J.P. v. District of Columbia ( 2018 )

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DISTRICT OF COLUMBIA COURT OF APPEALS
No. 18-CT-404 07/26/2018
J.P., APPELLANT,
V.
DISTRICT OF COLUMBIA, APPELLEE.
Appeal from the Superior Court
of the District of Columbia
(TRC-3-18)
(Hon. John McCabe, Trial Judge)
(Argued May 3, 2018 Decided July 26, 2018)
Jaclyn S. Frankfurt, with whom Samia Fam and Mikel-Meredith Weidman
were on the brief, for appellant.
Holly M. Johnson, Assistant Attorney General, with whom Karl A. Racine,
Attorney General for the District of Columbia, Loren L. AliKhan, Solicitor
General, and Stacy L. Anderson, Acting Deputy Solicitor General, were on the
brief, for appellee.
Before GLICKMAN, EASTERLY, and MCLEESE, Associate Judges.
MCLEESE, Associate Judge: Appellant J.P. is a sixteen-year-old minor who
was prosecuted as an adult for alleged traffic offenses but has been declared
incompetent to stand trial. J.P. challenges the trial court‟s order requiring J.P. to
undergo inpatient mental-health treatment during the pendency of the District of
2
Columbia‟s petition to have J.P. civilly committed. J.P. argues that D.C. Code § 7-
1231.14 (a) (2018 Repl.) precludes the trial court from ordering J.P. to undergo
inpatient mental-health treatment absent consent from J.P.‟s parent or guardian.
This is an emergency appeal, and after briefing and oral argument the court issued
an emergency order on May 8, 2018, affirming the ruling of the trial court that the
consent requirement reflected in § 7-1231.14 (a) does not apply to criminal
defendants whose inpatient mental-health treatment has been ordered pursuant to
D.C. Code § 24-531.07 (a)(2) (2012 Repl.). In this opinion we explain the
reasoning underlying that emergency order.
I.
The criminal traffic charges against J.P. rest on the following allegations. In
February 2018, J.P., who did not have a driver‟s license, was driving a stolen truck
more than thirty miles per hour over the speed limit. During a police chase, J.P.
went through stop signs and drove the wrong way down a one-way street. J.P.
eventually got out of the truck and attempted to flee on foot. When police officers
caught J.P., he reached into his jacket pocket and turned toward a police officer
with a loaded .38-caliber gun in his hand.
3
J.P. was charged in this case as an adult for alleged criminal traffic offenses,
pursuant to D.C. Code § 16-2301 (3)(C) (2012 Repl.). In addition, the District
commenced juvenile proceedings against J.P. for alleged weapons and stolen-
property offenses arising out of the February 2018 incident. J.P. also has been the
subject of other Family Division proceedings. He was adjudicated a neglected
child in 2013 and committed to the care of the Child and Family Services Agency
(CFSA). J.P. has also been charged with delinquency offenses on several prior
occasions, but those cases were dismissed because J.P. was deemed incompetent to
stand trial and unlikely to attain competence. At the time of the February 2018
incident, J.P. had been missing for more than two months after he fled from a
shelter house.
Based on a stipulation between the parties, the trial court in this case found
that J.P. was incompetent and unlikely to attain competence. The trial court
therefore ordered that J.P. receive inpatient mental-health treatment pursuant to
D.C. Code § 24-531.06 (c)(4) (2012 Repl.) (if criminal defendant has been found
incompetent and unlikely to attain competence, trial court may order that defendant
receive inpatient mental-health treatment for up to thirty days pending filing of
petition for civil commitment). Because St. Elizabeths does not have a juvenile
wing and is not licensed to provide juvenile care, the District contracted with the
4
Psychiatric Institute of Washington (PIW) to provide for J.P.‟s inpatient mental-
health treatment pending civil-commitment proceedings.
After the District filed a petition seeking civil commitment of J.P., the trial
court ordered J.P.‟s continued inpatient mental-health treatment at PIW pending
the outcome of the civil-commitment proceeding, pursuant to § 24-531.07 (a)(2).
