Green v. Com'r of Mental Health & Retard.

• Decision Date: 17 May 2000
• Parties: Virginia GREEN v. COMMISSIONER OF MENTAL HEALTH AND MENTAL RETARDATION.
• Court: Maine Supreme Court

750 A.2d 1265

2000 ME 92

Virginia GREEN v. COMMISSIONER OF MENTAL HEALTH AND MENTAL RETARDATION.

Supreme Judicial Court of Maine.

Argued January 5, 2000.

Decided May 17, 2000.

Peter Darvin (orally), Portland, for plaintiff.

Andrew Ketterer, Attorney General, William R. Stokes, Asst. Attorney General (orally), Augusta, for defendant.

Before WATHEN, C.J., and CLIFFORD, RUDMAN, DANA, SAUFLEY, ALEXANDER and CALKINS, JJ.

DANA, J.

[¶ 1] Virginia Green appeals from the denial by the Superior Court (Kennebec County, Atwood, J.) of her petition for release from the Augusta Mental Health Institute (AMHI) and from the denial of her motion to alter or amend the court's judgment. Green was committed to AMHI on July 10, 1997, after she was found to be not criminally responsible by reason of mental disease or defect, for the killing of her mother. On appeal, Green argues that the allocation of the burden of proof by clear and convincing evidence to insanity acquittees in release proceedings violates her right to substantive and procedural due process, as well as her right to equal protection. She also argues that the court erred as a matter of law when it applied the statutory criteria for release and that the court's findings of fact are clearly erroneous. Because we find that the allocation of the burden of proof passes constitutional muster and because we find no error in the court's judgment, we affirm.

I. FACTS

[¶ 2] On November 27, 1996, Virginia Green killed her mother while in a psychotic and delusional state. She was placed in AMHI in February 1997 pending the outcome of her trial. In July 1997, she was found not criminally responsible by reason of insanity and was automatically committed to AMHI pursuant to 15 M.R.S.A. § 103 (Supp.1999). In October 1997, Green filed a petition for release to a residential treatment program. A hearing was not held on her petition, however, until November 1998 because of various delays.

[¶ 3] Prior to the hearing, Green filed a trial memorandum challenging the placement of the burden of proof on her as a petitioner and requested that the burden be placed on the State to justify her continued commitment. The court denied her request citing our decision in Taylor v. Commissioner of Mental Health and Mental Ret., 481 A.2d 139 (Me.1984), and ruled that the burden of proof rested with Green to show by clear and convincing evidence her eligibility for release.

[¶ 4] In addition to the testimony of Green herself, the evidence at the hearing consisted almost exclusively of testimony by experts regarding Green's mental health and her potential for dangerousness if released to a program like the one she proposed in her petition for release. It is undisputed that Green suffers from bipolar disorder, also known as manic depressive illness, and poly-substance abuse, which together are referred to as a dual diagnosis condition. It is also undisputed that her illness is incurable and will last a lifetime.

[¶ 5] Her treating psychiatrist at AMHI, Dr. Walter Christie, testified that she will always suffer from mental illness, but that she is currently asymptomatic. It was Dr. Christie who developed the transition plan that Green proposed to the court, as well as additional "steps" to the transition plan that were later provided at the court's request. Dr. Christie also testified that Green had a pattern of relapses and hospitalizations, indicating that she had been hospitalized fifteen to twenty times since 1972.

[¶ 6] Nevertheless, Dr. Christie opined that Green could safely be returned to the community without a likelihood of harm to herself or others as long as the proposed treatment plan was followed strictly. He was confident that Green could safely make the jump from being restricted to the grounds of AMHI to a residential treatment program. Dr. Christie observed that the combination of Green's substance abuse and her bipolar illness precipitated her mania that eventually evolved in psychosis and delusion. He testified that the events leading up to the death of her mother represented an extreme state for Green that could have been avoided with proper treatment and oversight like that provided for in the plan.

[¶ 7] Green testified that in the past she had used drugs and alcohol in an effort to self-medicate despite her awareness that they precipitated psychotic and delusional episodes, but that she would never again resort to those tactics because they had led to the death of her mother. Green did acknowledge, however, that her illnesses are prone to relapse.

