IN THE MATTER OF D.G.

PETERSON, J. In this case, D.G. appeals a "buildings and grounds" restriction that two different judges imposed under G.L. c. 123, § 16(e) following his civil commitment to the Worcester Recovery Center and Hospital ("WRCH"). D.G. asserts that § 16(e) is unconstitutional on its face because it does not contain any standard for a judge to apply before imposing such restrictions. In addition, D.G. argues that the two judges violated his due process rights when the first judge imposed the restriction notwithstanding insufficient evidence to warrant the restriction and the second judge imposed the restriction without even conducting an evidentiary hearing.

1. Prior proceedings. D.G. was charged with murdering his estranged girlfriend in 1978. On February 9, 1981, after D.G. was found not guilty by reason of mental illness or mental defect, he was committed to Bridgewater State Hospital ("Bridgewater") pursuant to G.L. c. 123, § 16(b). D.G. was thereafter committed to Bridgewater annually for 38 years pursuant to § 16(c). [Note 3] After an annual § 16(c) petition and hearing on June 5, 2019, a judge found that although Bridgewater had satisfied the criteria for commitment (i.e., mental illness; likelihood of serious harm; no less restrictive alternative), it had failed to prove that D.G. still required the strict security of Bridgewater. Consequently, after over 38 years of confinement at Bridgewater, D.G. was "stepped-down" to the Department of Mental Health ("DMH") and transferred to a less secure facility, WRCH. The judge also imposed a "buildings and grounds" restriction. It does not appear from the record before us that D.G. contested the imposition of the restriction.

On June 1, 2020, prior to the expiration of his one-year commitment, the chief executive officer of WRCH filed a petition pursuant to G.L. c. 123, § 16(c) to commit D.G. for another year. On June 16, 2020, the Norfolk County District Attorney's Office ("District Attorney") filed a timely motion pursuant to § 16(e) requesting the

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court to order a "buildings and grounds" restriction. [Note 4] D.G.'s counsel filed opposition papers.

The petition was heard by a judge from the Worcester District Court on July 1, 2020. D.G. did not contest the commitment. Instead, he executed a waiver pursuant to G.L. c. 123, § 6(b), agreeing to a commitment to WRCH for another year. The judge accepted D.G.'s waiver and thus did not hold any type of evidentiary hearing on WRCH's petition. [Note 5] The judge also imposed a "buildings and grounds" restriction, without prejudice, and scheduled a hearing on the District Attorney's motion.

On July 22, 2020, the same judge conducted an evidentiary hearing limited to the District Attorney's motion. The judge heard testimony from one witness, Dr. Jeffrey Geller ("Geller"), D.G.'s treating clinician and the former medical director of WRCH.

Dr. Geller testified that D.G., then sixty-eight years old, suffered from chronic schizophrenia with fixed delusions, including the disconcerting delusion that the ex-girlfriend he murdered was still alive. Dr. Geller also testified that in 1975, after purportedly receiving a message from God telling him to kill his girlfriend, D.G. intentionally severed his arm by placing it under the wheels of an MBTA train, presumably because he thought this would prevent him from harming his ex-girlfriend. Finally, Dr. Geller testified about the index offense, describing how D.G. murdered his ex-girlfriend by stabbing her thirty-one times.

Notwithstanding his concessions that D.G. continued to experience delusions, stopped attending group therapy sessions, had a history of engaging in inappropriate behavior with females (e.g., making sexual and provocative comments and leering), and had only limited insight into his mental illness, Dr. Geller advocated against the imposition of a "buildings and grounds" restriction. In fact, Dr. Geller opined that such a restriction would negatively impact D.G.'s progress toward a transfer to an even less restrictive setting. Dr. Geller also testified that he was unaware of any random acts of violence committed by D.G. in the community save, of course, for the index offense. Finally, Dr. Geller testified that D.G. repeatedly informed WRCH staff that he had no idea how to conduct himself in 21st century society, making the granting of off-grounds privileges all the more important for his continued rehabilitation.

