Under these circumstances, application of the relation-back
doctrine is appropriate.
Moreover, the transitory nature of the plaintiffs' claims
bolsters our conclusion that their class action is not moot. As
stated by the Supreme Court, "[s]ome claims are so inherently
transitory that the trial court will not have even enough time
to rule on a motion for class certification before the proposed
representative's individual interest expires." United States
Parole Comm'n v. Geraghty, 445 U.S. 388, 399, 100 S.Ct. 1202,
1210, 63 L.Ed.2d 479 (1980). If, as we have concluded, the
plaintiffs' claim does not ripen until he has requested
psychiatric assistance, it would be virtually impossible to
file a class action complaint before a determination has been
rendered on that request. Once the plaintiffs' motion has been
denied, he has lost the opportunity to seek prospective relief.
If the motion is granted, his claim is moot. The life span of
the plaintiffs' claim is simply too short to ensure judicial
review before mootness mandates dismissal. Under these
circumstances, the relation-back doctrine will intervene to
ensure that the justiciable class action claim is heard. See
Jane B., 117 F.R.D. at 67-68.
Finally, the existence of many similarly situated persons who
are likely to face the same "Catch-22" warrant application of
the relation-back doctrine. As in Gerstein v. Pugh,
420 U.S. 103, 95 S.Ct. 854, 43 L.Ed.2d 54 (1975), "in this case the
constant existence of a class of persons suffering the
deprivation is certain. The attorney representing the named
respondents is a public defender, and we can safely assume that
he has other clients with a continuing live interest in the
case." Id. at 111, note 11, 95 S.Ct. at 861, note 11; accord
Jane B., 117 F.R.D. at 68.*fn9
In sum, we reject the defendants' claim that the plaintiffs'
action is moot. Our holding rests primarily on the conclusion
that the plaintiffs have not been granted all the relief they
seek. Even if their claims were satisfied, however, we would
nonetheless reject the mootness challenge as the plaintiffs
seek to pursue this action as representatives of a class of
similarly situated persons.
Before evaluating the plaintiffs' motion for class
certification, we first must consider the defendants' motion to
dismiss, for failure to state a claim, the plaintiff's claim
that due process requires that the fifth amendment privilege
against self-incrimination be applied to civil commitment
proceedings. The Fifth Amendment privilege, which applies to
the states through the Fourteenth Amendment, Malloy v. Hogan,
378 U.S. 1, 84 S.Ct. 1489, 12 L.Ed.2d 653 (1964), provides that
"no person . . . shall be compelled in any criminal case to be
a witness against himself." U.S. Const. amend. V. The
protection of the fifth amendment permits an individual to
refuse to "answer official questions put to him in any . . .
proceeding, civil or criminal, formal or informal, where the
answers might incriminate him in future criminal proceedings."
Lefkowitz v. Turley, 414 U.S. 70, 77, 94 S.Ct. 316, 322, 38
L.Ed.2d 274 (1973); accord Minnesota v. Murphy, 465 U.S. 420,
426, 104 S.Ct. 1136, 1141, 79 L.Ed.2d 409 (1984).
The question of the application of the privilege against
self-incrimination to civil commitment proceedings was recently
addressed by the Supreme Court in Allen v. Illinois,
478 U.S. 364, 106 S.Ct. 2988, 92 L.Ed.2d 296 (1986). Allen involved a
proceeding to determine whether a defendant who had engaged in
criminal conduct was in need of involuntary psychiatric care
and treatment as a "sexually dangerous person" pursuant to
Illinois state law. Id. at 365-66, 106 S.Ct. at 2990. The
threshold question posed by the Court in determining whether
the Fifth Amendment privilege applied to such proceedings was
whether the commitment proceedings were criminal or civil in
nature. Id. at 368, 106 S.Ct. at 2991. To resolve this issue,
the Court first examined the language of the Illinois statute
that declared the proceedings to be civil. Id. Recognizing,
however, that punitive
purposes may underlie a civil label, the Court analyzed the
nature of the proceedings to determine if despite the stated
treatment purpose of the scheme, the process was actually
punitive in nature, thereby rendering it a criminal proceeding.
Id. at 369, 106 S.Ct. at 2992. Concluding that the plaintiff
failed to sustain its burden of proving that the commitment
scheme had a criminal purpose, the Court concluded that the
privilege against self-incrimination did not apply to the
Illinois retention proceedings. Id. at 375, 106 S.Ct. at 2995.
In so doing, the Court specifically rejected as "not good law,"
id. at 372, 106 S.Ct. at 2993, broad language in In re Gault,
387 U.S. 1, 87 S.Ct. 1428, 18 L.Ed.2d 527 (1967) that "our
Constitution guarantees that no person shall be `compelled' to
be a witness against himself when he is threatened with
deprivation of his liberty." Id. at 50, 87 S.Ct. at 1455.
