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April 15, 1976

John F. COLL, Individually and on behalf of all other similarly situated persons, Plaintiffs,
William F. HYLAND, Attorney General of the State of New Jersey, et al., Defendants

Per Curiam

Plaintiff John F. Coll was involuntarily committed to the Essex County Hospital Center pursuant to a final order of the Juvenile and Domestic Relations Court of Essex County, New Jersey entered on June 8, 1970. He was still a patient at that institution on October 23, 1973 when he filed suit in this court. The complaint alleges a deprivation of federal constitutional rights, and, pursuant to 42 U.S.C. § 1983, requests injunctive and declaratory relief to a class which plaintiff seeks to represent.

 Judge Biunno, to whom this case was originally assigned, ordered a hearing on Mr. Coll's competency. We need not detail the evidence, but it established the plaintiff's mental illness and that there is a strong probability he will require hospitalization from time to time in the future. *fn1" However, despite the absence of any change in his condition, Coll was discharged from the hospital soon thereafter.

 Since the plaintiff's suit challenged the constitutionality of New Jersey Civil Commitment statutes and the state's procedural rules, a three-judge statutory court was constituted on April 25, 1975, pursuant to 28 U.S.C. §§ 2281, 2284. Counsel agreed to a stipulation of facts, submitted extensive briefs and presented helpful oral argument to the court.

 It is not necessary to discuss the factual background of the plaintiff's 1970 commitment in the present case because we confine our inquiry to the constitutionality of the current rules of court, which are substantially different from those previously in effect. Therefore, while the procedures which resulted in Coll's commitment in 1970 were arguably deficient, those events are not pertinent to the contentions which are now advanced.

 The defendants argue that the case is moot and that plaintiff is not a proper class representative since he is no longer confined. Even though Coll is not presently in an institution, the record establishes the likelihood that he will be recommitted perhaps a number of times in the future. Thus, the allegedly unconstitutional commitment procedures could affect him, and the defendants, having control of his discharge, could render the controversy moot by his release. As a result, the issue may be said to be one which is "capable of repetition yet evading review" and consequently not moot. Sosna v. Iowa, 419 U.S. 393, 95 S. Ct. 553, 42 L. Ed. 2d 532 (1975); Super Tire Engineering Co. v. McCorkle, 416 U.S. 115, 94 S. Ct. 1694, 40 L. Ed. 2d 1 (1974); Roe v. Wade, 410 U.S. 113, 93 S. Ct. 705, 35 L. Ed. 2d 147 (1973); Conover v. Montemuro, 477 F.2d 1073 (3d Cir. 1973).

 We conclude that Coll's past history of mental illness, together with the probability of future institutionalization, makes him a proper representative of the class. *fn2" His threat of injury is "real and immediate" -- not conjectural or hypothetical *fn3" -- and he is a member of the class which he seeks to represent. Since the focus of this suit is upon the current rules, we determine that the proper class be those persons 18 years or older who may hereafter be committed involuntarily to a mental institution through proceedings governed by the challenged statute and court rules.

 Defendants also claim that abstention is proper. They contend that under the teachings of Younger v. Harris, 401 U.S. 37, 91 S. Ct. 746, 27 L. Ed. 2d 669 (1971), and its progeny, this suit is not appropriate for injunctive relief because of the interference with state activities. They rely primarily on Huffman v. Pursue, Ltd., 420 U.S. 592, 95 S. Ct. 1200, 43 L. Ed. 2d 482 (1975) Schmidt v. Lessard, 421 U.S. 957, 95 S. Ct. 1943, 44 L. Ed. 2d 445 (1975). However, these cases are readily distinguishable. In Huffman, the federal action was filed immediately after the state trial court had entered its judgment but during the period for appeal in the state system. In Schmidt v. Lessard, supra, a three-judge court declared the Wisconsin civil commitment procedures constitutionally defective, but the Supreme Court vacated that judgment and remanded for further consideration in light of Huffman v. Pursue, Ltd., supra. Examination of the lower court opinions reveals that the federal intervention occurred immediately after the patient had been committed but before a hearing had been set in the state court.

