In re Ballay

• Citation: 482 F.2d 648
• Decision Date: 31 May 1973
• Docket Number: No. 71-2023.,71-2023.
• Parties: In re John BALLAY, a/k/a Figeret Hoxha, Appellant Patient.
• Court: United States Courts of Appeals. United States Court of Appeals (District of Columbia)

482 F.2d 648 (1973)

In re John BALLAY, a/k/a Figeret Hoxha, Appellant Patient.

No. 71-2023.

United States Court of Appeals, District of Columbia Circuit.

Argued December 20, 1972.

Decided May 31, 1973.

Karen E. Moore, Washington, D. C., for appellant. Robert M. Weinberg, Washington, D. C., also entered an appearance for appellant.

Percy H. Russell, Jr., Asst. U. S. Atty., with whom Harold H. Titus, Jr., U. S. Atty., John A. Terry and Lester B. Seidel, Asst. U. S. Attys., were on the brief, for appellee.

Before BAZELON, Chief Judge, and TAMM and LEVENTHAL, Circuit Judges.

TAMM, Circuit Judge.

I. INTRODUCTION

John Ballay was born in Albania in 1933, where he was educated, served in the military and worked until the mid 1950's. He then entered Yugoslavia and was soon imprisoned for six years as a result of his militant anticommunist activities. Following his release he entered Austria, where he was employed as a tailor. He journeyed to the United States in 1966 "because everybody knows that the United States are sic the country of freedom and democracy,"¹ and became a citizen in 1970. Between 1966 and 1970 he occupied the position of machine operator at a factory in New York. Subsequently, from March 7 to June 7, 1971, he was employed at a club in New York City, apparently as a porter. Mr. Ballay has no known criminal record nor had he any known record of mental illness prior to 1971.

On January 19, 1971, Mr. Ballay appeared at the United States Capitol and claimed he was a Senator from Illinois. He was promptly committed to Saint Elizabeths Hospital upon the certified recommendation of a member of the hospital staff, where he remained until his discharge on March 5 of that year. On June 7 he visited the White House claiming that he was a Senator from Illinois and asking to see Tricia Nixon concerning her forthcoming marriage. The result was identical and he was committed until June 25. Finally, he again arrived at the White House gate on June 29, 1971, claiming to be a Senator from Illinois, the husband of Tricia Nixon, and seeking an audience with the President. The resulting civil commitment is the subject of this appeal.

After his June 29 appearance at the White House, Mr. Ballay was taken into custody and committed to Saint Elizabeths Hospital for emergency observation on the basis of an application filed by a Secret Service agent. See 21 D.C. Code § 521 (1967). He was then examined by an undisclosed staff psychiatrist for an undisclosed period of time, after which a written petition for an order authorizing continued hospitalization was filed with the United States District Court for the District of Columbia. See 21 D.C.Code § 523 (1967). On June 30 an order was entered permitting his institutionalization for an additional seven days for the purpose of continued observation and diagnosis. See 21 D.C. Code § 524 (1967). Ballay was thereafter detained pursuant to 21 D.C.Code § 528 (1967) at the discretion of the administrator of the hospital pending a hearing before the Commission on Mental Health.

Following a hearing held approximately one month later, the Commission recommended that the court commit Mr. Ballay for institutional care. Ballay asserted his right to a jury trial, 21 D.C. Code § 545 (1967), was found by the jury to fall within the statutory proscription, and was committed to Saint Elizabeths Hospital. An alleged constitutional error in that trial is the subject of this appeal.

The issue presented, while perhaps abstruse in resolution, is prosaic in statement. John Ballay was alleged to be "mentally ill and, because of that illness, . . . likely to injure himself or other persons if allowed to remain at liberty . . . ."² The jury was instructed that it must be convinced by a preponderance of the evidence that both elements were present, a standard of proof which has been consistently applied by force of case law.³ The question is whether appellant was deprived of due process⁴ of law because the jury did not determine, beyond a reasonable doubt, that he was mentally ill and consequently dangerous.

