for either type of fraudulent concealment. New Jersey has not yet addressed the issue but at least one member of this court has joined the majority view on the grounds that it best serves important public policies behind statutes of limitations. Hauptmann v. Wilentz, 570 F. Supp. 351 (D.N.J. 1983).
However, even if plaintiff were to allege fraudulent concealment it would not overcome his statute of limitations problem. Since ignorance of the law does not toll the statute of limitations, it must be presumed that plaintiff knew that he must be personally examined by two physicians within 10 days prior to the date of his commitment. With this knowledge plaintiff would have realized that his examination by only one physician violated state law and possibly his Constitutional rights. I can imagine no circumstances under which fraudulent concealment would have prevented plaintiff from uncovering the crucial elements of his claim. However, even if I were to permit plaintiff discovery on the issue of fraudulent concealment, his civil right claims could not survive. While I believe a civil commitment necessarily invokes state action, plaintiff, in alleging that Dr. Flicker violated New Jersey's commitment procedure, has failed to allege the elements of a Constitutional violation.
B. Finding State Action
A class C detention is permitted "where the condition of the patient, in the judgment of the certifying physicians, is such that the patient should be placed under immediate restraint and confinement in an institution, and where it is impossible to obtain an order of temporary commitment" from a municipal or county court. N.J.S.A. 30:4-38. A relative, sheriff, county prosecutor, director of welfare, police chief, care-giver, or institutional officer may commence a commitment action. N.J.S.A. 30:4-27. However, two doctors must sign a certificate or statement as to the "mental illness" of such patient for the purposes of securing his commitment. N.J.S.A. 30:4-29. No specific criteria for a finding of mental illness are set forth in the statute although mental illness is defined to mean "mental disease to such an extent that a person so afflicted requires care and treatment for his own welfare, or the welfare of other or the community." N.J.S.A. 30:4-23. The Supreme Court goes further than the New Jersey statute in finding that the Constitution requires a demonstration of dangerousness to justify civil commitment. O'Connor v. Donaldson, 422 U.S. 563, 45 L. Ed. 2d 396, 95 S. Ct. 2486 (1975).
The physicians certifying the commitment need not be psychiatrists or neurologists but merely "of reputable character" and qualified as "practicing physicians." N.J.S.A. 30:4-29. A practicing physician for purposes of commitment is a physician who is licensed to practice medicine in any one of the United States, is not related to the patient by blood or marriage, and is not the director, chief executive officer, or proprietor of the institution to which the patient is to be admitted. N.J.S.A. 30:4-23. The physicians must base their certification of commitment on a personal examination of the subject of "the action, which must be made in every case by the physician signing the certificate . . . no more than 10 days prior to the admission of such person to the hospital." N.J.S.A. 30:4-30. The certificate or written statement must report the physician's medical findings and set forth additional facts and circumstances on which the physician's opinion is based including a description of previous mental illnesses and a statement that the condition of the patient is such as to require care and treatment in a mental hospital and such other information as may be required to be furnished. N.J.S.A. 30:4-30. It is New Jersey Court Rules, rather than statutory law, which requires that the physicians certify as to the dangerousness of the patient. See footnote 1, supra.
No preliminary hearing is required prior to commitment or shortly thereafter. After two physicians have certified the need for a Class C commitment, the person bringing the action must present the complaint and certificates to the chief executive officer of the institution. N.J.S.A. 30:4-38. Such papers are the warrant and justification for temporary detention of the patient at the institution. The chief executive officer must certify them and mail them to the county adjuster who must present them to a court of the county for an order of temporary commitment.
The state allows up to 20 days to pass before a formal hearing must be held in the appropriate court with notice and representation for plaintiff. N.J.S.A. 30:4-38.
