Hickey v. Morris

• Citation: 722 F.2d 543
• Decision Date: 05 March 1984
• Docket Number: No. 83-3607,83-3607
• Parties: David Lee HICKEY, et al., Petitioners-Appellants, v. Charles MORRIS, Respondent-Appellee.
• Court: United States Courts of Appeals. United States Court of Appeals (9th Circuit)

Page 543

722 F.2d 543

David Lee HICKEY, et al., Petitioners-Appellants, v. Charles MORRIS, Respondent-Appellee.

No. 83-3607.

United States Court of Appeals,

Ninth Circuit.

Argued and Submitted Sept. 8, 1983.

Decided Dec. 23, 1983.

As Amended March 5, 1984.

Michael Mirra, Evergreen Legal Services, Steilacoom, Wash., for petitioners-appellants.

David R. Minikel, Asst. Atty. Gen., Olympia, Wash., for respondent-appellee.

Appeal from the United States District Court for the Eastern District of Washington.

Before WRIGHT, PREGERSON, and FERGUSON, Circuit Judges.

EUGENE A. WRIGHT, Circuit Judge:

Petitioners, a class of insanity acquittees, allege in this habeas proceeding that Washington's procedures for confinement and release of insanity acquittees are unconstitutional. They contend, first, that the disparity between the procedures for civil and criminal commitment denies them equal protection. Second, they contend that Washington's review and release procedures for insanity acquittees deny them due process.

In a carefully reasoned decision, the district court rejected both contentions and dismissed the petition. We affirm.

I. Statutory Framework

When a defendant raises an insanity defense, the trier of fact must determine:

(1) Whether the state has proved beyond a reasonable doubt that the defendant committed the felonious act charged;

(2) Whether the defendant has shown by a preponderance of the evidence that he should be acquitted by reason of insanity existing at the time of the act charged;

(3) Whether the state has shown by a preponderance of the evidence that the defendant is a substantial danger to other persons unless kept under further control;

(4) Whether the state has shown by a preponderance of the evidence that the defendant presents a substantial likelihood of committing felonious acts, jeopardizing public safety or security unless kept under further control; and

(5) Whether the state has shown by a preponderance of the evidence that the best interests of the defendant and others require that the defendant be detained in a state mental hospital rather than receive less restrictive treatment.

See Wash.Rev.Code Secs. 10.77.030(2), .040.

One acquitted of a felony by reason of insanity will be committed if the trier of fact finds that he or she presents a danger to society and less restrictive alternatives are not in the best interests of society. Wash.Rev.Code Sec. 10.77.110.

Insanity acquittees receive automatic review of their mental condition every six months. Wash.Rev.Code Sec. 10.77.140. This review is conducted in the hospital by health service professionals. Judicial review is discretionary, unless the hospital recommends release. The insanity acquittee may be confined for the maximum penal term of the crime charged. Prior release may occur only if the acquittee proves fitness by a preponderance of the evidence. State v. Kolocotronis, 27 Wash.App. 883, 620 P.2d 546 (1980). A court must approve release even if the hospital determines that the acquittee is fit for release. Wash.Rev.Code Sec. 10.77.200.

Civil commitment procedures are somewhat different. Under Wash.Rev.Code Sec. 71.05.150, a person may be civilly committed for an initial period of 72 hours if a mental health professional finds that the person, as a result of a mental disorder, presents a likelihood of serious harm to himself or others or is gravely disabled. Absent an emergency, a magistrate must make a finding of probable dangerousness before a summons may issue. In re Harris, 98 Wash.2d 276, 654 P.2d 109 (1982).

If the state decides that a further 14-day period of commitment is necessary, the court must hold a probable cause hearing. It must find by a preponderance of the evidence that the person presents a likelihood of serious harm to himself or others or is gravely disabled, and that treatment in a less restrictive setting is neither in the best interests of the civil committee nor of society. Wash.Rev.Code Sec. 71.05.230-.240.

Finally, if the state petitions to continue the commitment, the confinement may be continued for a maximum of 30 days to allow time for a hearing. The state must establish the grounds for commitment by clear, cogent, and convincing evidence. Wash.Rev.Code Sec. 71.05.310. The Washington Supreme Court has held that this standard is the civil equivalent of the beyond a reasonable doubt standard. In re Levias, 83 Wash.2d 253, 256, 517 P.2d 588, 590 (1973). If the state meets this burden, commitment continues for 90 days, when another hearing is required.

Thereafter, commitment hearings occur every 180 days unless the committee is released or waives the hearing. The state must show need for commitment beyond a reasonable doubt. Hospital staff may release a civil committee at any time, without judicial approval, upon finding that the committee no longer presents a likelihood of serious harm to others. Wash.Rev.Code Sec. 71.05.330.

Civil commitments are of potentially unlimited duration, subject to automatic judicial review after each 180 day period of commitment. Wash.Rev.Code Sec. 71.05.320.

