State ex rel. Hoover v. Bloom

• Decision Date: 11 January 1971
• Docket Number: No. 55421,55421
• Parties: STATE of Missouri ex rel. Hershel HOOVER, Relator, v. Honorable Lackland BLOOM, Judge, Circuit Court, City of St. Louis, Respondent.
• Court: Missouri Supreme Court

Page 841

461 S.W.2d 841

STATE of Missouri ex rel. Hershel HOOVER, Relator, v. Honorable Lackland BLOOM, Judge, Circuit Court, City of St Louis, Respondent.

No. 55421.

Supreme Court of Missouri, En Banc.

Jan. 11, 1971.

Richard Boardman, St. Louis, for relator.

John C. Danforth, Atty. Gen., Charles A. Blackmar, Asst. Atty. Gen., Jefferson City, for respondent.

MORGAN, Judge.

In this original proceeding in mandamus, relator asserts that respondent has refused to provide him a psychiatric examination by a physician of his own 'choosing' as provided in paragraph (4) of Section 552.040, V.A.M.S.

Relator is now and since November 20, 1953, has been a patient in state mental hospital No. 1 at Fulton. His commitment on that date followed a judgment of acquittal by reason of insanity of a charge of child molestation. After obtaining leave to proceed in forma pauperis, relator filed an application for release wherein he alleged that he is now sane and requested a judicial hearing as to whether or not he 'does not have and in the reasonable future is not likely to have a mental disease or defect rendering him dangerous to the safety of himself or others or (is) unable to conform his conduct to the requirements of law.' (Paragraph (1), Section 552.040.) His request for a psychiatric examination by a physician of his own choosing at state expense was denied by the trial court.

Paragraph (4) of Section 552.040 provides in part: 'Prior to the hearing any of the parties shall be entitled to an examination of the committed person, upon written application, by a physician of his or its own choosing and at his or its expense.' As originally enacted, Laws 1963, p. 674, this statutory provision concluded with the word 'choosing' and by amendment of 1969 the words 'and at his or its expense' were added.

Initially, it should be noted that although Section 552.040 was originally enacted some ten years after relator was committed its provisions are remedial in nature and applicable. Cyronne-DeVirgin v. Stae of Missouri (8th Cir.), 341 F.2d 568, cert. denied, 382 U.S. 895, 86 S.Ct. 189, 15 L.Ed.2d 151.

Basically, relator's argument is premised on the assertion that he has a statutory right to an independent examination and a constitutional right that the examination be at state expense. He submits that the 'standard of release' established by the statute is couched in terms necessarily calling for expert testimony from the psychiatric field, and that absent such assistance no meaningful review of his mental condition can be had. First, for the reason the only issue for decision relates to his sanity and requires technical knowledge beyond the training of his attorney which will result in appointment of counsel being only an empty gesture. Second, without an independent examination there is no reasonable possibility he can refute the hospital's declaration he is still insane nor sustain the burden of proving his sanity. It is then concluded that such limitations so impair his ability to prosecute his petition for release that he is being denied due process. Next, he submits that: 'The right to have a psychiatric examination prior to a hearing on an application for release under section 552.040 is of fundamental importance and is deserving of special protection under the Equal Protection Clause. Access to necessary expert testimony in an action of this nature should turn neither upon a person's economic status nor upon the charity of the psychiatric profession. Although the United States Constitution does not compel the State of Missouri to make a psychiatric examination available to all parties as a matter of right, Relator submits that once Missouri did provide that 'all parties' are entitled to an independent examination incident to hearings pursuant to section 552.040 * * * it could not do so in a way that operates to deny an examination to Relator solely because of his poverty.'

Respondent submits 'that the due process clause of the Fourteenth Amendment of the Federal Constitution has not generally been held to require that a state appoint expert witnesses to assist a defendant in a criminal case * * * although the crucial issue around which the trial revolves may be testimony from the state's expert witness.' However, greater reliance is placed on the argument that Missouri has made available to relator a constitutionally sufficient alternative in view of his financial inability to employ a psychiatrist of his own choosing. That alternative is evidenced by an affidavit of the Director of the Division of Mental Health, attached to respondent's brief, that Operating Regulation No. 99 of the division, adopted January 8, 1970, provides: 'An indigent patient who cannot afford private psychiatric consultation, filing a petition for release over the objection of the superintendent, will be re-evaluated by a member of the staff of one of the three Mental Health Centers (Malcolm Bliss, Mid-Missouri or Western Missouri) in order that an impartial opinion can be rendered and made available at the court proceedings.' The rule further provides the examination will be held at a hospital other than that where petitioner has been receiving custodial care. In addition, it is suggested that until relator shows either that the state has made no effort to provide an independent examination or that the independent examination which the state has provided him is deficient, the instant action is premature.

Relator replies by supplemental brief wherein is included a transcript of a similar proceeding. It pertains to an unrelated case wherein a psychiatrist testified that he was employed by the state; that he made an examination at one of the named hospitals of a person filing for release; that...