Kesselbrenner v. Anonymous , 39 A.D.2d 410 ( 1972 )

Brennan, J.

The basic question presented involves the constitutionality of section 85 of the Mental Hygiene Law¹, which provides, insofar as pertinent, for the mandatory transfer of a civilly committed patient in a State hospital to Matteawan State Hospital following a determination that he is dangerously mentally ill.²

In essence, section 85 provides that when the director of a State hospital ascertains that a mentally ill patient “ has committed or is liable to commit an act or acts which if committed by a sane person would constitute homicide or felonious assault, or is so dangerously mentally ill that his presence in such a hospital is dangerous to the safety of other patients therein, the officers or employees thereof, or to the community, ’ ’ he must, on order of the Commissioner of Mental Hygiene, forthwith apply to a designated court for the appointment of two physicians, unconnected with the hospital, to make a personal examination of the patient. The court must designate the doctors, who, if they find that the patient meets either of the standards set forth above, must so certify (Mental Hygiene Law, § 85, subd. 1).

The certificate is required to be delivered to the director who must annex it to a petition for an order placing the patient in Matteawan State Hospital. Written notice of the petition and a copy of the petition must be served upon the patient and the Mental Health Information Service and, additionally, upon the spouse, a parent or other nearest relative if in the State and, if not, upon any known friend in the State. There must be at least five days’ notice of the return date of the application (§ 85, subd. 2).

If no demand for a hearing is made by or on behalf of the patient, the Judge to whom the application is made may determine the issue of dangerous mental illness on the return date and, if satisfied that the allegation is correct, may immediately issue an order placing the patient in Matteawan (§ 85, subd. 3). If a hearing is demanded, or if the Judge upon his motion orders a hearing, it must be held within five days, on notice to interested parties. The patient may be represented by counsel. A written decision must be filed. If the person is found to be dangerously mentally ill, “ the judge shall forthwith issue his order hospitalizing him in the Matteawan state hospital for a period not to exceed six months from the date of such order.” The patient must be retained at Matteawan until he is no longer dangerous to safety or until the expiration of the period of hospitalization ordered or of the period of authorized retention, whichever is first (§ 85, subd. 4).

If the director of Matteawan determines that a patient admitted under section 85 continues to be dangerous, he must apply for an order authorizing further continued retention. The provisions of sections 73 and 74 of the Mental Hygiene Law govern the retention application, “ except that the question to be determined thereon shall be the continued dangerous mental illness of such patient,” and if it is determined that he is no longer dangerously mentally ill the court may order his discharge or his transfer to a hospital in the Department of Mental Hygiene (§ 85, subd. 4-a). Moreover, “ orders for hospitalization in Matteawan state hospital pursuant to this section shall not be deemed as or received in any court in evidence of commission of a crime by the person so ordered hospitalized, nor shall such order for hospitalization be deemed or considered as punishment for a crime ” (§ 85, subd. 5).

The respondent was an involuntary civil mentally ill patient at Manhattan State Hospital from May, 1969—with short interruptions occasioned by his several escapes — until the hearing held at Special Term on September 30,1971. On August 5, 1971 the appellant, the director of Manhattan State Hospital, made an application pursuant to subdivision 1 of section 85 of the Mental Hygiene Law for an examination of the respondent by two examining physicians, alleging that the respondent was dangerously mentally ill and detailing the supportive facts. The two examining physicians, after reviewing the respondent’s history and record, and after examining him, certified that he was “ so dangerously mentally ill that (his) presence in a hospital in the Department of Mental Hygiene is dangerous to the safety of other patients therein, the officers or employees thereof, or to the community.” The respondent was notified of his right to a hearing. A hearing was held at the request of Mental Health Information Service. The respondent was represented by counsel at the hearing. Apparently, no request was made for a jury trial of the issues.