II. Equal Protection

Petitioners contend that the disparity between the procedures for commitment and release of insanity and civil committees denies the former equal protection of the law. The argument centers on the partial overlap of the two groups. Both include persons committed in order to protect society, based on a finding of dangerousness. In either case, commitment is predicated, in part, on proof of a dangerous, overt act.

A. Level of Scrutiny

We consider first the level of judicial scrutiny to apply. San Antonio Independent School District v. Rodriguez, 411 U.S. 1, 17, 93 S.Ct. 1278, 1288, 36 L.Ed.2d 16 (1973). Traditionally equal protection analysis involves one of two standards: strict scrutiny or rational basis.

Strict scrutiny does not apply to involuntary commitment classifications. The United States Supreme Court has heard equal protection challenges in three involuntary commitment cases and has applied strict scrutiny in none. Jackson v. Indiana, 406 U.S. 715, 92 S.Ct. 1845, 32 L.Ed.2d 435 (1972); Humphrey v. Cady, 405 U.S. 504, 92 S.Ct. 1048, 31 L.Ed.2d 394 (1972); Baxstrom v. Herold, 383 U.S. 107, 86 S.Ct. 760, 15 L.Ed.2d 620 (1966). Further, it has indicated in dicta that the rational basis test applies. Jones v. United States, --- U.S. ----, 103 S.Ct. 3043, 3048 n. 10, 77 L.Ed.2d 694 (1983).

Recent decisions indicate that the Court sometimes applies the rational basis test with "a sharper focus." Craig v. Boren, 429 U.S. 190, 210-11 n. *, 97 S.Ct. 451, 463-64 n. *, 50 L.Ed.2d 397 (1976) (Powell, J., concurring). See also Cabell v. Chavez-Salido, 454 U.S. 432, 439, 102 S.Ct. 735, 739, 70 L.Ed.2d 677 (1982); Michael M. v. Superior Court of Sonoma County, 450 U.S. 464, 468-69, 101 S.Ct. 1200, 1204, 67 L.Ed.2d 437 (1981). Under this heightened scrutiny, a classification must be substantially related to the achievement of important governmental objectives. See, e.g., Craig v. Boren, 429 U.S. at 197, 97 S.Ct. at 456 (1976).

In Jackson, Humphrey, and Baxstrom, the Court used rational basis language but invalidated the classification. This suggests that it applies the heightened rational basis test to classifications affecting involuntary commitment. See Benham v. Edwards, 678 F.2d 511, 515-16 n. 9 (5th Cir.1982), vacated on other grounds, --- U.S. ----, 103 S.Ct. 3565, 77 L.Ed.2d 1406 (1983); Gunther, The Supreme Court, 1971 Term--Foreword: In Search of Evolving Doctrine on a Changing Court: A Model for a Newer Equal Protection, 86 Harv.L.Rev. 1, 27, 31 (1972).

The district court found that the heightened scrutiny used in Craig is appropriate here. We agree. Nevertheless, we need not decide the appropriate standard because we find that the challenged classifications survive even heightened scrutiny.

B. The State Does Not Violate Equal Protection by Providing Different Commitment Procedures for Civil Committees and Insanity Acquittees

In Jones v. United States, the Court rejected a due process challenge to a District of Columbia statute that required automatic commitment of all persons acquitted of a crime by reason of insanity. It refused to equate criminal and civil commitments. It held that Addington v. Texas, 441 U.S. 418, 99 S.Ct. 1804, 60 L.Ed.2d 323 (1979), which requires that civil commitments be based on clear and convincing evidence, does not extend to criminal commitments. Jones, 103 S.Ct. at 3051.

In a footnote, the Court indicated that equal protection requires the same result. It stated, "if the Due Process Clause does not require that an insanity acquittee be given the particular procedural safeguards provided in a civil-commitment hearing under Addington, then there necessarily is a rational basis for equal protection purposes for distinguishing between civil commitment and commitment of insanity acquittees." 103 S.Ct. at 3048 n. 10.

The petitioners contend that this case is distinguishable because the classes of civil committees and insanity acquittees overlap more in Washington than in the District of Columbia. Civil commitment in the District of Columbia is not based on proof of a specific, dangerous act. See Jones v. United States, 103 S.Ct. at 3046 n. 6. Because Washington law requires such proof for some committees, petitioners argue that virtually the only distinction between civil committees and insanity acquittees in Washington lies in the state's decision to prosecute some and seek civil commitment of others.

The overlap is not complete. Those subject to civil commitment for "grave disability", Wash.Rev.Code Sec. 71.05.280(4), or who have committed acts constituting a felony but are incompetent to stand trial are not subject to commitment as insanity acquittees. Wash.Rev.Code Secs. 10.77.060, .090.

The overlap appears with persons civilly committed based on proof of a specific, dangerous act and future dangerousness. Wash.Rev.Code Sec....