The petitioner in Allen further argued, as does the plaintiff
herein, that even if the commitment proceedings at issue were
not criminal, the due process guarantees of the fourteenth
amendment independently require application of the privilege.
In rejecting this contention, the Court declined to hold that
"the Due Process Clause of its own force requires application
of the privilege against self-incrimination in a noncriminal
proceeding, where the privilege claimant is protected against
his compelled answers in any subsequent criminal case." Allen,
478 U.S. at 374, 106 S.Ct. at 2994. The Due Process Clause
requires certain procedural safeguards before a person may be
deprived of life, liberty or property to guard against the risk
of erroneous deprivation. Mathews v. Eldridge, 424 U.S. 319,
333-35, 96 S.Ct. 893, 901-03, 47 L.Ed.2d 18 (1976). Application
of the privilege of self-incrimination to civil commitment
proceedings, however, will not advance the reliability of the
commitment process. Allen, 478 U.S. at 374, 106 S.Ct. at 2994.
The fifth amendment privilege, therefore, "has no place among
the procedural safeguards discussed in Mathews v. Eldridge,
which are designed to enhance the reliability of [the
factfinding] process." Allen, 478 U.S. at 375, 106 S.Ct. at
2995. Accordingly, the Allen Court determined that the Illinois
commitment proceedings "were not `criminal' within the meaning
of the Fifth Amendment to the United States Constitution, and
that due process does not independently require application of
the privilege." Id.
The Supreme Court's analysis applies equally to the civil
retention proceedings at issue in this case. This issue was
squarely addressed by the New York Supreme Court, Appellate
Division, Second Department and we find their discussion
It is clear that facially the involuntary
commitment proceedings under the Mental Hygiene
Law are civil and not criminal in nature.
Furthermore, upon an examination of the statutory
scheme, it is equally apparent that the overall
purpose of the proceedings, including the
pre-hearing interview, is to ensure that patients
receive the care and treatment that is necessary
based upon their condition and is not for the
purpose of exacting punishment. . . . Further, as
is made clear in Allen in its rejection of Gault,
the mere fact that statements adduced during the
interview will be used at a hearing, which may
result in confinement and a deprivation of liberty,
will not suffice to convert the nature of the
proceeding from civil to criminal.
Ughetto v. Acrish, 130 A.D.2d 12, 518 N.Y.S.2d 398, 403 (2d
Dep't), appeal dismissed,
herein. Accordingly, the defendants' motion to dismiss the
plaintiff's third cause of action for failure to state a claim
VI. CLASS CERTIFICATION*fn11
The plaintiffs seek to certify a class of all individuals
civilly committed within Dutchess County who will request
retention hearings to challenge their hospitalization.
Initially, because we have concluded that a ripe controversy
does not arise until psychiatric assistance is requested, the
class must be redefined as all individuals civilly committed
within Dutchess County who will request retention hearings to
challenge their hospitalization and will further request the
assistance of an independent psychiatrist.
Having placed most of their eggs in the justiciability
basket, the defendants do not raise serious questions as to the
propriety of class certification. The sole point in opposition
that we have gleaned from the defendants' papers is that the
plaintiffs' claims are not typical of the class because their
retention hearings have been held before Justice Beisner while
the named defendants are Justices King and Hillery. The
plaintiffs have established, by affidavit testimony, that
defendants King and Hillery collectively presided over nearly
100 percent of the retention hearings held in Dutchess County
before this litigation was commenced. The plaintiffs' hearings
have been held before Justice Beisner largely because Justices
King and Hillery had been named as defendants in this action.
Thus, the fact that the majority of the putative class members
may appear before different Justices than the plaintiffs is a
condition that cannot be avoided and it does not defeat class
There can be little question that the putative class
satisfies the numerosity requirement of Fed.R.Civ.P. 23(a).
Plaintiffs' counsel estimates that one hundred to two hundred
individuals from the HVPC alone request retention hearings each
year, and approximately one quarter of those patients request
psychiatric assistance. See Korn v. Franchard Corp.,
456 F.2d 1206, 1209 (2d Cir. 1972) (class of 40 sufficiently numerous);
see also Deary v. Guardian Loan Co., 534 F. Supp. 1178, 1190
(S.D.N.Y. 1982) (numerosity need not be demonstrated with
precision). Moreover, the membership of the class is constantly
The fluid composition of the . . . population is
particularly well suited for status as a class
because while the identity of the individuals
involved may change, the nature of the harm and
the basic parameters of the group affected remain
Bruce v. Christian, 113 F.R.D. 554, 557 (S.D.N.Y. 1986).
Consequently, the first prong of class certification is