ARTHUR DUCKETT, Plaintiff-Appellant, v. MARY C. SOLKY, Defendant-Appellee.
No. 357346
STATE OF MICHIGAN COURT OF APPEALS
June 2, 2022, 9:05 a.m.
Before: BORRELLO, P.J., and SHAPIRO and HOOD, JJ.
If this opinion indicates that it is “FOR PUBLICATION,” it is subject to revision until final publication in the Michigan Appeals Reports.
STATE OF MICHIGAN
COURT OF APPEALS
ARTHUR DUCKETT,
Plaintiff-Appellant,
v
MARY C. SOLKY,
Defendant-Appellee.
FOR PUBLICATION
June 2, 2022
9:05 a.m.
No. 357346
LC No. 20-008865-NZ
Before: BORRELLO, P.J., and SHAPIRO and HOOD, JJ.
HOOD, J.
Plaintiff Arthur Duckett was involuntarily hospitalized in 2004. In July 2017, Duckett was placed on authorized leave status, which entitled him to live outside of the hospital while receiving outpatient treatment and supervision. Defendant Mary Solky revoked Duckett’s leave a few months later without affording him notice of his right to appeal her order. The questions before the Court are whether an involuntarily hospitalized person on authorized leave is entitled to due process of law after revocation of that leave, and if so, the nature and scope of the available remedies.
Michigan’s Mental Health Code,
I. BACKGROUND
Duckett’s involuntary hospitalization originated with his plea of not guilty by reason of insanity (NGRI) following several stabbings Duckett committed in 2002. The circuit court accepted his plea and committed Duckett to the custody of the Michigan Department of Health and Human Services (MDHHS), Center for Forensic Psychiatry (CFP). The prosecution successfully moved to continue his involuntary hospitalization, thereby transferring jurisdiction from the circuit court to the probate court. Duckett’s treatment continued at the Walter P. Reuther Psychiatric Hospital (WPRPH), a state hospital operating under the umbrella of MDHHS, where he has been committed since 2006.
On July 12, 2017, Duckett was allowed to reside outside of WPRPH under an ALS contract. Under the terms of the contract, Duckett “agreed to comply with a series of conditions . . . for a period of five years in exchange for release from physical confinement in a State-operated psychiatric hospital.” A week later, on July 19, 2017, the probate court entered an order for continuing mental health treatment, continuing Duckett’s state-supervised treatment while allowing him to live outside of the state hospital.
On September 27, 2017, MDHHS revoked Duckett’s ALS contract and reinterned Duckett
at WPRPH. Solky concedes that after MDHHS revoked Duckett’s ALS contract she did not
provide him with notice of his right to appeal his rehospitalization, despite the clear language of
Three and a half months after his return to WPRPH, Duckett filed a petition for discharge from his continuing mental health treatment, challenging a periodic review report’s conclusion that he continued to be a person requiring continuing involuntary mental health treatment. In his petition, Duckett requested discharge from involuntary hospitalization. The parties agree that the petition was not an appeal of the decision to revoke his ALS contract.
At a subsequent probate court hearing on Duckett’s petition, the court ordered that Duckett’s involuntary mental health treatment continue, finding “clear and convincing evidence that [Duckett] has a mental illness and continues to require treatment.”
Duckett filed this action under
The amended complaint avers Solky violated
Solky moved for summary disposition under
Duckett responded that he had a statutory right to contest the revocation of his authorized
leave status, and that Solky’s failure to provide notice of his opportunity to appeal the revocation,
or a hearing, violated due process. Distinct from the statutorily required hearing, Duckett argued
that he
The circuit court granted Solky’s motion for summary disposition, first finding that the
Eleventh Amendment barred recovery of damages against state officials under
II. AN OVERVIEW OF THE STATUTES GOVERNING INVOLUNTARY COMMITMENT PROCEDURES
We begin by reviewing the statutory framework applicable to involuntary hospitalization and not guilty by reason of insanity pleas before addressing the substance of Duckett’s issues on appeal.
A. THE STATUTORY PROCEDURES REQUIRED FOR INVOLUNTARY HOSPITALIZATION FOLLOWING A FINDING OF NGRI
In Michigan, after a criminal defendant pleads not guilty by reason of insanity or is
acquitted by reason of insanity, the trial court must commit the defendant to the custody of the
CFP for an initial inpatient diagnostic period not exceeding 60 days. See
If the prosecuting attorney files a petition pursuant to
second order of involuntary mental health treatment if the treatment provider believes “the
individual continues to be a person requiring treatment” and the individual “is likely to refuse
treatment on a voluntary basis when the order expires.”