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In addition to Dr. Geller's testimony and opinions, the judge considered arguments from D.G.'s counsel and the Assistant District Attorney. On the one hand, D.G.'s attorney relied on Dr. Geller's opinion that a "buildings and grounds" restriction was contraindicated and that the court should instead rely on DMH's and WRCH's policies to protect the public. [Note 6] On the other hand, the Assistant District Attorney argued that the imposition of a "buildings and grounds" restriction was necessary because D.G.'s schizophrenia and continuing delusions placed him at "high risk" of harming himself or others. In support of the Commonwealth's position, the Assistant District Attorney pointed to D.G.'s failure to take responsibility for the murder of his ex-girlfriend, his belief that she was still alive, and his fixed religious-based delusions, which earlier in his life had motivated him to take the extreme measure of intentionally severing his arm.

On June 23, 2021, a week before D.G.'s one-year commitment was set to expire, the judge allowed the motion for a "buildings and grounds" restriction. [Note 7] In allowing the motion, the judge pointed to WRCH's own petition, which Dr. Geller collaborated on, in which it was reported that D.G. "remains at high risk of self-harm should he receive delusional messages from God instructing him to do so." [Note 8] The judge was also not persuaded by Dr. Geller's expert opinion that the imposition of a restriction was contraindicated in D.G.'s case. In her "Memorandum and Order," she stated that "[i]t is difficult to square the allegations in the petition with the doctor's opinion that [D.G.] would, at this point, be appropriate for supervised off grounds privileges and, beyond that, the Court should blindly defer to DMH and WRCH policies to protect the public."

Convinced that his liberty interests were violated, D.G. requested relief from the Supreme Judicial Court pursuant to G.L. c. 211, § 3. In addition, D.G. filed a timely notice of appeal to this Appellate Division challenging the "buildings and grounds" restriction. [Note 9]

On June 29, 2021, the chief executive officer of WRCH filed another petition

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pursuant to G.L. c. 123, § 16(c) to recommit D.G. for another year. On June 30, 2021, the District Attorney again sought a "buildings and grounds" restriction for D.G. D.G. once again opposed the restrictions on his movement within WRCH, this time framed as a motion to dismiss the District Attorney's motion.

The petition was heard by a different judge from the Worcester District Court on July 7, 2021. As he did a year prior, D.G. did not contest the commitment and instead executed a G.L. c. 123, § 6(b) waiver, agreeing to commitment to WRCH for another year. The judge accepted D.G.'s waiver, obviating a hearing.

On the same date, the judge entertained oral argument on the District Attorney's motion for a "buildings and grounds" restriction but did not conduct or even schedule any evidentiary hearing. The judge allowed the District Attorney's motion and denied D.G.'s countervailing motion.

2. Constitutional challenge. General Laws c. 123, § 16(e) states in pertinent part: "Any person committed to a facility under the provisions of this section may be restricted in his movement to the buildings and grounds of the facility at which he is committed by the court which orders the commitment." [Note 10] D.G. asserts that this statute is unconstitutional on its face. Specifically, D.G. argues that because § 16(e) contains neither a standard of review (i.e., a criteria) for a judge to apply before imposing the restriction nor an evidentiary standard (e.g., "proof beyond a reasonable doubt") that must be satisfied, the judge is effectively accorded unfettered discretion to impose the restriction (or not).

In support of his argument that § 16(e) is patently unconstitutional, D.G. relies on the Supreme Judicial Court's holding in Garcia v. Commonwealth, 487 Mass. 97 (2021). There, the Court considered a challenge to the constitutionality of G.L. c. 123, § 16(a). This section of the statute states:

"The court having jurisdiction over the criminal proceedings may order that a person who has been found incompetent to stand trial or not guilty by reason of mental illness or mental defect in such proceedings shall be hospitalized at a facility for a period of forty days for observation and examination; provided that, if the defendant is a male and if the court determines that the failure to retain him in strict security would create a likelihood of serious harm by reason of mental illness, or other mental defect, it may order such hospitalization at the Bridgewater state hospital . . . ."

