Anderson v. Department of Health & Mental Hygiene

WILNER, Judge. In 1984, the General Assembly rewrote the State insanity law. In doing so, it changed some of the procedures by which “insanity acquittees” (persons charged with crime but excused from criminal responsibility by reason of insanity) could seek and obtain release from judicially-ordered commitment to the Department of Health and Mental Hygiene (DHMH). The questions before us in this appeal are whether the Legislature intended those changes to apply to persons who, like appellant, were committed prior to the effective date of the new law, and, if so, whether such application would run afoul of Constitutional prohibitions against ex post facto laws.

At some point in “late 1980,” appellant shot and killed his brother. On April 8, 1981, he was brought to trial in the Circuit Court for Baltimore City on a charge of first degree murder, to which he interposed a defense of insanity. Under the law then in effect, once such a plea was filed and sufficient evidence was admitted to raise a doubt as to the defendant’s sanity, it was incumbent on the State to prove beyond a reasonable doubt that the defendant was sane, i.e., that he did not lack substantial capacity either to appreciate the criminality of his conduct or to conform his conduct to the requirements of law. See former Md.Code ⁶⁷⁷ Ann. art. 59, § 25 (1979 Repl.Vol.); 1 Bradford v. State, 234 Md. 505 , 200 A.2d 150 (1964); Bremer v. State, 18 Md.App. 291 , 307 A.2d 503 , cert. denied 269 Md. 755 (1973), cert. denied 415 U.S. 930 , 94 S.Ct. 1440 , 39 L.Ed.2d 488 (1974).

The requisite doubt was raised by appellant and the State apparently failed to meet its burden, for appellant was found not guilty by reason of insanity. As an “insanity acquittee,” appellant was then subject to the provisions of §§ 27-27C, 14, and 15 of art. 59. The first three of those sections, §§ 27-27B, dealt with the immediate handling of an “insanity acquittee” — whether he should be confined for treatment, released subject to certain constraining conditions, or released outright and unconditionally. The last three (§§ 27C, 14, and 15) assumed an initial confinement and dealt with how such a confined person could subsequently obtain release.

Section 27 provided that, upon an adjudication of insanity, the court would commit the defendant to DHMH for examination and evaluation. On completion of the evaluation, an evidentiary hearing would be held before a DHMH hearing officer. The purpose of the hearing, according to § 27A(a), was to consider the evaluation and other relevant information “to enable the hearing officer to make recommendations to the court” as to whether the defendant met the criteria for confinement — i.e., whether he had a mental disorder and whether, by reason of that disorder, he would be a danger to himself or to others if released either outright or conditionally. At that hearing, the defendant had the right to be present, to be represented by counsel, to offer evidence, and to cross-examine adverse witnesses.

Upon completion of the hearing, the hearing officer would prepare and send to the court a report summarizing the evidence adduced at the hearing and containing the hearing officer’s recommendations “as to each issue to be decided ⁶⁷⁸ by the court.” Because the hearing officer was not called upon to make specific findings, but only to summarize the evidence and make recommendations, there was no provision in § 27A for any burden or standard of proof at the administrative proceeding. Section 27B permitted the State’s Attorney and the defendant to file exceptions to the hearing officer’s report. If such exceptions were timely filed, or if the court on its own initiative decided not to follow the hearing officer’s recommendations, it was to conduct a hearing on the record made before the hearing officer and enter an appropriate order. Under § 27B(e) and (f), it is clear that the actual findings with respect to whether the defendant met the criteria for confinement were those of the court. 2 In that regard, § 27B(i) provided that “[a]ll findings by the court under subsections (e) and (f) of this section shall be upon clear and convincing evidence.” In accordance with those provisions, appellant was evaluated by DHMH; he had a hearing before a DHMH hearing officer; the hearing officer made a report to the court summarizing the evidence and recommending confinement for institutional inpatient treatment; and the court, employing the clear and convincing standard, concurred in the ⁶⁷⁹ hearing officer’s recommendation and ordered appellant’s confinement.

