Mercer v. Thomas B. Finan Center, 265 A.3d 1044

Background

Jason Mercer, an involuntarily committed psychiatric patient, refused prescribed psychotropic medication; a clinical review panel approved forcible medication and issued a written decision.
Mercer filed an appeal request form within 48 hours but checked a box declining legal representation and signed; a rights advisor also signed the form.
Six days later OAH sent a Notice of Hearing stating Mercer had the right to request representation; on the day of the hearing Mercer asked for counsel.
The ALJ treated the late request as a postponement request, found no good cause to postpone based on Mercer’s prior declination and safety concerns, and conducted the hearing with Mercer unrepresented; the ALJ ordered forcible medication.
The circuit court and Maryland Court of Special Appeals affirmed; the Court of Appeals granted certiorari and reversed, holding HG § 10-708 confers a right to counsel upon request, there is no statutory deadline to request counsel, and an effective waiver requires verification that it was knowing and voluntary.

Issues

Issue	Plaintiff's Argument (Mercer)	Defendant's Argument (Center)	Held
Does HG § 10-708 confer a right to counsel?	§10-708(i)(4)(ii) gives a statutory right to counsel at the administrative hearing (once requested).	The statute only provides a right to request counsel, not an automatic right; assistance is discretionary and conditioned on timely request.	The statute gives a right to counsel upon request; once invoked the right attaches and the State will provide counsel at no cost.
Does checking “decline legal representation” on the appeal form waive the right to request counsel at the hearing?	The form did not warn of consequences or time limits, so the box is not an effective waiver.	The signed form and rights-advisor interaction show Mercer declined representation; ALJ may rely on that to deny a postponement.	The form, as used here, did not effect an effective waiver; subsequent Notice of Hearing (which reiterated the right to request counsel) undermined the form’s declination.
Is an on-the-record waiver colloquy required before treating a declination as a waiver?	A colloquy is required to protect the significant liberty interest implicated by forcible medication.	No on-the-record colloquy is mandated by statute; verification by staff and forms suffices.	An on-the-record criminal-style colloquy is not required, but there must be verification that the waiver/declination was knowing and voluntary and that the individual wishes to proceed unrepresented.
Did the ALJ violate due process by denying Mercer’s request for counsel at the hearing?	Yes — denial without verification of a knowing, voluntary waiver deprived Mercer of due process.	No — ALJ properly relied on the signed form and rights-advisor’s statements and could deny a last-minute postponement.	Court of Appeals: ALJ erred; Mathews balancing favors requiring verification of a knowing and voluntary waiver; denial deprived Mercer of procedural due process.

Key Cases Cited

Vitek v. Jones, 445 U.S. 480 (1980) (transfer/treatment of prisoners implicates due process protections including notice and assistance)
Mathews v. Eldridge, 424 U.S. 319 (1976) (three-factor balancing test for procedural due process)
Washington v. Harper, 494 U.S. 210 (1990) (administrative procedures may satisfy due process for involuntary medication; lay advisors can substitute for counsel in some contexts)
Williams v. Wilzack, 319 Md. 485 (1990) (Maryland §10-708 then unconstitutional for failing to provide procedural protections for forced medication)
Beeman v. Dep’t of Health & Mental Hygiene, 107 Md. App. 122 (1995) (upheld 48-hour appeal period and recognized right to counsel upon request)
Dep’t of Health & Mental Hygiene v. Kelly, 397 Md. 399 (2007) (statutory standards governing forced medication require showing of danger in confinement context)
Allmond v. Dep’t of Health & Mental Hygiene, 448 Md. 592 (2016) (interpretation of §10-708 after amendments; limits on involuntary medication)
Johnson v. Md. Dep’t of Health, 470 Md. 648 (2020) (procedural due process requirements under §10-708 and recognition of right to request counsel)
Youngberg v. Romeo, 457 U.S. 307 (1982) (substantive due process for involuntarily committed persons)
Mills v. Rogers, 457 U.S. 291 (1982) (constitutional liberty interest in refusing antipsychotic drugs)
Riggins v. Nevada, 504 U.S. 127 (1992) (due process limits on involuntary medication)
Sell v. United States, 539 U.S. 166 (2003) (limits on involuntary medication to restore competence)