Popp, In re

• Decision Date: 06 December 1972
• Citation: 33 Ohio App.2d 22,292 N.E.2d 330
• Parties: , 62 O.O.2d 54 In re POPP.
• Court: Ohio Court of Appeals

Page 22

33 Ohio App.2d 22

292 N.E.2d 330, 62 O.O.2d 54

In re POPP.

Court of Appeals of Ohio, Eighth District, Cuyahoga County.

Dec. 6, 1972.

Syllabus by the Court

1. As a general rule, courts will refuse to decide cases which have become moot; but a court may, in its discretion, retain jurisdiction of a case to decide issues of great public importance, involving the duty and authority of public officials, in a situation which is likely to recur.

2. Due process, guaranteed by the Fourteenth Amendment to the United States Constitution, requires that an alleged mentally ill person be represented by counsel, either retained or appointed, in a hearing which may result in temporary or indefinite involuntary commitment under R.C. § 5122.15.

Robin M. Kennedy, Pepper Pike, for petitioner.

William J. Brown, Atty. Gen., and Thurman E. Anderson, Columbus, for respondent.

KRENZLER, Judge.

On October 13, 1971, an affidavit was filed in the Probate Court of Cuyahoga County, alleging that petitioner Irene Popp was mentally ill, and by reason thereof was likely to injure herself or others if allowed to remain at liberty, or needed immediate hospital treatment. On December 20, 1971, a hearing was held in the Probate Court, and as a result, petitioner was ordered temporarily confined in the Cleveland Psychiatric Institute for examination and treatment. A second hearing was held on March 28, 1972, before a referee appointed by the Probate Court, and she was thereafter found to be mentally ill, and was ordered hospitalized at Cleveland State Hospital for an indeterminate period, pursuant to R.C. § 5122.15.

Petitioner filed her petition for writ of habeas corpus on June 16, 1972. She alleged that her confinement violated her right to due process, guaranteed by the Fourteenth Amendment of the United States Constitution, because she was not represented by counsel at the hearings before the Probate Court. She represented that she was indigent and unable to secure the services of an attorney, and this was not challenged by respondent.

At the initial hearing on the petition, on June 23, 1972, respondents orally moved to dismiss the action on the grounds R.C. §§ 5122.15 and 5122.36 gave petitioner an adequate remedy at law. This motion was overruled. Dates were then set for the filing of briefs by the parties, and the hearing on the merits of the case was set for July 21, 1972. Respondents then filed another motion to dismiss, on June 29, 1972, on the grounds that the petition failed to state facts showing a right to relief by habeas corpus. This motion was also overruled. Finally, at the hearing on July 21, 1972, respondents informed the court that petitioner was not in need of hospitalization and had been released. They thereupon moved to dismiss the case as moot. An affidavit and written motion to the same effect were later filed. This motion raises a procedural question which must be given priority over the substantive issue raised by petitioner.

Ordinarily, to entitle one to relief in a habeas corpus action, the result of such action must be to effectuate a release from present confinement. Ball v. Maxwell (1964), 177 Ohio St. 39, 201 N.E.2d 786. Since petitioner has already been released, this court cannot grant her any relief in this action. As to these parties, therefore, the case is moot.

As a general rule, such a case should be dismissed. There exists a well recognized exception to the general rule, however. When the case involves an issue which is of great public importance, i.e., when it concerns the duty and authority of public officials in a situation which is likely to recur, such issue remains vital even when the case becomes moot as to the parties. It might then be said that such a case is not moot, as to the public. Courts have frequently refused to dismiss such cases in oreder to retain jurisdiction to decide the important public issues involved, and for the guidance of the public officials in the performance of their duties.

Ohio Courts of Appeals have refused to dismiss actions even though they have become moot as to the parties. When a case becomes moot, the jurisdiction of the court over it is not affected; the decision to hear and determine the issues raised becomes a matter of discretion in accordance with the facts in each case. Ink v. Plott (1960), 175 N.E.2d 94; Overesch v. Campbell (1953), 95 Ohio App. 359, 119 N.E.2d 848.

In Wallace v. University Hospitals of Cleveland (1961), 171 Ohio St. 487, 172 N.E.2d 459, the Supreme Court dealt with a motion to dismiss an appeal for mootness. The court first quoted from 132 A.L.R. 1186:

"The proposition that an appellate court may retain an appeal for hearing and determination if it involves questions of public interest even though it has become moot so far as the parties of the particular action are concerned or though the parties desire that it be dismissed, is supported, either directly or by implication, by the great weight of authority."

