LESSARD v. SCHMIDT Civ. A. No. 71-C-602.
349 F.Supp. 1078 (1972)
Alberta LESSARD et al., Plaintiffs, v. Wilbur SCHMIDT et al., Defendants.
United States District Court, E. D. Wisconsin.
October 18, 1972.
Robert H. Blondis and Thomas E. Dixon, Jr., Milwaukee Legal Services, Milwaukee, Wis., for plaintiffs.
Ward L. Johnson, Asst. Atty. Gen., Madison, Wis., for defendants Schmidt and Ganser.
George E. Rice, Deputy Corporation Counsel, Milwaukee, Wis., for defendants Currier, Pyle, Kennedy, and Seraphim.
Roger Walsh, Asst. City Atty. for West Allis, West Allis, Wis., for defendants Mejchar and Schneider.
Before SPRECHER, Circuit Judge, REYNOLDS, Chief District Judge and GORDON, District Judge.
SPRECHER, Circuit Judge.
Alberta Lessard was picked up by two police officers in front of her residence in West Allis, Wisconsin, and taken to the Mental Health Center North Division, Milwaukee, on October 29, 1971. At the Center, the police officers, defendants James D. Mejchar and Jack Schneider, filled out a form entitled "Emergency Detention for Mental Observation," following which Miss Lessard was detained on an emergency basis. On November 1, 1971, the same police officers appeared before defendant Judge Christ T. Seraphim, Milwaukee County Court, and restated the allegations contained in the petition for emergency detention. On the basis of this ex parte proceeding, Judge Seraphim issued an order permitting the confinement of Miss Lessard for an additional ten days. Thereafter, on November 4, 1971, defendant Dr. George Currier filed an "Application for Judicial Inquiry" with Judge Seraphim, stating that Miss Lessard was suffering from schizophrenia and recommending permanent commitment. At this time Judge Seraphim ordered two physicians to examine Miss Lessard, and signed a second temporary detention document, permitting Miss Lessard's detention for ten more days from the date of the order. This period was again extended on November 12, 1971. Neither Miss Lessard nor anyone who might act on her behalf was informed of any of these proceedings.
On November 5, 1971, Judge Seraphim held an interview with Miss Lessard at the Mental Health Center. At this interview, Judge Seraphim informed Miss Lessard that two doctors had been appointed to examine her and that a guardian ad litem would be appointed to represent her. He asked her if she wished to have her own doctor examine her. Miss Lessard replied that she had no physician. Miss Lessard was not told of this interview in advance and was given no opportunity to prepare for it. Following the interview, Judge Seraphim signed an order appointing Daniel A. Noonan, an attorney, as guardian ad litem for Miss Lessard.
Miss Lessard, on her own initiative, retained counsel through the Milwaukee
The present suit, brought as a class action on behalf of Miss Lessard and all other persons 18 years of age or older who are being held involuntarily pursuant to any emergency, temporary or permanent commitment provision of the Wisconsin involuntary commitment statute, was filed on November 12, 1971. Jurisdiction was claimed under 42 U.S.C. § 1983.
Miss Lessard alleges that the Wisconsin procedure for involuntary civil commitment denied her due process of law in the following respects: in permitting involuntary detention for a possible maximum period of 145 days without benefit of hearing on the necessity of detention; in failing to make notice of all hearings mandatory; in failing to give adequate and timely notice where notice is given; in failing to provide for mandatory notice of right to trial by jury; in failing to give a right to counsel or appointment of counsel at a meaningful time; in failing to permit counsel to be present at psychiatric interviews; in failing to provide for exclusion of hearsay evidence and for the privilege against self-incrimination; in failing to provide access to an independent psychiatric examination by a physician of the allegedly mentally ill person's choice;
Defendants insist that this court lacks jurisdiction under the principles of Younger v. Harris, 401 U.S. 37, 91 S.Ct. 746, 27 L.Ed.2d 669 (1971), and the federal anti-injunction statute, 28 U.S.C. § 2283. The federal anti-injunction statute is inapplicable to suits under 42 U.S.C. § 1983. Mitchum v. Foster, 407 U.S. 225, 92 S.Ct. 2151, 32 L.Ed.2d 705 (1972). The rationale of Younger v. Harris is also inapplicable to this case.
