FRANK ANDREWS, petitioner.

SPINA, J. We transferred this case from the Appeals Court on our own motion to provide clarity on a question left unanswered in Thompson v. Commonwealth, 386 Mass. 811 (1982) (Thompson). General Laws c. 123, § 9 (b), provides an opportunity for civilly committed patients to apply to the Superior Court for discharge or transfer to a different facility. In Thompson, we ruled that the burden of proof in a proceeding under § 9 (b) was placed properly on the applicant, id. at 818, but did not reach the question of the standard of proof necessary to carry that burden. We now hold that an applicant in a proceeding under G. L. c. 123, § 9 (b), has the burden of proving his case by a fair preponderance of the evidence. [Note 1]

1. Background. Frank Andrews suffers from chronic mental illness. He has been diagnosed with paranoid schizophrenia, as well as polysubstance dependence, forced remission in a controlled environment. Andrews was found not guilty by reason of mental illness of the crimes of rape and incest in 1999. Since that time, he has been committed to Bridgewater State Hospital (Bridgewater) pursuant to G. L. c. 123, § 16, and the annual recommitment hearings it requires. [Note 2] See G. L. c. 123, § 16 (c). On March 3, 2004, a District Court judge conducted such a recommitment hearing, and ruled that Andrews's continued commitment to Bridgewater was warranted, i.e., that the Commonwealth had proved beyond a reasonable doubt that Andrews was mentally ill and required the strict security of Bridgewater in order to prevent a likelihood of serious harm. [Note 3] See G. L. c. 123, §§ 16 (c), 8 (b). Five days later, Andrews filed an application for discharge pursuant to G. L. c. 123, § 9 (b), seeking a transfer from Bridgewater to a less secure Department of

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Mental Health (department) facility. [Note 4] The trial on Andrews's § 9 (b) application took place on November 12, 2004.

At trial, Andrews, represented by counsel, argued that his transfer from Bridgewater to a less secure facility would not create a likelihood of serious harm. The judge heard testimony from two witnesses. Dr. Robert Joss testified that he believed transfer to a less secure facility would be appropriate, despite his concession that an exacerbation of Andrews's mental illness would occur if he were to consume alcohol or abuse drugs. In contrast, Dr. Ira Packer testified for the Commonwealth that Andrew's commitment to Bridgewater was necessary in light of his continued illness, especially as observed in his flattened affect, and security concerns at department facilities. The judge ruled that "[f]ailure to retain [Andrews] at this time in strict security at the Bridgewater State Hospital would create a likelihood of serious harm."

Andrews filed a motion to amend findings, advocating for a finding of law that articulated the standard of proof by which an applicant in a § 9 (b) proceeding was to carry his burden of proof as a preponderance of the evidence. The judge denied Andrews's motion, stating that a person seeking relief under G. L. c. 123, § 9 (b), bears the burden of proof beyond a reasonable doubt. Citing Thompson, supra at 818, the judge reasoned that proof beyond a reasonable doubt furthered the State's interest in controlling the "[i]ntolerable fiscal and administrative burdens"

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that we considered in that context as warranting against assigning the burden of proof to the Commonwealth.

2. Mootness. Andrews concedes that his appeal raises issues of mootness because during its pendency, he was recommitted subject to G. L. c. 123, § 16 (c), presumably after a hearing at which the Commonwealth proved beyond a reasonable doubt that his commitment there was necessary to prevent a likelihood of serious harm. We need not determine the mootness of this appeal, however. Even if the case were moot, it is capable of repetition, yet evading review. Thompson, supra at 813 n.2, citing Superintendent of Worcester State Hosp. v. Hagberg, 374 Mass. 271, 272 (1978). Just as in Thompson, supra, this case "raises important questions concerning proceedings under G. L. c. 123, § 9 (b), that otherwise might go unresolved." We therefore reject the argument of the Attorney General that Andrews's case be dismissed as moot.

