Albright, Matter of

• Decision Date: 12 June 1992
• Docket Number: No. 67142,67142
• Citation: 836 P.2d 1,17 Kan.App.2d 135
• Parties: In the Matter of the Treatment of James K. ALBRIGHT.
• Court: Kansas Court of Appeals

Page 1

836 P.2d 1

17 Kan.App.2d 135

In the Matter of the Treatment of James K. ALBRIGHT.

No. 67142.

Court of Appeals of Kansas.

June 12, 1992.

Syllabus by the Court

1. Constitutional safeguards concerning involuntary treatment for mentally ill persons do not require findings that the proposed patient is an imminent or present danger or has committed a recent overt act of a serious nature.

2. K.S.A. 59-2901 et seq., The Treatment Act for Mentally Ill Persons, is constitutional.

Stephens A. Smiley, Olathe, for appellant.

Darrell L. Smith, Asst. Dist. Atty., for appellee.

Before ELLIOTT, P.J., PIERRON, J., and THEODORE B. ICE, District Judge, Assigned.

PIERRON, Judge:

This is the proposed patient's appeal from an order of the district court ordering him into treatment at Osawatomie State Hospital pursuant to K.S.A. 59-2901 et seq., "The Treatment Act For Mentally Ill Persons."

The proposed patient, James K. Albright, was ordered into treatment at Osawatomie State Hospital after a jury found he was a mentally ill person and likely to cause harm to himself or others.

Albright, a 33-year-old male, has suffered from schizophrenia since 1985. He has been treated for the condition a number of times. In May 1991, he was released from C.P.C. College Meadows, a psychiatric hospital in Lenexa, Kansas, where he was being treated. Within three days of his release, Albright stopped taking his prescribed medication and refused to continue any medical treatment.

Albright smashed his stereo with a sledgehammer to prevent rock-n-roll music from being played on it, believing that such music was demonically inspired. He spent much time reading the Bible and other religious writings and listening to religious tapes. On August 18, 1991, his mother, Ivoree Albright, tried to coax Albright to come back to her home, where he resided, after finding him walking in the street in his stocking feet. On this occasion, Albright slapped his mother.

Two days later, on August 20, 1991, Ivoree Albright filed a petition alleging James Albright to be a mentally ill person. On September 9, 1991, a hearing was conducted. Evidence of the incident in the street on August 18 was admitted, as was testimony that Albright hears voices that he claims to be those of the Holy Spirit.

The jury also heard evidence that on May 4, 1991, Albright slapped his aunt as she attempted to persuade him to eat his food rather than read his Bible. Neither Albright's mother nor his aunt claim serious injury, and no other evidence of violent behavior or threats of violent behavior was presented.

A staff psychiatrist from Osawatomie State Hospital testified at trial that Albright suffered from paranoid schizophrenia; that Albright was unable to engage in a rational decision-making process regarding treatment by reason of his severe mental disorder; and that he was likely to cause harm to himself or others because, without medication, his condition would deteriorate and he could do harm given his past "assaultive behavior." The doctor additionally testified that without treatment, Albright's condition would deteriorate and he would reach the point where he would be unable to care for himself. He concluded that Albright was in need of treatment and that the only appropriate treatment was in the restrictive inpatient environment of a psychiatric hospital.

At the conclusion of the trial, the jury found Albright to be a mentally ill person pursuant to K.S.A. 59-2901 et seq., and the court ordered him into treatment. Albright appeals from that finding.

The two issues on appeal are (1) whether the definition of "mentally ill person" contained in K.S.A.1991 Supp. 59-2902(h), and the subsidiary definitions of terms contained therein, are overbroad and violative of the Fourth and Fourteenth Amendments to the Constitution of the United States and (2) whether the district court erred in refusing Albright's requested instructions which, he alleges, would have effectively removed the allegedly unconstitutional nature of the instructions.

At the outset, we note Albright does not raise on appeal the sufficiency of evidence at trial. This appeal is based solely on the constitutionality of the statute on its face and as it was applied to him.

In City of Baxter Springs v. Bryant, 226 Kan. 383, 598 P.2d 1051 (1979), the standard of review in cases concerning the constitutionality of a statute is set forth as follows:

"The constitutionality of a statute is presumed, all doubts must be resolved in favor of its validity, and before the statute may be stricken down, it must clearly appear the statute violates the constitution." Syl. p 1.