The Supreme Court in Younger severely limited the circumstances in which federal courts should intervene in pending state criminal prosecutions. But the court expressly disavowed extending the same limitations to intervention in pending state civil proceedings like those involved here. Younger v. Harris, 401 U.S. 37, 54, 91 S.Ct. 746, 27 L.Ed.2d 669 (1971) (Stewart, J., concurring). Since Younger, the court has on at least two occasions declined to dismiss federal actions brought while state civil proceedings were pending. Lynch v. Household Finance Corporation, 405 U.S. 538, 92 S.Ct. 1113, 31 L.Ed.2d 424 (1972); Mitchum v. Foster, supra. The basis for distinguishing between criminal and civil cases in applying principles of comity were summarized by Justice Stewart in Younger:
Even if Younger were to apply to state civil actions, we do not believe that such an action existed under the circumstances shown here. Although notice had been filed with the sheriff and examining physicians, setting a hearing for involuntary commitment prior to the filing of the federal court action on November 12, 1971, plaintiff had no written notice of any "pending" proceeding at the time this action was instituted.
It is also open to doubt whether the state court "action" was the type of state court proceeding against which principles of federalism and comity have been directed. The Wisconsin Supreme Court has held that a civil commitment proceeding is not in the nature of a state court action. In re Brand, 251 Wis. 531, 30 N.W.2d 238, appeal dismissed, cert. denied, Brand v. Milwaukee County, 335 U.S. 802, 69 S.Ct. 34, 93 L.Ed. 359 (1948).
Furthermore, assuming that a state court action existed at the time this suit was filed, the proceedings against which this action are addressed have long since terminated and the existence of a right of appeal is speculative. In In re Brand, supra, the Wisconsin Supreme Court held that there was no right of appeal from a civil commitment proceeding. Although the statute has since been amended, the legislature did not specifically authorize an appeal. The lack of such a provision in the general civil commitment statute is in sharp contrast to the explicit appeal right provided under the Wisconsin Sex Crimes Act. Wis. Stat.Ann. § 975.16. If any right of appeal does exist, it arises under Wis. Stat.Ann. § 274.01(1) (1972 Supp.), which provides: "Except as otherwise provided the time within which a writ of error may be issued or an appeal taken to obtain a review by the supreme court of any judgment or order in any civil action or special proceeding in a court of record is limited to 3 months from service of notice of entry of such judgment or order or, if no notice is served, to 6 months from date of entry." An additional provision states that the above time limitations do not apply in cases in which a judgment is rendered against an insane person. However, since the very purpose for an appeal of a judgment of insanity is to challenge that determination, a reversal of
In these circumstances it would be unjust to require the plaintiff to forego this suit. Principles of federalism and comity do not require this court to refuse to act when to do so would only discourage the assertion of federal constitutional rights and perhaps cause irreparable injury to persons subject to involuntary loss of freedom as the result of the challenged commitment procedure. See Dombrowski v. Pfister, 380 U.S. 479, 85 S.Ct. 1116, 14 L.Ed.2d 22 (1965). We conclude that jurisdiction is proper under 42 U.S.C. § 1983.
The power of the state to deprive a person of the fundamental liberty to go unimpeded about his or her affairs must rest on a consideration that society has a compelling interest in such deprivation.
The common law had little need to concern itself with questions of adequate procedure for involuntary confinement because public institutions for the mentally ill were virtually nonexistent. See 1 Blackstone, Commentaries 305 (Christian ed. 1827). In the colonies, parents and family were expected to care for their own mentally disabled. S. Brakel & R. Rock, The Mentally Disabled and the Law 4 (1971 ed.) [hereinafter cited as Brakel & Rock]. The first mental hospital in the United States was not established
Gradually, as more asylums were built, the number of persons committed increased, and confinement was not limited to the obviously dangerous. The change in attitude was reflected in the courts. In 1845, an inmate of a Massachusetts institution for the insane brought a habeas corpus action, alleging that his commitment was illegal. Matter of Josiah Oakes, 8 Law Rep. 123 (Mass. 1845). The Massachusetts Supreme Court held that
Id. at 125. Dangerousness to self thus became an additional criterion upon which commitment could be based. This criterion apparently rested on an assumption that a state could proceed as parens patriae to protect the interests of the person involved. The doctrine could be justified as a derivation of an English law, under which the King was appointed the guardian of the person and goods of a lunatic.
Despite its differences with regard to fundamental rights, the parens patriae concept as formulated in Oakes could be justified on humanitarian motives arising from early American practices with regard to indigent incompetents. Deutsch has documented the perils of
Unfortunately, neither the Massachusetts court in Oakes,
Mrs. Packard's efforts, and those of others, brought some reforms, principally in the form of statutes requiring that no one could be committed without a jury trial by one's peers. The erosion of the common law requirement of dangerousness continued, however, with the result that many statutes today permit commitment based upon a wide range of showings of "mental illness."
The requirements of due process are not static; they vary depending upon the importance of the interests involved and the nature of subsequent proceedings. Legislative judgments as to procedural guarantees "are questions which the Constitution has entrusted at least in part to courts, and upon which courts have been understood to possess particular competence." In re Gault, 387 U.S. 1, 70, 87 S.Ct. 1428, 1466, 18 L.Ed. 2d 527 (1967) (Harlan, J., concurring & dissenting). With these considerations and the common law background of our present civil commitment laws in mind, we turn to the justifications for permitting civil commitment without the stringent safeguards required in criminal proceedings.
