We are asked to determine whether conducting the hearing at the hospital rather than at a court house violated M.C.'s right to due process, particularly in light of the malfunctioning recording equipment. In addition, we must decide whether his right to due process was violated when the Appellate Division of the Boston Municipal Court denied M.C.'s motion to vacate the commitment order, in particular given the irregular recording procedures and the absence of a complete, verbatim transcript.
We conclude that the available transcript provides an adequate basis for appellate review and contains evidence sufficient to support M.C.'s involuntary commitment. On this record, we conclude that M.C. was not denied due process of law. At the same time, however, we emphasize that a judge presiding over a civil commitment hearing pursuant to G. L. c. 123, § 5, retains the discretion
1. Background. The following facts are not disputed. In May 2016, M.C. was arraigned in the District Court on charges of breaking and entering and misdemeanor wanton destruction of property. He was released on personal recognizance. When M.C. appeared in court in August 2016, a competency hearing pursuant to G. L. c. 123, § 15 (a ), was ordered to determine whether M.C. was able to stand trial. That same day, the court ordered that M.C. be temporarily committed without bail and sent to the Worcester Recovery Center and Hospital for evaluation, pursuant to G. L. c. 123, § 15 (b ). Ultimately, M.C. was released with the condition that he abstain from drugs and alcohol and report to the probation department in person twice a
In January 2017, M.C. again was found incompetent to stand trial. That same day, the Commonwealth filed a petition under G. L. c. 123, § 16 (b ), to extend the prior order of commitment. Later that month, a District Court judge yet again found M.C. incompetent to stand trial, further extended the order of commitment, and granted a request to change venue to the Boston Municipal
The day before the rescheduled hearing, M.C. filed a motion to conduct the hearing at the Boston Municipal Court rather than at Solomon Carter. See G. L. c. 123, § 5 ("The court may hold the hearing [at a court house or] at the facility or said hospital").
The Boston Municipal Court judge conducted the hearing on civil commitment in a "hearing room" on the seventh floor of the Solomon Carter facility. In an affidavit, M.C.'s hearing counsel described the room as follows:
"The room provided for the mental health proceeding contains two long rectangular tables for counsel, the respondent and the attending doctor which faced one long rectangular table where the judge sits. "There are 4-5 chairs lined up behind 'counsel tables,' a chair at the end of the judge's table for the clerk, and a chair approximately diagonal from counsel table where the court officer sits. There is an American flag behind the judge's table."
Initially, the hearing was recorded using a recording device whose batteries had not been replaced in some time. The recorder stopped functioning after the hearing began. When he learned of the equipment failure, M.C. moved orally that the remainder of the hearing be conducted at a court house. The motion was denied. Alternate devices then were used to record the majority of the hearing. These devices included an assistant clerk-magistrate's personal iPhone cellular telephone and a cassette tape recorder.
In combination, the substitute recording devices enabled production of a transcript detailing most, but not all, of the hearing, punctuated by some breaks and inaudible sections. The recorded portions of the hearing include the testimony of the sole witness (an inpatient psychiatrist on the inpatient unit at Solomon Carter);
The inpatient psychiatrist testified that she had observed M.C. at Solomon Carter approximately five days per week. During this period, she saw him exhibit disorganized behavior, paranoia, and hallucinations. On four occasions, M.C. engaged in violent behavior that required physical and chemical restraints. M.C. was restrained on four different occasions after throwing a metal laundry hamper; punching a glass window; punching a glass window and kicking a door; and throwing a tray, spitting at staff, and attempting to assault a female patient. The psychiatrist testified that, on one occasion during his temporary commitment for evaluation, she noticed that M.C. had a black eye. When asked about the injury, M.C. explained that he had punched himself.
The psychiatrist testified also that, on one occasion, M.C. defecated on himself and then refused to shower. At other times, M.C. had "been throwing coffee and food on the walls of his room," and had "thrown coffee at the ceiling." The psychiatrist testified further that M.C. clogged his toilet with socks and towels; had "been spitting on the kitchen tables, where he knows other patients eat;" and "also [had]
Overall, the psychiatrist testified that, in her opinion, if M.C. were to be discharged on the day of the hearing, he would pose a substantial risk of harm to himself as a result of his mental illness. She based this opinion on M.C.'s demonstrated limited ability to care for himself, as evidenced by hygiene issues and poor oral intake. The psychiatrist testified further that M.C.'s attempts to assault a female patient and demonstrated history of throwing large objects would place other people in fear of serious physical harm. The psychiatrist did not believe that there was any less restrictive setting than inpatient hospitalization in which M.C. would not pose a substantial risk of serious harm to himself or others as a result of his mental illness.