The Supreme Court recognized and approved the exception to the general rule, although it found the particular case in which it was discussed, not a proper case for application of the exception.

'Although the temptation may be great to indulge in the theory that a case may be 'moot as to the parties' but not 'moot as to the public,' as did the court in Van DeVegt v. Board of Com'rs of Larimer County, 98 Colo., 161, 55 P.2d 703, 710, where the court said that a 'case is not moot where interests of a public character are asserted under conditions that may be immediately repeated, merely because the time for a particular order has expired.' the majority of this court are of the opinion that in this case we should follow the usual procedure of deciding cases only as they exist between the parties thereto * * *' 171 Ohio St. 487, 489, 172 N.E.2d 459, 461.

Cases from other jurisdictions which recognize the exception are too numerous to list. Examples are Diamond v. Bland (1970), 8 Ca.App.3d 58, 87 Cal.Rptr. 97; Joint School District No. 8 v. Wisconsin Emp. Rel. Bd. (1967), 37 Wis.2d 483, 155 N.W.2d 78; Bd. of Education v. Tp. Council E. Brunswick (1966), 48 N.J. 94, 223 A.2d 481; People ex rel. Wallace v. Labrenz (1952), 411 Ill. 618, 104 N.E.2d 769; Van DeVegt v. Board of Commissioners (1936), 98 Colo. 171, 55 P.2d 703; and see cases cited in Annotation, 132 A.L.R. 1185 (1941).

Legality of commitment proceedings of alleged mental incompetents is a matter of great public importance. It is also reasonable to expect that commitment proceedings under R.C. § 5122.15 will continue to occur. Clearly this is a case where an authoritative determination of the duties of judges and referees in such hearings is desirable. We therefore find that this case falls within the exception to the rule requiring dismissal, and overrule the motion to dismiss.

We come now to a consideration of the substantive issue raised by petitioner.

Chapter 5122, Revised Code, deals with hospitalization of the mentally ill. Proceedings under this chapter result in a judicial-medical determination. This chapter provides for three types of involuntary hospitalization: (1) short-term or emergency; (2) temporary or 90-day; and (3) indefinite. R.C. §§ 5122.08 to 5122.10 authorize short-term hospitalization of allegedly mentally ill persons, without a hearing or representation by counsel in emergency situations. Petitioner was not hospitalized under these sections, and nothing in this opinion should be interpreted as having any bearing on them.

R.C. § 5122.11 et seq., deal with the involuntary hospitalization of such persons in other than emergency situations. Commitment proceedings may be initiated, under R.C § 5122.11, by the filing of an affidavit with the Probate Court; under R.C. § 5122.15 such proceedings may result in a person's being confined in a mental institution, pursuant to court order.

R.C. § 5122.15 requires two hearings before a person is found to be mentally ill subject to hospitalization by court order. ¹ The first hearing has the purpose of determining whether there is probable cause to believe the person is mentally ill and in need of treatment, and is to take place prior to a temporary hospitalization of the alleged mentally ill person. This temporary hospitalization, which is not to exceed ninety days, has the aim of permitting in depth examination and observation which will provide a basis for the medical findings and recommendations to be used at the second hearing. After the second hearing, the individual may be found to be mentally ill subject to hospitalization by court order, and may be ordered confined in a hospital or mental institution for an indefinite period.

With reference to the first hearing, R.C. § 5122.15 provides that the court shall notify the alleged mentally ill person of his right to secure counsel, and further provides that the court may appoint, at any time in the proceedings, an attorney to represent the person. The section makes no reference to attorneys in connection with the second hearing. Thus the statute entrusts the court with discretion either to appoint counsel or not, as it deems proper.

Petitioner does not contend that there was any abuse of discretion in this case, or that the statute was not complied with. We are presented only with the question whether, regardless of R.C. § 5122.15, petitioner was denied constitutional due process when an attorney was not appointed for her at either hearing.

Respondent argues that the constitutional right to counsel is a right only of a defendant in a criminal trial, and that since petitioner was confined as a result of a civil not a criminal proceeding, there was no violation of due process in failing to appoint an attorney to represent her. This argument is not convincing. It is true that the only express constitutional declaration of a right to counsel, in the Sixth Amendment, relates to criminal prosecutions. But this is not controlling. The...