One justification for the relaxation of criminal due process standards, of recent vintage, is that involuntary incarceration carries with it a constitutional right to treatment. See, e. g., Note, "The Nascent Right to Treatment," 53 Va.L. Rev. 1134, 1140 (1967): "Accepting that due process does not forbid involuntary detention for the purpose of rendering care and treatment under the parens patriae role, it is still clear that such detention does not meet due process requirements if, in actual practice, treatment beneficial to the patient is not rendered." The issue of a constitutional right to treatment is not before us. However, the difficulties of enforcing such a right have been well
Furthermore, the validity of the parens patriae role and the lifting of procedural safeguards in such instances appears to rest in part on the realities of better treatment for the person subjected to incarceration in a civil proceeding. In Kent v. United States, supra, the Supreme Court, discussing the issue in the context of juvenile courts, observed:
Id. at 554-556, 86 S.Ct. at 1054 (emphasis added). Few persons familiar with the mental health field will question the applicability of much of the above to persons subjected to involuntary commitment in state institutions.
In any event, the argument in favor of relaxed procedures on the basis of a subsequent right to treatment ignores the fact that unless constitutionally prescribed procedural due process requirements for involuntary commitment are met, no person should be subjected to "treatment" against his will. The argument also ignores the fact that many mental illnesses are untreatable. See, e. g., Livermore et seq., "On the Justifications for Civil Commitment," 117 Pa.L. Rev. 75, 93 (1966) (quoting psychiatric findings that recovery rates from long-term paranoid schizophrenia—the diagnosis given Miss Lessard's condition— are very low), and the substantial evidence that any lengthy hospitalization, particularly where it is involuntary, may greatly increase the symptoms of mental illness and make adjustment to society more difficult. See, e. g., Hearings before the Senate Subcommittee on Constitutional Rights, 91st Congress, 1st and 2d Sess., 214-15, 319, 409 (1969 and 1970) [hereinafter cited as 1970 Hearings].
Neither this language nor prior holdings of the Court in any way answer the question of what procedure and proof are required for a determination that a given individual is in need of treatment or confinement. The Court simply restated its prior holdings, in line with the common law and common understanding, that the state is free to protect its citizens from the effects of certain illnesses upon society at large. See, e. g., Jacobson v. Massachusetts, 197 U.S. 11, 27, 25 S.Ct. 358, 362, 49 L.Ed. 643 (1905) ("Upon the principle of self-defense, of paramount necessity, a community has the right to protect itself against an epidemic of disease which threatens the safety of its members."). Robinson does not, therefore, lend support to those who argue that fewer safeguards are constitutionally required in civil commitment proceedings than are required for other deprivations of liberty.
Even a brief examination of the effects of civil commitment upon those adjudged mentally ill shows the importance of strict adherence to stringent procedural requirements and the necessity for narrow, precise standards.
An individual committed to a mental institution loses numerous civil rights. In Wisconsin, hospitalization for mental illness, whether by voluntary admission or involuntary commitment, raises a rebuttable presumption of incompetency. The presumption continues as long as the patient is under the jurisdiction of hospital authorities.
Wis.Stat.Ann. §§ 343.06(5), (7), 343.25(4) (driving), 255.01 (jury service). No person found to be "insane, imbecile, or feeble-minded" may participate in a marriage contract. Wis.Stat.Ann. § 245.03.
It is obvious that the commitment adjudication carries with it an enormous and devastating effect on an individual's civil rights. In some respects, such as the limitation on holding a driver's license, the civil deprivations which follow civil commitment are more serious than the deprivations which accompany a criminal conviction.
In addition to the statutory disabilities associated with an adjudication of mental illness, and just as serious, are the difficulties that the committed individual will face in attempting to adjust to life outside the institution following release. The stigma which accompanies any hospitalization for mental illness has been brought to public attention in the news stories surrounding the recent resignation of a vice-presidential aspirant from further candidacy. Evidence is plentiful that a former mental patient will encounter serious obstacles in attempting to find a job, sign a lease or buy a house. One commentator, noting that "former mental patients do not get jobs," has insisted that, "[i]n the job market, it is better to be an exfelon than ex-patient." Testimony of Bruce J. Ennis, ACLU, New York City, 1970 Hearings at 284.
