Superintendent, Clifton T. Perkins State Hospital v. Zeserman

Thompson, J., delivered the opinion of the Court. The Superintendent of Clifton T. Perkins State Hospital contends the Circuit Court for Montgomery County erroneously granted a writ of habeas corpus to Bruce L. Zeserman, the appellee. The record shows that Zeserman ⁴²⁷ was found not guilty by reason of insanity of the crime of attempted rape, and on November 18, 1977, was committed to the Department of Health and Mental Hygiene. He has been a patient at the Clifton T. Perkins State Hospital since that date.

In his petition for writ of habeas corpus, he alleged that he was illegally detained because former Md. Code, Art. 59, § 27, which granted him a hearing as to whether or not he should be released in the community was repealed by the enactment of Art. 59, § 27 A-C, and the new statute did not give him any right to a hearing because it applies only to individuals committed after its effective date, July 1, 1979. The hearing judge agreed the appellee was indeed illegally detained and should be released. The State contends on the other hand that the new article simply changed the procedure whereby the appellee could be granted a hearing and although it repealed Art. 59, § 27, appellee has a right to a hearing under Art. 59, § 15, pursuant to the reasoning of Dorsey v. Solomon, 435 F. Supp. 725 (D. Md. 1977) 1 and under a decision of the Supreme Bench of Baltimore City (Karwacki, J.), Maryland v. Oates, decided March 3, 1980. If the question were properly before us, we would agree with the State and reverse the granting of the writ.

Unfortunately for the State’s position, however, the question is not before us because the State has no right to appeal from the granting of this writ of habeas corpus. Md. Rule Z41 provides as follows: "Any person confined or restrained in his lawful liberty within this State for any alleged offense or under any color or pretense whatsoever, or any person in his behalf, may apply for the writ, to the end that the cause of such confinement or restraint may be inquired into.” Md. Rule Z56 governs the right to review the granting of the writ and that rule provides as follows: "Where a person is released or discharged under ⁴²⁸ a writ of habeas corpus on the ground that the statute or law under which such person was convicted is unconstitutional and void, in whole or in part, because it is contrary to the Constitution or Bill of Rights of this State