Harris, In re

• Decision Date: 02 December 1982
• Docket Number: No. 47805-8,47805-8
• Citation: 98 Wn.2d 276,654 P.2d 109
• Parties: In re the Detention of Mary Ann Lee HARRIS, Petitioner.
• Court: Washington Supreme Court

Page 276

98 Wn.2d 276

654 P.2d 109

In re the Detention of Mary Ann Lee HARRIS, Petitioner.

No. 47805-8.

Supreme Court of Washington En Banc.

Dec. 2, 1982.

Richard B. Sanders, Douglas Crowder, Seattle, for petitioner.

Gerald Smith, Deputy Prosecutor, Seattle, for respondent.

UTTER, Justice.

Petitioner claims the summons procedure for involuntary civil commitment under RCW 71.05.150 violates the due process clause of the federal constitution. We find those procedures constitutionally inadequate and impose the requirement of a judicial finding of "probable dangerousness" before detention in nonemergency situations.

On Friday, May 22, 1981, at 11:30 p.m., a summons issued pursuant to RCW 71.05.150 was served upon petitioner Harris directing her to report to Harborview Hospital. The summons was issued by a county designated mental health professional based on an affidavit of Harris' mother provided 5 days earlier. Petitioner did not so report, which resulted in the issuance of an authorization to take her into custody. Before that "custody authorization" was exercised, petitioner obtained appointed counsel, who in turn obtained a 7-day temporary restraining order prohibiting King County from apprehending her. The order also provided that if a declaratory judgment action challenging the constitutionality of RCW 71.05 were initiated the restraint would stay in effect until its conclusion. The trial court refused to provide petitioner a show cause hearing.

Petitioner Harris then filed a motion for discretionary review of the trial court's failure to require a show cause hearing. Subsequent to filing the motion, the King County Prosecuting Attorney, who is the respondent here, moved for and obtained an order for voluntary dismissal of the Superior Court detention proceeding.

We overruled a commissioner's ruling denying Harris' motion for discretionary review and accepted review of the case.

I

Respondent raises a number of threshold inquiries which generally address the propriety of our decision to grant petitioner's motion to modify the commissioner's ruling denying a motion for discretionary review.

Though respondent makes valid points with respect to mootness and the awkward posture of petitioner's appeal, this case "presents a question of a public nature which is likely to recur, and for which an authoritative determination now is desirable for the future guidance of public officers." In re Patterson, 90 Wash.2d 144, 149, 579 P.2d 1335 (1978). The need for an authoritative disposition of the constitutionality of RCW 71.05.150 compels us to reach the substantive legal questions regardless of the specific infirmities of this case.

II

All petitioner's constitutional claims involve the provisions of RCW 71.05.150, setting forth procedures for the "detention of mentally disordered persons for evaluation and treatment". The statute provides, inter alia, that a mental health professional who "receives information alleging that a person, as a result of a mental disorder, presents a likelihood of serious harm to others or himself ... after investigation ... may summon such person to appear at an evaluation and treatment facility for not more than a seventy-two hour evaluation and treatment period". RCW 71.05.150(1)(a). RCW 71.05.020(3) defines a "likelihood of serious harm" as either:

(a) A substantial risk that physical harm will be inflicted by an individual upon his own person, as evidenced by threats or attempts to commit suicide or inflict physical harm on one's self, (b) a substantial risk that physical harm will be inflicted by an individual upon another, as evidenced by behavior which has caused such harm or which places another person or persons in reasonable fear of sustaining such harm, or (c) a substantial risk that physical harm will be inflicted by an individual upon the property of others, as evidenced by behavior which has caused substantial loss or damage to the property of others;

If a person summoned does not appear within 24 hours of service, "such person may be involuntarily taken into custody." RCW 71.05.150(1)(b). An individual is entitled to a "probable cause" hearing within 72 hours after detention. RCW 71.05.150(1)(c).

There is no question that due process guaranties must accompany involuntary commitment for mental disorders. In re Levias, 83 Wash.2d 253, 517 P.2d 588 (1973); In re Quesnell, 83 Wash.2d 224, 517 P.2d 568 (1973); Addington v. Texas, 441 U.S. 418, 99 S.Ct. 1804, 60 L.Ed.2d 323 (1979). The United States Supreme Court has described involuntary commitment as "a massive curtailment of liberty." Humphrey v. Cady, 405 U.S. 504, 509, 92 S.Ct. 1048, 1052, 31 L.Ed.2d 394 (1972).

Commitment is designed to be beneficial, but it can be harmful. The injurious effect of commitment can be manifested in a very short time. As testimony before the Senate indicated:

any kind of forcible detention of a person in an alien environment may seriously affect him in the first few days of detention, leading to all sorts of acute traumatic and iatrogenic symptoms and troubles.