Perhaps the most serious possible effect of a decision to commit an individual lies in the statistics which indicate that an individual committed to a mental institution has a much greater chance of dying than if he were left at large. Data compiled in 1966 indicate that while the death rate per 1000 persons in the general population in the United States each year is only 9.5, the rate among resident mental patients is 91.8. Furman & Conners, Jr., "The Pennsylvania Experiment in Due Process," 8 Duquesne L.Rev. 32, 65-66 (1970). Figures for Wisconsin are similar. The study showed a death rate for the Wisconsin populace in general of 9.7 per 1000 population per year (or less than one per cent) and a death rate in Wisconsin mental institutions of 85.1 per thousand (or 8.51 per cent). Id. at 66.
Although part of this difference may be accounted for by a larger number of older persons in mental institutions, studies indicate that other factors also are involved. One factor is the smaller number of physicians per patient in public mental institutions in comparison to the ratio of doctors to individuals in the general population. In Wisconsin, in 1965, it is reported there was one physician for each 175 patients. Wisconsin thus ranked 46th among the 50 states in patient-physician ratios. 1970 Hearings at 646.
In summary, an adjudication of mental illness in Wisconsin carries with it loss of basic civil rights and loss of future opportunities. The damage done is not confined to a small number among the population. In 1963, 679,000 persons were confined in mental institutions in the United States; only 250,000 persons were incarcerated in all prisons administered by the states and federal government. Cohen, "The Function of the Attorney and the Commitment of the Mentally Ill," 44 Texas L.Rev. 424, 432-433 (1966). It would thus appear that the interests in avoiding civil commitment are at least as high as those of persons accused of criminal offenses. The resulting burden on the state to justify civil commitment must be correspondingly high. We turn to the specific practices challenged by the plaintiffs in this case.
Notice and an Opportunity to be Heard
Plaintiffs challenge the constitutionality of the sections of the Wisconsin civil commitment statute which permit involuntary detention for a possible total of 145 days without a hearing,
It can be argued that no deprivation of liberty is permissible under the due process clause without a prior hearing. We think, however, that the state may sometimes have a compelling interest in emergency detention of persons who threaten violence to themselves or others for the purpose of protecting society and the individual. Cf., Boddie v. Connecticut, supra, 401 U.S. at 377-378, 91 S.Ct. 780. Such an emergency measure can be justified only for the length of time necessary to arrange for a hearing before a neutral judge at which probable cause for the detention must be established. The individual detained and members of his family must be given notice of this hearing and attendance by the detained party cannot be waived.
We do not decide the precise time when this hearing must take place. The Wisconsin legislature may decide that a preliminary hearing should be held within a much shorter time than that required by this decision. We set down only the minimum standards which we believe are required by the due process clause. In this connection, we believe that the maximum period which a person may be detained without a preliminary hearing is 48 hours. It must be remembered that at this time the necessity for commitment of an individual has not yet been established. Those who argue that notice and a hearing at this time may be harmful to the patient ignore the fact that there has been no finding that the person is in need of hospitalization.
There is no necessity for us to determine at the present time the precise nature of the hearing that is required. "The formality and procedural requisites for the hearing can vary, depending upon the importance of the interests involved and the nature of the subsequent proceedings." Boddie v. Connecticut, supra, 401 U.S. at 378, 91 S.Ct. at 786. The importance of the interests
The preliminary hearing, concluded upon a showing of probable cause for believing the patient is in need of commitment within the constitutionally required sense of that definition,
Notice of the scheduled hearing, "to comply with due process requirements, must be given sufficiently in advance of scheduled court proceedings so that reasonable opportunity to prepare will be afforded," and it must set forth the basis for detention with particularity. In re Gault, 387 U.S. 1, 33, 87 S.Ct. 1428, 1446, 18 L.Ed.2d 527 (1967). Notice of date, time and place is not satisfactory. The patient should be informed of the basis for his detention, his right to jury trial, the standard upon which he may be detained,
Standards for Commitment
Under Wis.Stat.Ann. § 51.02(5), the court may order a patient involuntarily committed if it is "satisfied that he is mentally ill or infirm or deficient and that he is a proper subject for custody and treatment. . . ." Plaintiffs contend that § 51.02(5) is vague and overbroad, denies those subjected to commitment under the section fundamental rights in that it leaves no room for the concept of less drastic means, and allows the judge or jury to commit upon a finding of mere preponderance of the evidence. We believe the statute can be interpreted to avoid a constitutional adjudication on the questions of vagueness, overbreadth and availability of less restrictive alternatives. We agree that, to the extent the statute permits a judge or jury to commit a person upon a preponderance of the evidence, it violates fundamental notions of due process.