Following the statutory hearing, the Special Term found “beyond a reasonable doubt that, due to his mental illness * * # [the respondent] committed several assaults and assaultive acts while in Manhattan State, including a very serious assault upon an attendant, thus endangering the safety of other patients and employees of the hospital.” Accordingly, the Special Term determined that the respondent was dangerously mentally ill within the meaning of the statute. There is ample evidence to sustain this finding and no appellate issue is raised in this respect. The Special Term nonetheless denied the petitioner’s application insofar as it requested that the respondent be committed to Matteawan State Hospital as required by subdivision 4 of section 85 of the Mental Hygiene Law, concluding that such a commitment would be a violation of the respondent’s constitutional rights to equal protection of the laws and substantive due process. The appéal, as limited by the appellant’s notice of appeal and his brief, is from so much of the Special Term’s order as refused to direct such commitment.

The appellant argues on appeal that the requirement of subdivision 4 of section 85 of the Mental Hygiene Law that upon a finding that a patient is dangerously mentally ill ‘ ‘ the judge shall forthwith issue his order hospitalizing him in the Matteawan state hospital for a period not to exceed six months from the date of such order ’ ’ does not deny the respondent the constitutional right of either equal protection of the laws or due process of law.

We agree with the appellant’s contention that the recent determination of the Supreme Court of the United States in Baxstrom v. Herold (383 U. S. 107) points to the conclusion here reached on the constitutional validity of section 85 of the Mental Hygiene Law and recognizes that commitment thereunder to Matteawan State Hospital of an indigent person entitled to civil status is constitutional where such person is dangerously mentally ill and is afforded procedural due process as to (1) the determination that he is dangerously mentally ill and (2) the right to periodic review of his status.

In Baxstrom (supra) the Supreme Court considered the constitutional validity of the statutory procedure under which the indigent petitioner, Baxstrom, was committed to a mental institution at the expiration of his criminal sentence in a New York State prison. During his term he was certified as insane by a prison physician and was transferred from the prison to Dannemora State Hospital, an institution under the jurisdiction and control of the New York Department of Correction, used for the purpose of confining and caring for male prisoners declared mentally ill while serving a criminal sentence. Thereafter, the director of Dannemora State Hospital filed a petition stating that Baxstrom’s penal term was about to terminate and requesting that he be civilly committed pursuant to the then extant section 384 of the Correction Law. On the date when Baxstrom’s penal sentence expired, custody over him shifted from the Department of Correction to the Department of Mental Hygiene, but he was thereafter retained at Dannemora. The Supreme Court held that Baxstrom had been denied equal protection of the laws by the statutory procedure (Correction Law, § 384) under which he was civilly committed at the expiration of his penal sentence without the jury review available to all other persons civilly committed in New York. The court held that Baxstrom had further been denied equal protection of the laws by his civil commitment to an institution maintained by the Department of Correction beyond the expiration of his prison term without a judicial determination that he was dangerously mentally ill such as that afforded to all so committed, except those, like Baxstrom, nearing the expiration of a penal sentence.

The Supreme Court recognized that classification of mentally ill persons as either insane or dangerously insane may be a reasonable distinction for purposes of determining the type of custodial or medical care to be given. However, in the setting of Baxstrom the court stated that ‘ ‘ it has no relevance whatever in the context of the opportunity to show whether a person is mentally ill at all” (p. Ill [emphasis in original]). The court stated that there was no basis for distinguishing the commitment of a person who was nearing the end of his penal term from all over civil commitments.

In sum, the Supreme Court stated (p. 115): “ In order to accord to petitioner the equal protection of the laws, he was and is entitled to a review of the determination as to his sanity in conformity with proceedings granted all others civilly committed under § 74 of the New York Mental Hygiene Law. He is also entitled to a hearing under the procedure granted all others by § 85 of the New YorTc Mental Hygiene Law to determine whether he is so dangerously mentally ill that he must remain in a hospital maintained by the Department of Correction” (emphasis added).

It is clear from the Baxstrom decision that there not only is a distinction between Department of Correction hospitals and Department of Mental Hygiene hospitals, but also a distinction in the classification of mentally ill persons as either insane or dangerously mentally insane, for the purpose of determination as to the type of custodial or medical care to be given.

