In re Sandra H.

• Decision Date: 12 March 2004
• Docket Number: No. 2003–020.,2003–020.
• Citation: 150 N.H. 634,846 A.2d 513
• Court: New Hampshire Supreme Court
• Parties: In re SANDRA H.

150 N.H. 634

846 A.2d 513

In re SANDRA H.

No. 2003–020.

Supreme Court of New Hampshire.

Argued: Nov. 12, 2003.

Opinion Issued: March 12, 2004.

Rehearing Denied April 23, 2004.

Peter W. Heed, attorney general (Anne M. Edwards, associate attorney general, on the brief and orally), for the State.

Gordon R. Blakeney, Jr., of Concord, by brief and orally, for the respondent.

DALIANIS, J.

The respondent, Sandra H., appeals her involuntary commitment to New Hampshire Hospital (NHH) by the Merrimack County Probate Court (Hampe , J.) on the grounds that: (1) she was denied her constitutional right to a trial by jury; (2) the statutory waiver of physician-patient privilege violated her right to equal protection; (3) the probate court erred in denying her motion to dismiss for non-availability of the psychiatrist's report; and (4) the probate court had insufficient evidence to justify the necessity and length of her commitment. See RSA ch. 135–C (1996 & Supp.2002). We affirm.

On December 12, 2002, NHH filed an involuntary commitment petition pursuant to RSA chapter 135–C. In accordance with RSA 135–C:40, a court-appointed psychiatrist prepared an independent evaluation of the respondent, finding that she was "suffering from mood disorder not otherwise specified, with psychotic features" and that "there's a potential serious likelihood of danger to herself." Additionally, the respondent's treating psychiatrist testified that he diagnosed her with "a major depressive disorder

with psychotic features" and that she was a danger to herself and possibly a danger to others. Several nurses from the NHH treatment team and a friend of the respondent also testified as to her mental incapacity. Based upon the evidence presented, the probate court ordered that the respondent be committed for a period not to exceed two years.

I. Jury Trial

The respondent argues that the probate court erred in denying her motion for a jury trial for her involuntary civil commitment proceeding under the State Constitution. N.H. CONST. pt. I, art. 15.

The State Constitution guarantees the right of trial by jury in all cases where the right existed at common law at the time of its adoption in 1784. State v. Ray, 63 N.H. 406, 407 (1885). The right does not extend, however, to special, statutory or summary proceedings unknown to the common law. Opinion of the Justices (SLAPP Suit Procedure), 138 N.H. 445, 450, 641 A.2d 1012 (1994).

For the respondent to have a constitutional right to trial by jury, the practice in New Hampshire at the time of the adoption of the New Hampshire Constitution must have been to summon juries to determine involuntary civil commitments. See Ray, 63 N.H. at 407. There are few jurisdictions where the practice at the time of the adoption of their state constitutions was to summon juries to determine the insanity of a person. See, e.g. , Matter of Mills , 36 Or.App. 727, 585 P.2d 1143, 1144, n. 2 (1978). Sandra H. did not offer any evidence to support her assertion that civil commitments were determined by jury trial in New Hampshire prior to 1784. We also have been unable to find any documentation supporting her argument.

Throughout the 1700s, laws were passed in New Hampshire ordering, upon the request of "Relations or Friends," that it be within the "power of the Judge for the Probate of Wills ... to direct the Select Men" of the local town "to make Inquisition" into whether a person was "non compos " (insane). Laws 1702–1745, ch. 2; Laws 1745–1774, ch. 8; Laws 1776–1784, ch. 1. With consideration for the "Select Men's" finding, the probate judge determined whether a person was non compos . Laws 1776–1784, ch. 1. The probate judge would then assign a guardian to care for the person and his or her estates. Id. The practice throughout the 1700s, until the adoption of the New Hampshire Constitution, was that the probate judge determined the insanity of a person with the aid of the local "Select Men," not with the aid of a jury.

Moreover, we have previously held that, because it is a special statutory proceeding, there is no constitutional requirement for a trial by jury in the commitment of insane or mentally ill persons.

In re Moulton, 96 N.H. 370, 372, 77 A.2d 26 (1950). Accordingly, we conclude that the respondent had no right to a jury trial under the State Constitution. See Opinion of the Justices, 138 N.H. at 450, 641 A.2d 1012; In re Moulton, 96 N.H. at 372, 77 A.2d 26; see also In re Jones, 339 So.2d 1117, 1118 (Fla.1976) ; In re Easton, 214 Md. 176, 133 A.2d 441, 449 (1957).

The respondent argues that her right to equal protection was violated because criminal defendants are entitled to a jury trial while involuntary civil committees are not. In her brief, however, the respondent does not sufficiently argue her equal protection claim, making only a "passing reference" to a California intermediate court opinion in which the State of California had conceded the constitutional argument. Thus, we consider the equal protection argument waived. See State v. Hermsdorf, 135 N.H. 360, 365, 605 A.2d 1045 (1992).