The issue of whether a hearing held up to twenty days after confinement meets constitutional standards was litigated in this court. Coll v. Hyland, 411 F. Supp. 905 (D.N.J. 1976). A three judge panel upheld state commitment procedures, pointing to a summary affirmance by the Supreme Court of a three judge ruling that a statute allowing confinement for up to 45 days without a hearing was constitutional. Logan v. Arafeh, 346 F. Supp. 1265 (D. Conn. 1972), aff'd sum. nom. Briggs v. Arafeh, 411 U.S. 911, 36 L. Ed. 2d 304, 93 S. Ct. 1556 (1973).
The district court panel did not rely exclusively on the Supreme Court's decision in Logan in upholding the constitutionality of New Jersey's involuntary commitment procedures. 411 F. Supp. 911. First, it stated that the hospital must be granted adequate time to conduct diagnostic tests. Second, court administration and counsel must be permitted the opportunity to prepare for an effective hearing. Such reasons need only be transported to the criminal context where an initial appearance before a magistrate must be held without "necessary delay" to demonstrate their inherent weakness. Fed. R. Crim. P. Rule 5.
However, in Coll v. Hyland, the court rejected the proposal that
since the loss of liberty involved in civil commitments is no less serious than incarceration for a criminal offense the same procedural safeguards must apply.
411 F. Supp. at 912. The court grounded its rejection on the notion that "different bases underlie government power to punish criminals and to hospitalize the dangerous mentally-ill person." Punishment and protection of society were forwarded as grounds for incarceration of criminals. But the court recognized both the exercise of police power to protect society and the exercise of the doctrine of parens patriae to protect the individual from him or herself as justifications for civil commitment. "Both are involved and both must be considered." Both duties were described as arising out of the historical responsibility of the sovereign to care for those who are mentally incompetent as well as to protect those who will be harmed if the patient is left at large. The opinion unambiguously defends the commitment process as a legitimate extension of the obligations and duties of the state to exercise its police power and parens patriae role.
Given the recognition of the state's moral duty vis a vis the dangerously mentally ill, the failure of all courts which have considered the issue to recognize state action in the certification by private doctors leading to commitment is surprising. Landry v. Odom, 559 F. Supp. 514, 517 (E.D. La. 1983) (private psychiatrist's issuance of commitment certificate "without something more is not sufficient to justify characterization of him as a state actor"); Joyce v. Ferrazzi, 323 F.2d 931, 933 (1st Cir. 1963) (doctor acted as private practitioner in committing patient to mental institution under state law); Whittington v. Johnston, 102 F. Supp. 352 (M.D. Ala.1952) (physician who declared plaintiff insane resulting in incarceration pursuant to state law acting in private capacity). If the state is not providing the authority to deny an individual his liberty what is providing the authority?
It is even more surprising to find that a number of courts have found no state action where the physician certifying the commitment is an employee of the state or appointed by the state to a committee to certify the commitment. See Spampinato v. M. Breger & Co., 270 F.2d 46 (2d Cir.), cert. den., 361 U.S. 944, 80 S. Ct. 409, 4 L. Ed. 2d 363 (1960) (certifying psychiatrist on staff of a city hospital who authorized detention of plaintiff for 17 days in a psychopathic hospital ward was acting in the capacity a private citizen); Byrne v. Kysar, 347 F.2d 734 (7th Cir.), cert. den., 383 U.S. 913, 15 L. Ed. 2d 668, 86 S. Ct. 902 (1965) (physician had acted in his capacity as a private physician in diagnosing and certifying as to plaintiff's condition although he was an employee of the city, relying on Duzynski v. Nosal, 324 F.2d 924 (7th Cir. 1963); Hall v. Quillen, 631 F.2d 1154 (4th Cir. 1980), cert. den., 454 U.S. 1141, 71 L. Ed. 2d 293, 102 S. Ct. 999 (1982) (no state action where physician examined plaintiff under court appointment for involuntary commitment proceedings).
Other courts have immunized court-appointed certifying physicians by finding their "quasi-judicial" function entitles them to absolute judicial immunity. Byrne v. Kysar, 347 F.2d 734 (7th Cir. 1965).