The process accorded in any adversary proceeding reflects the interests at stake. In the present case the paramount interest is liberty, since the individual who is civilly committed faces restrictions which may exceed in length those imposed in most circumstances on the criminal or juvenile delinquent. Our deliberation therefore focuses on competing interests in an attempt to determine whether any may offset the immense individual interests involved. Focusing precisely on the state interest is a difficult task, however, because the statutes which address the enormous problem of mental illness broadly reflect dual motives, each of which may permit or require distinct procedures if considered separately. The first and dominant objective involves society's concern with antisocial conduct. This leads inexorably to analogy with the criminal system, not only because there are certain similarities in objective, but primarily because the resulting restriction of liberty has assumed a significant and visible role in the creation of inhibitions to the state's overzealous or mistaken application of that power. On virtually every plane of comparison the civil model presents an equally compelling plea for a stringent burden of proof. The justifications for institutional confinement as a means of implementing state interests —in traditional terms retribution, rehabilitation, deterrence and protection— are only partially applicable to civil commitment. The evidence which serves as a prerequisite to hospitalization remains uncertain, particularly with respect to predictions of dangerousness, and the ultimate decision may therefore unduly reflect clinical, rather than the appropriate legal and community, considerations.

Inextricably intertwined in both the statute and its legislative history is a second state interest involving its role as parens patriae. While viscerally a more persuasive rationale in terms of offsetting the individual's loss of liberty, the argument largely dissolves upon closer inspection. No distinction is made between the statutory standards permitting institutionalization where dangerous to society and where dangerous to self in terms of the individual or in terms of the differing process which distinct interests may require. Moreover, the latter standard itself sweeps in varied and complex classes who represent different interests and it also presents equally perplexing definitional problems. Recognizing again the immense individual interests involved, it is questionable whether a rather significant margin of error should be tolerated regardless of the rationale, particularly since a more demanding burden of proof is by its nature largely neutral in its affect on relevant state policies. It is more appropriately characterized as a particularly suitable means of reducing the risk of factual errors which may be engendered by the statute or by the difficulties inherent in the disciplines associated with mental illness. Finally, we cannot help but recognize the stigma which unfortunately still accompanies a finding of mental illness.

"Stone walls do not a prison make, nor iron bars a cage."⁵ We align ourselves with those courts⁶ that have held that proof of mental illness and dangerousness in involuntary civil commitment proceedings must be beyond a reasonable doubt.⁷

II. MOOTNESS

Ballay was discharged from Saint Elizabeths Hospital on November 4, 1971. The government contends that the present appeal is therefore moot. We think not. Appellant has now been civilly committed on three separate occasions, and each confinement was less than five months in duration. In light of his fixed delusions and the testimony indicating the likelihood of their persistence, the prospect of his again being subjected to commitment proceedings is not so remote as to bar the present challenge. A similar case is Friend v. United States, 128 U.S.App.D.C. 323, 388 F. 2d 579 (1967), where an inmate at Saint Elizabeths appealed from a district court ruling which revoked his conditional release. While the appeal was pending, a subsequent conditional release was issued. After considering testimony similar to that presented here concerning the likelihood of future mental problems, the court found the appeal to be the subject of a continuing controversy and not moot. See also Matthews v. Hardy, 137 U.S.App.D.C. 39, 420 F.2d 607 (1969), cert. denied, 397 U.S. 1010, 90 S.Ct. 1231, 25 L.Ed.2d 423 (1970), and Women Strike for Peace v. Hickel, 137 U.S. App.D.C. 29, 420 F.2d 597 (1969). Moreover, we cannot be oblivious to the importance of the constitutional issue posed nor the number of persons who are affected. Having recognized additionally that appellant was released on each occasion in far less time than necessary to perfect an appeal, we heed with care the words of the Supreme Court in So. Pac. Terminal Co. v. ICC, 219 U.S. 498, 515, 31 S.Ct. 279, 283, 55 L.Ed. 310 (1911), that consideration of issues of public importance "ought not to be, as they might be, defeated, by short term orders, capable of repetition, yet evading review . . . ." See also Roe v. Wade, 410 U.S. 113, 93 S.Ct. 705, 35 L.Ed.2d 147 (1973); Moore v. Ogilvie, 394 U.S. 814, 89 S.Ct. 1493, 23 L.Ed.2d 1 (1969); United States v. W. T. Grant Co., 345 U.S. 629, 632-633, 73 S.Ct. 894, 97 L.Ed. 1303 (1953); Walling v. Helmerich & Payne, 323 U.S. 37, 43, 65 S.Ct. 11, 89 L.Ed. 29 (1944); and Alton & So. Ry. v. International Ass'n of Mach. & A. W., 150 U.S.App.D.C. 36, 463 F.2d 872, 878-879 (1972).

There is yet another independent reason why the present appeal is not moot — the collateral consequences of being adjudged mentally ill remain to plague appellant. We recently had occasion to consider whether the standard applied in criminal cases, that a "case is moot only if it is shown that there is no possibility that any collateral legal consequence...