State ex rel. Hawks v. Lazaro

• Decision Date: 15 January 1974
• Docket Number: No. 13377,13377
• Citation: 202 S.E.2d 109,157 W.Va. 417
• Court: West Virginia Supreme Court
• Parties: STATE ex rel. Ronald Lee HAWKS v. Jaime E. LAZARO, Director of Clinical Services, Huntington State Hospital.

Page 109

202 S.E.2d 109

157 W.Va. 417

STATE ex rel. Ronald Lee HAWKS v. Jaime E. LAZARO, Director of Clinical Services, Huntington

State Hospital.

No. 13377.

Supreme Court of Appeals of West Virginia.

Submitted Sept. 6, 1973.

Decided Jan. 15, 1974.

Syllabus by the Court

1. In proceedings brought in the best interests of an individual the doctrine of Parens patriae will only justify deviation from the same procedural due process standards which are constitutionally mandated in adversary civil and criminal litigation where the State can demonstrate that the probability of injury to the individual as a result of cumbersome procedural requirements greatly outweighs the probability of injury to the individual as a result of the absence of normal civil and criminal procedural safeguards.

2. The standard for involuntary hospitalization established by Chapter 27, Article 5, Section 4(1) of the Code of West Virginia, 1931, as amended, based upon whether an individual 'because of his illness or retardation is likely to injure himself or others if allowed to remain at liberty' is constitutional, as under the police power the State is entitled to protect itself from dangerous persons, and is entitled to protect an individual from himself, at least to the extent that he is likely to do physical injury to himself either actively through a self-destructive urge or passively through permitting himself to be injured as a result of lack of care.

3. To the extent that Chapter 27, Article 5, Section 4(2) of the Code of West Virginia, 1931, as amended, permits involuntary hospitalization on the grounds that an individual 'is in need of custody, care or treatment in a hospital and, because of his illness or retardation lacks sufficient insight or capacity to make responsible decisions with respect to his hospitalization. . . .' the statute is unconstitutional under Article III, Section 10 of the Constitution of the State of West Virginia because it is vague, fails to provide specific standards, and is an invitation to abuse; however, the State may establish criteria for hospitalizing or treating an individual because of potential injury to himself in ways other than direct self-inflicted physical injury, when the State meets the constitutional requirements that the criteria for such involuntary treatment or hospitalization be set forth with specificity, and that there be a rational basis for believing that the State's proposed treatment will ameliorate the individual's condition in order to protect an individual from deprivation of his liberty without any corresponding benefit.

4. To the extent that Chapter 27, Article 5, Section 4 of the Code of West Virginia, 1931, as amended, permits an individual to be committed to a mental hospital upon evidence adduced at a hearing at which 'the individual shall not be required to be present,' and at which the 'mental hygiene commission shall receive all relevant and material evidence which may be offered and shall not be bound by the rules of evidence,' the statute is unconstitutional under Article III, Section 10 of the Constitution of the State of West Virginia, and the Fifth Amendment of the United States Constitution because the quoted portions deny the right to confront and cross-examine witnesses.

5. The notice provisions of Chapter 27, Article 5, Section 4 of the Code of West Virginia, 1931, as amended, are constitutional as written; however, in a case where the subject individual was not informed of the nature of the charges against him, nor of the facts underlying and supporting the application for his involuntary commitment, nor of his right to consult with counsel and to have counsel appointed for him at every stage of the proceeding, the notice provisions of Code, 27--5--4, as amended, were unconstitutionally applied.

6. Where Chapter 27, Article 5, Section 4 of the Code of West Virginia, 1931, as amended, provides for the appointment of a guardian Ad litem who shall be a competent attorney, it contemplates representation of the individual by the appointed guardian in the most zealous, adversary fashion consistent with the Code of Professional Responsibility.

7. The proper standard of proof in a proceeding for involuntary commitment pursuant to Chapter 27, Article 5, Section 4 of the Code of West Virginia, 1931, as amended, is proof which is clear, cogent, and convincing.

8. When Chapter 27, Article 5, Section 5 of the Code of West Virginia, 1931, as amended, provides for a review by the circuit court of proceedings conducted under Chapter 24, Article 5, Section 4, of the Code of West Virginia, 1931, as amended, it contemplates a meaningful review upon a full verbatim transcript of the proceedings.

