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LEE v. KOLB

May 1, 1978

Rufus LEE, Jr., Plaintiff,
v.
Lawrence KOLB, Commissioner of Mental Hygiene for the State of New York, and Desmond Moleski, Director of the Buffalo Psychiatric Center, Buffalo, New York, Defendants



The opinion of the court was delivered by: ELFVIN

MEMORANDUM and ORDER

ELFVIN, District Judge.

 Plaintiff challenges the constitutionality of the mandatory commitment and release provisions of section 330.20 of the Criminal Procedure Law of the State of New York ("C.P.L. § 330.20") which in pertinent part provides:

 
"1. Upon rendition of a verdict of acquittal by reason of mental disease or defect, the court must order the defendant to be committed to the custody of the commissioner of mental hygiene to be placed in an appropriate institution in the state department of mental hygiene. * * *.
 
"2. If the commissioner of mental hygiene is of the opinion that a person committed to his custody, pursuant to subdivision one of this section, may be discharged or released on condition without danger to himself or to others, he must make application for the discharge or release of such person in a report to the court by which such person was committed * * *.
 
"3. If the court is satisfied that the committed person may be discharged or released on condition without danger to himself or others, the court must order his discharge, or his release on such conditions as the court determines to be necessary. If the court is not so satisfied, it must promptly order a hearing to determine whether such person may safely be discharged or released. Any such hearing shall be deemed a civil proceeding. After such a hearing, the committed person must be discharged, released on such conditions as the court determines to be necessary, or recommitted to the commissioner of mental hygiene. * * *.
 
* * *
 
"5. A committed person may make application for his discharge or release to the court by which he was committed, and if, after receiving a report of the commissioner of mental hygiene, the court considers there may be merit in the application, the court must follow the procedure prescribed in subdivisions two and three of this section.
 
"6. A defendant committed to the custody of the commissioner of mental hygiene pursuant to the provisions of this section may at any time during the period of his commitment be transferred to an appropriate institution in the state department of mental hygiene."

 Plaintiff alleges that C.P.L. § 330.20 violates his rights to due process and equal protection of the laws and constitutes cruel and unusual punishment in violation of the Eighth and Fourteenth Amendments to the United States Constitution. He invokes the jurisdiction of this Court pursuant to 28 U.S.C. §§ 1331 and 1343(3) and seeks declaratory and injunctive relief as well as compensatory and punitive damages. This action having been commenced prior to August 12, 1976, a three-judge court was convened pursuant to former sections 2281 and 2284 of Title 28 of the United States Code.

 Plaintiff was convicted December 17, 1965 by a jury of the crime of murder and was sentenced to a term of life imprisonment. In October 1968, the Judgment of Conviction was reversed by the Appellate Division of the New York State Supreme Court for the Fourth Judicial Department and a new trial was ordered. After plaintiff's non-jury retrial in April 1972, he was found not guilty by reason of mental disease or defect and in May 1972 was committed pursuant to the automatic commitment provisions of C.P.L. § 330.20(1) to the custody of the Commissioner of Mental Hygiene ("the Commissioner"). Uncontroverted medical testimony adduced at the retrial established that at the time of the commission of the crime charged in the indictment plaintiff suffered from acute schizophrenia, paranoid type. No inquiry and consequently no finding was made with regard to plaintiff's mental condition at the times of the retrial or of his commitment. Since the time of plaintiff's mandatory commitment, he has been confined at two state mental institutions under the jurisdiction and control of the Commissioner.

