After a hearing before the Merrimack County Probate Court (Hampe, J.), thе respondent, Richard A., was involuntarily admitted to New Hampshire Hospital. On appeal, the respondent asks us to determine whether an attorney appointed to represent an indigent client in an involuntary commitment proceeding under RSA chapter 135-C (1996 & Supp. 1997) must pursue an appeal оn behalf of the client when the attorney has concluded that
On December 14, 1997, the respondent was admitted to New Hampshire Hospital on an involuntary emergency admission petition. See RSA 135-C:27, :32 (1996). Thereafter, New Hampshire Hospital filed a petition seeking the respondent’s involuntary admissiоn. See RSA 135-C:34-:54 (1996). Counsel was appointed to represent the respondent. See RSA 135-C:22 (1996).
On January 6, 1998, the court held a hearing on the petition. A court-appointed psychiatrist certified that the respondent suffered from a “severe psychotic illness” which constituted “a mental illness within the meaning of [RSA chapter 135-C].” He noted that the respondent had been admitted in December 1997 after barricading himself in a room with a hatchet. The psychiatrist found the respondent to be delusional and recounted the respondent’s statements that he intended to swallow coins in order to force medical personnel to x-ray him, whereupon, he asserted, they would discover the monitors and transmitters the FBI had implanted in his body. At the conclusion of the hearing, the court ordered that the respondent be “admitted to [New Hampshire] Hospital ... on an involuntary basis . . . for a period not to exceed one year with a conditional discharge as soon as appropriate.”
The respondent informed his lawyer that he wished to appeal the order. Counsel, however, concluded that an appeal would be frivolous and asked the probate court to certify two issues to this court: (1) “Whether an indigent respondent in an involuntary admission proceeding is entitled to representation by counsel during the appellate process . . and (2) “Whether the appointed counsel, in a post judgment proceeding of a mentally ill, but not incapacitated, client is bound, obligated or governed by the standard enunciated in State v. Cigic,
The fundamental issue presented here concerns the tension between the availability of appellate review by this court and aрpellate counsel’s ethical obligation not to raise frivolous issues. The United States Supreme Court resolved this issue in criminal cases under the Fourteenth Amendment to the Federal Constitution
In State v. Cigic, we decided, consistent with a number of other States, to reject the procedure set out in Anders. Cigic,
The respondent argues that, as a matter of due рrocess, we should extend Cigie to appeals of involuntary commitment proceedings. The respondent correctly points out that, in determining the scope of the right to counsel granted by RSA 135-C:22 (1996), we have employed a due process analysis. See In re Scott L.,
As is our settled practice, we will analyze the due process issue in this case first under our own constitution, relying uрon federal case law only for guidance. See In re Eduardo L.,
First, the private interest that will be affected by the official action; second, the risk of an erroneous deprivation of such interest through the procedures used, and the probable value, if аny, of additional or substitute procedural safeguards; and finally, the Government’s interest, including the function involved and the fiscal and administrative burdens that the additional or substitute procedural requirement would entail.
In re Brown,
The private interests at stake in civil commitment proceedings, loss of liberty and social stigmatization, are substantial and parallel those at risk in the criminal context. See Scott L.,
In assessing the risk of an erroneous deprivation of the respondent’s liberty interest, we first observe that an individual cannot be involuntarily committed absent clear and convincing evidence that he or she “is in such mental condition as a result of mental illness as to create a potentiаlly serious likelihood of danger to himself or to others.” RSA 135-C:34 (1996); see In re Sanborn,
The statute also incorporates safeguards to preserve the ability of the named individual to meaningfully contest the petition. A copy of the examining psychiatrist’s repоrt must be made available no later than the day of the hearing. See RSA 135-C:41 (1996). At the hearing, the person subject to the petition has “the right to legal counsel, to present evidence on his own behalf, . . . and to cross-examine witnesses.” RSA 135-C:43 (1996). The person “shall also have the right to summon as a witness the [examining] psychiаtrist . . . and to cross-examine him.” Id. Thus, significant statutory safeguards exist to minimize the risk of erroneous deprivation of liberty due to civil commitment.
Even if a person is erroneously committed under RSA 135-C:34-:54, the statutory scheme provides mechanisms for immediate release not afforded criminal defendants. Specifically, the administrator of the facility treating an involuntarily committed person may grant the individual an absolute discharge at any time without court approval, as long as the person no longer requires the acute care provided by the facility. See RSA 135-C:49,1 (Supp. 1997). Moreover, “the layers of professiоnal review and observation of the patient’s condition, and the concern of family and friends generally will provide continuous opportunities for an erroneous commitment to be corrected.” Addington,
Finally, the governmental interest at stake weighs against an expansion of Cigic. The procedure authorized by Cigic requires the expenditure of substantial State resources, both in the full briefing required of State prosecutors аnd in the full appellate review of the appeal. An expansion of Cigic would be a further drain on these limited resources.
The respondent is entitled to no greater protection under the Federal Constitution. The United States Supreme Court has limited the applicability of the Anders procedure to direct appeals in criminal casеs where there is a constitutional right to counsel. See Smith,
Nor are we convinced that there is significant value in extending Cigic to civil commitment cases. We concluded in Cigic that the procedure we adopted therеin “preserves the integrity of the attorney-client relationship better than a strict adherence to Anders does.” Cigic,
While we conclude that the Cigic procedure required in criminal cases does not apply to an involuntary civil commitment case, we are mindful of the fact that involuntаry civil commitment does involve a loss of liberty. See Scott L.,
Accordingly, in involuntary civil commitment proceedings when a client clearly indicates to counsel a desire to appeal the commitment order and counsel concludes that the appeal is frivolous, counsel must first attempt to persuade the client not to appeal. If, however, the client insists on appealing, counsel should file the notice of appeal. To avoid violating Professional Conduct Rule 3.1, the notice of appeal should be accompanied by a motion to withdraw indicating that counsel has forwarded a copy of the notice of appeal to the client and has advisеd the client of the right to file a supplement to the notice of appeal raising any additional issues. In cases where counsel is appointed by the court, the responsibility to file the notice of appeal, whether or not the appeal has merit, is part of the represеntation under RSA 135-C:22. The notice of appeal should set forth all issues preserved for review including frivolous issues. If the only issue raised is sufficiency of the evidence, counsel should raise that issue and summarize the evidence introduced by both sides at trial.
In determining whether to accept the appeal, the court may require a responsive pleading, review the record of the probate court proceedings or take other appropriate action. The court may decline the appeal based solely upon the notice of appeal and any supplement offered by the respondent, because, as set forth herein, the Cigic procedures are not required by our State Constitution and the Anders procedures are not required by the Federal Constitution.
As applied to this particular case, we allow counsel for the appellant thirty days to file a notice of appeal from the commitment hearing or to take other appropriate action.
So ordered.