FILLMORE THOMPSON vs. COMMONWEALTH.

HENNESSEY, C.J. The plaintiff, Fillmore Thompson, challenges the entry of a summary judgment dismissing his application filed pursuant to G. L. c. 123, Section 9 (b), for release from Bridgewater State Hospital. [Note 1] We find no reversible error and affirm.

On July 18, 1979, Thompson was found guilty of rape of a child (two counts) in the Superior Court in Bristol County, and was on that date admitted to the Bridgewater State Hospital (Bridgewater) for psychiatric observation in aid of sentencing pursuant to G. L. c. 123, Section 15 (e). Thompson was thereafter committed by a judge of the Superior Court in Bristol County to Bridgewater under the provisions of Section 15 (e) for six months on August 3, 1979, and was recommitted for additional one-year periods on March 3, 1980, May 27, 1981, and June 2, 1982, by a judge of the District Court of Brockton. Thompson has not been sentenced on the rape convictions due to his need for psychiatric hospitalization.

On October 9, 1980, Thompson filed an application for discharge with the Superior Court in Plymouth County

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pursuant to G. L. c. 123, Section 9 (b). An attorney was appointed to represent Thompson, and, at Thompson's request, an independent medical examination was provided. See G. L. c. 123, Section 5. The examining psychiatrist filed with the court a copy of his report, which concluded that Thompson still required maximum security treatment at Bridgewater, and that "failure to hospitalize him at that facility would create a substantial risk of harm to others because of his mental illness." The Commonwealth subsequently moved for summary judgment. At a hearing before a Superior Court judge, Thompson opposed the motion on the grounds that a summary judgment could not properly enter in proceedings under G. L. c. 123, Section 9 (b), and that the Commonwealth has the burden of proof in such proceedings. Thompson also argued that the examining psychiatrist's report was not properly before the court and should not be considered.

As to the examining psychiatrist's report, the judge concluded that, since the independent examination had been made pursuant to court order, the court could properly consider it. The judge then inquired whether Thompson had any evidence to offer in support of his application for discharge other than his cross-examination of the Commonwealth's medical witness. Upon receiving a negative answer, the judge allowed the Commonwealth's motion for summary judgment. Thompson's objections were duly noted. [Note 2]

Thompson's main argument is that due process requires that the burden rest on the Commonwealth to prove that he should continue to be confined against his wishes at Bridgewater. Closely related to this claim is his assertion that a summary judgment could not constitutionally be entered against him. We address these claims together.

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General Laws c. 123 establishes procedures relating to the involuntary commitment of persons alleged to be mentally ill and dangerous. Persons who, like Thompson, have been found guilty of a criminal charge may, after a period of psychiatric observation, be committed to Bridgewater for an initial period of six months, and thereafter for periods of one year. G. L. c. 123, Sections 15 (e) and 8 (d). [Note 3] Before being committed or recommitted, such persons are entitled to a hearing and have the right to counsel and the right to present independent testimony. G. L. c. 123, Section 5. If the person is indigent the court is authorized to provide an independent medical examination for the person if he or his counsel so requests. General Laws c. 123, Section 8 (b), as amended by St. 1978, c. 478, Section 69, provides in part: "After a hearing, unless such hearing is waived in writing, the district court shall not order the commitment of a person at the Bridgewater state hospital or shall not renew such order unless it finds that (1) such person is mentally ill; (2) such person is not a proper subject for commitment to any facility of the department [of mental health]; and (3) the failure to retain such person in strict custody would create a likelihood of serious harm." In such a hearing the burden of proof is on the Commonwealth to demonstrate that a person should be confined at Bridgewater. See Commonwealth v. Nassar, 380 Mass. 908, 916 (1980); Superintendent of Worcester State Hosp. v. Hagberg, 374 Mass. 271, 275-277 (1978). See also Andrews, petitioner, 368 Mass. 468, 484 (1975).

In addition to the procedural protections outlined above, G. L. c. 123, Section 9 (b), authorizes any person to apply for the discharge of a person from Bridgewater. There is no limit as to the time or frequency with which these applications may be made. A prompt judicial hearing is provided for, and "[i]f the justice decides that the person is not mentally

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ill or that failure to retain the person in. . . the Bridgewater state hospital would not create a likelihood of serious harm. . .said person shall be discharged." Thompson's application for discharge was filed pursuant to this section.