Wisconsin defines "mental illness" as "mental disease to such extent that a person so afflicted requires care and treatment for his own welfare, or the welfare of others, or of the community." Wis.Stat.Ann. § 51.75, Art. II(f) (1971 Supp.). Interpreting § 51.02(5) in the light of this provision in Humphrey v. Cady, 405 U.S. 504, 509, 92 S.Ct. 1048, 1052, 31 L.Ed.2d 394 (1972), the Supreme Court noted (in dicta) that implicit in this definition is the requirement that a person's "potential for doing harm, to himself or to others, is great enough to justify such a massive curtailment of liberty." In other words, the statute itself requires a finding of "dangerousness" to self or others in order to deprive an individual of his or her freedom. The Court did not directly address itself to the degree of dangerousness that is constitutionally required before a person may be involuntarily deprived of liberty. However, its approval of a requirement that the potential for doing harm be "great enough to justify such a massive curtailment of liberty" implies a balancing test in which the state must bear the burden of proving that there is an extreme likelihood that if the person is not confined he will do immediate harm to himself or others. Although attempts to predict future conduct are always difficult, and confinement based upon such a prediction must always be viewed with suspicion, we believe civil confinement can be justified in some cases if the proper burden of proof is satisfied and dangerousness is based upon a finding of a recent overt act, attempt or threat to do substantial harm to oneself or another. See Cross v. Harris, 135 U.S.App.D.C. 259, 418 F.2d 1095, 1102 (1969).
The dangers in allowing commitment without a finding of dangerousness are also exemplified by any examination of attempts to define mental illness. One group of authors, discussing the problem, noted:
Livermore, et seq., "On the Justifications for Civil Commitment," 117 Pa.L.Rev. 75, 80 (1968).
This leaves the question of what standard of proof is required to prove that an individual is "mentally ill" and a "proper subject for custody and treatment," i. e., treatable and "dangerous." The Wisconsin statute is silent on the burden of proof required, but the Wisconsin Supreme Court has approved jury instructions which allowed a jury to commit a person upon a preponderance of the evidence. In re Hogan, 232 Wis. 521, 287 N.W. 725 (1939).
The determination of the appropriate burden of proof "is the kind of question which has traditionally been left to the judiciary to resolve." Woodby v. Immigration & Naturalization Service, 385 U.S. 276, 284, 87 S.Ct. 483, 487, 17 L.Ed.2d 362 (1966). The Supreme Court has stated in regard to the deprivation of liberty involved in deportation that it is impermissible for an individual to be "banished from this country upon no higher degree of proof than applies in a negligence case." Woodby, supra, at 285, 87 S.Ct., at 487. The deprivation of freedom involved in civil commitment is greater than that involved in deportation. The deported person may still have his family with him, may take up new citizenship and vote in elections, travel unfettered where he wishes for the most part, make contracts and marry and hold a job. The person confined in a Wisconsin mental institution is deprived of all of these rights. Civil commitment cannot, therefore, be justified upon a mere preponderance of the evidence.
There remains the formulation of a permissible standard. In Woodby, supra, the Supreme Court announced a standard of "clear, unequivocal, and convincing evidence." Judge Sobeloff concurring and dissenting in Tippett v. Maryland, 436 F.2d 1153, 1165-1166 (4th Cir. 1971),
At least one court would require proof beyond a reasonable doubt on all questions relating to civil commitment. Denton v. Commonwealth, 383 S.W.2d 681 (Ky.1964). In In re Winship, 397 U.S. 358, 90 S.Ct. 1068, 25 L.Ed.2d 368 (1970), the Supreme Court held that proof beyond a reasonable doubt was required to prove every fact necessary in juvenile delinquency proceedings, noting that "extreme caution in factfinding," id. at 365, 90 S.Ct. 1068, is necessary because of "the possibility that [the individual] may lose his liberty upon conviction and because of the certainty that he would be stigmatized by the conviction." Id. at 363, 90 S.Ct. at 1072. The Court reiterated its previous holding in In re Gault, 387 U.S. 1, 87 S.Ct. 1428, 18 L.Ed. 2d 527 (1966), that "civil labels and good intentions do not themselves obviate the need for criminal due process safeguards in juvenile courts, for `[a] proceeding where the issue is whether the child will be found to be "delinquent" and subjected to the loss of his liberty for years is comparable in seriousness to a felony prosecution.'" In re Winship, supra, 397 U.S. at 365-366, 90 S.Ct. at 1073.
The argument for a stringent standard of proof is more compelling in the case of a civil commitment in which an individual will be deprived of basic civil rights and be certainly stigmatized by the lack of confidentiality of the adjudication. We therefore hold that the state must prove beyond a reasonable doubt all facts necessary to show that an individual is mentally ill and dangerous.