An order to continue involuntary hospitalization is, thus, limited to a one-year duration.
Id. But if petitions for continuing orders for mental health treatment continue to be filed under
In addition to this annual review, every patient subject to a one-year continuing
hospitalization order must receive a psychological reevaluation six months after entry of the one-year order. See
B. AUTHORIZED LEAVE STATUS
NGRI patients under a hospitalization treatment order are not necessarily physically
confined in a psychiatric hospital. A patient may be approved for leaves or absences from the
hospital in accordance with established rules and procedures. See
A patient’s failure to comply with the terms of the ALS contract can result in revocation
of authorized leave status and subsequent rehospitalization. Noncompliance warranting
rehospitalization is not necessarily tied to misconduct but can include, among other things, failing
to take
If a patient under an ALS contract is returned to the hospital,
(1) An individual is subject to being returned to a hospital if both of the following circumstances exist:
(a) The individual was admitted to the hospital by judicial order.
(b) The individual has left the hospital without authorization, or has refused a lawful request to return to the hospital while on an authorized leave or other authorized absence from the hospital.
* * *
(3) An opportunity for appeal, and notice of that opportunity, shall be provided to an individual who objects to being returned from any authorized leave in excess of 10 days. [
MCL 330.1408(1) and(3) .]
A corresponding Court Rule,
An appeal of a rehospitalization order must be filed within seven days, and a hearing must
be scheduled to occur within seven days of receipt of the individual’s request for an appeal.
and the seven days within which the court must schedule and hold a hearing after receiving the
individual’s request for a hearing.
We turn to the question of whether the Mental Health Code endows Duckett with a liberty interest related to the revocation of authorized leave during an involuntary hospitalization subject to due process protections.
III. DUCKETT’S DUE PROCESS CLAIM
Duckett first contends that Solky violated his right to due process of law by revoking his ALS without notice of his right to appeal. We review this legal question de novo. Sandstone Creek Solar, LLC v. Benton Twp, 335 Mich App 683, 712; 967 NW2d 890 (2021) (citation omitted). We also review de novo a trial court’s interpretation and application of statutes and court rules. Id. at 698, 712 (citations omitted).
A. LEGAL STANDARD FOR DUE PROCESS
The Fourteenth Amendment prohibits the State from depriving a person of
Regarding the second question, the fundamental requirement of due process is the opportunity to be heard at a meaningful time and in a meaningful manner. In re KB, 221 Mich App 414, 419; 562 NW2d 208 (1997). To determine what due process requires in a particular situation, the court must consider three factors:
(1) the interest that will be affected by the official action; (2) the risk of an erroneous deprivation of that interest through the procedures used and the probable value that additional or substitute safeguards would have; and (3) the government’s interest, including the function involved as well as the fiscal and administrative burdens that the additional or substitute procedures would require. [Id., citing Dobrzenski v. Dobrzenski, 208 Mich App 514, 515; 528 NW2d 827 (1995), and In re Attorney Fees of Jacobs, 185 Mich App 642, 645; 463 NW2d 171 (1990).]
B. DUE PROCESS PROTECTS AN INVOLUNTARILY HOSPITALIZED PERSON’S LIBERTY INTEREST IN AUTHORIZED LEAVE STATUS
The first inquiry in analyzing an alleged due process violation is whether the individual has a liberty interest subject to due process protections. See Thompson, 490 US at 460. In accord with binding case law, the parties do not dispute that an involuntarily hospitalized person has a liberty interest tied to authorized leave.
Involuntary confinement for the treatment of mental illness is a “massive curtailment of liberty.” Humphrey v. Cady, 405 US 504, 509; 92 S Ct 1048; 31 L Ed 2d 394 (1972). “There can be no doubt that involuntary commitment to a mental hospital, like involuntary confinement of an individual for any reason, is a deprivation of liberty which the State cannot accomplish without due process of law.” O’Connor v. Donaldson, 422 US 563, 580; 95 S Ct 2486; 45 L Ed 2d 396 (1974) (BURGER, C.J., concurring). And “it appears settled that the revocation of a conditional release from hospitalization involves a liberty interest that should be afforded due process.” In re KB, 221 Mich App at 419 (citations omitted). Accordingly, Duckett’s authorized leave status was a conditional release from hospitalization and therefore entitled to due process protections.
