Slabaugh, In re

• Decision Date: 10 May 1984
• Citation: 16 Ohio App.3d 255,475 N.E.2d 497
• Parties: , 16 O.B.R. 279 In re SLABAUGH.
• Court: Ohio Court of Appeals

Page 255

16 Ohio App.3d 255

475 N.E.2d 497, 16 O.B.R. 279

In re SLABAUGH.

Court of Appeals of Ohio, Tenth District, Franklin County.

May 10, 1984.

Syllabus by the Court

1. A person alleged to be mentally ill cannot be involuntarily confined pursuant to court order merely because others find his appearance or conduct bothersome or annoying. R.C. 5122.01(B)(4) is not vague as it exceeds the constitutional standard and provides for confinement only where a court finds that the alleged mentally ill person poses a danger to himself or others and that he would benefit from hospitalization.

2. In involuntary confinement proceedings brought under R.C. Chapter 5122, a respondent must, at the time he enters his initial appearance, be afforded a reasonably adequate opportunity to obtain counsel of his own choice and it is only where it appears to the court that the respondent is unable to obtain counsel of his choice that the court may proceed with court-appointed counsel. Where respondent's first appearance is at the full hearing and it is there that he is first advised of his right to counsel and to select counsel, the trial court abuses its discretion in denying respondent's request for a continuance to attempt to obtain counsel of his choice.

Anthony J. Celebrezze, Jr., Atty. Gen., Deborah A. Piperni and Leslie B. Swinford, Jr., Columbus, for appellee Ohio Dept. of Mental Health.

Theodore R. Kern and Ohio Legal Rights Service, Columbus, for appellant.

NORRIS, Judge.

Appellant, Robert Slabaugh, appeals from an order of the trial court finding him to be a mentally ill person subject to hospitalization and ordering him hospitalized at the Central Ohio Psychiatric Hospital for a period not to exceed ninety days.

He raises three assignments of error:

"1. The probate court referee erred in not granting appellant a continuance to consult with counsel of his choice prior to the full commitment hearing.

"2. Appellant was denied effective assistance of counsel at the probable cause and full commitment hearings because his court-appointed representative failed to comply with essential standards of effective advocacy.

"3. Appellant was committed in accordance with Ohio Revised Code § 5122.01(B)(4), which is unconstitutionally vague and overbroad, and therefore does not grant the probate court jurisdiction to order an involuntary commitment."

In his third assignment of error, appellant contends that the statute under which he was involuntarily hospitalized is unconstitutional. The relevant portion of R.C. 5122.01 follows:

"As used in Chapter 5122. of the Revised Code:

"(A) 'Mental illness' means a substantial disorder of thought, mood, perception, orientation, or memory that grossly impairs judgment, behavior, capacity to recognize reality, or ability to meet the ordinary demands of life.

"(B) 'Mentally ill person subject to hospitalization by court order' means a mentally ill person who, because of his illness:

"* * *

"(3) Represents a substantial and immediate risk of serious physical impairment or injury to himself as manifested by evidence that he is unable to provide for and is not providing for his basic physical needs because of his mental illness and that appropriate provision for such needs cannot be made immediately available in the community; or

"(4) Would benefit from treatment in a hospital for his mental illness and is in need of such treatment as manifested by evidence of behavior that creates a grave and imminent risk to substantial rights of others or himself."

Although the affidavit which initiated the hospitalization procedure cited both subdivisions (3) and (4) as the basis for appellant's hospitalization, as there was little effort to support the subdivision (3) ground with evidence, we must assume that the hospitalization was ordered on the basis of subdivision (4).

The essence of appellant's argument is that the evidence indicated no more than that his behavior was bothersome or annoying, and that if that is what is contemplated by R.C. 5122.01(B)(4), then the statute is unconstitutional, because the standard for involuntary commitment must be a showing that he was mentally ill and posed a serious threat of substantial harm to himself or others, and that this threat had been evidenced by a recent overt act or threat.

We agree with appellant to the extent that he could not be confined merely because others found his conduct to be nothing more than bothersome or annoying. There is no constitutional basis for involuntarily confining a mentally ill person simply because he would benefit from hospitalization, if he is dangerous to no one (himself included), and he can live safely in freedom. This constitutional standard is violated if a mentally ill person is confined merely because his appearance or conduct arouses public intolerance or animosity. O'Connor v. Donaldson (1975), 422 U.S. 563, 95 S.Ct. 2486, 45 L.Ed.2d 396. In addition, when a statute, such as R.C. 5122.01(B)(4), is measured against this constitutional standard, it will fail if it lacks ascertainable standards of conduct and is so vague, imprecise and indefinite that persons of common intelligence must necessarily guess at its meaning and differ as to its application. See Columbus v. Thompson (1971), 25 Ohio St.2d 26, 266 N.E.2d 571 ; State v. Young (1980), 62 Ohio St.2d 370, 406 N.E.2d 499 . All legislative enactments enjoy a presumption of constitutionality. As to challenges to a statute based upon its alleged vagueness, an appellate court must apply all reasonable presumptions, interpretations and constructions which will render the statute constitutionally definite. State v. Dorso (1983), 4 Ohio St.3d 60, at 61, 446 N.E.2d 449.

The statute is not void on its face--it requires that the mentally ill person pose a danger to himself or others, and defines with particularity standards which a person of common intelligence would comprehend as drawing a line between those mentally ill persons who pose a danger to the public or to themselves, and those who do not. In addition, we do not believe, as contended by appellant, that a mentally ill person can be said to be dangerous only if there is evidence that the person recently committed a dangerous overt act or threatened one, although such evidence would certainly tend to establish that he was dangerous (and, in any event, as noted below, such evidence existed in this case).

When the standard found in the statute is applied, it must be adhered to strictly--a person whose conduct is merely bothersome or annoying does not manifest "behavior that creates a grave and imminent risk to substantial rights of others or himself." Accordingly, if the only evidence were that appellant threatened to engage in vexatious litigation and to persuade persons of high stature in the journalistic community to expose those whom he perceived as persecuting him, then the standard would not have been complied with. However, there was evidence of other conduct that went well beyond mere annoyance or bothersomeness.

For example, there was evidence that appellant had initially been transported to the state hospital after having created...