, 653 (1968). Correlative to the increased scope of judicial review is a more limited role for the doctrines requiring prior resort to administrative procedures. In the present case, the hospital suggested that dismissal was in order because of appellant's failure to exhaust two claimed administrative remedies. We examine each in turn.

The hospital's return noted that "Hospital records reveal that the petitioner has not submitted a written request to the Chief of Service for a current medical examination within the last six months."³⁰ It cited Bolton v. Harris, supra at 12 n. 59, 395 F.2d at 653 n. 59, for the proposition that "patients must exhaust these administrative remedies before applying for a writ of habeas corpus." We believe the hospital's position rests on...