3. Standard of proof. In Thompson, supra, we ruled that an applicant requesting discharge or transfer under G. L. c. 123, § 9 (b), bears the burden to prove that he is no longer mentally ill or dangerous. We reached this conclusion on nonconstitutional grounds, noting that "[a] person who seeks relief under a statute bears the burden of proving that his case falls within its terms." Id. at 815, citing Sullivan v. Quinlivan, 308 Mass. 339, 342 (1941). We then considered whether such a burden was constitutionally deficient. Thompson, supra at 817. Our answer rested heavily on the finite periods of commitment allowed for under G. L. c. 123, §§ 8 and 15 (e) -- initially a patient may be confined for a six-month period and subsequently for a one-year period before judicial review is required, at which time the Commonwealth bears the burden of proving the patient's suitability for commitment beyond a reasonable doubt. [Note 5] In light of the due process protections already afforded by the statute, we ruled that it was not unconstitutional to place the burden on the

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patient during the intervening periods. Id. at 817-818. Left unstated was the standard of proof by which the patient is to bear this burden. We are now faced with the narrow question whether the patient is to bear this burden by proof beyond a reasonable doubt or by a fair preponderance of the evidence. [Note 6], [Note 7]

We begin this inquiry with the baseline rule that the fact finder in a civil case usually employs a fair preponderance of the evidence standard. See, e.g., Baker v. Parsons, 434 Mass. 534, 543 n.18 (2001); Doe, Sex Offender Registry Bd. No. 972 v. Sex Offender Registry Bd., 428 Mass. 90, 101 (1998), and cases cited;

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Guardianship of Roe, 383 Mass. 415, 422 (1981), citing 9 J. Wigmore, Evidence § 2498 (3d ed. 1940). To apply the beyond a reasonable doubt standard here would create an exception to this general rule, which we have been hesitant to do in the past. Guardianship of Roe, supra, citing Custody of a Minor (No. 1), 377 Mass. 876, 885 (1979). See Matter of Angela, 445 Mass. 55, 58, 64-66 (2005) (despite statutory requirement that initial adjudication of child in need of services be by proof beyond reasonable doubt, subsequent judicial review is governed by fair preponderance of evidence standard). Moreover, the United States Supreme Court has admonished that such an exception should not be applied "too broadly or casually in noncriminal cases." Guardianship of Roe, supra, quoting Addington v. Texas, 441 U.S. 418, 428 (1979). With this default standard in mind, we turn to the purpose of a standard of proof.

"The function of a standard of proof, as that concept is embodied in the Due Process Clause and in the realm of factfinding, is to 'instruct the factfinder concerning the degree of confidence our society thinks he should have in the correctness of factual conclusions for a particular type of adjudication.' " Addington v. Texas, supra at 423, quoting In re Winship, 397 U.S. 358, 370 (1970) (Harlan, J., concurring). It is not "an empty semantic exercise; it reflects the value society places on individual liberty." Tippett v. State, 436 F.2d 1153, 1166 (4th Cir. 1971) (Sobeloff, J., concurring in part and dissenting in part), cert. dismissed sub nom. Murel v. Baltimore City Criminal Court, 407 U.S. 355 (1972).

Proof beyond a reasonable doubt is the highest standard contemplated by our courts in their function as fact finders. Covell v. Department of Social Servs., 439 Mass. 766, 786 (2003). For that reason, it is associated appropriately with the placement of a defendant's liberty in jeopardy through criminal proceedings -- a situation where "the interests of the defendant are of such magnitude that historically and without any explicit constitutional requirement they have been protected by standards of proof designed to exclude as nearly as possible the likelihood of an erroneous judgment." Addington v. Texas, supra at 423. Thus, chief among the reasons to employ this most stringent of standards is the value that society places on individual liberty. "There is always

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in litigation a margin of error, representing error in factfinding, which both parties must take into account. Where one party has at stake an interest of transcending value -- as a criminal defendant his liberty -- this margin of error is reduced as to him by the process of placing on the other party the burden of . . . persuading the factfinder at the conclusion of the trial of his guilt beyond a reasonable doubt." In re Winship, 397 U.S. 358, 364 (1970), quoting Speiser v. Randall, 357 U.S. 513, 525-526 (1958).

