In re Johnson, 95-FM-1595.

• Decision Date: 13 March 1997
• Docket Number: No. 95-FM-1595.,95-FM-1595.
• Citation: 691 A.2d 628
• Parties: In re Bernard JOHNSON, Appellee.
• Court: D.C. Court of Appeals

691 A.2d 628

In re Bernard JOHNSON, Appellee.

No. 95-FM-1595.

District of Columbia Court of Appeals.

Argued January 7, 1997.

Decided March 13, 1997.

Richard F. Gondelman, Assistant Corporation Counsel, with whom Charles F.C. Ruff, Corporation Counsel, and Charles L. Reischel and Janet L. Maher, Deputy Corporation Counsels, were on the brief, for appellant District of Columbia Commission on Mental Health Services.

Laurie B. Davis, with whom James Klein was on the brief, for appellee.

Before FERREN, SCHWELB, and FARRELL, Associate Judges.

FERREN, Associate Judge:

The District of Columbia Commission on Mental Health Services (CMHS) appeals from the trial court's order dismissing its petition for involuntary civil commitment of Bernard Johnson for outpatient psychiatric treatment pursuant to D.C.Code § 21-541 (1989 Repl.). The trial court ruled that it could not involuntarily commit Johnson for outpatient treatment because Johnson already was listed on CMHS's rolls as an individual receiving voluntary outpatient treatment. CMHS argues that this ruling — that a voluntary outpatient cannot be committed involuntarily for outpatient treatment — is inconsistent with the Hospitalization of the Mentally Ill Act, Pub.L. No. 89-183, 79 Stat. 751 (1965) (codified as amended at D.C.Code § 21-501 to -592) ("Ervin Act"). We agree with CMHS and reverse.

I.

Johnson was admitted on an emergency basis to Saint Elizabeths Hospital on June 20, 1994, after an incident where, according to the police officer who took him to the hospital, Johnson talked about killing himself and his family and had turned on all the gas in the house. The officer filed an application for emergency hospitalization in accordance with D.C.Code § 21-521.¹ On June 21, 1994, at the request of CMHS, a judge authorized the hospital to detain Johnson for up to seven days for emergency observation and diagnosis pursuant to D.C.Code § 21-523.² On June 24, 1994, CMHS filed a timely petition with the Superior Court's Commission on Mental Health (the Commission)³ for indefinite judicial hospitalization under D.C.Code § 21-541.⁴

As required by D.C.Code § 21-542, the Commission held a hearing on September 15, 1994, to consider Johnson's mental health status and the propriety of further commitment proceedings.⁵ The Commission concluded that Johnson was mentally ill and, as a result of that mental illness, was a danger to himself and others unless properly supervised. The Commission noted that Johnson's condition had improved considerably during his stay at Saint Elizabeths and recommended Johnson's commitment as an out-patient and supervised treatment from a Community Mental Health Center. The Commission also asserted that Johnson did not object to commitment as an outpatient. Johnson, however, ultimately requested a jury trial on the question of whether he could be committed. Johnson was released to the community for outpatient treatment pending trial. In September 1995, CMHS alleged that Johnson was not complying with his outpatient treatment and applied to have him returned to the hospital. The trial court granted CMHS's application but stayed execution of the order before Johnson was in fact returned to the hospital.

Johnson moved to dismiss the petition for commitment, arguing that because he was listed as a voluntary outpatient on the rolls of CMHS, the Ervin Act prohibited conversion of his legal status to involuntary outpatient. The trial court agreed and dismissed the commitment petition.

II.

Johnson raises two preliminary challenges to the propriety of our reaching the merits in this case. Johnson first argues that CMHS has no right to appeal the order dismissing the commitment petition. He also contends this case is moot. We disagree on both counts.

A.

Johnson relies on In re Lomax, 386 A.2d 1185 (D.C.1978) (en banc), for the proposition that the government (here CMHS) has no right to appeal the trial court's dismissal of the commitment petition in this case. In Lomax, an involuntary civil commitment proceeding, a jury found that although Lomax was mentally ill, he was not likely to injure himself or others as a result of his mental illness. See id. at 1187. The trial court accordingly dismissed the commitment petition and ordered Lomax's release. See id. The government appealed, arguing that statements made during the opening argument of Lomax's counsel were so prejudicial that they tainted the verdict and required a new trial. See id. We held that the statutory scheme, which had been enacted out of a "`profound congressional concern for the liberties of the mentally ill,'" id. at 1188 (quoting Covington v. Harris, 136 U.S.App. D.C. 35, 41, 419 F.2d 617, 623 (1969)), did not envision or permit government appeals from adverse jury findings. See id. We also noted that there was "no logical reason" for a government appeal, since the government could always reinitiate commitment proceedings by filing a new petition against Johnson. A "retrial," therefore, would be a nonsequitur because the issue would be the same as at an entirely new proceeding: the current mental state of the respondent, not the mental state at the time of the original trial. Id. at 1189.