Even if the standards for an adjudication of mental illness and potential dangerousness are satisfied, a court should order full-time involuntary hospitalization only as a last resort. A basic concept in American justice is the principle that "even though the governmental purpose be legitimate and substantial, that purpose cannot be pursued by means that broadly stifle fundamental personal liberties when the end can be more narrowly achieved. The breadth of legislative abridgment must be viewed in the light of less drastic means for achieving the same basic purpose." Shelton v. Tucker, 364 U.S. 479, 488, 81 S.Ct. 247, 252, 5 L.Ed.2d 231 (1960).
The commitment hearing judge's duty to comply with this mandate does not conflict with the Wisconsin civil commitment statute. Wis.Stat.Ann. section 51.02(5) provides that at the conclusion of the hearing on mental condition the court "may . . . (c) Order him committed if satisfied that he is mentally ill . . . and that he is a proper subject for custody and treatment . . ." Section 51.05 states that "if the court or jury finds that the patient is mentally ill or infirm and should be sent to a hospital for the mentally ill or infirm, the court shall commit him to a hospital . . ."
We now turn to the procedure followed in the commitment hearing of the named plaintiff in this action, Alberta Lessard. At the close of the hearing held 26 days after Miss Lessard was initially detained, Judge Seraphim ordered her committed for an additional 30 days to the Milwaukee County Mental Health Center. Although the hospital authorities released her conditionally three days later, Judge Seraphim's order has been extended for 30-day periods each month subsequent to this hearing.
There is no indication in the record that the judge considered alternative methods of treatment which would have a less drastic effect on the curtailment of Miss Lessard's freedom and civil liberties; in fact, the little evidence in the record indicates that he refused to consider less restrictive alternatives. Finally, the record gives no indication whether the judge found the existence of a need for confinement beyond a reasonable doubt or by a preponderance of the evidence or by any standard whatsoever.
It is apparent that statutory and constitutional requirements for civil commitment were not followed in the named plaintiff's commitment hearing. Miss Lessard is entitled to an injunction against the further enforcement of the Wisconsin civil commitment statute against her and a declaratory judgment that her commitment was invalid on any of the bases discussed in this portion of the opinion.
Right to Counsel
The Wisconsin civil commitment statute has no provision providing for a right to counsel. The statute does provide for the appointment of a guardian ad litem in the discretion of the court. Wis.Stat.Ann. § 51.02(4). Elsewhere, it is required that the guardian be an attorney. Wis.Stat.Ann. § 256.48. Nowhere is there any indication of the role which the guardian is to play in the proceedings. The record in this case makes clear, however, that the guardian does not view his role as that of an adversary counsel, and thus cannot take the place of counsel unless his role is restructured.
There seems to be little doubt that a person detained on grounds of mental illness has a right to counsel, and to appointed counsel if the individual is indigent. In Heryford v. Parker, 396 F.2d 393 (10th Cir. 1968), Chief Judge Murrah compared the situation of a mental deficient to the juvenile delinquency procedure involved in In re Gault, 387 U.S. 1, 87 S.Ct. 1428, 18 L.Ed. 2d 527 (1967), and held:
396 F.2d at 396.
The importance of counsel has also been stressed in the American Bar Foundation report on the mentally ill. Brakel & Rock, supra, at 62. Recently, the Supreme Court extended the right to appointed counsel to all criminal proceedings in which an accused is deprived of his liberty, noting, once again, that "the right to be heard would be, in many cases, of little avail if it did not comprehend the right to be heard by counsel." Argersinger v. Hamlin, 407 U.S. 25, 31, 92 S.Ct. 2006, 2009, 32 L.Ed.2d 530 (1972), quoting from Powell v. Alabama, 287 U.S. 45, 68-69, 53 S.Ct. 55, 77 L.Ed. 158 (1932). Chief Justice Burger, concurring in the result, remarked that "cogent factors suggest the infirmities in any approach that allows confinement for any period without the aid of counsel at trial; any deprivation of liberty is a serious matter." 407 U.S. at 41, 92 S.Ct. at 2014. As the Court noted in Gault, supra, 387 U.S. at 36, 87 S.Ct. at 1448, the individual whose freedom is in jeopardy, "needs the assistance of counsel to cope with problems of law, to make skilled inquiry into the facts, to insist upon regularity of the proceedings, and to ascertain whether he has a defense and to prepare and submit it." We therefore hold that an individual sought to be detained on grounds of mental illness has the right to counsel, including appointed counsel if the individual states that he is unable to afford counsel.