9. Except to the extent that Chapter 27, Article 5, Section 4 of the Code of West Virginia, 1931, as amended, is unconstitutional because the standard for commitment based on need for treatment is vague, and because provisions of the statute deny an individual the right to be present and to confront witnesses, Code, 27--5--4, as amended, is constitutional as written, although in the case of petitioner in this action it was unconstitutionally applied.

Robert B. Keiter, Charleston, for relator.

Chauncey H. Browning, Jr., Atty. Gen., Phillip D. Gaujot, Asst. Atty. Gen., Charleston, for respondent.

NEELY, Justice:

This original proceeding in Habeas corpus challenges the constitutional validity of Chapter 27, Article 5, Section 4 of the Code of West Virginia, 1931, as amended. Petitioner, Ronald Lee Hawks, was committed to the Huntington State Hospital for an indeterminate period pursuant to a May 19, 1969 order and an August 29, 1973 order of the McDowell County Mental Hygiene Commission. On June 5, 1973 petitioner filed a petition in this Court for a writ of Habeas corpus ad subjiciendum which alleged that petitioner has been illegally confined because: (1) petitioner was not afforded proper notice of the 1969 hearing; (2) petitioner was not present at the commitment hearing; and, (3) Code, 27--5--4, as amended, under which petitioner was committed is unconstitutional because that statute (a) permits commitment without the subject individual's presence at the hearing; (b) denies the subject individual the right to confront and cross-examine witnesses; (c) does not require proof beyond a reasonable doubt; (d) fails to require a record for appeal; and, (e) fails to provide for effective representation by counsel.

This Court granted a writ of Habeas corpus on June 11, 1973, before the August 29, 1973 hearing was conducted before the McDowell County Mental Hygiene Commission. As this Court granted a writ to review the proceedings of May 9, 1969, and to clarify the law concerning the proper interpretation of Code, 27--5--4, as amended, the facts surrounding both hearings will be discussed.

On May 1, 1969, Dr. Gaston de Lemos, Superintendent of the Huntington State Hospital, filed an application with the McDowell County Mental Hygiene Commission for the petitioner's involuntary hospitalization. This application was accompanied by a doctor's certificate stating that the petitioner was mentally ill and mentally retarded, and therefore, required long-term hospitalization.

On May 6, 1969, petitioner was examined by Dr. G. C. Morrison and Dr. Wilson O. Grimm, licensed medical doctors, who certified that the petitioner was mentally ill and dangerous to himself or others. On May 9, 1969, the McDowell County Mental Hygiene Commission sent the petitioner notice that a 'hearing' had been scheduled for May 19, 1969, but the notice did not advise the petitioner of the nature of the proceedings, the allegations against him, or of his rights during the proceedings.

On May 13, 1969, the petitioner's social worker informed the Huntington State Hospital that petitioner desired to attend the hearing. However, on May 16, 1969, the Clinical Director of the Huntington State Hospital telephoned the McDowell County Mental Hygiene Commission and informed them that the petitioner's mental condition had deteriorated and that petitioner could not attend the scheduled hearing. After the Mental Hygiene Commission held a hearing at which an attorney was appointed guardian Ad litem for the petitioner, and at which the written reports of Dr. Grimm and Dr. Morrison were received as evidence (although neither doctor appeared in person) the McDowell County Mental Hygiene Commission entered an order on May 19, 1969 committing the petitioner to the Huntington State Hospital for an indeterminate period. No record was kept of these proceedings.

The petitioner was not present at the May 19, 1969 commitment proceedings and did not consent to representation by the appointed guardian, nor did he have an opportunity to consult with the guardian before the hearing. It appears that the guardians Ad litem appointed at both the 1969 and 1973 hearings envisaged their roles as that of guardians rather than adversaries, as there is no evidence to suggest that they contested petitioner's commitment. Since the entry of the May 19, 1969 commitment order, the petitioner has remained involuntarily confined at the Huntington State Hospital.

It is admitted by respondent that at the May 1969 hearing the petitioner was not present; however, the respondent maintains that this defect was cured at the August 29, 1973 hearing at which the petitioner was present in person. Although the State has attempted to correct many of the obvious procedural errors in the May 1969 hearing, the Court is of the opinion that this case, taken in its entirety, presents a justiciable controversy of substantial public importance. The respondent cannot deprive citizens of court review of a widespread violation of constitutional rights by curing procedural irregularities in individual cases after they have been brought to the court's attention. See, Friend v. United States, 128 U.S.App.D.C. 323, 388 F.2d 579 (C.A., D.C.1967). The petitioner...