 In both of the preceding cases, federal interference with the state judicial process was clear. Here, however, there is no commitment proceeding presently pending in the state court. As the Supreme Court observed in Lake Carriers' Assn. v. MacMullan, 406 U.S. 498, 509, 92 S. Ct. 1749, 1757, 32 L. Ed. 2d 257, 268 (1972), "considerations of equity practice and comity in our federal system . . . have little force in the absence of a pending state proceeding." Cf. Steffel v. Thompson, 415 U.S. 452, 94 S. Ct. 1209, 39 L. Ed. 2d 505 (1974). Thus, the comity issue is not present.

 Nor is this a proper case for abstention under Railroad Comm'n. v. Pullman Co., 312 U.S. 496, 61 S. Ct. 643, 85 L. Ed. 971 (1941). Abstention, a judicially-created doctrine, has application only in exceptional circumstances. Colorado River Water Conservation District v. United States, 423 U.S. 800, 96 S. Ct. 1236, 47 L. Ed. 2d 483, 44 U.S.L.W. 4372 (1976). We must remain aware of the delays and expenses inherent in the abstention process and the fact that federal rights may be lost in the absence of expeditious federal adjudication. Harris County Commissioners Court v. Moore, 420 U.S. 77, 95 S. Ct. 870, 43 L. Ed. 2d 32 (1975); Zwickler v. Koota, 389 U.S. 241, 88 S. Ct. 391, 19 L. Ed. 2d 444 (1967). We are examining a state program which does not have an uncertain meaning -- there is little, if any, room for construction. As such, abstention has no application in the case. Kusper v. Pontikes, 414 U.S. 51, 55, 94 S. Ct. 303, 306, 38 L. Ed. 2d 260, 265 (1973); Mariniello v. Shell Oil Co., 511 F.2d 853, 860 (3d Cir. 1975).

 The plaintiff attacks the New Jersey statutes and procedural rules governing involuntary commitment, specifically N.J.S.A. 30:4-37; 38; 41; 42, and N.J. Court Rules, R. 4:74-7(b), (c), (e). *fn4"

 The statutes provide for commitment in three types of situations classified as A, B, and C. Class A does not require a temporary commitment. Class B includes those cases in which the patient's condition "in the judgment of the certifying physicians, is such that he should be placed under immediate restraint in an institution, and where an order of temporary commitment can be obtained prior to his admission . . . ." N.J.S.A. 30:4-37. Class C includes cases in which immediate restraint is needed and an order cannot be obtained before admission to an institution. N.J.S.A. 30:4-38.

 The procedures to be followed in civil commitments are set out in R. 4:74-7, whose new version went into effect on September 8, 1975. Under this rule, an action for commitment is commenced when a complaining party files a written application accompanied and supported by the certificates of two physicians. They must state with particularity the facts justifying a conclusion that, if not committed, the patient would be a probable danger to himself or the community. *fn5"

 The appropriate court then must set a date for a hearing -- in a Class A case, not later than 20 days from the filing of the application; in a Class B case, not later than 20 days after the order of commitment; and in Class C, not more than 20 days after the patient's admission to an institution. *fn6" If the patient is unrepresented, the court must assign legal counsel.

 Notice of the hearing must be served on all interested parties not less than 10 days in advance, and, in the case of the patient, notice must be served personally. Counsel has the right to inspect all records pertaining to the patient's mental condition.

 No permanent commitment order may be entered except after a hearing at which the patient must be represented by counsel. The rules require that at least one licensed psychiatrist shall testify orally. The patient must appear at the hearing, but may be excused from the courtroom during all or any portion of the testimony if good cause is shown. Testimony by a psychiatrist that the patient's mental condition would be adversely affected if he heard candid and complete testimony is considered good cause.

 To order a permanent commitment, the court must make a finding that the patient is a danger to himself or the community. Periodic review of the commitment thereafter is required.

 The plaintiff asserts that the civil commitment proceedings are unconstitutional in a number of respects. We will discuss the contentions seriatim.



 The plaintiff cites the failure to require a preliminary hearing as a constitutional deficiency. Nothing in the state's procedures prevents a court from holding a preliminary inquiry either before signing an order for commitment or within a few days after the patient's admission to an institution. But it is clear that the rule does not mandate a preliminary hearing.