The state argues, however, that Wisconsin does provide for counsel in the person of the guardian ad litem. As noted earlier, the statute leaves the appointment of a guardian to the discretion of the court. Since, in the named plaintiff's case, a guardian was appointed, she probably lacks standing to contest the discretionary aspects of this statute. We think it is important, however, to discuss the state's contention that appointment of a guardian ad litem may displace a requirement of appointed counsel. Judge Seraphim did not appoint a guardian for Miss Lessard until November 5, 1971, one week after her initial detention. The attorney appointed as guardian at this time clearly did not see his role as that of defense counsel. At the initial hearing on November 16, 1971 (subsequent to the time Miss Lessard had retained the services of a legal aid attorney on her own initiative), when asked if he wished an adjournment, the guardian replied (R. 3):
A ten day adjournment was subsequently set by the judge. Miss Lessard protested having to spend another ten days in the institution and Mr. Noonan, her guardian, rather than seeking Miss Lessard's interim release or at least the possibility of a shorter interval between the two hearings, responded:
Gupta, supra, at 438. We think it apparent, therefore, that appointment of a guardian ad litem cannot satisfy the constitutional requirement of representative counsel.
The more important question in this action relates to the role of counsel in the proceedings inasmuch as Miss Lessard retained counsel prior to the commencement of the judicial hearing on commitment. The plaintiffs insist that one charged with mental illness has a right to counsel at every step of the procedure, including interviews with psychiatrists. We agree that the importance of the interests involved make imperative the assistance of counsel as soon after proceedings are begun as is realistically feasible.
We are unable at this point, however, to be so certain that assistance of counsel will prove materially beneficial at the psychiatric interview as to be able to determine that the right to effective aid of counsel outweighs the interests of the state in meaningful consultation. Several courts have discussed this issue in the context of the mental examination required when an accused in a criminal trial raises the issue of insanity, noting that because of "the intimate and personal nature of the examination, . . . the presence of a third party, in a legal and non-medical capacity, would severely limit the efficacy of the examination . . . ." United States v. Albright, 388 F.2d 719, 726 (4th Cir. 1968); Thornton v. Corcoran, 132 U.S.App.D.C. 232, 407 F.2d 695, 701 (1969). It may be that a person charged with mental illness will be unable to properly exercise his rights of cross-examination without the presence of counsel at this critical stage in the proceeding. However, we think it appropriate to permit the state to demonstrate that other means, such as recording the interviews and making available to defense counsel the written results of the interview, will prove as effective in maintaining the individual's rights with less disruption to the traditional psychiatrist-patient relationship.
The Privilege Against Self-Incrimination
Plaintiffs assert that the privilege against self-incrimination is applicable to civil commitment proceedings. As may readily be seen, application of the privilege involves conflicting considerations. On the one hand, statements made by a prospective mental patient may well be the basis for total involuntary loss of freedom, and thus it will not do to simply label these proceedings civil. In this respect at least the Supreme Court's opinion in In re Gault, 387 U.S. 1, 49, 50, 87 S.Ct. 1428, 1455, 1456, 18 L.Ed.2d 527 (1967), is directly applicable:
On the other hand, the prospect of a seriously ill individual being prevented from obtaining needed treatment, in a situation in which treatment is possible and will actually be given, on the basis of counsel's advice to refuse to make any statements to a psychiatrist appears ludicrous. As the majority stated in Tippett v. Maryland, 436 F.2d 1153, 1158 (4th Cir. 1971), cert. dismissed sub nom., Murel v. Baltimore City Criminal Court, 407 U.S. 355, 92 S.Ct. 2091, 32 L.Ed.2d 791 (1972), "[i]t is difficult to imagine anything more stultifying to a psychiatrist, as dependent as he is upon the cooperation of his patient, than the presence of a lawyer objecting to the psychiatrist's questions and advising his client not to answer this question and that."
The conflicting interests are thus difficult to reconcile. The Supreme Court found it unnecessary to reach this question in McNeil v. Director, Patuxent Institution, 407 U.S. 245, 250, 92 S.Ct. 2083, 32 L.Ed.2d 719 (1972), but Justice Douglas in a concurring opinion found that the privilege was indeed applicable:
Id. at 257, 92 S.Ct. at 2091.
We find Justice Douglas' opinion and the underlying decision in Gault persuasive. Wisconsin may not, consistent with basic concepts of due process, commit individuals on the basis of their statements to psychiatrists in the absence of a showing that the statements were made with "knowledge"
This conclusion is fortified by medical evidence that indicates that patients respond
Finally, cases in which the privilege has been denied with regard to mental examinations in criminal proceedings are inapplicable. See, e. g., United States v. Albright, 388 F.2d 719 (4th Cir. 1968). For in those cases the defendant has raised the question of his mental capacity as a defense to acts done in violation of the criminal law. In civil commitment proceedings, however, there has been no allegation that a "defendant" has done anything in violation of any law which could justify the state's depriving him of liberty. The purpose of a criminal proceeding is to ascertain if a defendant has committed an act which will justify deprivation of his freedom. His defense of mental incapacity, if successful, will permit him to go free. The purpose of a civil commitment proceeding is to ascertain if a person's mental state justifies the state's taking away his liberty. The "evidence" obtained in a psychiatric interview goes to the heart of the government's case in the civil proceeding. In the criminal context, evidence obtained as to mental capacity goes only to a defense. In fact, any evidence obtained which relates to the real issue in the proceeding, the defendant's guilt of the crime charged, is excluded at the subsequent trial.
