The Appellate Division of the District Courts, Western District, decided that, in a proceeding to commit the defendant to a mental health facility under G.L.c. 123, §§ 7, 8, the standard of proof is "proof beyond a reasonable doubt" rather than "clear and convincing proof." The plaintiff, superintendent of the Worcester State Hospital (hospital), appealed. We hold that (1) the appeal is properly before us notwithstanding delay in assembling the record, (2) the issue is one "capable of repetition, yet evading review," and should be decided even though the order appealed may be moot, and (3) "proof beyond a reasonable doubt" is the proper standard.
The petition was filed in the Central District Court of Worcester on September 19, 1975. After hearing, the judge filed a memorandum of findings and decision and on November 26, 1975, ordered the defendant committed to the hospital for a period not to exceed six months, expiring May 20, 1976. On report to the Appellate Division the order was reversed and the petition dismissed by a decision and order filed December 16, 1976. The plaintiff filed a notice of appeal to this court on February 4, 1977.
We summarize the facts shown by the report. The defendant, a seventy-year old married woman, was committed under G.L.c. 123, § 12, on September 12, 1975, and was then disoriented and unable to care for herself because of age and infirmity. At the time of the hearing on November 20, 1975, she was generally improved but suffering from organic brain syndrome and generalized and cerebral arteriosclerosis. She was mentally ill and unable to care for herself and there was a likelihood of serious harm to herself.
The defendant requested the following ruling: "Petitioner-Superintendent has the burden of proof to show beyond a reasonable doubt that respondent is mentally ill and that respondent's discharge would create a likelihood of serious harm." The judge acted as follows: "Denied, this ruling is denied because the test on District Court procedure at the present time is that of clear and convincing proof as distinguished from proof beyond a reasonable doubt." The Appellate Division held that the standard to be applied is that of proof beyond a reasonable doubt.
1. The defendant's motion to dismiss the appeal. On March 24, 1977, more than forty days after the plaintiff filed his notice of appeal to this court, the defendant moved under Mass. R.A.P. 10 (c), as amended, 367 Mass. 919 (1975), to dismiss the appeal for failure to assemble the record and docket the appeal in timely fashion, citing Westinghouse Elec. Supply Co. v. Healy Corp., 5 Mass.App.Ct. 43 (1977). The trial judge denied the motion and the record was assembled and docketed on June 3, 1977. No application was made to this court or a single justice thereof for extension of the time for assembling the record and docketing the appeal.
Under Mass. R.A.P. 9 (a), 365 Mass. 851 (1974), the clerk of the District Court was to assemble the record "as soon as may be after the filing of the notice of appeal." No specific time period is prescribed for the assembly. Under rule 9 (c)
As in Gilmore v. Gilmore, 369 Mass. 598, 603 (1976), the defendant cites no action that the plantiff failed to take to
The Gilmore opinion can be read as interpreting rule 9 (c) to lay down a "specified time" of forty days for assembly of the record, rather than for taking "any action" to make assembly possible. See id. at 602. The former reading is explicit in Westinghouse Elec. Supply Co. v. Healy Corp., 5 Mass.App.Ct. 43, 47-50, 55 n. 24 (1977), following Fed. R.A.P. 11(a), which does require that the record "be transmitted to the court of appeals within 40 days after the filing of the notice of appeal." We take this occasion to point out the difference between the Federal rule and our rule: our rule does not require the record to be assembled in forty days. Hence no violation of our rule is shown in the present case.
2. Mootness. The commitment order expired on May 20, 1976, before the Appellate Division decided the appeal. The plaintiff has submitted affidavits showing that a subsequent petition for the commitment of the defendant was allowed on August 17, 1977, to expire in six months. Thus the decision appealed from no longer has any operative effect. But the Appellate Division in the present case declined to follow two previous Appellate Division decisions. The issue is one of public importance, capable of repetition, yet evading review. It has been fully argued to us in an adversary proceeding and we think it appropriate that we express our opinion. Karchmar v. Worcester, 364 Mass. 124, 136 (1973). See Wolf v. Commissioner of Pub. Welfare, 367 Mass. 293, 298-299 (1975).
Here it is common ground that there is a need for such a higher standard. The only controversy is between "clear and convincing proof" and "proof beyond a reasonable doubt." Traditionally, "clear and convincing proof" in civil cases has related to findings and rulings of a judge rather than a jury, principally involving attempts to prove by oral evidence matters ordinarily required to be proved by written evidence. See Stone v. Essex County Newspapers, Inc., 367 Mass. 849, 870 n. 10 (1975); id. at 875-876 (separate opinion); McCormick, Evidence § 340 (2d ed. 1972); 9 J. Wigmore, Evidence § 2498 (3d ed. 1940). In such cases we have sometimes treated the "clear and convincing" standard as equivalent to the "reasonable doubt" standard. Stockbridge Iron Co. v. Hudson Iron Co., 107 Mass. 290, 316-317 (1871). German Am. Ins. Co. v. Davis, 131 Mass. 316, 317 (1881). Indeed, the language of the cases cited suggests that proof must be even more rigorous than proof in the ordinary criminal case. Cf. Restatement (Second) of Contracts § 197, Comment b (Tent. Drafts 1-7, 1973).
Our modern cases, however, treat clear and convincing proof as less demanding than proof beyond a reasonable doubt and suggest doubt as to the utility of the lesser standard. See Kidder v. Greenman, 283 Mass. 601, 613-614
In Andrews, petitioner, supra, 368 Mass. at 488, we thought that Federal precedents led "inexorably to the conclusion that a person who stands to lose his freedom and to be labeled sexually dangerous is entitled to the benefit of the same stringent standard of proof as that required in criminal cases." Here the defendant stood to lose her freedom and to be labeled mentally ill. The plaintiff argues that the latter label entails less stigma than the former. Mental illness does not carry the same stigma it once did, but we are not prepared to say that the stigma has entirely disappeared. Certainly the loss of freedom on commitment varies considerably in varied situations. We do not rest on any precise calibration of freedom or stigma. Instead, we doubt the utility of employing three standards of proof when two seem quite enough. In view of "the generally similar function and effects" of G.L.c. 123 and G.L.c. 123A, we think the standard of proof beyond a reasonable doubt applies under both. See Andrews, petitioner, supra, 368 Mass. at 480.
We note that the standard of proof beyond a reasonable doubt has been employed in cases of commitment for mental illness in a growing number of other jurisdictions. In re
Order of Appellate Division affirmed.