Dorsey v. Solomon

• Decision Date: 25 July 1979
• Docket Number: No. 78-1667,78-1667
• Citation: 604 F.2d 271
• Parties: CA 79-2829 Sterling E. DORSEY, Frederick H. Stewart, Eliezer Mason, Individually and on behalf of all others similarly situated, Appellees, v. Neil SOLOMON, in his official capacity, as Secretary of Health and Mental Hygiene of the State of Maryland, Gary W. Nyman, in his official capacity, as Acting Commissioner of Mental Hygiene of the State of Maryland, Jay A. Lebow, in his official capacity, as Acting Superintendent of the Clifton T. Perkins Hospital Center, David L. Cahoon, in his official capacity as Associate Judge of the Circuit Court of Montgomery County, Albert L. Sklar, in his official capacity as Associate Judge of the Supreme Bench of Baltimore City, James A. Perrott, in his official capacity as Associate Judge of the Supreme Bench of Baltimore City, individually and on behalf of all others similarly situated, and Alan H. Murrell, in his official capacity as Public Defender of the State of Maryland, Appellants.
• Court: U.S. Court of Appeals — Fourth Circuit

Page 271

604 F.2d 271

CA 79-2829 Sterling E. DORSEY, Frederick H. Stewart, Eliezer

Mason, Individually and on behalf of all others

similarly situated, Appellees, v. Neil SOLOMON, in his official capacity, as Secretary of

Health and Mental Hygiene of the State of Maryland, Gary W.

Nyman, in his official capacity, as Acting Commissioner of

Mental Hygiene of the State of Maryland, Jay A. Lebow, in

his official capacity, as Acting Superintendent of the

Clifton T. Perkins Hospital Center, David L. Cahoon, in his

official capacity as Associate Judge of the Circuit Court of

Montgomery County, Albert L. Sklar, in his official capacity

as Associate Judge of the Supreme Bench of Baltimore City,

James A. Perrott, in his official capacity as Associate

Judge of the Supreme Bench of Baltimore City, individually

and on behalf of all others similarly situated, and Alan H.

Murrell, in his official capacity as Public Defender of the

State of Maryland, Appellants.

No. 78-1667.

United States Court of Appeals, Fourth Circuit.

Argued Jan. 8, 1979.

Decided July 25, 1979.

Thomas E. Plank, Asst. Atty. Gen., Baltimore, Md. (Francis B. Burch, Atty. Gen. of Maryland, Steven P. Resnick, Asst. Atty. Gen., Baltimore, Md., on brief), for appellants.

Albert J. Matricciani, Jr., Legal Aid Bureau, Inc., Baltimore, Md. (Carol E. Smith and Lawrence B. Coshnear, Legal Aid Bureau, Inc., Baltimore, Md., on brief), for appellees.

Before BUTZNER and RUSSELL, Circuit Judges, and FIELD, Senior Circuit Judge.

BUTZNER, Circuit Judge:

The issue in this appeal of a class action brought under 42 U.S.C. § 1983 is whether Maryland must now afford judicial commitment hearings to persons summarily committed to state mental hospitals after being acquitted of criminal charges on the ground of insanity. ¹ We affirm the district court's ruling that Maryland denies these persons their constitutional rights by placing on them the burden of proving their fitness for release. We believe, however, that the state's release procedures apart from the allocation of the burden of proof provide an adequate remedy for persons who have been committed without a hearing.

I

Maryland has adopted the American Law Institute's formulation of the insanity defense. To interpose the defense, a defendant must file a written plea alleging that he was insane at the time the crime was committed. If the defendant then introduces at trial evidence sufficient to raise a doubt about his sanity, the state must bear the burden of proving sanity as well as all other elements of the alleged offense beyond a reasonable doubt. Maryland Code Ann. art. 59, § 25 (Repl.Vol.1972); See Riggleman v. State, 33 Md.App. 344, 364 A.2d 1159, 1163-64 (1976); Strawderman v. State, 4 Md.App. 689, 244 A.2d 888, 893 (1968).

When a defendant is acquitted by reason of insanity, the court has discretion to order him confined for examination. If state mental health officials report that he would, once released, "be a danger to himself or the safety of the person or property of others," the court may order him committed to a mental hospital without a hearing. Md. Code Ann. art. 59, § 27 (Repl.Vol.1972); See Morris v. State, 11 Md.App. 18, 272 A.2d 663, 666 (1971).

At least three months after his confinement for examination, the inmate may apply for judicial release. Md. Code Ann. art. 59, §§ 15, 27 (Repl.Vol.1972). If the hospital reports that he is no longer dangerous and the state shows no cause for his continued confinement, the court must release him. If the hospital or the state resists his release, the inmate can request a hearing on his mental condition. The hearing proceeds like a civil jury trial, except that the inmate can obtain the assistance of appointed counsel. The state need not prove that the inmate is dangerous. Instead, the inmate bears the burden of proving his fitness for release. Salinger v. Superintendent, 206 Md. 623, 112 A.2d 907 (1955); Daniels v. Superintendent, 34 Md.App. 173, 366 A.2d 1064 (1976).