 In November 1972, the Acting Director of the Buffalo State Hospital (now the Buffalo Psychiatric Center) where plaintiff was then confined petitioned the appropriate state court to transfer plaintiff to the Matteawan State Hospital because medical staff personnel were of the opinion that plaintiff's behavior indicated that he was dangerous to other patients and members of the hospital staff and to persons in the community. For reasons not set forth in the record, such petition either was not granted or was discontinued and plaintiff remained institutionalized at the Buffalo State Hospital. Based upon plaintiff's subsequent improvement and response to continued treatment, the medical staff re-assessed their previous determination as to plaintiff's mental condition and recommended that he be released on condition because he did not at that time present a danger to himself or to others. Thereafter on July 17, 1973, the Commissioner pursuant to C.P.L. § 330.20(2) petitioned the committing court for the release of plaintiff from the Buffalo State Hospital and for his return to the community. After it was decided that the district attorney could fully participate on behalf of the State of New York at the hearing which was to be held on the release petition (see, In Re Lee, 46 A.D.2d 999, 362 N.Y.S.2d 635 (4th Dept. 1974)), no further proceedings were held with respect to such release petition. During oral argument of the instant case, defendant's counsel informed the Court of the apparent pendency of such state court proceeding. We, having voiced concern with respect to procedural and substantive ramifications which might result if the release petition filed in state court remained viable, consequently sought a clarification from counsel. Correspondence from plaintiff's counsel submitted to the Court subsequent to oral argument stated that after the district attorney was granted the right to participate fully in plaintiff's release hearing the Commissioner did not pursue further the petition he had previously filed for plaintiff's release, but to the contrary granted a request filed by the Director of the Buffalo State Hospital in August 1976 to transfer plaintiff to Mid-Hudson Psychiatric Center (the only maximum security facility within the jurisdiction of the New York Department of Mental Hygiene). Pursuant to 14 N.Y.C.R.R. 57.2, transfer of an involuntary patient to Mid-Hudson Psychiatric Center is only authorized upon a showing of "substantial risk that such patient may cause physical harm to other persons as manifested by homicidal or other violent behavior by which others are placed in reasonable fear of serious physical harm", that "reasonable efforts at treatment have been made without eliminating such substantial risk of physical harm to others" and that "the patient needs the close supervision provided at the Mid-Hudson Psychiatric Center". Following a psychiatric examination and report, the Commissioner in September 1976 ordered plaintiff transferred to Mid-Hudson Psychiatric Center where he is presently confined. Plaintiff argues that, although the Commissioner has not formally withdrawn such petition for plaintiff's release, such should be deemed abandoned, discontinued and terminated because of the apparent inconsistent and diametrically opposite action of transferring plaintiff to Mid-Hudson Psychiatric Center under the standards enumerated above. Plaintiff points out that a petition for release filed pursuant to C.P.L. § 330.20 is solely within the control of the Commissioner and that plaintiff cannot initiate and has no control over the prosecution of such proceedings. Defendants do not dispute the recitation of facts or the legal arguments set forth in plaintiff's correspondence to the Court dated September 27 and October 20, 1977 and agree with plaintiff that, although the Commissioner has never formally moved to discontinue the release petition, the Commissioner's transfer of plaintiff to Mid-Hudson Psychiatric Center at the request of the Director of the Buffalo State Hospital has the practical and legal effect of terminating any proceedings seeking release. We hold that the petition previously filed by the Commissioner for plaintiff's release has been abandoned and discontinued and that no state proceedings concerning the same are presently pending. Consequently, plaintiff may maintain the instant action. In addition, it has been previously determined by order dated July 6, 1976 that plaintiff was not required to exhaust his state remedies prior to challenging the constitutionality of C.P.L. § 330.20. Furthermore, the judicially-created doctrine of abstention first fashioned in Railroad Commission v. Pullman Co., 312 U.S. 496, 61 S. Ct. 643, 85 L. Ed. 971 (1941) has no place in this lawsuit. The New York courts have previously construed the provisions of C.P.L. § 330.20 and its predecessor section (People v. Lally, 19 N.Y.2d 27, 277 N.Y.S.2d 654, 224 N.E.2d 87 (1966); People ex rel. Peabody v. Chanler, 133 App.Div. 159, 117 N.Y.S. 322, aff'd 196 N.Y. 525, 89 N.E. 1103 (1909); People v. McNelly, 83 Misc.2d 262, 371 N.Y.S.2d 538 (Sup.Ct.N.Y. Coun.1975)) and there are no pending state proceedings upon which abstention could be premised as a matter of comity. Lake Carriers' Ass'n v. MacMullan, 406 U.S. 498, 509, 92 S. Ct. 1749, 32 L. Ed. 2d 257 (1972); Samuels v. Mackell, 401 U.S. 66, 91 S. Ct. 764, 27 L. Ed. 2d 688 (1971); Younger v. Harris, 401 U.S. 37, 91 S. Ct. 746, 27 L. Ed. 2d 669 (1971). We therefore proceed to the merits of the case.

 Plaintiff alleges in his complaint that his rights to due process and equal protection of the laws have been and are being violated in that (1) he was involuntarily committed pursuant to C.P.L. § 330.20(1) following his acquittal by reason of mental disease or defect without a pre-commitment or post-commitment hearing to determine whether he was mentally ill and dangerous at the time of trial or commitment, (2) the Commissioner after making his determination to discharge or release plaintiff on condition was required by C.P.L. § 330.20(2) and (3) to obtain judicial approval prior to discharging or releasing plaintiff although judicial permission is not required for the discharge or release of civilly committed persons within the New York Department of Mental Hygiene, (3) the standard for release set forth in C.P.L. § 330.20(3) -- i.e., "without danger to himself or others" -- is unconstitutionally vague, (4) the failure of C.P.L. § 330.20(3) to refer to the mental disease or defect which gave rise to the presumption of dangerousness upon which plaintiff's initial commitment was premised renders the standard for release inconsistent with the underlying basis for his commitment, (5) plaintiff has the burden of proof to show that he is not dangerous in order to secure his release, and (6) plaintiff having been committed pursuant to C.P.L. § 330.20 is deprived of the same opportunity for rehabilitation, medical care and treatment as is afforded his civilly committed counterparts. Plaintiff further alleges that his confinement without adequate care and treatment constitutes cruel and unusual punishment proscribed by the Eighth Amendment.

 The involuntary commitment of an individual who has been acquitted because of a reasonable doubt as to his sanity at the time of the commission of the crime for which he was tried involves a substantial deprivation of liberty. Humphrey v. Cady, 405 U.S. 504, 509, 92 S. Ct. 1048, 31 L. Ed. 2d 394 (1972); Minnesota v. Probate Court, 309 U.S. 270, 276, 60 S. Ct. 523, 84 L. Ed. 744 (1940). There can be no doubt, however, that a state (as well as the federal government) pursuant to its police power can involuntarily commit and confine the dangerously mentally ill provided their constitutional rights have been adequately safeguarded. Jackson v. Indiana, 406 U.S. 715, 92 S. Ct. 1845, 32 L. Ed. 2d 435 (1972); Greenwood v. United States, 350 U.S. 366, 76 S. Ct. 410, 100 L. Ed. 412 (1956). Nevertheless, it remains settled law that a state cannot constitutionally "confine without more" a non-dangerous mentally infirm individual who is capable of living safely in freedom on his own or with the assistance of responsible family members or friends. O'Connor v. Donaldson, 422 U.S. 563, 576, 95 S. Ct. 2486, 45 L. Ed. 2d 396 (1975). The United States Supreme Court has recognized that the statutory procedures by which an individual is committed following his acquittal by reason of ...


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