J.B., In Interest of, 870193

Citation410 N.W.2d 530
Decision Date12 August 1987
Docket NumberNo. 870193,870193
PartiesIn the Interest of J.B. Syed Q. RASHID, M.D., Petitioner and Appellee, v. J.B., Respondent and Appellant. Civ.
CourtUnited States State Supreme Court of North Dakota

William Kirschner & Associates, Fargo, for respondent and appellant, argued by Ronnie Diane Rosenberg and J.B.

Melody R.J. Jensen, Asst. State's Atty., Fargo, for petitioner and appellee.

LEVINE, Justice.

This is an appeal from an order of involuntary commitment to the State Hospital. We affirm.

J.B. was hospitalized on an emergency basis under Sec. 25-03.1-25, North Dakota Century Code. The trial court appointed attorney Rosenberg to represent J.B. After finding probable cause to believe J.B. was severely mentally ill and in need of treatment, the court ordered J.B. to undergo evaluation and treatment at the State Hospital for no more than fourteen days, as provided in Sec. 25-03.1-17, NDCC.

On June 19, 1987, a treatment hearing was held to consider the petitioner's request that J.B. be committed. At the beginning of the proceeding, J.B. advised the court that he would like to "get another lawyer" because it was his legal right to fire his attorney and because he believed attorney Rosenberg did not wish to represent him; nor did he want her to represent him. J.B. suggested postponement of the hearing. When the trial court attempted to explore the reasons for J.B.'s dissatisfaction with Rosenberg, J.B. became increasingly agitated, culminating in his removal from the courtroom. The court continued its inquiry, directing questions to Rosenberg. Rosenberg informed the court that J.B. did not want her to represent him because he believed that she had "thrown" the preliminary hearing. He also insisted that the present proceedings were a federal action which entitled him to a jury trial and that he had the right to a private lawyer. In response to the court's questions, Rosenberg informed the court that she bore J.B. no animosity and was willing to represent him, but not if he did not want her to. The court concluded there was no basis for substitution of counsel "other than what appears to be Respondent's severe mental disorder." The court also expressed its confidence in Rosenberg and ordered the hearing to continue in J.B.'s absence but with Rosenberg representing him.

At the conclusion of the hearing, the court found J.B. was suffering from mental illness and in need of treatment and ordered J.B. committed to the State Hospital for a period of ninety days. J.B. appealed.

The issue on appeal is whether the trial court's denial of the request for substitution of appointed counsel is a violation of J.B.'s right to due process under the fourteenth amendment of the federal Constitution.

J.B. argues that a civil commitment proceeding implicates procedural due process, that procedural due process requires representation by counsel and that in order to be "meaningful" (i.e., constitutional), the representation must be "acceptable" to the client. J.B.'s conclusion does not withstand scrutiny.

It is well settled that involuntary commitment to a mental institution is a significant deprivation of liberty which the state cannot accomplish without due process. Addington v. Texas, 441 U.S. 418, 99 S.Ct. 1804, 60 L.Ed.2d 323 (1979); In Interest of Ebertz, 333 N.W.2d 786 (N.D.1983). It is because involuntary commitment is recognized as "a massive curtailment of liberty," Vitek v. Jones, 445 U.S. 480, 491, 100 S.Ct. 1254, 63 L.Ed.2d 552 (1980), that the constitutional safeguards afforded criminal defendants are generally extended to those involved in civil commitment proceedings. E.g., Heryford v. Parker, 396 F.2d 393, 396 (10 Cir.1968); In re Hop, 623 P.2d 282, 286, 171 Cal.Rptr. 721, 29 Cal.3d 82 (1981). One such procedural safeguard provided in mental health proceedings is the right to counsel. E.g., Project Release v. Prevost, 722 F.2d 960, 969 (2 Cir.1983).

This court has previously expressed the view that individuals subject to North Dakota civil commitment proceedings are entitled to representation by counsel, although it did not decide that issue. In re Ebertz, supra at 788. We do so now.

In accord with the fourteenth amendment of the federal Constitution, North Dakota law specifically provides the right to counsel, at state expense if necessary, in any judicial proceeding concerning a patient's commitment. See Sec. 25-03.1-13, NDCC.

Commitment proceedings generally mirror criminal proceedings. 1 In re Ebertz, supra at 788. There is no federal constitutional right to appointed counsel of choice in a criminal proceeding, e.g., State v. Wulffenstein, 733 P.2d 120, 121 (Utah 1986). Correspondingly, we conclude there is no federal constitutional right to appointed counsel of choice in a civil commitment proceeding.

Rather, the matter of substitution of appointed counsel is committed to the sound discretion of the trial court and, absent a showing of good cause for the substitution, a refusal to substitute is not an abuse of discretion. See, e.g., State v. LaGrand, 152 Ariz. 483, 733 P.2d 1066, 1070 (1987); State v. Vance, 254 N.W.2d 353, 358 (Minn.1977); People v. McElrath, 220 Cal.Rptr. 698, 701, 175 Cal.App.3d 178 (1985); People v. Sawyer, 453 N.Y.S.2d 418, 421-22, 438 N.E.2d 1133, 57 N.Y.2d 12 (1982), cert. denied, 459 U.S. 1178, 103 S.Ct. 830, 74 L.Ed.2d 1024 (1983).

A request for newly appointed counsel should be examined with the rights and interest of the respondent in mind, tempered by consideration of judicial economy. See State v. LaGrand, supra at 1069. The court should inquire on the record into the reasons for the complaints about counsel. United States v. Allen, 789 F.2d 90, 92 (1 Cir.1986), cert. denied, --- U.S. ----, 107 S.Ct. 164, 93 L.Ed.2d 103 (1986); People v. McElrath, supra at 701. The court may rely upon assertions of counsel, see United States v. Cox, 580 F.2d 317, 322 (8 Cir.1978), because an attorney is an officer of the court whose declarations to the court "are virtually made under oath." State v Brazile, 226 La. 254, 75 So.2d 856 at 860-61 (1954).

In State v. LaGrand, supra at 1069-70, the Arizona supreme court identified a variety of factors to be considered by a trial court when deciding a motion for substitution of counsel in a criminal proceeding. We believe many of those factors...

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