In the Matter of Lomax, 10311.

• Decision Date: 09 May 1978
• Docket Number: No. 10311.,10311.
• Citation: 386 A.2d 1185
• Parties: In the Matter of Elmos R. LOMAX, Appellee.
• Court: D.C. Court of Appeals

386 A.2d 1185

In the Matter of Elmos R. LOMAX, Appellee.

No. 10311.

District of Columbia Court of Appeals.

Argued en banc May 9, 1977.

Decided May 9, 1978.

Alexia Morrison, Asst. U. S. Atty., Washington D. C., with whom Earl J. Silbert, U. S. Atty., and John A. Terry and John C. Martin, Asst. U. S. Attys., Washington D. C., were on the brief, for appellant [Superintendent, Saint Elizabeths Hospital].

Silas J. Wasserstrom, Public Defender Service, Washington D. C., with whom Frederick H. Weisberg, Mildred M. Matesich, and Alan F. Greenwald, Public Defender Service, Washington D. C., were on the Petition for Rehearing, for appellee.

Before NEWMAN, Chief Judge, and KELLY, KERN, GALLAGHER, NEBEKER, YEAGLEY, HARRIS, and MACK, Associate Judges.^*

MACK, Associate Judge:

This case was originally considered by a division of the court which in due course rendered judgment and issued majority and dissenting opinions which have been reported.¹ Subsequently, a majority of the thensitting judges voted to grant appellee Lomax's petition for rehearing en banc.

We now vacate the decision of the original panel and hold that the petitioner in an involuntary commitment proceeding brought under the District of Columbia Hospitalization of the Mentally Ill Act has no right of appeal after a verdict is rendered in favor of the patient.

I.

The salient facts are these.² Appellee Lomax, a fifty-three-year-old man with undisputed mental illness, was admitted to Saint Elizabeths Hospital in August of 1975 on an emergency basis. Thereafter the superintendent of the hospital brought a petition for his judicial hospitalization (civil commitment) pursuant to the District of Columbia Hospitalization of the Mentally Ill Act (the Act)³ The culmination of that commitment process, some four months later, was a jury trial at which the jury found that appellee was not committable.⁴ Accordingly, the trial court on December 18, 1975, entered an order directing that the petition for judicial hospitalization be dismissed and that appellee be released from the hospital.⁵ That order⁶ is the subject of this appeal.

Appellant, the superintendent of the hospital, who has been represented throughout these proceedings by the United States Attorney, has argued that the trial court committed reversible error when it denied a motion for a mistrial based on certain remarks made by appellee's trial counsel in the course of her opening statement. He asserts that those remarks so prejudiced the jury as to taint the verdict and require a remand for a new trial. Appellee, on the other hand, has maintained, on both statutory and constitutional grounds, that the order is nonappeaiable, and that in any event, no reversible error occurred.

II.

Appellant bases his asserted right to appeal this case on D.C.Code 1973, § 11-721, which provides, in pertinent part, that

(a) The District of Columbia Court of Appeals has jurisdiction of appeals from —

(1) all final orders and judgments of the Superior Court of the District of Columbia;

* * * * * *

(b) Except as provided in subsection (c) of this, section, a party aggrieved by an order or judgment specified in subsection

(a) of this section, may appeal therefrom as of right to the District of Columbia Court of Appeals.

Appellant reasons that, as the petitioner in this civil commitment case, he is a "party aggrieved" by the order releasing the patient and dismissing the petition after a verdict in the patient's favor and, that order being a final one, Section 11-721 authorizes this appeal.

We note initially that the reading of Section 11-721 which appellant urges would apply equally to an appeal by the government following an acquittal in a criminal case. The "literal application" argument, therefore, is not persuasive in the circumstances before us. Indeed a literal reading of the section might be said to require the opposite conclusion from that urged by appellant since it is difficult to see how any party can be "aggrieved" by another's release from detention, absent a public interest consideration. And it is just as incongruous to suggest that the public is aggrieved by the release of a patient found not to be committable as it is to suggest that the public is aggrieved where a person accused of crime is released after a finding of innocence.⁷