We next consider the procedures necessary to satisfy due process, and whether the procedure in place meet due process standards. See Morrissey, 408 US at 481. Due process is flexible and calls for such procedural protections as the particular situation demands. Id. Fundamentally, “[d]ue process requires that a party receive notice of the proceedings against it and a meaningful opportunity to be heard.” Sandstone Creek Solar, LLC, 335 Mich App at 712, citing Bonner v. Brighton, 495 Mich 209, 235; 848 NW2d 380 (2014).
Here, the procedures in place satisfied due process requirements. By mandating notice and
an expeditious opportunity to appeal, the statute and the Court Rule mitigate the risk of an
erroneous deprivation of liberty by allowing for a prompt appeal of the decision to revoke ALS,
appointing counsel, and holding a hearing before the probate court. The court must notify the
person’s attorney or appoint a new attorney,
When Solky revoked Duckett’s authorized leave status and reinterned him at the hospital,
Solky and CFP did not follow the procedures in
We reject Solky’s argument that the probate hearing remedied the due process violation for two reasons. First, the hearing addressed a different question than would an appeal of an ALS revocation. The issue at the probate hearing was whether Duckett required involuntary mental
health treatment at that time, not whether Duckett could continue to receive his involuntary mental health treatment outside of a hospital setting. Second, even if we accept that the issues at these two types of hearings are effectively the same—which they are not—the hearings addressed Duckett’s mental health at different times. An appeal of the ALS revocation would have focused on Duckett’s mental health condition on September 27, 2017. The hearing conducted on his petition for release inquired into his mental health on April 13, 2018, six and a half months later.
The statutorily-required deadlines and reviews reflect that mental health is dynamic,
particularly for those who suffer from severe mental health conditions. Duckett’s treatment needs
on September 27, 2017 may have been very different from those displayed at the later hearing.
The procedures contained in
C. MORRISEY V BREWER DOES NOT APPLY TO AUTHORIZED LEAVE FOR INVOLUNTARILY HOSPITALIZED PERSONS
In Morrissey, the United States Supreme Court held that a hearing must be held for the parolee before revocation of parole. Morrissey, 408 US at 482-484. “The essence of parole is release from prison, before the completion of sentence, on the condition that the prisoner abide by certain rules during the balance of the sentence.” Id. at 477. “[T]he liberty of a parolee, although indeterminate, includes many of the core values of unqualified liberty and its termination inflicts a ‘grievous loss’ on the parolee and often on others.” Id. at 482. The Morrissey Court concluded that a parolee’s liberty “is valuable and must be seen as within the protection of the Fourteenth Amendment,” so “[i]ts termination calls for some orderly process, however informal.” Id. The Court also described the typical conditions of parole:
To accomplish the purpose of parole, those who are allowed to leave prison early are subjected to specified conditions for the duration of their terms. These conditions restrict their activities substantially beyond the ordinary restrictions imposed by law on an individual citizen. Typically, parolees are forbidden to use liquor or to have associations or correspondence with certain categories of undesirable persons. Typically, also they must seek permission from their parole officers before engaging in specified activities, such as changing employment or living quarters, marrying, acquiring or operating a motor vehicle, traveling outside the community, and incurring substantial indebtedness. Additionally, parolees must regularly report to the parole officer to whom they are assigned and sometimes they must make periodic written reports of their activities. [Id. at 478.]
These conditions, although restrictive on a parolee’s freedom, constitute an implicit promise “that the parolee is entitled to retain his liberty as long as he substantially abides by the conditions of his parole.” Morrissey, 408 US at 479. The Morrissey Court held that when a state intends to revoke parole, it must provide a hearing that, although the procedure may be informal,
must include the following minimum requirements of due process for parole revocation proceedings:
(a) written notice of the claimed violations of parole; (b) disclosure to the parolee of evidence against him; (c) opportunity to be heard in person and to present witnesses and documentary evidence; (d) the right to confront and cross-examine adverse witnesses (unless the hearing officer specifically finds good cause for not allowing confrontation); (e) a “neutral and detached” hearing body such as a traditional parole board, members of which need not be judicial officers or lawyers; and (f) a written statement by the factfinders as to the evidence relied on and reasons for revoking parole. [Id. at 489.]
