Anderson, In re

• Court: California Court of Appeals
• Writing for the Court: STEPHENS
• Citation: Anderson, In re, 140 Cal.Rptr. 546, 73 Cal.App.3d 38 (Cal. App. 1977)
• Decision Date: 31 August 1977
• Docket Number: Cr. 29787
• Parties: In re Rayford ANDERSON on Habeas Corpus.

Page 546

140 Cal.Rptr. 546

73 Cal.App.3d 38

In re Rayford ANDERSON on Habeas Corpus.

Cr. 29787.

Court of Appeal, Second District, Division 5, California.

Aug. 31, 1977.

Evelle J. Younger, Atty. Gen., Jack R. Winkler, Chief Asst. Atty. Gen., S. Clark Moore, Asst. Atty. Gen., and Robert F. Katz and Robert R. Anderson, Deputy Attys. Gen., for respondent and appellant.

Wilbur F. Littlefield, Public Defender by Harold E. Shabo, Terry Kohl, and Leighton A. Nugent, Deputy Public Defenders, for petitioner and respondent.

STEPHENS, Acting Presiding Justice.

The People appeal from an order entered in a habeas corpus proceeding requiring the Department of Health to hold a limited hearing before officially revoking respondent's status as an outpatient from Atascadero State Hospital. ¹ Respondent had been admitted to Atascadero on November 24, 1972 under the provisions of Penal Code section 1026 following his acquittal on an insanity plea. On May 5, 1975, he was placed on outpatient status, but 10 months later was summarily returned on the initiative of local mental health personnel. On September 7, 1976, he instituted habeas corpus proceedings in the Superior Court, and then appealed the superior court order of October 20, 1976. Subsequently, on December 17, 1976, he sought further habeas corpus relief in this court, and this petition was granted only to the extent that we ordered that respondent be afforded counsel at his revocation hearing. (In re Anderson (Jan. 13, 1977), 2d Cr. No. 29725.) ² The issue now before us is whether the procedural due process principles enunciated in Morrissey v. Brewer, 408 U.S. 471, 92 S.Ct. 2593, 33 L.Ed.2d 484 and in In re Bye, 12 Cal.3d 96, 115 Cal.Rptr. 382, 524 P.2d 854 dictate that a mental patient acquitted by reason of insanity must be afforded notice and a hearing prior to the revocation of his outpatient status. We conclude in the affirmative.

Section 7375 of the Welfare and Institutions Code governs the outpatient treatment of those committed to a state mental hospital after acquittal on grounds of insanity. Subparagraphs d(1) through d(4) of that section (added Stats.1975, ch. 1274, § 22) establish the following procedures: First, before a patient may be released for local outpatient care, treatment arrangements must be made with a county mental health facility; the committing court, the prosecuting attorney, and the patient's attorney must be notified, and formal court approval must be secured at the behest of the prosecuting attorney. (Subp. d(1).) Second, once the patient is placed on outpatient status, the designated outpatient supervisor is required to submit progress reports every three months to the court, the state hospital, and the local mental health facility. (Id.) Such status lasts for a one year period, but is renewable for additional one-year terms. (Id.) Despite these elaborate release procedures, however, the patient is subject to summary return if the outpatient supervisor and the head of the local mental health facility are of the opinion that 'the person refuses to accept outpatient treatment, or requires impatient treatment.' (Supp. d(3).) By contrast, if the prosecuting attorney seeks the patient's return (on grounds of his dangerousness to others), a full judicial hearing must first be held. (Subp. d(4). See generally, Review of Selected 1975 California Legislation, 7 Pac.L.J. 237, 407.) ³

The People seek to justify the summary return procedure embodied in section 7375 on due process grounds, asserting that the state interest in providing proper, uninterrupted treatment for the protection of both patient and public 'outweighs' any deprivation to the patient when he is returned to the hospital, and that the provision for habeas corpus relief provides an adequate buffer against arbitrary state action. Throughout this argument, the People attempt to circumvent the due process dictates of Morrissey (for revocation of parole) and Bye (for revocation of the outpatient status of a person committed to the California Rehabilitation Center (CRC) under the civil addict program), by urging that the decision to recommit a mentally disturbed offender, as opposed to a parolee or a narcotics addict, is made upon predominantly medical and not factual grounds. We reach the unescapable conclusion, however, that the conditional liberty interest of the outpatient from a mental hospital is no less entitled to due process safeguards than that of either the parolee or the outpatient from the California Rehabilitation Center (CRC). While the full panoply of protections contained in Morrissey; may not be appropriate in this context, the requirements outlined in Bye are the constitutional minima.

DISCUSSION

The two-step methodology, settled on in Morrissey (408 U.S. 471, 481, 92 S.Ct. 2593, 33 L.Ed.2d 484) and followed in Bye (12 Cal.3d 96, 100, 115 Cal.Rptr. 382, 524 P.2d 854) establishes the analytical framework to be used here--that is, first, whether the individual's interest is comprehended within the liberty or property language of the Fourteenth Amendment, and second, if some process is due, the scope of the necessary safeguards.