The Court held that confining an untried defendant who has not been adjudged dangerous to a hospital for treatment does not serve a compelling state interest. It stated: "[W]e conclude that the only potential compelling government interest justifying a temporary commitment under § 16(a) of a person found not criminally responsible is to protect the individual and the community from harm." Id. at 104. "In the mental health context, it is unconstitutional to confine a nondangerous person against his or her will merely to provide medical treatment." Id. at 103, citing O'Connor v. Donaldson, 422 U.S. 563, 575 (1975).

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General Laws c. 123, § 16(a) as it relates to commitments to Bridgewater, the Court in Garcia explained, is "narrowly tailored to a compelling government interest" because it requires a judge to find the individual dangerous (to himself or others) and thus meets the strict scrutiny bar. Id., citing Commonwealth v. Knapp, 441 Mass. 157, 164 (2004). Conversely, "the first clause of § 16(a) contains no standard," and, "as presently written, similarly appears to grant unfettered discretion to judges considering defendants who fall within the ambit of its first clause." Id. at 106.

D.G. asserts that the Court's analysis in Garcia regarding the commitment of a nondangerous person under § 16(a) and the imposition of a "buildings and grounds" restriction under § 16(e) are substantially equivalent and that the Court's analysis compels us to find § 16(e) unconstitutional.

While we are skeptical of the merits of D.G.'s position that § 16(e) is per se unconstitutional, we need not decide this issue today. "If a case can be decided on nonconstitutional grounds, the better course is to decide it by not reaching the constitutional issue." Commonwealth v. Loretta, 386 Mass. 794, 797 (1982), citing Commonwealth v. Knowlton, 378 Mass. 479, 483 n.4 (1979). Instead, we find that D.G. is entitled to relief on due process grounds.

3. Due process challenge. D.G., once again relying primarily on Garcia v. Commonwealth, argues that the two judges violated his due process rights when they imposed "buildings and grounds" restrictions. As to the first judge, D.G. concedes that the judge conducted an evidentiary hearing about the propriety of a "buildings and grounds" restriction but contends the judge's decision to impose one was simply unsupported by the evidence. As to the second judge, D.G. submits that there was a complete disregard for his due process rights because the judge renewed the restriction without even considering any evidence.

The District Attorney argues that the "buildings and grounds" restriction imposed by both of the judges survives any due process challenge regardless of whether an evidentiary hearing was conducted.

Specifically, the District Attorney posits that a "buildings and grounds" restriction may only be imposed after a person has already been committed under the proof beyond the reasonable doubt standard and that "a judge would have found beyond a reasonable doubt that the person met the criteria for hospitalization under G.L. c. 123, § 16(b) before even considering whether to restrict a person to the buildings and grounds of a facility." While this precept may be true when the court conducts an evidentiary hearing on the underlying commitment petition, it is not true in this instance. The rub on the District Attorney's hypothesis is that neither judge conducted an evidentiary hearing related to D.G.'s successive commitments to WRCH. Rather, in both instances, D.G. was committed to WRCH pursuant to a § 6(b) waiver.

Converse to the District Attorney's contention, when a judge allows a petition under G.L. c. 123, § 16(b) or (c) (as well as under §§ 7 and 8 and § 18 for that matter) pursuant to a § 6(b) waiver, the judge makes no "finding" that the respondent meets the criteria for hospitalization. Just as important, other than reviewing the averments set forth in the petition, which are unproven allegations, the judge hears no evidence that might bear on the issue of the respondent's dangerousness. At best, the judge has the petition itself, which typically includes the index offense and the general grounds for the commitment. A respondent who signs a § 6(b) waiver simply agrees to a commitment

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for a finite period of time, and the judge makes no findings other than that the waiver was made knowingly, intelligently, and voluntarily and that the respondent had the opportunity to consult with counsel.