At the close of the evidence, the judge found beyond a reasonable doubt that M.C. suffered from schizophrenia and that, if not committed, he would pose a significant, imminent risk of harm to
2. Postcommitment proceedings. After M.C.'s period of commitment expired, he filed a motion pursuant to Mass. R. Civ. P. 60 (b),
M.C. was discharged in August 2017, before his appeal was heard. Asserting improper service of process and arguing that M.C.'s appeal was moot following his release, Solomon Carter moved to dismiss the appeal pursuant to G. L. c. 123, § 9A. After a hearing in September 2017, the Appellate Division of the Boston Municipal Court allowed Solomon Carter's motion to dismiss, on the ground that M.C.'s appeal was moot because the order of commitment had expired. In November 2017, M.C. filed a notice of appeal to the Appeals Court from the Appellate Division judgment. We granted direct appellate review.
3. Discussion.
"[L]itigation is considered moot when the party who claimed to be aggrieved ceases to have a personal stake in its outcome." Seney v. Morhy,
b. Due process. M.C. asserts that his rights to a fair trial and appeal were violated when the Boston Municipal Court judge allowed the civil commitment hearing to proceed after learning of the malfunction of the recording device, thereby resulting in the use of irregular recording equipment and the consequent production of an incomplete transcript.
An individual facing involuntary commitment under G. L. c. 123, §§ 7 and 8, has the right to notice and a hearing, the right to an attorney, the right to introduce evidence, the right to an independent medical evaluation, and the right to cross-examine witnesses. See G. L. c. 123, § 5 ; Matter of E.C.,
An individual subject to civil commitment proceedings under G. L. c. 123, § 16, "is entitled to a 'record of sufficient completeness to permit proper consideration of his claims [on appeal].' " Commonwealth v. Imbert,
When portions of a transcript are unavailable or otherwise incomplete "through no fault of the parties," then "'rough accommodations' in the method in which an appeal is presented are constitutionally permissible." Commonwealth v. Harris,
We consider the existing record in this case as sufficient to permit appellate review and to enable proper disposition of M.C.'s appeal. There is "enough in the record pertinent to the point to enable us to decide [this appeal] without resort to speculation." Commonwealth v. Bottiglio,
The record also contains sufficient evidence to support the psychiatrist's conclusion that M.C.'s release could pose an imminent risk of danger, based on his repeatedly demonstrated use of physical force against others and himself. See Commonwealth v. Nassar,
Finally, the evidence at the hearing also was sufficient to support the judge's determination that "no less restrictive alternative to hospitalization is appropriate." Newton-Wellesley Hosp.,
Overall, the available record demonstrates the existence of sufficient evidence to commit M.C. involuntarily pursuant to G. L. c. 123, § 16 (b ).
We do not agree with M.C.'s assertion that the motion judge committed legal error in denying M.C.'s motion under Mass. R. Civ. P. 60 (b) for relief from judgment after the judge learned that M.C. had not received a verbatim transcript of the civil commitment hearing.
Here, the incomplete transcript resulted from an equipment malfunction that was not the fault of either party. As the motion judge noted, even court houses equipped with new recording systems occasionally experience recording equipment
Here, the record is adequate to determine the merits of the underlying issue, in other words, to provide the defendant and his counsel a sufficient record upon which to challenge the findings and rulings. Neither party disputes the validity of the transcription of the testimony that actually was recorded, and M.C. does not assert an effort at deliberate concealment of a portion of the proceedings. Beyond pointing out the existence of gaps in the recording, M.C. does not establish how the unrecorded content prejudiced him in the context of these proceedings. There is no dispute as to the existence of a twenty-minute unrecorded segment of the hearing. With respect to this unrecorded segment, however, Solomon Carter agrees that "there is no controversy over the items M.C. identifies as missing." Solomon Carter also "agrees that M.C.'s objection to continuing the hearing [is] preserved." The existence of other gaps and pauses noted on the transcript do not outweigh the strength of the testimony that was recorded, or the validity of the result to be drawn from it.
We discern no error in the Appellate Division's conclusion that the steps taken by the motion judge to initiate backup recording of the hearing were "appropriate and reasonable."
"When it was discovered by the clerk, who alerted me, that the new digital recording recorder was not operating, the supplementation of that device, first by the iPhone and then by the cassette recorder, both were done openly andwith the sole intent to see to it that the proceeding was substantially recorded as best as possible under the circumstances."
The judge further explained that the clerk-magistrate had used his iPhone at the initial commitment hearing "with [the judge's] authority, in an attempt to keep the hearing progressing," and only "because the primary device to record the proceedings had failed."
c. Open proceedings. There is no evidence in the record to indicate that members of the public were prevented, or would have been prevented, from attending the civil commitment hearing. There is, however, some suggestion of a misconception that civil commitment proceedings are by nature closed and hidden from public view.
In Kirk,
d. Superintendence authority. At present, the Boston Municipal Court and District Court standards of judicial practice
"[h]earings may be conducted away from the courthouse and at the petitioning mental health facility or Bridgewater State Hospital. G. L. c. 123, § 5. Normally it is desirable to do so if appropriate decorum, security, recordation and public access are available."
