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Matter of Commitment of Edward S.

Decided: March 8, 1990.

IN THE MATTER OF THE COMMITMENT OF EDWARD S.


On appeal from the Superior Court, Appellate Division.

For affirmance and remandment -- Chief Justice Wilentz and Justices Clifford, Handler, Pollock, O'Hern, Garibaldi and Stein. Opposed -- None. The opinion of the Court was delivered by Wilentz, C.J. Handler, J., concurring. Handler, J., concurring in result.

Wilentz

[118 NJ Page 120] Edward S., having been found not guilty of murder by reason of insanity, was committed to the New Jersey State Forensic Hospital for the Criminally Insane. The issue in this case is whether subsequent hearings to determine whether he should be freed or remain committed may be open to the public or must be in camera. We hold that the statutory mandate requiring that such hearings be in camera where a civil committee is involved does not apply to one committed following a verdict of not guilty by reason of insanity (NGI committees). For similar reasons, we hold that our own court rule, tracking the statute, was not intended to mandate an in camera hearing for such committees.

We conclude further that where the charge was murder, the various interests involved are best accommodated by a rule presumptively requiring proceedings open to the public, and that the presumption is strong. Applying that holding to the facts of this case, future periodic hearings to determine whether Edward S. shall be freed shall presumptively be open to the public.

I.

Edward S. lived in a boarding house for people suffering from mental disorders. The house was operated by Millie Ingram. On August 4, 1983, Edward stabbed Ms. Ingram to death with a butcher's knife. Testimony at a bench trial held on April 2, 1984, revealed that he "became delusional, thought he was God and was endowed with supernatural power to kill people. He had a delusion that the landlady was the devil who was going to kill Jesus Christ." The judge who presided over the trial and all subsequent hearings found Edward not guilty by reason of insanity and committed him to the New Jersey State Forensic Hospital for the Criminally Insane.

At a July 16, 1984, review hearing, the court ordered a transfer of Edward to Ancora Psychiatric Hospital. On September 28, 1984, as a result of another hearing, Edward was transferred to Greystone Park Psychiatric Hospital, where he is currently a patient. Along with those transfers, the court granted Edward increased levels of privileges. They included open-ward privileges, overnight visits to his parents, and escorted, off-grounds privileges for recreational trips and for drug and alcohol rehabilitation meetings.

The September hearing was held in camera. The court ordered the courtroom to be cleared. Although no members of the general public were present, decedent's family members were permitted to remain. A dispute exists over who attended subsequent periodic review hearings. The Assistant Prosecutor

states that since 1985, the decedent's family members and other members of the public attended the hearings. Counsel for Edward in the criminal trial certifies that at the periodic hearings when he represented Edward, only members of the decedent's family and Edward S.'s family were present. The Public Defender's Office subsequently represented Edward S. for the first time at a May 15, 1987, review hearing. That hearing was attended by Edward's parents, two members of decedent's family, and the testifying psychiatrist.

Prior to that May review hearing, counsel for Edward requested an in camera hearing pursuant to Rule 4:74-7(e), the rule governing ordinary civil commitments. It was the first time such a motion was made. The request was that those attending be limited to Edward's family, his doctor, and his Alcoholics Anonymous sponsor. The trial court denied the request and ruled that the hearing would be open to the public. The court found that although the commitment of one found not guilty by reason of insanity is to proceed on a civil basis,

the cause and the reason for this hearing here today is so substantial, and there is such a public interest, that this Court finds that to deny those who are present, the members of the family, to hear the testimony, for them to hear how [Edward S.] is proceeding, and for them to understand whatever action the Court has taken, [would amount to taking away] . . . an absolute right that they have.

The court supplemented that oral finding with a written determination that periodic review hearings for a committee found not guilty by reason of insanity should not be held in camera.

After this denial of her motion for an in camera hearing, counsel for Edward indicated that she could not proceed with the hearing due to the "substantial number of people that are in the courtroom in addition to Mrs. Ingram's family" without violating the confidentiality rights of her client. As a result, the court stayed the review hearing pending appeal. In the course of the attempted appeal, the statute was amended with the claimed effect of granting an absolute right to an in

camera hearing. At that point we granted Edward S.'s motion for leave to appeal.

II.