"In determining constitutionality, it is the court's duty to uphold a statute under attack rather than defeat it and, if there is any reasonable way to construe the statute as constitutionally valid, that should be done." Syl. p 2.

"Statutes are not stricken down unless the infringement of the superior law is clear beyond substantial doubt." Syl. p 3.

"The propriety, wisdom, necessity and expedience of legislation are exclusively matters for legislative determination and courts will not invalidate laws, otherwise constitutional, because the members of the courts do not consider the statute in the public interest of the state, since, necessarily, what the views of members of the court may be upon the subject is wholly immaterial and it is not the province nor the right of the courts to determine the wisdom of legislation touching the public interest as that is a legislative function with which the courts cannot interfere." Syl. p 4.

See also In re Jones, 228 Kan. 90, 95, 612 P.2d 1211 (1980) (statute providing for mandatory commitment of insanity acquitees not violative of due process just because it failed to provide for a separate hearing to determine present mental condition).

In addition, the Kansas Supreme Court has noted that it is its duty to "construe a statute in such a manner that it is constitutional if the same can be done within the apparent intent of the legislature in passing the statute. To accomplish this purpose the court may read the necessary judicial requirements into the statute." State v. Durrant, 244 Kan. 522, 534, 769 P.2d 1174, cert. denied 492 U.S. 923, 109 S.Ct. 3254, 106 L.Ed.2d 600 (1989). See State v. Eaton, 244 Kan. 370, 378-79, 769 P.2d 1157 (1989).

Albright claims that certain definitions in the Act at issue here are unconstitutional. K.S.A.1991 Supp. 59-2902(h) defines a "mentally ill person" as any person who:

"(1) Is suffering from a severe mental disorder to the extent that such person is in need of treatment;

"(2) lacks capacity to make an informed decision concerning treatment; and

"(3) is likely to cause harm to self or others."

Albright basically challenges the constitutionality of the definition of subsection (3) above. Section (g) states that "[l]ikely to cause harm to self or others" means the person:

"(1) Is likely, in the reasonably foreseeable future, to cause substantial physical injury or physical abuse to self or others or substantial damage to another's property, as evidenced by behavior causing, attempting or threatening such injury, abuse or damage; or

"(2) is substantially unable, except for reason of indigency, to provide for any of the person's basic needs, such as food, clothing, shelter, health or safety causing a substantial deterioration of the person's ability to function on the person's own."

Albright alleges the provisions under subsection (g)(1) are unconstitutional as they are violative of due process on two grounds: (1) Due process requires a showing of immediate or present danger; and (2) due process requires a showing of recent overt act or threat as a basis for concluding danger exists. Specifically, he challenges the wording "in the reasonably foreseeable future" since it allows commitment without a showing that the proposed patient is a present danger to himself or to others. Additionally, he claims the wording "as evidenced by behavior causing, attempting or threatening such injury, abuse or damage" is violative of due process as it purports to take into consideration acts that are not recent or overt.

On the other hand, the State contends that in drafting the statute the legislature recognized the very nature of mental illness and the prevention of harm to both society and to a proposed patient requires looking not only at the present situation, but the future. The State argues the legislature intended for the finder of fact to make a judgment as to what is likely to happen in the reasonably foreseeable future.

A. "Imminent" or "Present" Danger

In support of his argument that the portion of the statute at issue here is unconstitutional, Albright cites to Suzuki v. Yuen, 617 F.2d 173 (9th Cir.1980), where the Ninth Circuit Court of Appeals declared the Hawaii statutory procedure for the involuntary commitment of mental patients unconstitutional. The SUZUKI court cited a leading case, Lessard v. Schmidt, 349 F.Supp. 1078 (E.D.Wis.1972), vacated and remanded for more specific order 414 U.S. 473, 94 S.Ct. 713, 38 L.Ed.2d 661 (1974), order on remand 379 F.Supp. 1376 (D.C.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 (1976), for the proposition that "[t]he proper standard is that which requires a finding of imminent and substantial danger as evidenced by a recent overt act, attempt or threat." 617 F.2d at 178.

Noting that the Hawaii statute expressly required that there be imminent danger to property, but not imminent danger to self or others, for involuntary commitment, the Suzuki court said:

"We agree that the danger must be imminent to justify involuntary commitment. The legislature knew how to require imminence when it wanted to....

"Because it is unconstitutional to commit one who does not pose an imminent danger, the statute as presently worded is...