Constitutional Rights of the Mentally Ill: Hearings Before the Subcomm. on Constitutional Rights of the Senate Comm. on the Judiciary, 91st Cong., 1st & 2d Sess. 210 (1969-70) (statement of Arthur Elson Cohen, member ACLU). In addition, social stigmatization attaches to those who have been committed because of mental illness. See Position Statement on Discrimination Against Persons with Previous Psychiatric Treatment, 135 Am.J. Psychiatry 643 (1978).

III

Having established a liberty interest, petitioner first contends that since "dangerousness" is not capable of accurate prediction, it may not serve as the basis for depriving an individual of his liberty.

In essence, petitioner argues by the nature of that which is sought to be proved, the prosecution can never meet the standard of "clear, cogent and convincing evidence" mandated by the court in In re Levias, supra. In support of this position petitioner cites the lone affidavit of Dr. Rabkin below and numerous law review articles. See, e.g., Ennis & Litwack, Psychiatry and the Presumption of Expertise: Flipping Coins in the Courtroom, 62 Cal.L.Rev. 693 (1974); Cocozza & Steadman, The Failure of Psychiatric Predictions of Dangerousness: Clear and Convincing Evidence, 29 Rutgers L.Rev. 1084 (1976).

Respondent points out that we have implicitly accepted the uncertainties surrounding psychiatric predictions, yet found such predictions amenable to due process. In re Patterson, supra; In re Levias, supra. The United States Supreme Court, while acknowledging this uncertainty, has also found this area of inquiry susceptible to due process. O'Connor v. Donaldson, 422 U.S. 563, 95 S.Ct. 2486, 45 L.Ed.2d 396 (1975); Addington v. Texas, supra.

Petitioner's argument would eviscerate the entire law of involuntary commitment as well as render dubious the numerous other areas where psychiatry and the law intersect. There is no question the prediction of dangerousness has its attendant problems. The American Psychiatric Association has in another context confessed the profession's inability to predict dangerousness precisely. See Coleman, "You'll Thank us Later": Rationalizing Civil Commitment of the Mentally Disordered, 4 Hamline L.Rev. 425, 432 (1981). Mental disease does not in itself connote dangerousness, nor is it necessarily an indicator of dangerousness. See Giovannoni & Gurel, Socially Disruptive Behavior of Ex-Mental Patients, 17 Archives Gen. Psychiatry 146 (1967); Rappeport & Lassen, Dangerousness--Arrest Rate Comparisons of Discharged Patients and the General Population, 121 Am.J. Psychiatry 776 (1965); Steadman & Keveles, The Community Adjustment and Criminal Activity of the Baxstrom Patients: 1966-1970, 129 Am.J. Psychiatry 304 (1972).

Yet fear of the unknown is often greater than fear of the known. The laws of involuntary civil commitment should not reflect these irrational fears of mental illness. See Constitutional Rights of the Mentally Ill, supra. This court can endeavor to protect against abuse by requiring demonstration of a substantial risk of danger and by imposing procedural safeguards and a heavy burden of proof. See In re Levias, supra. But we are not prepared to abandon the possibility of conforming the law of involuntary civil commitment to the requirements of the constitution.

Even if we were to give credence to petitioner's broad claim that dangerousness cannot be predicted, she has not provided the kind of record necessary for the court thoughtfully to consider her claim. We have a doctor's affidavit and a few articles in an appendix. No expert testimony has been provided; the prosecutor has not even had the opportunity to present evidence on the question.

IV

Assuming dangerousness may provide a basis for commitment petitioner next claims that dangerousness must be "imminent" and based on a "recent" overt act to justify involuntary detention. In Suzuki v. Yuen, 617 F.2d 173 (9th Cir.1980), the Ninth Circuit struck down a Hawaii statute providing procedures for involuntary commitment because it "failed to specify that the 'danger' to self or others be imminent." 617 F.2d at 178. The court quoted the standard of dangerousness set forth by the district court below in Suzuki v. Alba, 438 F.Supp. 1106 (D.Hawaii 1977):

The proper standard is that which requires a finding of imminent and substantial danger as evidenced by a recent overt act, attempt or threat.

438 F.Supp. at 1110, citing Lessard v. Schmidt, 349 F.Supp. 1078, 1093-94 (E.D.Wis.1972), vacated and remanded for a more specific order, 414 U.S. 473, 94 S.Ct. 713, 38 L.Ed.2d 661, order on remand, 379 F.Supp. 1376 (E.D.Wis.1974), vacated and remanded on other grounds, 421 U.S. 957, 95 S.Ct. 1943, 44 L.Ed.2d 445 (1975), order reinstated on remand, 413 F.Supp. 1318 (E.D.Wis.1976).

The standard of dangerousness for the summons procedures under RCW 71.05.150, as well as for all other...