Johnson argues that in the present case, as in Lomax, a government appeal is pointless because CMHS always can file a new commitment petition and start the institutionalization process anew. In fact, as Johnson and CMHS note in their briefs, CMHS twice has initiated involuntary commitment proceedings against Johnson after the trial court's dismissal in this case.

CMHS responds by drawing our attention to In re Barlow, 634 A.2d 1246 (D.C.1993), where the District sought to appeal a trial court order dismissing the hospital's petition for a short-term involuntary commitment of Barlow for up to seven days. The trial court had concluded that Barlow had not been provided a court hearing within the statutorily mandated twenty-four hour period. See id. at 1247-49. Barlow argued, as does Johnson in the present case, that the Ervin Act did not authorize the government to appeal the dismissal order. We disagreed, distinguishing Lomax as a case where the government sought to appeal an order of dismissal resulting from a full adjudication on the merits. See Barlow, 634 A.2d at 1248. The Barlow court, presented with a legal challenge to the trial court's interpretation of what satisfied the requirement of D.C.Code § 21-525 that a hearing be "held" within twenty-four hours, agreed to hear the government's appeal:

Were the hospital to be denied the right of appeal in this instance there would be no avenue for this court to review and resolve the inconsistent interpretations of § 21-525 presented in this case. Lomax notwithstanding, we find that the government retains a narrow channel of appeal in Ervin Act cases that implicate fundamental questions as to the procedure by which the statutorily prescribed hospitalization or commitment process is completed.

Barlow, 634 A.2d at 1248-49.

The trial court concluded that Johnson could not be involuntarily committed as an outpatient because he was listed on CMHS's rolls as a voluntary outpatient. Very likely CMHS will be plagued with inconsistent rulings by trial courts unless we answer the legal question whether and, if so, how an individual may be involuntarily civilly committed when classified at the time as a voluntary outpatient. As in Barlow, the trial court dismissed the petition on legal, not factual, grounds. We cannot agree with Johnson's assertion in his brief that "the court made a factual determination regarding Mr. Johnson's committability, that Johnson who had been receiving outpatient treatment voluntarily remained willing to receive outpatient treatment and, thus, in this case there was no necessity for the court to order involuntary treatment." The court could not and did not make any factual finding; the court heard no evidence whatsoever on the question of whether Johnson was committable — indeed, the case was scheduled for a jury trial to resolve this very issue. Rather, the court concluded that Johnson's status as a voluntary outpatient precluded conversion of that status to involuntary outpatient. Whether this reasoning is correct or not — and we ultimately reject it — it cannot be considered a factual conclusion. The only "facts" relevant to the court's analysis were: (1) that Johnson was a voluntary outpatient, and (2) CMHS sought to change his status to involuntary outpatient. Whether and how the government can achieve such a transformation of legal status is precisely the kind of fundamental procedural question the government can appeal under Barlow.

B.

We also reject Johnson's mootness challenge to CMHS's appeal. CMHS does not appear to dispute that the case is moot in the sense that CMHS has no concrete interest in the outcome of the appeal. CMHS contends, rather, that we should exercise our discretion to the hear the case because it concerns issues that are "capable of repetition, yet evading review." The Supreme Court has limited this doctrine to cases where "(1) the challenged action was in its duration too short to be fully litigated prior to its cessation or expiration, and (2) there was a reasonable expectation that the same complaining party would be subjected to the same action again." Weinstein v. Bradford, 423 U.S. 147, 149, 96 S.Ct. 347, 349, 46 L.Ed.2d 350 (1975) (per curiam). However, "this court has declined to adhere strictly to the requirements set forth in Weinstein." In re W.L., 603 A.2d 839, 841 (D.C.1991). We have rejected mootness concerns, for example, in several cases where the second Weinstein prong was not satisfied but the case "involved overarching issues important to the resolution of an entire class of future" cases. McClain v. United States, 601 A.2d 80, 82 (D.C.1992); accord Lynch v. United States, 557 A.2d 580 (D.C.1989) (en banc).

Johnson argues that this case is not "in its duration too short...