The District Attorney attempts to treat commitment by a G.L. c. 123, § 6(b) waiver as the functional equivalent of an admission to sufficient facts, but they are markedly different. When admitting to sufficient facts, the defendant concedes on the record that the Commonwealth has marshalled sufficient evidence, from whatever source, to satisfy the elements of the charged crime(s). The sentencing judge can then make findings in connection with his or her sentence and/or conditions of probation. Conversely, with a § 6(b) waiver, the respondent is simply waiving a hearing and agreeing to a commitment for a specified period of time, with the caveat that he can "request a hearing for good cause shown at any time during the period of commitment." G.L. c. 123, § 6(b). [Note 11] Therefore, because D.G. was committed to WRCH as a result of waiving a hearing pursuant to § 6(b), we reject the District Attorney's argument that the commitment order alone was sufficient for the two judges to impose a "buildings and grounds" restriction without regard to D.G.'s due process rights. D.G. was entitled to an evidentiary hearing on the "buildings and grounds" restriction.

The first judge did not violate D.G.'s due process rights when she imposed a "buildings and grounds" restriction under G.L. c. 123, § 16(e). While it is true that the judge did not hear any evidence in connection with the commitment itself because of D.G.'s § 6(b) waiver, she conducted an evidentiary hearing on the District Attorney's motion for a "buildings and grounds" restriction during which she heard expert testimony from D.G.'s treating clinician. Dr. Geller served as WRCH's medical director and, in fact, collaborated on the preparation of the petition to commit D.G.

The judge considered the District Attorney's request using the familiar risk assessment framework applicable to civil commitments under G.L. c. 123. [Note 12] Acting Sup't of Bournewood Hosp. v. Baker, 431 Mass. 101 (2000); Commonwealth v. Nassar, 380 Mass. 908 (1980). After considering the petition and Dr. Geller's testimony, the judge made the following finding: "Based on [D.G.'s] chronic mental illness, persistent delusions, lack of insight into his mental illness, failure to participate fully in treatment, and finding of likelihood of serious harm to himself and others, the Court finds that [D.G.] poses a serious risk to the community . . . ."

D.G. argues that the first judge confined him to the buildings and grounds of

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WRCH "without any evidence that his liberty would constitute a risk of imminent harm to himself or the others." D.G. once again points to the Supreme Judicial Court's dicta in Garcia v. Commonwealth to validate his position.

While the Court noted in Garcia that "the Commonwealth's own expert testified that the defendant presented no risk of imminent harm" before his commitment under G.L. c. 123, § 16(a), that was certainly not the case here. While Dr. Geller testified that he wanted the "buildings and grounds" restriction lifted "so that the skills [D.G.] was taught in the hospital could be tested in the community," he also opined that off-grounds privileges would only be appropriate with staff supervision. As the judge acknowledged, a "buildings and grounds" restriction under § 16(e) is an "all or nothing proposition" and the court had no authority to order only supervised off-grounds privileges. Matter of J.R., 2016 Mass. App. Div. 47 (2016), citing Commonwealth v. Carrara, 58 Mass. App. Ct. 86 (2003).