The question of appealability, therefore, must be viewed in light of the Act under which the disputed order arose. That Act, which is significantly silent with respect to such appeal, contains a sophisticated framework of standards and procedures which control the entire course of involuntary hospitalization from the time of emergency admission to the disposition of the petition by the trial court following a finding by that court or a jury verdict.⁸ Keeping in mind that a "statute sanctioning such a drastic curtailment of the rights of citizens must be narrowly, even grudgingly, construed," ⁹

we find that the design and intent of that legislation operate to defeat this appeal just as certainly as the double jeopardy clause does in the criminal law context.¹⁰

The Act is a comprehensive statutory scheme which evolved out of a "profound congressional concern for the liberties of the mentally ill" ¹¹ and was designed with a view to securing at last the civil and constitutional rights of that long-neglected group.¹² One of the concerns was that no one be hospitalized involuntarily for a prolonged period unless a judge or jury found the patient to be both mentally ill and likely to injure himself or others. Thus the very core of the Act is an explicit and expedited timetable, at the conclusion of which the patient is either released or committed.¹³ Time periods from 24 to 48 hours are specified for emergency hospitalization, detention without court order, and court review and determination of the need for further hospitalization, which is in turn limited. Hearings and examinations are required to be conducted promptly, and where findings are made that the patient is not mentally ill or is not dangerous, immediate release and dismissal of the petition are required.

In this case, illustratively, only four months elapsed between appellee's admission and the jury's final verdict (at which time Mr. Lomax should have been released). The fact that the appeals process has consumed over 28 months is simple but eloquent proof of the fundamental inconsistency between the Act and appellant's claimed right of appeal.

Moreover, under the statutory scheme, there is no logical reason for an appeal by a petitioner. The issue at any retrial would be the current mental condition of the patient. By the simple expediency of filing a physician's certificate (or a sworn written statement if a patient has refused examination) that in the petitioner's opinion the mental condition of the patient is such that, if left at liberty, the patient is likely to injure himself or others, the whole process may begin anew within the confines and protections of the Act¹⁴ — and without resort to the intricacies of the appellate process which can lead to no meaningful determination as to the fact in issue, which is a waste of time of the appellate court and counsel, and which inevitably will involve a delay undesirable from the standpoint of either protection of the public or the constitutional rights of the patient.¹⁵

Appellant has suggested that he has a right to have the petition fairly tried by an untainted jury. But for the reason noted above, it is not necessary to infer a right to appeal to achieve that end. Another trial will doubtless be held in due course (and before a new jury), if appellee's mental condition warrants the filing of a new petition; if it does not, appellee should not be subjected to another trial.

At the en banc oral argument, appellant's counsel stressed, as a reason for allowance of this appeal, the vindication of the public interest in halting the serious professional misconduct which trial counsel's opening statement allegedly typifies.¹⁶ But this is a problem which has been handled in the criminal law for centuries without allowing the government to appeal from an acquittal. We are confident that trial judges are able to maintain proper standards in their courtrooms, and they traditionally are accorded broad discretion in doing so. For unusually egregious behavior resort can be had to contempt processes or a complaint can be filed with the Board on Professional Responsibility.

We conclude therefore that allowance of an appeal in this case would serve no legitimate purpose, would be in fundamental conflict with the salutary goals and provisions of the Act, and would jeopardize the rights of the mentally ill. This appeal is dismissed.¹⁷

So ordered.

* Associate Judge FICKLING, who was a member of the division which originally decided this case, died prior to the rehearing en banc.

Associate Judge FERREN took no part in the consideration or decision of this case.

1. In re Lomax, D.C.App., 367 A.2d 1272 (1976).

2. The factual background of this controversy is set out in great detail in both the majority and dissenting opinions of the original division (367 A.2d 1272) and need not be repeated in full here.

3. D.C.Code 1973, §§ 21-501 et seq.

4. The jury found that Mr. Lomax was mentally ill but was not likely to injure himself or others if allowed to remain at liberty. Another jury had reached the same result six months earlier.

5. See D.C.Code 1973, § 21-545(b).

6. The order of release was stayed on January 21, 1976, by this court. The stay, which became the subject of a constitutional challenge by appellee, was dissolved (by the en banc court without comment) on September 23, 1977.

7. This is without regard to the broader issue of double jeopardy, protecting against multiple prosecutions for the same offense.

8. Thus, the appellee was admitted to Saint Elizabeths on August 25, 1975, on an involuntary basis (§§ 21-521 and -522). On August 27, his continued hospitalization...