Until 1975 neither our statutes nor court rules provided for in camera hearings for commitment proceedings. In 1974, Chief Justice Hughes issued a Memorandum to Assignment Judges and others designed to make uniform our civil commitment procedures throughout the State. The memorandum sets forth those procedures in some detail, including provisions for periodic review. It did not, however, mention anything about in camera hearings. As a result of that memorandum the Civil Practice Committee recommended a revision of the civil commitment rule (Rule 4:74-7) "to accord with the directive itself and with concepts of fundamental fairness and to foster uniform treatment of involuntary civil commitments throughout the State." The Committee's proposed rule went well beyond the Chief Justice's memorandum. The Court thereafter amended that rule largely in conformance with the recommendations of the Civil Practice Committee including, in somewhat different form, a provision for in camera hearings. Dealing solely with civil commitment proceedings, the rule as thus amended read: "The hearing shall be held in camera unless good cause to the contrary is shown." R. 4:74-7(e) (1975). That was the first appearance of an in camera provision.

Prior to that time there had been "a great divergence of practice . . . in involuntary proceedings" (Hughes Memorandum) as well as "a longstanding history of procedural abuses in the civil commitment process," the purpose of the revised rule being to correct both and "to insure that no person may be involuntarily committed to a psychiatric institution without having been afforded full procedural due process." Pressler, Current N.J. Court Rules, Comment R. 4:74-7 at 1129 (1990). In New Jersey the welter of divergent practice did not deal

with whether hearings were open or in camera.*fn1 And proceedings to commit those found not guilty by reason of insanity were, inferentially at least, open to the public. That conclusion is based on the fact that at least from 1943 to 1975 the statute*fn2 required the jury's verdict to include not only its conclusion that defendant was not guilty by reason of insanity but a special finding on whether the insanity continued, N.J.S.A. 2A:163-3, resulting, without more, in defendant's commitment. Because the trial was public and the charge to the jury and its verdict apparently incorporated both the acquittal and the special finding of continued insanity (see State v. Maik, 60 N.J. 203, 217-19, 287 A.2d 715 (1972); State v. Vigliano, 43 N.J. 44, 61-62, 202 A.2d 657 (1964)), the "proceedings" -- whatever it was that the jury heard leading to its special finding that the insanity continued -- were presumably similarly public. See also State v. Krol, 68 N.J. 236, 344 A.2d 289 (1975) (clearly indicating the evidence on continued insanity (or future dangerousness) was part of the guilt trial). Indeed, the related proceeding, to determine whether insanity prevented a defendant from standing trial, N.J.S.A. 2A:163-2, also leading to commitment, was required to be in open court.

The first appearance of an in camera hearing requirement in New Jersey is a part of the history of increasing attention to the rights of persons suffering from mental illness. As doubts concerning the fairness of society's treatment of the mentally ill grew, legislative provisions affording greater protection were adopted, reflected in, and to some extent triggered by

judicial decisions on the subject. The most basic change rejected "insanity" alone as justification for commitment: dangerousness to self or society became the standard. Jackson v. Indiana, 406 U.S. 715, 92 S. Ct. 1845, 32 L. Ed. 2d 435 (1972). Accompanying that fundamental change were modifications designed to accord procedural due process to committees, including modifications that recognized the need for periodic review of the commitment to assure that if danger no longer existed, the committee would not be forever institutionalized for lack of inquiry. O'Connor v. Donaldson, 422 U.S. 563, 95 S. Ct. 2486, 45 L. Ed. 2d 396 (1975). More to the point here, the difference in treatment of the mentally ill based on whether or not the illness was manifested in criminal conduct was constitutionally obliterated. Jackson v. Indiana, supra, 406 U.S. 715, 92 S. Ct. 1845, 32 L. Ed. 2d 435; Baxstrom v. Herold, 383 U.S. 107, 86 S. Ct. 760, 15 L. Ed. 2d 620 (1966).

Those developments led, in New Jersey, to Chief Justice Hughes' memorandum in 1974 concerning civil commitments and, shortly thereafter, to State v. Krol, supra, 68 N.J. 236, 344 A.2d 289, in which we held that those committed after a verdict of not guilty by reason of insanity were entitled to substantially the same treatment as civil committees, in particular, that the standard for commitment was the same, followed three years later by State v. Fields, 77 N.J. 282, 390 A.2d 574 (1978), applying Krol and holding that NGI committees, like civil committees, were entitled to periodic review.