[¶ 8] Dr. Prudence Baxter, a forensic psychiatrist, prepared an independent psychiatric examination of Green at AMHI's request and conducted a general review of Green's case. She concluded that Green was not an appropriate candidate for release from the hospital, even in a supervised living situation like the one proposed. She expressed concerns that much of Green's treatment at AMHI had been focussed on gaining discharge from the hospital and had not sufficiently explored why Green's most recent episode of psychosis had resulted in such an extreme outcome. She was also concerned about Green's anti-anxiety medication that had highly addictive properties given her diagnosis of poly-substance abuse. Lastly, she indicated that she had not seen a residential treatment plan like the one proposed implemented in a forensic setting in the absence of any data regarding a candidate's responses to more incremental increases in privileges.

[¶ 9] Dr. Ann Bower, the clinical director for the Department of Mental Health, Mental Retardation and Substance Abuse Services, expressed similar concerns regarding the absence of demonstrable evidence that Green was ready for such a reduction in supervision. She indicated that such plans, known as "out-patient commitment plans," are rare in Maine because the State lacks an effective enforcement mechanism in the event of a breakdown in compliance. Dr. Bower also had concerns regarding analgesics that Green had been prescribed because of their addictive qualities.

[¶ 10] Following the testimony, the court issued an order in which it denied Green's petition for release, but noted that a higher level of privileges might be appropriate for Green. Green then filed a motion to amend the judgment, seeking an order granting off-grounds privileges. The State opposed the motion and submitted an institutional report recommending off-grounds privileges of a more circumscribed nature. The court denied Green's motion to amend the judgment and accepted the report's recommendation, approving the increased privileges it outlined including the more limited off-grounds privileges. Green then filed a notice of appeal.

II. THE BURDEN OF PROOF

[¶ 11] If a defendant is determined to be not criminally responsible by reason of mental disease or defect pursuant to 17-A M.R.S.A. § 39 (Supp.1999), the person is automatically committed to the custody of the Commissioner of Mental Health. See 15 M.R.S.A. § 103 (Supp.1999). Generally, the State must carry the burden beyond a reasonable doubt that the defendant engaged in conduct constituting a crime after which the burden shifts to the defendant to prove lack of criminal responsibility by reason of mental disease or defect by a preponderance of the evidence.¹ See 17-A M.R.S.A. §§ 39 & 40 (1983 & Supp.1999). The statute governing release of insanity acquittees, however, does not provide for a standard of proof, nor does it provide on whom the burden of proof rests. See 15 M.R.S.A. § 104-A (Supp.1999). As a result, we have been forced to make that determination in the past.

[¶ 12] In State v. Shackford, 262 A.2d 359 (Me.1970), we determined that the trial court had correctly placed the burden on the insanity acquittee to prove beyond a reasonable doubt that he was qualified for release into the community in a proceeding on a petition for release. Id. at 365-66. In 1984, we reconsidered our decision in Shackford and determined that, while the burden should continue to rest with the insanity acquittee, see Taylor, 481 A.2d at 144 n. 6,

the degree of proof required should be clear and convincing evidence, see id. at 149. Compare 18 U.S.C.A. § 4243(d) (1985 & Supp.1999) (placing burden on insanity acquittees by clear and convincing evidence when underlying offense involved serious bodily injury or serious damage to property). We explicitly elected not to decide, however, the constitutionality of the required degree of proof, as the parties did not have an opportunity to brief the issue. Id. at 154. Green now asks us to address, inter alia, the constitutionality of placing the burden of proof on insanity acquittees by clear and convincing evidence in proceedings regarding petitions for release and to reconsider our holding in Taylor.

A. Substantive Due Process

[¶ 13] Green argues that placing the burden on her to show by clear and convincing evidence that she is either no longer mentally ill or no longer harbors a potential for dangerousness violates her right to substantive due process provided by the Maine and United States Constitutions.² We conclude that placing such a burden on an insanity acquittee in release proceedings neither offends common concepts of ordered liberty, nor is such an arbitrary and wrongful government action that it violates either the Maine or United States constitutions.

The United States Supreme Court has stated:

Our established method of substantivedue-process analysis has two primary features: First, we have regularly observed that the Due Process Clause specially protects those fundamental rights and liberties which are, objectively, deeply rooted in this Nation's history and tradition, and implicit in the concept of ordered liberty, such that neither liberty nor justice would exist if they were sacrificed. Second, we have required in substantive-due-process cases a careful description of the asserted fundamental liberty interest. Our

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