General Laws c. 123, § 5, authorizes, but does not require, a motion judge to conduct civil commitment hearings under G. L. c. 123, §§ 7 and 8, at a mental health facility rather than at a court house. General Laws c. 123, § 5, provides a judge with flexibility to determine the location of a civil commitment hearing under G. L. c. 123, §§ 7 and 8. The statute obligates the court to provide "[n]otice of the time and place of [the] hearing ... to the department, the person, his counsel, and his nearest relative or guardian," G. L. c. 123, § 5, and states that "[t]he court may hold the hearing at the facility or said hospital," id. "The use of the word 'may' in a statute is generally permissive, reflecting the Legislature's intent to grant discretion or permission to make a finding or authorize an act." Commonwealth v. Dalton,
Ensuring adequate protection of due process rights of all individuals subject to civil commitment hearings is necessary to "the furtherance of justice, the regular execution of the laws, the
We expect that the Chief Justice of the Boston Municipal Court and Chief Justice of the District Court will modify, as appropriate, the Boston Municipal Court and District Court Standards of Judicial Practice for Civil Commitment and Authorization of Medical Treatment for Mental Illness in accordance with this decision, paying special attention to ensuring that civil commitment hearings are open to the public and are adequately recorded.
Judgment affirmed.
Notes
We acknowledge the amicus briefs of Aaron Needle, Benjamin Levy, the Western Massachusetts Recovery Learning Community, and the National Association for Rights Protection and Advocacy; the Massachusetts Psychiatric Society, Inc., Massachusetts Association of Behavioral Health Systems, Massachusetts Hospital Association, and Massachusetts Ambulance Association; Wayne Ramsay on behalf of the Law Project for Psychiatric Rights, Inc.; Thomas F. Schiavoni; the Judge David L. Bazelon Center for Mental Health Law, the American Association of People with Disabilities, the Association of University Centers on Disabilities, and the National Council on Independent Living; and the Committee for Public Counsel Services, Center for Public Representation, Mental Health Legal Advisors Committee, and Disability Law Center.
General Laws c. 123, § 7 (c ), provides in part: "The hearing on a petition brought for commitment pursuant to [§ 15 (e ) ] and [§§] 16 and 18 ... shall be commenced within [fourteen] days of the filing of the petition, unless a delay is requested by the person or his counsel."
It is not disputed that the Solomon Carter Health Center is a "facility" within the meaning of G. L. c. 123, §§ 1 and 15 (b ).
In his brief, M.C. argues that the hearing room environment was "inadequate," but does not specify his concerns with respect to the room itself. We note that, to the extent described in an affidavit by a mental health attorney, the layout described appears to conform largely to standards propagated by the District Court. See Standard 4:00 & commentary of the Standards of Judicial Practice: Civil Commitment and Authorization of Medical Treatment for Mental Illness (rev. Dec. 2011).
M.C. contends, without reference to any supporting authority, that holding his civil commitment hearing at Solomon Carter rather than a court house denied him the equal protection of the laws under the United States and Massachusetts Constitutions. We are unaware of any authority that suggests that an individual has an equal protection right to select the physical location of a commitment hearing, and we note that the statute explicitly contemplates hearings in a hospital. See G. L. c. 123, § 5. In any event, the record does not contain sufficient factual information to enable us to address an equal protection argument. "Where constitutional questions and matters of asserted public policy are raised, it is preferable to pass on the issues in light of a fully developed trial record rather than, as here, in the abstract." Doe v. Doe,
The standard of proof under the Massachusetts Constitution is higher than the minimum standard of "clear and convincing" evidence under the United States Constitution. See Addington v. Texas,
M.C. also argues that the four cassette tapes he received containing audio recordings of the hearing do not qualify as "a cassette copy of an original recording, or any portion thereof," of the hearing on the petition for civil commitment, as provided by Special Rule 308(A)(5)(a) of the Boston Municipal Court Department Sitting for Civil Business (1989). This distinction, however, is immaterial.
During the April 2017 hearing on M.C.'s motion under Mass. R. Civ. P. 60 (b),
"These proceedings are not open to the public. They are held here in a hearing[ ] room in the hospital where the public generally cannot walk into. They are conducted generally with the patient, attorneys, family members and needed security and medical personnel present."
As noted supra, civil commitment proceedings under to G. L. c. 123, § 16 (b ), are presumptively open to the public.
At the same time, "[a]s is the case in criminal trials, the right of the public to attend the hearings is not absolute. See Kirk v. Commonwealth,
General Laws c. 123, § 5, provides, in relevant part:
"Whenever the provisions of this chapter require that a hearing be conducted in any court for the commitment or further retention of a person to a facility or to the Bridgewater state hospital or for medical treatment including treatment with antipsychotic medication, it shall be held as hereinafter provided.... Notice of the time and place of hearing shall be furnished by the court to the department, the person, his counsel, and his nearest relative or guardian. The court may hold the hearing at the facility or said hospital."