The appearance, then, of the "in camera" hearing requirement for civil committees in our rules in 1975 can be understood as one of many manifestations of concern for the rights of those committed because of mental illness. As the commentary to the rule noted:

The adoption of this rule reflects an increasing national and state-wide concern for the situation of persons suffering from mental illness and a growing realization that, traditionally, persons alleged to be suffering from mental illness have been involuntarily committed on ex parte orders entered without representation by counsel, without adequate notice, without adequate proofs, and generally in violation of the most fundamental concepts of due process.

[ Pressler, Current N.J. Court Rules, Comment R. 4:74-7 (1977).]

The in camera hearing preserves their privacy, their dignity, and is thought by some to afford a greater likelihood of a more candid evaluation and a lesser likelihood of the hearing interfering with future psychiatric treatment.

This aspect of procedural concern for committees was absent from our statutes until 1987. Those statutes, significantly amended in recent years, did not speak to the subject of the nature of the hearing at all. Nor did the completely independent criminal provisions concerning NGI committees. The major changes in the criminal provisions were intended to reflect the decisional requirements of equality of treatment between civil and criminal committees, manifested in the provisions of our Code of Criminal Justice that an NGI committee be "treated as a person civilly committed." N.J.S.A. 2C:4-8b(3).

It is important, in view of the issue before us, to trace the changes in our statutes and rules after the first appearance of an in camera provision in those rules in 1975. As noted above, that rule concerning civil commitments provided that hearings be " in camera unless good cause to the contrary is shown." At that time, the civil commitment statute had no such requirement, and the statute concerning criminal committees, NGI committees, was totally independent of the civil commitment statute. It provided simply for commitment on the jury's special finding that insanity continued. N.J.S.A. 2A:163-3. And Rule 3:19-2, the comparable rule of court concerning NGI committees, which refers solely to that statute, stated that "[i]f a defendant interposes the defense of insanity and evidence thereof is given at trial, the jury, if it acquits the defendant, shall find specially in accordance with N.J.S. 2A:163-3." After State v. Krol, supra, 68 N.J. 236, 344 A.2d 289, and State v. Fields, supra, 77 N.J. 282, 390 A.2d 574, however, the Code of Criminal Justice, adopted in 1978, effective September 1, 1979, provided for the first time that those found not guilty by reason of insanity and thereafter determined by the court to constitute a danger to the community or to self if released shall be

committed and thereafter "treated as a person civilly committed." N.J.S.A. 2C:4-8b(3). It is of considerable importance to note, as the Legislature presumably realized, that when it provided for that equivalency, namely, that NGI committees be treated as a person civilly committed, such treatment included, by rule only, an in camera hearing "unless good cause to the contrary is shown." Shortly thereafter, in conformance with that statutory change, we amended our court rule concerning NGI committees to provide that on the return of a verdict of not guilty by reason of insanity, "the procedure for disposition of the defendant shall be as provided for by N.J.S.A. 2C:4-8 and 2C:4-9 and R. 4:74-7," the last-cited being our civil commitment rule. R. 3:19-2 (as amended 1979).

Except for various amendments referred to hereafter, the situation remained unchanged until 1987 when the Legislature substantially revamped the statute concerning civil commitments. Of critical importance is the fact that no changes whatsoever were then or thereafter made either in our criminal statute concerning NGI committees or in the comparable criminal rule. That legislative change, in 1987, designed primarily to reflect clinical and programmatic advances and to incorporate language based on recent court decisions and rules, included, for the first time, a statutory provision concerning in camera proceedings. It required, in civil commitments, whether initial, final, or periodic, in camera proceedings, without any qualification or exception, for good cause or otherwise. In conformance with that statute, we amended our civil commitment rule, Rule 4:74-7 and included therein all of the appropriate changes necessitated by the new legislation, including an amendment of the in camera rule provision so that it became absolute, unqualified as it had previously been by the clause "unless good cause to the contrary is shown." We did not, however, amend our criminal rule concerning NGI committees nor did the Legislature amend the comparable NGI statute. The fact is, however, that our court rule concerning NGI committees continued to provide that they be treated not only in accordance with

N.J.S.A. 2C:4-8 and -9, which had no provisions concerning in camera hearings, but also continued to provide that they be treated in accordance with Rule 4:74-7, which now had this absolute in camera requirement; furthermore, the criminal statutes themselves, in providing generally that NGI committees after initial commitment thereafter be "treated as a person civilly committed," inferentially also now appeared to require, as a result of the amendment of the civil commitment statute, that all hearings concerning NGI committees be held in camera, absolutely.