Use of the highest standard of proof also carries symbolic importance. By requiring the government to meet this burden, we establish the moral force of the law when it is used to deprive an individual of his liberty. [Note 8] In re Winship, supra. That such a standard is the closest we can come to ensuring a correct outcome when the stakes are so high illustrates our societal commitment to giving defendants the benefit of the doubt in the face of government's awesome power to convict. Id. at 370-372 (Harlan, J., concurring). Underwood, The Thumb on the Scales of Justice: Burdens of Persuasion in Criminal Cases, 86 Yale L.J. 1299, 1307-1308 (1977). "It is also important in our free society that every individual going about his ordinary affairs have confidence that his government cannot adjudge him guilty of a criminal offense without convincing a proper factfinder of his guilt with utmost certainty." In re Winship, supra at 364.

The use of the beyond a reasonable doubt standard has thus been confined to instances where its employment protects individual liberty or has symbolic value. In the few instances where we have seen fit to transpose the standard into the civil realm, it has been to achieve one or the other of these goals. See, e.g., R.R.K. v. S.G.P., 400 Mass. 12, 15 (1987) (presumption that child was fathered by husband of mother only may be overcome on showing of proof to contrary beyond reasonable doubt); Superintendent of Worcester State Hosp. v. Hagberg,

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374 Mass. 271, 276 (1978) (commitment to mental health facility under G. L. c. 123); Andrews, petitioner, 368 Mass. 468 (1975) (commitment of sexually dangerous persons). Cf. American Mfrs. Mut. Ins. Co. v. Commissioner of Ins., 374 Mass. 181, 190 (1978) (use of proof beyond a reasonable doubt standard in presumption of statute's constitutionality, recognizing wide discretion of Legislature). In this instance, the judge employed the standard as the best means of conserving government resources, citing one of the interests we described in Thompson, supra. [Note 9] This use fits neither with the traditional instances of proof beyond a reasonable doubt nor with the history of the statute in question. [Note 10] Indeed, given that the applicant in a § 9 (b) proceeding bears the evidentiary

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burden in seeking his own transfer or discharge, the use of the beyond a reasonable doubt standard here would be in significant tension with the values for which it is normally employed.

We previously have noted that the general rule in civil cases is that proof must be by a preponderance of the evidence. In determining that it was the patient who bears the burden of proof in a § 9 (b) proceeding, our rationale stemmed from the general civil rule that "[a] person who seeks relief under a statute bears the burden of proving that his case falls within its terms." Thompson, supra at 815, citing Sullivan v. Quinlivan, 308 Mass. 339, 342 (1941). [Note 11] Likewise, we see no reason to depart from the general civil rule of requiring the applicant to prove his case by a fair preponderance of the evidence. Stated more particularly, we hold that an applicant under § 9 (b) bears the burden of proving by a fair preponderance of the evidence that his situation has significantly changed since last his confinement was reviewed judicially, whether on the basis of new factual developments or new evidence, so as to justify his discharge or transfer.

4. Analysis. The judge found that the failure to retain the petitioner in the strict security of Bridgewater would create a likelihood of serious harm because that setting promoted Andrews's forced remission and prevented him from gaining access to alcohol and illegal drugs that would likely induce violent behavior. The judge explicitly found this to be true whether he applied either the proof beyond a reasonable doubt or the fair preponderance of the evidence standard to Andrews's burden. [Note 12] There was ample evidence to support this conclusion in the record,

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including Andrews's diagnosed mental illness, his history of violence, and the exacerbated effect of substance abuse on his symptoms. In fact, at the time of his § 9 (b) hearing, the principal change revealed by the record since his recommitment hearing in March, 2004, was that he had ceased to attend his substance abuse class when he was offended by a videotape shown there of someone drinking. [Note 13] This is not the sort of factual development that would lead a fact finder to the conclusion that the patient no longer requires Bridgewater's strict security in order to prevent a likelihood of serious harm. There was no error.

5. Conclusion. The denial of Andrews's motion to amend findings is reversed inasmuch as it articulated the standard of proof to be borne by an applicant under G. L. c. 123, § 9 (b). In all other respects, the judgment is affirmed.

So ordered.