Appellant’s rights thereafter, as noted, were governed by §§ 14, 15, and 27C of art. 59. Section 14 afforded appellant an opportunity to seek release through habeas corpus. Subsection (a) provided that “[a]t any time, any person admitted to any facility[ 3 ] ... may apply to any appropriate court for a writ of habeas corpus. Such proceeding shall be available to determine the cause and the legality of his admission and continued detention.” Section 15, captioned “Judicial Release,” provided for a special “sanity hearing.” Subsection (a) permitted “any patient ... at any time” to file a petition in the equity court “for the purpose of securing his release.” The issues to be determined in the proceeding were essentially the same as under § 27A dealing with initial commitment — “(1) Does the patient have any mental disorder; and (2) Is the disorder of such a nature that for the protection of himself or others, the patient needs inpatient medical care or treatment.” § 15(d).

The petitioner could elect to have those issues tried before a jury, “and thereafter, such trial shall proceed as in a civil action at law.” § 15(c). If the trier of fact— court or jury — answered either question in the negative, “the petitioner shall be released from the facility____” Under either of these proceedings, as the petitioner, the “insanity acquittee” necessarily bore the burden of proof; it was incumbent upon him to establish his eligibility for release by proving, by a preponderance of evidence, that he either did not have a mental disorder or, if he did, that it did not render him dangerous to himself or to others. See Czaplinski v. Warden, 196 Md. 654, 663-64 , 75 A.2d 766 (1950), and Graham v. State of Maryland, 454 F.Supp. 643, 650 (D.Md.1978) with respect to a petitioner’s burden in a ⁶⁸⁰ habeas corpus proceeding and Daniels v. Superintendent, 34 Md.App. 173 , 366 A.2d 1064 (1976), and Dorsey v. Solomon, 435 F.Supp. 725 (D.Md.1977), aff'd in part, remanded in part, 604 F.2d 271 (4th Cir.1979) with respect to the petitioner’s burden in a § 15 proceeding. Section 27C, first enacted only two years before appellant’s commitment, provided, as an alternative to the judicial proceedings under §§ 14 and 15, the same kind of hybrid, or bi-level, proceeding afforded under §§ 27A and 27B.

After six months of post-commitment confinement, an “insanity acquittee” could apply for release by “notifying the court and the State’s attorney in writing of his request for an administrative hearing and judicial determination.” § 27C(c)(i). Upon receiving such a notice, said § 27C(d), “the court shall notify [DHMH] to evaluate the person in accordance with the issues set out in § 27(c) within 20 days of the date of the notice. Upon completion of that evaluation, the persons shall have the rights enumerated in §§ 27A and 27B.” Among other things, of course, that cross-reference to §§ 27A and 27B meant that the evidentiary hearing was before a DHMH hearing officer, that the hearing officer made no findings as to the defendant’s eligibility for release but only a recommendation, that the court made the critical findings, and that a decision to retain the defendant in confinement had to be based upon clear and convincing evidence. 4 ⁶⁸¹ In September, 1982, appellant unsuccessfully sought relief through a § 27C bi-level proceeding. Although the record in that proceeding is not now before us, it is implicit from appellant’s lack of success that the court again determined upon clear and convincing evidence that, by reason of mental disorder, he would, if released from confinement, continue to be a danger to himself or to others.

Much of this procedure changed in 1984, with the enactment of 1984 Md.Laws, ch. 501. In the aftermath of the celebrated trial of John Hinckley, the Governor created a Task Force to Review the Defense of Insanity. Ch. 501 is largely the product of that Task Force. Although the 1984 Act completely rewrote title 12 of the Health-General article (which, by virtue of Code Revision had supplanted former art. 59 in 1982), a great deal of the existing law was unchanged.

The insanity defense was retained, as were the substantive tests or standards for competence to stand trial, criminal responsibility, and eligibility for release following an adjudication of insanity. The major changes made by the new law seemed to flow from the intervening pronouncements of the U.S. Supreme Court in Jones v. United States, 463 U.S. 354 , 103 S.Ct. 3043 , 77 L.Ed.2d 694 (1983). There, a closely divided Court ⁶⁸² (5-4) found no constitutional deficiency in a District of Columbia law that (1) placed the burden on the defendant in the criminal proceeding to establish his insanity by a preponderance of the evidence, (2) provided for automatic commitment of the defendant to a mental hospital upon an adjudication of insanity until he could establish his entitlement to release, and (3) afforded him an opportunity within 50 days of commitment and at six-month intervals thereafter to establish in a judicial proceeding his entitlement to release, by a preponderance of the evidence. Though reaffirming the determination in Addington v. Texas, 441 U.S. 418 , 99 S.Ct. 1804 , 60 L.Ed.2d 323 (1979), that a “commitment for any purpose constitutes a significant deprivation of liberty that requires due process protection,” (Jones, supra, 463 U.S. at 361 , 103 S.Ct. at 3048 ), the Court concluded that “a finding of not guilty by reason of insanity is a sufficient foundation for commitment of an insanity acquittee for the purposes of treatment and the protection of society.” Id. at 366 , 103 S.Ct. at 3050 .