The question, therefore, is whether the Legislature in passing this new civil commitment law in 1987 intended this requirement, without qualification, of an in camera hearing to extend to NGI committees' hearings as a result of the reference in the earlier criminal statutes that an NGI be "treated as a person civilly committed," which reference was passed at a time when the right to an in camera hearing was qualified by the good cause exception. There is no legislative history concerning the in camera provision of the new statute of 1987, none, in particular, concerning the omission of the good cause exception.

III.

We note that no claim is here made that the constitutionally mandated equality of treatment between NGI committees and civil committees requires in camera hearings for both. Such a claim would be without merit. The equality mandated here by equal protection requirements has as its basis the premise that there is no fundamental difference for confinement purposes between NGI and civil committees. NGI committees are, in the eyes of the law, equally innocent, equally sick, and not necessarily any more dangerous. There are, however, at least three qualifications to this judicial mandate of equal treatment. First, what is required is not absolute equality, but "substantial equality." In State v. Krol, supra, 68 N.J. at 250-51, 344 A.2d 289, we stated:

the fact that the person to be committed has previously engaged in criminal acts is not a constitutionally acceptable basis for imposing upon him a substantially different standard or procedure for involuntary commitment. (Emphasis supplied.)

In State v. Fields, supra, we stated:

In light of the constitutional imperative of substantially equal treatment reflected in [ Baxstrom v. Herold, 383 U.S. 107, 86 S. Ct. 760, 15 L. Ed. 2d 620 (1966), and Jackson v. Indiana, 406 U.S. 715, 92 S. Ct. 1845, 32 L. Ed. 2d 435 (1972)] we discern no constitutionally satisfactory justification for denying comparable protection to NGI committees.

Justification for imposing restraints upon [the NGI committee's] liberty must be found under legal criteria which do not "deviate substantially from those applied to civil commitments generally."

[77 N.J. at 297, 390 A.2d 574 (quoting State v. Krol, 68 N.J. at 251, 344 A.2d 289 (emphasis supplied)).]

Second, the substantial equality that is mandated is based on the reasons for the constitutional mandate, namely, the protection of the committees' liberty interests, not other interests such as privacy and confidentiality. Third, to the extent that there are in fact differences between civil and NGI commitments, that will justify different treatment.*fn3

No case has ever suggested any requirement of absolute equality of procedure or treatment in all respects. Indeed, the cases note that there are differences. For example, under State v. Krol, supra, 68 N.J. at 256, 344 A.2d 289, an NGI acquittee was automatically confined in a hospital for sixty days for observation and evaluation:

Proof by defendant that his criminal conduct was the result of mental illness provides sufficient justification for holding him in custody for a reasonable period of time to determine if he in fact should be indefinitely committed. Such procedures for automatic temporary commitment, even though deviating from

procedures applicable to civil commitment generally, have uniformly been upheld.

[ Ibid. (citations omitted).]

There was no such automatic confinement of a civil committee. And while Krol established that the State must show, at the initial commitment hearing, that the NGI defendant, just like a civil committee, was likely to pose a danger to himself or to society, the Court ruled at the same time that the burden of proof was only a preponderance of the evidence, noting the contrary trend in civil commitments requiring a greater burden of proof.*fn4 Id. at 257, 344 A.2d 289. In State v. Fields, supra, 77 N.J. at 299-300, 390 A.2d 574, the Court, while holding that NGI committees, like civil committees, are entitled to periodic review hearings, again ruled that the burden of justifying continued restraints was by a preponderance of the evidence. The Court further strongly emphasized that although NGI acquittees are entitled to such automatic periodic reviews, the court, in deciding whether to order release, must not disregard the difference between civil and NGI committees based on the latters' previous criminal conduct.

All of the qualifications mentioned above to the constitutional mandate of equality apply here. The conclusion is that there is no constitutional violation -- that even where the law gives civil committees an absolute right to an in camera hearing, it need not give it to NGI committees.

We note, in this connection, the dispute over the constitutionality of the difference in burden of ...


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