 In essence, the New Jersey plan provides for a formal hearing in Class B and C cases only after the order has been signed or the commitment has begun, and it must be held no later than 20 days thereafter. The only extension permitted is a ten-day adjournment which may be granted only in exceptional circumstances upon a showing of good cause. In view of these explicit restrictions, it is realistic to accept twenty days as the outside limit within which the formal hearing must be held; the provision requiring ten days notice sets the lower end of the time frame. Practically speaking, therefore, the hearing takes place between the eleventh and twentieth day after confinement in a Class C case. The period between initial confinement and the hearing may be somewhat shorter in a Class B case. However, this is not likely, for the underlying reason for the issuance of such an order would mandate that confinement would begin very soon after the order is signed.

 It bears repeating that, under the statute, an initial commitment without a hearing may be ordered only when two physicians certify that the patient, if allowed to remain at large, constitutes a danger to himself or the community. It must be conceded that there are situations in which the threat of harm to the patient or others is of such a nature that confinement must take place immediately. When the choice is between a loss of life or health and a loss of liberty for a brief period of time, the preferable alternative is apparent. Under circumstances such as these, each court considering the question has recognized that a hearing held within a reasonable time after confinement begins is an acceptable means of supplying requisite due process. Lessard v. Schmidt, 379 F. Supp. 1376 (E.D.Wis.1974), vacated and remanded for reconsideration, 421 U.S. 957, 95 S. Ct. 1943, 44 L. Ed. 2d 445 (1975); In re Barnard, 147 U.S.App.D.C. 302, 455 F.2d 1370 (1971); Lynch v. Baxley, 386 F. Supp. 378 (M.D.Ala.1974); Bell v. Wayne County General Hospital, 384 F. Supp. 1085 (E.D.Mich.1974); Logan v. Arafeh, 346 F. Supp. 1265 (D.Conn.1972), aff'd sum. sub nom. Briggs v. Arafeh, 411 U.S. 911, 93 S. Ct. 1556, 36 L. Ed. 2d 304 (1973); Fhagen v. Miller, 29 N.Y.2d 348, 328 N.Y.S.2d 393, 278 N.E.2d 615, cert. denied, 409 U.S. 845, 93 S. Ct. 47, 34 L. Ed. 2d 85 (1972).

 The issue of whether a preliminary hearing is constitutionally mandated is more precisely phrased in terms of whether a hearing which may be held as long as twenty days after confinement meets constitutional requirements. The inquiry is not whether this court thinks a shorter period might be desirable or of greater benefit to the patient, but whether the time span is unconstitutional.

 A number of courts have grappled with the problem in recent years. In Lynch v. Baxley, supra, the court fixed seven days as the appropriate outer limit within which to have a preliminary hearing. In Bell v. Wayne County General Hospital, supra, a five-day detention period on an emergency basis was not attacked, but an initial temporary commitment for a period of 60 or 100 days was held to be excessive. While no definite time was set by the court, it suggested that a five-day period would be appropriate. The Lessard v. Schmidt, supra, court believed that a hearing should be held within 48 hours. *fn7" Fhagen v. Miller, supra, approved a state procedure which allowed confinement for fifteen days without a hearing. *fn8"

 The Supreme Court has passed upon the issue only once. In Briggs v. Arafeh, supra, the Court summarily affirmed a three-judge court ruling that a statute allowing confinement of up to 45 days without a hearing was constitutional. While the rulings on permissible delay allowable in the scheduling of hearings as set out in Logan and Fhagen have been said to lack persuasion, *fn9" we are not free to disregard the Supreme Court's affirmance of Logan, summary though it was. In Hicks v. Miranda, 422 U.S. 332, 95 S. Ct. 2281, 45 L. Ed. 2d 223 (1975), the Court emphasized that such affirmances are rulings on the merits of the controversy and binding upon the lower courts. See also Colorado Springs Amusements, Ltd. v. Rizzo, 524 F.2d 571 (3d Cir. 1975).

 Accordingly, we hold that since New Jersey requires that a final hearing be held within 20 days, there is no constitutional necessity for a preliminary ...

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