Turning then to the question of who ought to bear the burden on the issue of commitment and by what standard, the Court expressly rejected an extension of the Addington holding to the commitment of “insanity acquittees,” concluding that there were “important differences between the class of insanity acquittees that justify differing standards of proof.” Id. at 367, 103 S.Ct. at 3051 . The fact that the insanity acquittee “himself advances insanity as a defense and proves that his criminal act was a product of his mental illness ... is good reason for diminished concern as to the risk of error.” Id. (emphasis in original). Thus, “[t]he preponderance of the evidence standard comports with due process for commitment of insanity acquittees.” Id. at 368 , 103 S.Ct. at 3051 (footnote omitted).

In accordance with these holdings and upon the Task Force’s recommendations, the Legislature did away with the existing commitment and release procedures and adopted in their stead much of the District of Columbia approach sustained in Jones . Under prior caselaw, as not ⁶⁸³ ed, once the defendant, at his criminal trial, offered sufficient evidence of insanity to rebut the initial presumption of sanity, the State was required to prove sanity (i.e., criminal responsibility) beyond a reasonable doubt. New § 12-109(b) changed that; it requires the defendant to prove non-responsibility by a preponderance of evidence. A similar shift in burden of proof was made with respect to both the initial commitment proceeding and a subsequent bi-level proceeding for release.

Under new § 12-111, a defendant found not criminally responsible is automatically committed to DHMH for institutional inpatient treatment; under § 12-113, he is eligible for release only if he would not be a danger to himself or to the person or property of others, and “[t]o be released, a committed individual has the burden to establish by a preponderance of the evidence eligibility for discharge or eligibility for conditional release.” Section 12-114 requires that, within 50 days after initial commitment, a hearing must be held before a DHMH hearing officer, “to consider any relevant information that will enable the hearing officer to make recommendations to the court as to whether the committed individual is eligible for release under § 12-113____” At the conclusion of the hearing, the hearing officer prepares and sends to the court a report containing (1) a summary of the evidence presented at the hearing, (2) “[Recommendations of the hearing officer as to whether the individual proved, by a preponderance of the evidence, eligibility for conditional release, or eligibility for discharge,” and (3) if the hearing officer determines that the defendant “proved eligibility for conditional release,” the recommended conditions of the release. See § 12-115. As in the prior law, the court makes the actual decision. It may on its own initiative and must upon timely filed exceptions hold a hearing, but, with or without a further hearing, it must ultimately determine “whether the evidence indicates that the committed individual proved by a ⁶⁸⁴ preponderance of the evidence eligibility for release, with or without conditions, in accordance with § 12-113____” See § 12-117(a).

Subsequent release following this initial determination is governed by § 12-118. At yearly intervals, 5 the defendant may seek release through either a bi-level proceeding similar to that conducted pursuant to §§ 12-114-12-117 or a direct judicial proceeding, where the issue of his eligibility for outright or conditional release can be tried before the judge or a jury. Whichever route is chosen, the judicial trier of fact ultimately must determine “whether the committed individual has proved eligibility for release by a preponderance of the evidence____” See § 12-118(b)(2) and (c)(4). Ch. 501 took effect July 1, 1984.

In November, 1984, appellant requested another hearing before a DHMH hearing officer but urged that the proceeding — at least as to the standard and burden of proof — be governed by the former law. The State insisted, however, and on November 21, 1984, persuaded the Circuit Court for Baltimore City to direct, that the proceeding be conducted under the new law. An evidentiary hearing was held before a hearing officer on March 21, 1985, at which only two people — appellant and Dr. Brian Crowley, a psychiatrist on the staff of C.T. Perkins State Hospital — testified. Appellant acknowledged that he currently had “a mental health problem” and that he was “sick.” If released, he said he would go home to live with his mother, get a job, and accept outpatient treatment.