A person who seeks relief under a statute bears the burden of proving that his case falls within its terms. Sullivan v. Quinlivan, 308 Mass. 339, 342 (1941). In a Section 9 (b) proceeding, it is the applicant who initiates the suit, who seeks to change the status quo. It is evident, then, that Section 9 (b) puts the burden on the applicant to prove that the person confined is no longer mentally ill or dangerous.

Absent any constitutional infirmity, it follows from this conclusion that a summary judgment may properly be entered against an applicant under Section 9 (b) when it appears that he can offer no evidence to support his claim. There is nothing in the Massachusetts Rules of Civil Procedure that precludes such a method of disposition. See Mass. R. Civ. P. 81 (a) (8), 365 Mass. 841 (1974) (rules expressly do not apply to proceedings pertaining to the adjudication, commitment and release of sexually dangerous persons, but no mention is made of proceedings relating to the adjudication, commitment and release of mentally ill and dangerous persons pursuant to G. L. c. 123). See also Mass. R. Civ. P. 81 (e). Thompson rightly does not contend that a genuine issue of material fact was present. The possibility that the party opposing a motion for summary judgment may elicit something helpful on cross-examination of witnesses cannot defeat the motion, particularly if there is no indication of what specifically is to be elicited.

Having concluded that Section 9 (b) places the burden of proof on the applicant, and that it permits the use of the summary judgment as a possible method of disposition, we now turn to Thompson's central claim, that this scheme offends the due process clause of the Fourteenth Amendment to the United States Constitution. We start with the assumption that a State may validly exercise its police power to confine persons who are adjudicated mentally ill and dangerous. See Addington v. Texas, 441 U.S. 418, 426 (1979); State ex

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rel. Hawks v. Lazaro, 157 W. Va. 417, 437-439 (1974). Director of Patuxent Inst. v. Daniels, 243 Md. 16, 32, cert. denied sub nom. Avey v. Boslow, 385 U.S. 940 (1966). See generally Developments in the Law -- Civil Commitment of the Mentally Ill, 87 Harv. L. Rev. 1190, 1228-1245 (1974). [Note 4] At the same time, "a State cannot constitutionally confine without more a nondangerous individual who is capable of surviving safely in freedom by himself or with the help of willing and responsible family members or friends." O'Connor v. Donaldson, 422 U.S. 563, 576 (1975). In Jackson v. Indiana, 406 U.S. 715, 738 (1972), the United States Supreme Court stated: "At the least, due process requires that the nature and duration of commitment bear some reasonable relation to the purpose for which the individual is committed." See also, McNeil v. Director, Patuxent Inst., 407 U.S. 245 (1972). It follows that, once the conditions justifying confinement cease to exist, the State's power to confine terminates, and the person is entitled to be released (unless, of course, he is serving a criminal sentence -- in which case he has a right to be transferred to a penal institution). See, e.g., Fasulo v. Arafeh, 173 Conn. 473, 479 (1977). These principles suggest that due process requires a State to afford to a patient periodic judicial review of his commitment to determine whether his involuntary confinement continues to be constitutionally justifiable. See State v. Fields, 77 N.J. 282, 293-299 (1978); Fasulo v. Arafeh, supra. We need not now question the

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validity of this proposition, for, as we have previously observed, G. L. c. 123, Sections 8 and 15 (e), mandate judicial review of a patient's confinement six months after the initial commitment order, and thereafter on an annual basis. Our inquiry instead is whether the additional recourse provided by Section 9 (b) is constitutionally deficient. Although Thompson does not expressly so argue, his position necessarily implies the contention that the procedural protections embraced in Sections 8 and 15 (e) do not go far enough, and that due process demands that a patient be permitted to challenge his confinement at any time, and further, that in any such challenge the State must bear the burden of proving that the patient's continued commitment is justified. At the very least, Thompson's position implies a claim that the six months and one year intervals between commitment orders are unreasonably long periods of time. We do not agree.