Moreover, the judge did not credit Dr. Geller's opinion that it was safe for D.G. to have unsupervised access to the community. The judge found that Dr. Geller's testimony at the G.L. c. 123, § 16(e) hearing was irreconcilable with the opinion set forth in the petition, i.e., that D.G. remains "at high risk of self-harm should he receive any delusional messages from God" and that he posed a "high risk of harm to others due to his chronic and ongoing symptoms of psychosis despite medical adherence." "[T]he law 'does not give the opinion of experts . . . the benefit of conclusiveness, even if there is no contrary opinion introduced at the trial.'" Matter of J.D., 97 Mass. App. Ct. 15, 21 (2020), quoting Commonwealth v. DelVerde, 401 Mass. 447, 450-452 (1988). In that same vein, the judge summarily rejected D.G.'s argument that "the Court should rely on DMH and their policies to protect the public" in lieu of imposing a "buildings and grounds" restriction, at least in part because D.G. offered no such policies into evidence. [Note 13]

The fact that the first judge ordered a "building and grounds" restriction notwithstanding Dr. Geller's opinion that it was not only unnecessary but also contraindicated did not violate D.G.'s due process rights. It is axiomatic that the fact finder is free to accept an expert's opinion in its entirety, only some of it, or none of it at all. We may set aside a judge's factual findings only if they are clearly erroneous. "Findings of fact shall not be set aside unless clearly erroneous, and due regard shall be given to the opportunity of the trial court to judge the credibility of the witnesses." First Nat'l Bank of Boston v. Brink, 372 Mass. 257 , 264 (1977), quoting Mass. R. Civ. P. 52(a). See Matter of a Minor, 484 Mass. 295 (2020) (factual findings are reviewed deferentially for clear error).

We find ample support in the record for the first judge's decision to allow the District Attorney's motion and impose a "buildings and grounds" restriction. Apart from Dr. Geller's opinion that it was only appropriate for D.G. to have off-ground

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privileges with staff supervision, which are impermissible, the judge considered the index offense, a particularly heinous murder, D.G.'s mental illness (schizophrenia), and his chronic delusions in concluding that D.G. posed a measurable risk of harm to the community. As the Appeals Court recently reaffirmed in Matter of J.D., 97 Mass. App. Ct. 15 (2020), a judge assessing a defendant's risk of harm may accord additional weight to the index offense. "The more serious . . . the prior bad acts or harmful conduct, the more significance they would carry in making a positive risk assessment about the likelihood of harm." Id. at 21, quoting Matter of G.P., 473 Mass. 112, 126 (2015). See also Matter of D.D., 2019 Mass. App. Div. 101 (judge's finding of likelihood of serious harm affirmed even though respondent had not behaved aggressively in ten years because he still suffered from same mental illness that caused aggressiveness in past).

We do not, however, reach the same result relative to the second judge's order for a "buildings and grounds" restriction. While the second judge had the benefit of the first judge's written decision approving the "buildings and grounds" restriction, the first judge's findings resulted from an evidentiary hearing that occurred some eleven months earlier. To be sure, statutory and decisional law in Massachusetts recognize that mental illness is fluid and, in the case of civil commitments, must be assessed periodically. The same is necessarily true of the potential risk of harm that a mentally ill individual poses to himself or herself or to the community, which is presumptively why civil commitments must be renewed on an annual basis. Therefore, the factual findings relied upon by the second judge were arguably stale.

There is nothing in the record before us that either the District Attorney or petitioner offered evidence of any conduct or incidents at WRCH that might be a reliable indicator that a restriction was still required. Unlike the first judge, the second judge did not hear any expert testimony as to D.G.'s potential risk of harm to others if his movement was not restricted at WRCH. Instead, the hearing was limited to argument proffered by the Assistant District Attorney. As a result, we find that the judge's failure to conduct an evidentiary hearing, relying instead on the District Attorney's motion and argument, violated D.G.'s due process rights.

Conclusion. Before imposing a "buildings and grounds" restriction, the first judge conducted an evidentiary hearing in which she received evidence and made an informed finding that a restriction was appropriate. Therefore, there was no violation of D.G.'s due process rights, and the first judge's order is affirmed. The second judge did not conduct any type of evidentiary hearing before keeping the restriction in place. Because no evidence justifying the continuation of the restriction was offered, we find this violated D.G.'s due process rights. The order by the second judge imposing a "buildings and grounds" restriction is vacated.