Here, the question is whether the liberty interest tied to authorized leave from involuntary hospitalization is sufficiently similar to the liberty interest associated with parole such that Morrissey’s procedural requirements apply. We hold that it is not.
Admittedly, there are some similarities between parole and administrative leave. The
Morrissey Court described some typical conditions of parole, including restrictions on the
parolee’s use of alcohol, and the need to seek permission from a parole officer to engage in certain
activities such as “changing employment or living quarters”
The primary difference is that the purpose of involuntary hospitalization is treatment, not punishment. Rouse v. Cameron, 125 US App DC 366, 367; 373 F2d 451 (1966).2 Second, administrative leave is a “therapeutic device in a program of medical treatment of a mentally ill person” that has no penal or deterrent aspects. See Dietrich v. Brooks, 27 Or App 821, 825; 558 P2d 357, 360 (1976). Imprisonment and parole, on the other hand, serve “penal and deterrent” functions. Id. Thus, “the basic purposes and societal expectations of each are fundamentally different.” Id. Third and most importantly, the natures of the revocation of administrative leave and revocation of parole are different. Revocation of parole results from a “willful and knowing violation of a condition or conditions imposed upon one previously convicted of having violated the criminal law,” while a decision regarding hospitalization or reinternment stems exclusively from medical necessity:
[T]his case is fundamentally different from those involving revocation of probation or parole. In the latter, revocation is based upon a finding that there has been a willful and knowing violation of a condition or conditions imposed upon one
previously convicted of having violated the criminal law. These people, at least presumably, are sane and their acts are the result of their own volition. They are not persons suffering from a condition or disease which requires continuing medical treatment.
In the case of mental patients, even more than in the case of patients suffering from physical ailments, a decision as to whether to keep the patient in the hospital or to discharge him must remain a medical one, to be decided by medical experts, based upon the mental condition of the patient and the necessity for hospital treatment, as determined by them. [Hooks v. Jaquith, 318 So 2d 860, 861 (Miss, 1975).]
Here, the revocation of Duckett’s administrative leave was tied exclusively to his treatment
needs, even if the source of the revocation was misconduct.3 See
In sum, Morrissey does not apply and a hearing related to the revocation of a patient’s
administrative leave, like Duckett’s ALS contract, need not include the specific protections
articulated by the Morrissey Court. The provisions of
IV. DUCKETT’S REMEDIES
A. GENERAL LEGAL PRINCIPLES
Duckett’s amended complaint seeks damages against Solky in both her individual and official capacities, and an injunction. We hold that damages are available for the individual capacity suit only, and that injunctive relief is precluded on immunity grounds.
Neither states nor state officials acting in an official capacity may be sued under
Thus, Duckett’s claim for money damages against Solky in her individual capacity is not precluded under § 1983. Thomas, 239 Mich App at 643 n 6. To the extent the circuit court concluded otherwise, the circuit court erred. Damages against Solky in her official capacity, however, are barred. See Will, 491 US at 58; Thomas, 239 Mich App at 643 n 6.
Sovereign immunity also bars Duckett’s claim for prospective injunctive relief in light of Ex Parte Young, 209 US 123; 28 S Ct 441; 52 L Ed 714 (1908). Our Supreme Court has described the central holding in Young as follows:
Ex parte Young, supra, helped to lay the groundwork for the Supreme Court‘s development of the concept of official-versus personal-capacity suits. In Young, the Court carved out an exception to the
Eleventh Amendment‘s prohibition against suing a state in federal court. … The Supreme Court, … found that the Eleventh Amendment did not preclude official-capacity suits for injunctive relief because such suits “stripped” an official of his “official or representative character,” thus exposing only the individual occupying the office to liability. [Smith v. Dept of Pub Health, 428 Mich 540, 583, 585; 410 NW2d 749 (1987)]
Ex Parte Young applies, however, only when a complaint “alleges an ongoing violation of federal law and seeks relief properly characterized as prospective.” Ladd v. Marchbanks, 971 F3d 574, 581 (CA 6, 2020) (quotation marks and citation omitted). “ ‘Past exposure to illegal conduct does not in itself show a present case or controversy regarding injunctive relief . . . if unaccompanied by any continuing, present adverse effects.’ ” Los Angeles v. Lyons, 461 US 95; 103 S Ct 1660; 75 L Ed 2d 675 (1983), quoting O’Shea v. Littleton, 414 US 488, 495-496; 94 S Ct 669; 38 L Ed 2d 674 (1974). Courts should assume that, absent an official policy or practice encouraging unconstitutional behavior, individual government officials will act constitutionally. Lyons, 461 US at 102-103; O’Shea, 414 US at 495-496.