An individual's liberty may not constitutionally be curtailed without due process of law. U.S. Const. Amend. 14, Section 1, cl. 3. In determining what process is due, however, a court must balance the interests of the individual affected, the risk of erroneous deprivation of those interests, and the government's interest in the efficient and economic administration of its affairs. Parham v. J.R., 442 U.S. 584, 599-600 (1979), and cases cited. Applied to the instant case, this balancing test tips the scales in favor of the statute's validity.

The liberty interest affected by Section 9 (b) is temporally limited. If the procedure employed by Section 9 (b) were to result in the erroneous deprivation of a patient's liberty, the greatest length of time that this result could occur would be one year -- the maximum possible time until the next commitment hearing. As a practical matter, the period would be much shorter, since a patient's condition is unlikely to change within a short period of time. Mentally ill and dangerous persons respond at best only to long-term treatment. A. Stone, Mental Health and Law: A System in Transition 36-37 (1975).

The risk that the patient will be wrongfully retained in confinement because of Section 9 (b)'s allocation of the burden of proof is concededly a genuine one. Cf. Andrews, petitioner,

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368 Mass. 468, 486-491 (1975). However, numerous other procedural safeguards afforded by the statute, for instance, the right to counsel and the right to secure an independent psychiatric examination, reduce that risk to a minimum. Only in borderline cases would the risk be material. On the other hand, the State's interest in allocating the burden of proof to the applicant in such proceedings is significant. Intolerable fiscal and administrative burdens could result if the burden were placed on the Commonwealth. Patients would be permitted to put the Commonwealth to its test at any time and without limitation. No effective means would exist to dispose of or discourage the filing of frivolous applications by litigious patients. It is foreseeable that psychiatrists at the affected institutions would be forced to spend substantially more time preparing for and attending judicial hearings instead of caring for patients, and funds that might otherwise be spent for treatment and care of patients would be spent in conducting numerous adversary hearings.

On balance, we have little hesitation in concluding that the governmental interests in placing the burden of proof on the applicant in Section 9 (b) proceedings outweigh the short-term liberty interests of the individual affected and the relatively slight risk of error that results. We note that other courts have upheld the constitutionality of statutes that are more restrictive in allowing petitions for discharge than is G. L. c. 123. See Suzuki v. Quisenberry, 411 F. Supp. 1113, 1134 (D. Haw. 1976); State ex rel. Hawks v. Lazaro, 157 W. Va. 417, 444-447 (1974).

In sum, since the burden of proof rests on the Commonwealth at six months' and one year intervals, it does not violate due process to put the burden on the patient during the intervening periods. Accordingly, we hold that there was no error in entering a summary judgment against Thompson.

As a final matter, we address briefly Thompson's argument that the psychiatric report of the court-appointed psychiatrist was improperly considered by the judge. In light of our decision above, it is clear that any error was harmless, since even if the judge had not considered the report, the

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absence of any evidence in support of Thompson's case warranted, without more, the entry of summary judgment against him. Nevertheless, because the issue is meaningful beyond the decision of this case, we express our opinion of the merits.

General Laws c. 123, Section 5, as amended through St. 1978, c. 367, Section 71B, states that whenever the provisions of G. L. c. 123 require that a hearing be conducted for the commitment or further retention of a person to Bridgewater or other facility, the court "may provide an independent medical examination for such [person whom it finds to be indigent] upon request of his counsel or upon his request if he is not represented by counsel." [Note 5] The purpose of this provision is to afford indigent persons the same benefits of an independent medical examination that are available to wealthier persons. It is not intended as an aid to the court, but as a benefit to indigent persons. If it were otherwise, the provision would not be limited to indigent persons, nor would it require a request by the person or his counsel. We think, therefore, that the facts known and opinions held by a physician who has been appointed pursuant to Section 5 should be treated the same as if the physician had been hired privately. See, e.g., Mass. R. Civ. P. 26 (b) (4), 365 Mass. 772 (1974). Accordingly, the results of such an examination should ordinarily not be considered by the court unless they have been put in evidence by the person requesting the examination. [Note 6]

Judgment affirmed.