The Third Circuit, however, has not taken the route of failing to recognize state action where the health care providers are employees of the state. Hicks v. Feeney, 770 F.2d 375 (3rd Cir. 1985). The harder question is whether there is state action if the certifying physician is not employed by the state.
The Fourteenth Amendment of the Constitution provides in part that no state shall
deprive any person of life, liberty or property without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.
Title 42 U.S.C. § 1983 provides a remedy for deprivations of rights secured by the Constitution and laws of the United States when deprivation takes place "under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory . . . ." The issue presented is whether a private physician's certification of commitment pursuant to the New Jersey civil commitment statute is an action properly attributable to the state for purposes of maintaining a section 1983 action.
The Third Circuit summarized the law holding that involuntary commitment implicates the liberty interest protected by the Fourteenth Amendment in Hicks v. Feeney, 770 F.2d 375, 377 (3d Cir. 1985). In Vitek v. Jones, 445 U.S. 480, 492, 63 L. Ed. 2d 552, 100 S. Ct. 1254 (1980) involuntary commitment from prison to a mental hospital was held to require due process protections. In Addington v. Texas, 441 U.S. 418, 425, 60 L. Ed. 2d 323, 99 S. Ct. 1804 (1979) the Court held that civil commitment for any purpose constitutes a significant deprivation of liberty that requires due process protection. The right of a non-dangerous person to be free from confinement in a mental hospital was shaped by O'Connor v. Donaldson, 422 U.S. 563, 575-76, 45 L. Ed. 2d 396, 95 S. Ct. 2486 (1975). Involuntary confinement was termed a "massive curtailment of liberty" in Humphrey v. Cady, 405 U.S. 504, 509, 31 L. Ed. 2d 394, 92 S. Ct. 1048 (1972). Despite such precedent, in New Jersey two private physicians can commit someone for twenty days without their consent and without a hearing.
The contrast to state requirements for compelled medical treatment for physical ailments is instructive. A person must be adjudged mentally incompetent before medical treatment can be imposed against the will of the patient for a physical ailment. See In re Quackenbush, 156 N.J. Super. 282, 383 A.2d 785 (Morris County Court, 1978) (county court refused to find patient incompetent when he refused life-saving bilateral amputation for gangrenous conditions in both legs). Similarly, an infectious person cannot be isolated by quarantine without authorization by either the State Department of Health or the local boards of health. N.J.S.A. 26:4-2. But two doctors can certify the dangerousness of a person, requiring their institutionalization without adjudication, thereby depriving an individual of his liberty for up to twenty days. Only an extension of the state's police power could authorize such deprivation of liberty. The notion of civil commitment so offends one commentator that he makes the visionary and unrealistic suggestion of doing away with civil commitment entirely, leaving "disordered" persons to seek voluntary treatment, subject to the sanctions of the criminal justice system. Morse, A Preference for Liberty: The Case Against Involuntary Commitment, 20 Cal. L. Rev. 54 (1982).
The decisions holding that committing physicians are not acting under color of state law generally present only the most rudimentary analysis. The opinions announce conclusorily, without an examination of the underlying police power or parens patriae doctrines, that the physician is acting in his or her private capacity. See, e.g., Byrne v. Kaysar, supra, 347 F.2d 734. In Byrne, a third judge dissented in a three paragraph opinion. He argued that a court-appointed physician, compensated by the court and performing services to satisfy a state statute, is acting under the color of state law, while recognizing "that the numerical weight of authority is opposed to my views." The most thoughtful refusal to find state action appears in Watkins v. Roche, 529 F. Supp. 327 (S.D. Ga. 1981). After analyzing relevant Supreme Court precedent the court refused to find state action, reasoning:
To open physicians to federal suit by decreeing that they act for the state in making purely medical decisions would effectively chill the use, and accompanying benefit, of a private physician's judgment in an emergency situation simply because the physician may not be willing to give it for fear of being exposed to a law suit. The disadvantage in this is the statutory alternatives do not provide the immediacy of action of a physician's certificate. Id. at 330.