Duckett has not shown an ongoing violation of federal law. The allegations in Duckett’s complaint center on past violations and do not describe any future risk of harm. Duckett also fails
to allege the existence of an official policy or practice, and does not suggest that the alleged conduct is likely to occur again. Absent such allegations, this Court assumes that Solky will act to avoid future constitutional violations. Lyons, 461 US at 102-103; O’Shea, 414 US at 495-496. The possibility that Duckett will again be deprived of procedural due process is too speculative to justify injunctive relief or to deem the alleged activity an ongoing violation of federal law.
B. THE NATURE OF THE DAMAGES TO WHICH DUCKETT IS ENTITLED
We first consider whether Duckett’s damages claim is moot given that he remains hospitalized. This Court generally does not address moot questions or declare legal principles that have no practical effect in a case. Adams, ___ Mich App at ___; slip op at 4 (citation omitted). An issue is rendered moot when “an event has occurred that renders it impossible for the court to grant relief. An issue is also moot when a judgment, if entered, cannot for any reason have a practical legal effect on the existing controversy.” Id. (quotation marks and citation omitted). We may, however, review moot issues if they are “publicly significant, likely to recur, and yet likely to evade judicial review.” Id. (quotation marks and citation omitted).
The mootness doctrine does not bar Duckett’s claim for nominal damages. The federal courts have held that a violation of one’s procedural due process rights is actionable for nominal damages, even absent proof of actual injury. Carey v. Piphus, 435 US 247, 266; 98 S Ct 1042; 55 L Ed 2d 252 (1978); Uzuegbunam v. Preczewski, ___ US ___, ___; 141 S Ct 792, 796, 800; 209 L Ed 2d 94 (2021); see also Franklin v. Aycock, 795 F2d 1253, 1264-1265 (CA 6, 1986) (explaining that if a plaintiff shows that his procedural due process rights were violated but the defendant disproves causation, the plaintiff is still entitled to nominal damages). Additionally, a claim for nominal damages may generally “go forward in an otherwise-moot case . . . .” Morrison v. Bd. of Ed. of Boyd Co., 521 F3d 602, 611 (CA 6, 2008) (citations omitted); see also Ermold v. Davis, 855 F3d 715, 719 (CA 6, 2017) (“Claims for damages are largely able to avoid mootness challenges.”). We adopt these holdings.
Duckett had a due process right to notice of the opportunity to appeal his return to the hospital, and for a hearing. Accordingly, Duckett is entitled to nominal damages and his claim for damages against Solky in her individual capacity is not moot. Carey, 435 US at 266; Uzuegbunam, ___ US at ___; 141 S Ct at 796, 800.
Solky’s objection to a nominal damage award rests on her assertion that Duckett did not
specifically request nominal damages in his amended complaint. Although Duckett’s amended
complaint does not use the term “nominal damages,” he included a catchall provision requesting
“such other further relief as this Court deems just and efficient under the circumstances of this
case.” This catchall provision sufficiently requests an award of nominal damages, and such an
award may be justified by the circumstances of this case. Additionally, Duckett is entitled to
amend his complaint to specifically allege a claim for nominal damages should he choose to do
so. See
Solky next contends that even if Duckett is entitled to nominal damages for a “technical violation of the due-process clause” and his claim not moot, remanding would be an “improper waste of judicial resources” on “such grounds.” None of the cases on which Solky relies involve nominal damages in the context of a due process violation. To deny Duckett the possibility of
nominal damages is to leave unredressed Solky’s failure to follow clearly delineated statutory requirements for individuals on authorized leave who are returned to the hospital. Judicial resource are not “wasted” in fashioning a nominal form of relief.
V. CONCLUSION
Duckett established a procedural due process violation justifying relief under
/s/ Noah P. Hood
/s/ Stephen L. Borrello
/s/ Douglas B. Shapiro