Dr. Crowley, expressing the unanimous view of the C.T. Perkins staff conference, recommended retention. He opined that appellant continued to suffer from a mental disorder — schizophrenia, paranoid type — and that, if re ⁶⁸⁵ leased, he would present a danger to himself or others. Dr. Crowley noted that appellant had “a long history of serious psychosis with paranoid features, with delusional symptoms and feelings of being persecuted.” He stated further that appellant “still is very guarded and suspicious, has really no understanding of his mental disorder. And hence, I don’t think he can be reasonably expected to be able to cooperate in an adequate treatment plan, if he were out on the street.” On March 29, the DHMH hearing officer filed a report in which he found that appellant “has failed to prove, by a preponderance of the evidence, eligibility for conditional release, or eligibility for discharge.” He therefore recommended that appellant be retained at C.T. Perkins for inpatient care and treatment.

Appellant excepted to the report, but the court, on June 4, 1985, concurred in the hearing officer’s findings and ordered a continuation of appellant’s confinement. We granted appellant’s timely application for leave to appeal (see Health-Gen. art., § 12-118(d)(2)) to consider whether, “I. The circuit court’s order requiring appellant to establish his eligibility for release by a preponderance of the evidence subjected appellant to an ex post facto law in violation of the Maryland and U.S. Constitutions.

II

The court below erroneously construed Section 4 of Ch. [501] in giving retrospective effect to the burden of proof provision codified as § 12-113(d).” We shall consider these issues in inverse order; finding no error, however, we shall affirm. (1) Statutory Construction Section 5 of ch. 501 provides that the Act “shall take effect on July 1, 1984.” Section 4 states: “That the provisions of this Act shall be applicable to any case filed on or after the effective date of this Act and to any individual found not criminally responsible by reason of insanity or determined to be incompetent to stand trial who is under commitment to the Depart- ⁶⁸⁶ merit of Health and Mental Hygiene on or after the effective date of this Act; except that the initial commitment of an individual found to have been insane at the time of the commission of a criminal act under the law in effect before the effective date of this Act shall be governed by former §§ 12-110 through and including 12-113 of the Health — General Article as those sections applied on June 30, 1984.” (Emphasis added.) In the Circuit Court, appellant argued that because his “case” had been “filed” before July, 1984, and because the term “not criminally responsible by reason of insanity” originated in the Act itself and had no significance before July, 1984, § 4, by its very terms, precluded application of the Act to him. Except for a passing reference in his brief to memoranda of law that he filed in the Circuit Court, however, appellant does not pursue that argument before us, and we shall therefore not consider it. 6 His argument here is based on the “legal presumption” that “absent a clear expression of contrary legislative intent,” an Act is intended to have only prospective effect; section 4, he says, does not clearly articulate such a contrary intent. We disagree.

Ch. 501, as noted, rewrote a good bit of the State insanity law and affects the entire spectrum of proceedings from the criminal trial through post-adjudication commitment and ultimate release from confinement. In using the language it did, the Legislature clearly manifested an intent to have those provisions affecting the trial apply only to cases filed on or after July 1, 1984, to have those provisions affecting initial commitment apply only to commitments made on or after that date, but to have those provisions governing release from confinement apply to all persons who were in ⁶⁸⁷ fact “under commitment” on that day. There is no other sensible way to read § 4. (2) Ex Post Facto Considerations The enactment of ex post facto legislation is prohibited by both the Federal and the Maryland Constitutions.

Art. 1, § 10, cl. 1 of the Federal Constitution states unequivocally that “No State shall ... pass any ... ex post facto Law____” Art. 17 of the Md.Decl. of Rts., which antedated its Federal counterpart by 11 years, is a bit more verbose: “That retrospective Laws, punishing acts committed before the existence of such Laws, and by them only declared criminal, are oppressive, unjust and incompatible with liberty; wherefore, no ex post facto Law ought to be made....” 7 Notwithstanding the difference in language, these provisions, as interpreted respectively by the U.S. Supreme Court and the Maryland Court of Appeals, are essentially the same in intent, scope, and effect. The Maryland provision “parallels the federal clause ... and the Supreme Court’s interpretation of the federal ex post facto clause is persuasive authority” in