II. Physician–Patient Privilege

The respondent asserts that the statutory waiver of the physician-patient privilege for proceedings or hearings conducted pursuant to RSA 135–C:27 – :54 violates her right to equal protection under the State and Federal Constitutions. See RSA 329:26 (Supp.2003) ; RSA 330–A:32 (Supp.2003).

Federal equal protection offers no greater protection than our State equal protection guarantee. Estate of Robitaille v. N.H. Dep't of Rev. Admin., 149 N.H. 595, 596, 827 A.2d 981 (2003) ; LeClair v. LeClair, 137 N.H. 213, 221–22, 624 A.2d 1350 (1993). We have held, in accordance with the United States Supreme Court, that the equal protection guarantee is "essentially a direction that all persons similarly situated should be treated alike." Cleburne v. Cleburne Living Center, Inc., 473 U.S. 432, 439, 105 S.Ct. 3249, 87 L.Ed.2d 313 (1985) ; State v. LaPorte, 134 N.H. 73, 76, 587 A.2d 1237 (1991). In applying an analysis identical to that used by federal courts, we have held that a "classification must not be arbitrary, but must reasonably promote some proper object of public welfare or interest." Opinion of the Justices, 144 N.H. 374, 384, 746 A.2d 981 (1999).

"In considering an equal protection challenge under our State Constitution, we must first determine the appropriate standard of review by examining the purpose and scope of the State-created classification and the individual rights affected." Estate of Robitaille, 149 N.H. at 596, 827 A.2d 981; see Boehner v. State, 122 N.H. 79, 83–84, 441 A.2d 1146 (1982). Classifications based upon suspect classes or affecting a fundamental right "are subject to the most exacting scrutiny; to pass constitutional muster, they must be justified by a compelling governmental interest and must be necessary to the accomplishment of its legitimate purpose." Palmore v. Sidoti, 466 U.S. 429, 432, 104 S.Ct. 1879, 80 L.Ed.2d 421 (1984) ; see also Estate of Robitaille, 149 N.H. at 596, 827 A.2d 981; LeClair, 137 N.H. at 222, 624 A.2d 1350. Classifications involving " important substantive rights" must be reasonable and rest upon some ground of difference having a fair and substantial relation to the object of the legislation. Petition of Hamel, 137 N.H. 488, 491, 629 A.2d 802 (1993). We have applied this "intermediate review" to a broader category of rights than do the federal courts, although our analysis when applying this level of review is the same. Finally, absent some infringement of a fundamental right, an important substantive right, or application of some recognized suspect classification, the constitutional standard to be applied is that of rationality. Valley Bank v. State, 115 N.H. 151, 154–55, 335 A.2d 652 (1975).

On occasion, our past decisions have articulated an equal protection test where the "first inquiry concerning equal protection is whether persons similarly situated are being treated differently under the statutory law." Gazzola v. Clements, 120 N.H. 25, 29, 411 A.2d 147 (1980). Holding that persons who are not similarly situated need not be treated the same under the law is a shorthand way of explaining the equal protection guarantee. Whether applying a strict scrutiny, intermediate, or rational basis standard of review, we, as well as the federal courts, determine whether differences between the classes justify disparate treatment under the law.

The Federal and State Equal Protection Clauses do not "demand that a statute necessarily apply equally to all persons or require things which are different in fact to be treated in law as though they were the same." Michael M. v. Sonoma County Superior Court, 450 U.S. 464, 469, 101 S.Ct. 1200, 67 L.Ed.2d 437 (1981) (quotation omitted). Where a classification "realistically reflects the fact that the [two groups] are not similarly situated in certain circumstances," id., and the legislation's differing treatment of the groups is sufficiently related to a government interest, it will survive an equal protection challenge. See id. at 472–73, 101 S.Ct. 1200.

In some of our past decisions where we initially evaluated whether persons were similarly situated, we utilized different language than do the federal courts to achieve the same result under a rational basis test. Our "similarly situated" analysis focused on the dissimilarities of the classes, which were self-evidently a basis for reasonable classification. See Walker v. Exeter Region Co-op. School Dist., 284 F.3d 42, 44, (2002) ; see also Emond v. N.H. Dep't of Labor, 146 N.H. 230, 231, 769 A.2d 394 (2001) ; McGraw v. Exeter Region Coop. Sch. Dist., 145 N.H. 709, 712, 765 A.2d 710 (2001). In those decisions, we discussed the differences between the classes and concluded that they were not similarly situated, which justified the difference in treatment under the law. See McGraw, 145 N.H. at 712, 765 A.2d 710. We were applying the same equal protection standard of review, i....