To conclude, statements made to a psychiatrist by the subject of a commitment proceeding, unless voluntarily given after notice of the possible consequences, cannot be the basis for an order of commitment.
Exclusion of Hearsay Evidence
Plaintiffs final challenge to the constitutionality of the Wisconsin civil commitment statute lies in the use of hearsay evidence at the commitment hearing. Defendants do not seriously dispute the validity of plaintiffs' contentions, stating that they "recognize fully well that hearsay wherever possible should be prevented in any type of legal proceeding." We agree.
The Supreme Court referred to the hearsay exclusionary rules in In re Gault, 387 U.S. 1, 11 n. 7, 87 S.Ct. 1428, 1435, 18 L.Ed.2d 527 (1967), quoting from Note, "Juvenile Delinquents: The Police, State Courts, and Individualized Justice," 79 Harv.L.Rev. 775, 794-795 (1966), as follows:
We fail to see any distinction between the juvenile delinquency hearing and the civil commitment hearing in this regard. The weaknesses of hearsay evidence are the same, whatever the nature of the proceeding. Arguments concerning the necessity of excluding hearsay in trials generally have no relevance to the validity of admitting hearsay evidence in the civil commitment hearing. To the extent that exceptions to the hearsay rule permit the admission of hearsay into evidence, the same evidence may be admitted in a civil commitment hearing. Where standard exclusionary rules forbid the admission of evidence, no sound policy reasons exist for admitting such evidence in an involuntary mental commitment hearing. Indeed, as noted throughout this opinion, the seriousness of the deprivation of liberty and the consequences which follow an adjudication of mental illness make imperative strict adherence to the rules of evidence generally applicable to other proceedings in which an individual's liberty is in jeopardy. As Justice Brandeis noted in an often quoted statement: "Experience should teach us to be most on our guard to protect liberty when the government's purposes are beneficent . . . . The greatest dangers to liberty lurk in insidious encroachment by men of zeal, well-meaning but without understanding." Olmstead v. United States, 277 U.S. 438, 479, 48 S.Ct. 564, 572-573, 72 L.Ed. 944 (1928) (Brandeis, J., dissenting).
We conclude that the Wisconsin civil commitment procedure is constitutionally defective insofar as it fails to require effective and timely notice of the "charges" under which a person is sought to be detained; fails to require adequate notice of all rights, including the right to jury trial; permits detention longer than 48 hours without a hearing on probable cause; permits detention longer than two weeks without a full hearing on the necessity for commitment; permits commitment based upon a hearing in which the person charged with mental illness is not represented by adversary counsel, at which hearsay evidence is admitted, and in which psychiatric evidence is presented without the patient having been given the benefit of the privilege against self-incrimination; permits commitment without proof beyond a reasonable doubt that the patient is both "mentally ill" and dangerous; and fails to require those seeking commitment to consider less restrictive alternatives to commitment.
Alberta Lessard and the other members of her class are entitled to declaratory and injunctive relief against further enforcement of the present Wisconsin scheme against them. Inasmuch as Miss Lessard has been conditionally released, the only relief necessary in her case is a declaratory judgment that the order adjudging her mentally ill and in need of commitment was constitutionally defective. She is also entitled to an injunction against any further extensions of the invalid order which continues to make her subject to the jurisdiction of the hospital authorities.
The unnamed plaintiffs in this case, all persons 18 years of age or older who are being held involuntarily pursuant to any emergency, temporary or permanent commitment provision of the Wisconsin involuntary mental commitment statute, are also entitled to relief against further detention pursuant to the defective Wisconsin procedure. In order to ensure an orderly disposition of these cases, however, we believe that the Wisconsin authorities should be permitted a 90-day period in which to review their procedures with the purpose of conforming them to the procedure outlined in this opinion. During this period they will also have an opportunity to review the cases of each of the unnamed plaintiffs in this action. In some cases, the medical authorities may seek to change the patient status from involuntary to voluntary
A number of patients are undoubtedly properly institutionalized, despite the defective procedures used in commitment. In those cases in which the Wisconsin medical authorities propose, in good faith, to seek renewed commitment orders, within the ninety-day period arrangements should be made for new hearings. These hearings must be in conformity with this opinion. Counsel must be appointed in time to prepare a defense and notice of all rights must be given the patient.
We shall request the defendants in this action to submit a memorandum to this court at the end of the ninety-day period detailing the procedures taken to dispose of the cases involved here and describing their efforts to implement this order in future cases.
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