In summary, Maryland law provides that after a criminal defendant has raised only a reasonable doubt about his sanity and the state has failed to prove him sane, he may be committed summarily to a mental institution on the basis of the examining officials' report. ² If the state chooses to hold him, he can secure his release only by proving that he is not dangerous.

During the course of the proceedings in the district court, the parties consented to a decree providing that criminal defendants subsequently acquitted on insanity grounds would receive judicial commitment hearings with certain procedural rights within 60 days after receipt of their mental evaluation reports. The parties were unable to agree, however, whether similar hearings should be accorded inmates presently committed as the result of earlier summary proceedings. Addressing this controversy, the district court held that persons confined without hearings must now receive judicial commitment hearings with the right to appointed counsel. The court found that the release procedures available to these inmates were not an adequate substitute for new commitment hearings. ³ The state appeals this provision of the court's judgment.

Although the parties have characterized the issue on appeal as involving the retroactive application of the district court's judgment, the commitment hearings ordered by the court are not truly retroactive proceedings to determine whether each inmate was committable at the time he was confined. Like Maryland's judicial release hearings, the commitment hearings would address each inmate's current propensity to harm himself or others. The release and commitment hearings differ, however, with respect to the allocation of the burden of proof. Under the procedures ordered by the district court, the state must prove that the inmate is dangerous. Under the state's statutory release procedures, by contrast, an inmate who has been confined without the benefit of a hearing cannot secure release unless he carries the burden of proving that he is not dangerous.

II

In Baxstrom v. Herold, 383 U.S. 107, 86 S.Ct. 760, 15 L.Ed.2d 620 (1966), the Supreme Court held that the equal protection clause bars a state from committing a prisoner who is nearing the end of his term to a mental institution without affording him a hearing similar to the hearing necessary for involuntary civil commitment of the mentally ill. Later the Court recognized with apparent approval that the Baxstrom principle had been extended by lower courts to commitment following an insanity acquittal. See Jackson v. Indiana, 406 U.S. 715, 724, 92 S.Ct. 1845, 32 L.Ed.2d 435 (1972). Recently, in Addington v. Texas, --- U.S. ----, 99 S.Ct. 1804, 60 L.Ed.2d 323 (1979), the Court reaffirmed that involuntary commitment to a mental institution "constitutes a significant deprivation of liberty that requires due process protection." 99 S.Ct. at 1809. Addington dealt with the standard of proof required for civil commitment, and in doing so, it implicitly placed on the state the burden of proving that the person to be committed has a propensity to harm himself or others.

These decisions, we believe, establish that Maryland's procedures for retaining custody of persons who have been acquitted of criminal charges by reason of insanity are constitutionally inadequate. Pointing out that Maryland provides counsel to persons civilly committed, the district court correctly ruled that the commitment without counsel and without a hearing of persons acquitted of criminal charges by reason of insanity offends both the equal protection and due process clauses of the fourteenth amendment. The state's procedures for release do not remedy these constitutional defects because they shift to each inmate the burden of proving his fitness for release. While it is proper to place this burden on inmates committed in accordance with constitutionally adequate procedures, it is fundamentally unfair to require inmates whom the state has never proven committable to bear the burden of proving their suitability for release.

The state relies on Kovach v. Schubert, 419 U.S. 1117, 95 S.Ct. 799, 42 L.Ed.2d 817, Dismissing for want of substantial federal question 64 Wis.2d 612, 219 N.W.2d 341 (1974), and Bolton v. Harris, 130 U.S.App.D.C. 1, 395 F.2d 642 (1968), for the opposite conclusion, but both cases are inapposite. In Kovach, the Supreme Court summarily affirmed a judgment that required an inmate committed without proper procedures to bear the burden of proving his fitness for release. The facts of that case are special, however, because Kovach had stipulated at his criminal trial that he was insane when he committed his offense. 219 N.W.2d at 342. Furthermore, we believe that the Court's subsequent, reasoned opinion in Addington v. Texas, --- U.S. ----, 99 S.Ct. 1804, 60 L.Ed.2d 323 (1979), is better authority than the tacit affirmance in Kovach. We therefore need not treat the case as controlling. See Mandel v. Bradley, 432 U.S. 173, 176-77, 97 S.Ct. 2238, 53 L.Ed.2d 199 (1977).

Bolton gave prospective effect to a decision invalidating procedures for mandatory commitment after an insanity acquittal. The opinion gave only cursory attention to the question of retroactivity, and Waite v. Jacobs, 475 F.2d 392, 397-400 (D.C.Cir.1973), shows that subsequent Supreme Court decisions cast doubt upon the part of Bolton that requires inmates whom the state has never proven committable to bear the burden of proof at a release hearing. Furthermore, Bolton treated the issue as a simple question of retroactivity. It did not explore alternative kinds of relief that we consider in this opinion.

III

To provide redress for about 188 inmates committed under Maryland's summary procedures, the district court directed the state to provide them with new commitment hearings. At these hearings each inmate would receive the assistance of appointed counsel, and the state would bear the burden of showing that...