While perhaps Baxstrom was primarily concerned with the question of due process, of significance in the case at bar is the fact that Baxstrom tacitly approved and recognized the constitutional validity of the procedure prescribed by section 85 of the Mental Hygiene Law. It follows, and we so hold, that it is constitutionally proper for the State to transfer and to confine dangerously mentally ill civil patients in Matteawan State Hospital, a hospital under the jurisdiction of the Department of Correction, providing the patient is afforded procedural due process as to classification and periodic review thereafter. The respondent on the instant appeal was afforded all of the procedural due process required by Baxstrom for commitment under section 85 of the Mental Hygiene Law. The procedure outlined in the statute was meticulously followed. Undoubtedly, the respondent would have been entitled to a jury trial of the issues presented (cf. People v. Lally, 19 N Y 2d 27, 34-35). He did not request a jury trial.

In Lally (supra), the Court of Appeals held section 454 of the former Code of Criminal Procedure to be constitutional. In outlining the procedure to be followed on remission of the case, the Court of Appeals inferentially recognized the constitutionality of section 85 of the Mental Hygiene Law, with which we are concerned on the present appeal. In substance, section 454 of the former Code of Criminal Procedure provided that in a criminal case, if the defendant pleads insanity and the jury acquits him on that ground, the court must order him committed to the custody of the State Commissioner of Mental Hygiene, to be placed in an appropriate institution in the Mental Hygiene or Correction Department. The Court of Appeals remitted the case to the Criminal Term for a hearing to be held pursuant to subdivisions (2), (3) and (5) of section 454. Insofar as pertinent the Court of Appeals stated (pp. 34435): “ The issues there to be tried are whether appellant may be discharged or released without danger to himself or to others, and, if that question be answered in the negative, whether he is so dangerously mentally ill as to require hospitalization in Matteawan State Hospital. To provide defendant with protection equal to that of other persons under the New York State statutes as to adjudications of mental incompetency we may and do read into subdivision (5) (see People ex rel. Morriale v. Branham, 291 N. Y. 312, 317; People v. Finkelstein, 9 N Y 2d 342) a provision for a jury trial of these issues, if appellant so requests. If it be determined as a result of the hearing that defendant while not dangerous to himself or others is mentally incompetent and in need of hospitalization the court shall recommit defendant to the State Commissioner of Mental Hygiene for confinement in a State civil hospital for the insane. He shall in that event not be confined in Matteawan,

“ To comply with the spirit if not the express language of the Baxstrom decision (supra) we hold that, before there can be any commitment to Matteawan State Hospital for the insane under section 454 procedures, a person must be accorded all the protections of sections 74 and 85 of the Mental Hygiene Law including a jury trial, if requested.” (Cf. United States ex rel. Schuster v. Herold, 410 F. 2d 1071 [involving transfer of prisoner]; United States ex rel. Daniels v. Johnston, 328 F. Supp. 100,116 [involving prisoner incompetent to stand trial].)

We have considered the points relied upon at the Special Term and find the same to be insubstantial. We attach no significance to the omission of the word “treatment” in the mandate to the Department of Correction (Correction Law, § 400, subd. 1) to maintain hospitals for the mentally ill “ solely for the purpose of holding in custody and caring for such mentally ill persons ” (emphasis added). In our opinion, the word “ care ” as used therein includes and imports the 11 treatment ’ ’ of such persons. In this connection, the Special Term, in establishing a distinction between confinement at Matteawan and State civil mental hospitals, referred to the book published in 1968 by the Special Committee of the Association of the Bar of the City of New York in co-operation with the Fordham Law School. This publication, containing information on Matteawan State Hospital, was filed with this court and is based upon annual reports of the director of Matteawan State Hospital to the year 1966. Through the courtesy of the Mental Health Information Service, Second Department, the annual reports of Matteawan for the period 1966 through 1971 have been furnished to this court. The report for the period April 1, 1970 to March 31, 1971 shows the composition of the resident staff; the movements of patients, including the number “treated”; the types of commitments, indicating 17 commitments under section 85 of the Mental Hygiene Law for the period 1969-1970 and 13 for the period 1970-1971; and dispositions of patients. It is noteworthy that the resident staff at Matteawan State Hospital includes, in addition to the director, 13 psychiatrists of varying grades, four psychologists of varying grades, and other related medical personnel and services. It is apparent from the foregoing that Matteawan State Hospital is adequately staffed to provide the necessary 1 ‘ treatment and care ’ ’ commensurate with the needs of civil patients transferred there pursuant to section 85 of the Mental Hygiene Law.