I

We begin with the root proposition that it is the Nature of the individual interest at stake and not its Weight which triggers Fourteenth Amendment protections. (Morrissey v. Brewer, supra, 408 U.S. at p. 481, 92 S.Ct. 2593; Board of Regents v. Roth, 408 U.S. 564, 570--571, 92 S.Ct. 2701, 33 L.Ed.2d 548; In re Bye, supra, 12 Cal.3d at p. 101, 115 Cal.Rptr. 382, 524 P.2d 854.) If an individual is condemned to suffer a 'grievous loss' of liberty, he must first be accorded due process of law (see Morrissey v. Brewer, supra, 408 U.S. at p. 481, 92 S.Ct. 2593) irrespective of the burden imposed upon the government agency (see Fuentes v. Shevin, 407 U.S. 67, 91, n. 22, 92 S.Ct. 1983, 32 L.Ed.2d 556). Following Morrissey guidelines, the Bye court determined that a CRC outpatient was possessed of a liberty interest, which, though conditional, was entitled to Fourteenth Amendment protections. (12 Cal.3d at p. 103, 115 Cal.Rptr. 382, 524 P.2d 854.) Similarly, we conclude that the conditional liberty interest of the mental outpatient, like that of the parolee and the CRC outpatient, includes many of the core values of unqualified liberty and cannot be terminated without due process of law.

Pursuant to the express provisions of section 7375, the mentally disturbed offender, whose condition has improved to the extent that he no longer poses a danger to the health and safety of others, may be released on outpatient status provided he agrees to submit to treatment through a county mental health facility under the suspices of a designated outpatient supervisor. The clinical program prescribed will of course vary in nature and degree with the type of mental illness with which the individual is afflicted. The conditions imposed upon the outpatient may simply involve the taking of certain prescribed medication, or, in addition, extensive counseling, thereapy, and observation at the local mental health clinic might be required. As long as the outpatient complies with the regimen meted out through his supervisor and suffers no deterioration in his condition, his conditional liberty will not be revoked. Despite the conditions imposed upon him, the outpatient is able to form '(the) enduring attachments of normal life' (Morrissey v. Brewer,supra, 408 U.S. at p. 482, 92 S.Ct. at p. 2600; In re Bye, 12 Cal.3d at p. 101, 115 Cal.Rptr. 382, 524 P.2d 854) and enjoys 'many of the core values of unqualified liberty' (Morrissey v. Brewer, supra, 408 U.S. at p. 482, 92 S.Ct. at p. 2601). The revocation of his status and recommitment to a state mental hospital--an institution which often is little more than 'a sanitary dungeon' (People v. Burnick, 14 Cal.3d 306, 319, 121 Cal.Rptr. 488, 535 P.2d 352)--certainly works a loss of liberty as grievous as that inflicted upon his parolee and narcotic addict counterparts. (See Meisel v. Kremens (E.D.Pa. 1975) 405 F.Supp. 1253. Compare Dietrich v. Brooks (1976) 27 Or.App. 821, 558 P.2d 357.) By contrast, even those already in confinement have been deemed to have that quantum of liberty which is within the ambit of the Fourteenth Amendment. (See Wolff v. McDonnell, 418 U.S. 539, 94 S.Ct. 2963, 41 L.Ed.2d 935 (revocation of a prisoner's 'good time credit'); Holmes v. United States Bd. of Parole (7th Cir. 1976) 541 F.2d 1243; Cardaropoli v. Norton (2d Cir. 1975) 523 F.2d 990 (attachment of restrictive 'special offender' classification to prisoners); United States ex rel. Schuster v. Herold (2d Cir. 1969) 410 F.2d 1071 (involuntary transfer of a prisoner to an institution for the criminally insane); Romero v. Schauer (D.Colo. 1974) 386 F.Supp. 851, Burchett v. Bower (D.Ariz. 1973) 355 F.Supp. 1278 (involuntary transfer of a mental patient to a penitentiary); Negron v. Preiser (S.D.N.Y. 1974) 382 F.Supp. 535 (involuntary transfer of mental patient to an isolation cell); People ex rel. Maisano v. Macaluso (1975) 80 Misc.2d 728, 363 N.Y.S.2d 777 (involuntary recommitment of a drug addict in a 'halfway house').) It can no longer be doubted, therefore, that a mental outpatient recommitted to a state mental institution suffers a 'massive curtailment of liberty' (Humphrey v. Cady, 405 U.S. 504, 509, 92 S.Ct. 1048, 31 L.Ed.2d 394)--a deprivation which the State cannot accomplish without due process of law. (See O'Connor v. Donaldson, 422 U.S. 563, 580, 95 S.Ct. 2486, 45 L.Ed.2d 396 (Burger, C.J., concurring); Specht v. Patterson, 386 U.S. 605, 608, 87 S.Ct. 1209, 18 L.Ed.2d 326; Meisel v. Kremens, supra, at p. 1257; German & Singer, Punishing the Not Guilty: Hospitalization of Persons Acquitted by Reason of Insanity, 29 Rutgers L.Rev. 1011, 1071--1073 (1976); Note, Developments in the Law--Civil Commitment of the Mentally Ill, 87 Harv.L.Rev. 1190, 1385, n. 55 (1974).)

To call the revocation of respondent's outpatient status a '...