In this light, we find unpersuasive the Special Term’s assertion that Matteawan gives primacy to maximum security rather than treatment. We agree with the appellant’s contention that the Baxstrom decision imports that the Legislature may provide that a patient who manifests dangerous proclivities requiring maximum security and constant supervision may be placed in an institution, even though under the jurisdiction of the Department of Correction, so long as such placement complies with procedural due process. Such confinement may endure until the court determines that the patient is no longer dangerously mentally ill, at which time the court may order transfer of the patient to another hospital in the Department of Mental Hygiene (Mental Hygiene Law, § 85, subd. 4-a). Respecting the place of confinement, it is our view that a dangerously mentally ill civil patient who has committed repeated felonious assaults upon fellow patients and personnel while hospitalized in a civil mental hospital is in no different category than a person of doubtful mental capacity, charged criminally with felonious assault, who has been confined at Matteawan State Hospital pending a determination as to whether he is mentally competent to stand trial.

Additionally, we reject the contention that the differences in the respective regulations and procedures relating to visiting privileges and communication are tantamount to an infringement of the. respondent’s constitutional right of equal protection of the laws. We recognize the differences in the internal operation of hospitals under the jurisdiction of the Departments of Correction and Mental Hygiene. However, we believe that the more restrictive regulations governing the former, as in the case of section 85 transfers, are proper and warranted by the need to protect ordinary civil mental patients from others in the same class who are dangerously mentally ill.

Similarly, we find no weight to the respondent’s argument— presented without evidentiary foundation — that, since it may be inferred that the proportion of patients in State hospitals who are poor and disadvantaged is higher than in other types of mental hospitals, transfers under section 85 necessarily fall with greater impact on the poor and that the practical effect of such a statutory provision constitutes a denial of equal protection of the laws. Suffice to note in this regard that all mental hospitals, public and private, are under the control of the Commissioner of Mental Hygiene (Mental Hygiene Law, §§ 7, 10-a, 71 [subd. 3], 88, 424 [subd. 2]). Thus, when section 85 alludes to dangerously mentally ill patients, it contemplates all such patients, rich and poor, and regardless of whether confined in a public or private mental hospital. Further, insofar as due process is concerned, all patients, including those confined in Matteawan State Hospital, are given the aid of the Mental Health Information Service. Parenthetically, the Legislature in its recent enactment of the new Mental Hygiene Law (L. 1972, ch. 251) enacted the counterpart of section 85 and restated the procedure governing the commitment and transfer of certain dangerous patients of any hospital in the department (new Mental Hygiene Law, §§ 29.11, 29.13) “to an appropriate institution in the state department of correction ” (§ 29.13, subd. [d]). It is significant on the question respecting the place of confinement that the new statute, effective January 1, 1973 (L. 1972, ch. 253, amdg. new § 91.05)—despite previous recommendations of the Special Committee of the New York City Bar Association (2d Rep. Spec. Comm, on Commitment Procedures and the Law Relating to Incompetents, Assn, of Bar of City of N. Y., Mental Illness, Due Process and the Criminal Defendant [Fordham Univ. Press, 1968]) — again provides for the commitment of certain dangerous patients “to an appropriate institution in the state department of correction ” (§ 29.13, subd. [d]).

Finally, we perceive of no infringement of the respondent’s constitutional right to equal protection of the laws or due process. We conclude that any disparity in the regulations concerning the internal operation of mental hospitals within the jurisdiction of the Departments of Correction and Mental Hygiene is not a matter of judicial concern, but lies rather within the peculiar administrative competence of the executive and legislative branches of State government.

The order should be reversed insofar as appealed from, on the law, without costs, and the application for commitment of the respondent should be granted to the extent of committing him to an appropriate institution in the State Department of Correction.

1 . The Mental Hygiene Law was repealed and a new Mental Hygiene Law was enacted, effective January 1, 1973, by chapters 251 and 253 of the Laws of 1972. Under the savings clause of the new statute (§ 91.03) “ nothing contained in this chapter * * * shall affect or impair the validity of any act done or right accruing, accrued or acquired, or any order, judgment or status established prior to the enactment of this chapter.”

2 . The appeal was transferred here by the Appellate Division, First Department.