The trial court stated that inpatient mental-health treatment was most appropriate
for the safety of both the community and J.P.
J.P. filed an emergency motion for release, arguing that requiring him to
undergo inpatient mental-health treatment was unlawful under § 7-1231.14 (a),
because no parent or guardian had consented. The trial court denied the motion,
holding that notwithstanding § 7-1231.14 (a), § 24-531.07 (a)(2) authorizes
continued inpatient mental-health treatment of incompetent criminal defendants,
including minors being prosecuted as adults, during the pendency of a civil-
commitment proceeding.
II.
5
Generally, persons under the age of eighteen can only be charged as
juveniles under the delinquency provisions of Title 16. D.C. Code §§ 16-2301 (3),
(7); 16-2301.02 (2012 Repl.). In some circumstances, the District can move to
transfer a minor to the Criminal Division of the Superior Court for prosecution as
an adult. D.C. Code § 16-2307 (2012 Repl.) (permitting transfer where, inter alia,
minor who is at least fifteen years old is alleged to have committed felony offense).
Title 16 does not apply, however, to individuals who are sixteen or older and have
been charged with enumerated serious criminal offenses. D.C. Code § 16-
2301 (3)(A)-(B). Title 16 also does not apply to individuals who are sixteen or
older and have been charged with traffic offenses. D.C. Code § 16-2301 (3)(C),
(7). A sixteen-year-old charged with a traffic offense is therefore tried as an adult.
A criminal defendant cannot be prosecuted if incompetent to stand trial.
D.C. Code § 24-531.02 (a) (2012 Repl.). Title 24 lays out procedures applicable in
criminal cases where competency is at issue. D.C. Code §§ 24-531.01 to -.13
(2012 Repl.). Those procedures apply to adults, minors charged as adults, and
minors whom the District has moved to transfer for prosecution as adults. D.C.
Code § 24-531.01 (3), (8). If there is a question as to a defendant‟s competency,
the trial court may where appropriate order the defendant committed for an
inpatient examination. D.C. Code § 24-531.03 (e). The trial court also may order
6
an incompetent defendant to undergo inpatient treatment to restore competency.
D.C. Code § 24-531.04 (c)(3). If the trial court determines that a defendant is
incompetent and unlikely to attain competence, the court must “either order the
release of the defendant or, where appropriate, enter an order for treatment . . . for
up to 30 days pending the filing of a petition for civil commitment.” D.C. Code
§ 24-531.06 (c)(4). If a petition for civil commitment is filed within those thirty
days, “the court may either order that treatment be continued until the entry of a
final order in the civil commitment case or release the defendant from treatment.”
D.C. Code § 24-531.07 (a)(2).
J.P. relies on D.C. Code § 7-1231.14 (a) to contest the trial court‟s order for
inpatient mental-health treatment. That provision is one of several provisions in
the Mental Health Consumers‟ Rights Protection Act that address issues of consent
to mental-health treatment. E.g., D.C. Code §§ 7-1231.07, .08, .14 (2018 Repl.).
Section 7-1231.14 focuses on minors, defined as persons under eighteen who are
unmarried and unemancipated. D.C. Code § 7-1231.02 (18) (2018 Repl.).
Specifically, § 7-1231.14 outlines certain circumstances in which minors are
permitted to consent to particular types of mental-health treatment. As to inpatient
mental-health treatment of minors, however, § 7-1231.14 (a) generally requires
“consent of a parent or legal guardian.” (For ease of reference, we hereinafter use
7
the short-hand “parental consent.”) Section 7-1231.14 (a) makes exception for (1)
emergency hospitalization under D.C. Code § 21-521 et seq. (2012 Repl.); (2) civil
commitment under D.C. Code § 21-545; and (3) inpatient treatment conducted in
connection with juvenile and neglect proceedings, including for purposes of
determining and restoring competency, under D.C. Code §§ 16-2315, -2320, and
-2321. (Although § 7-1231.14 (a) refers to D.C. Code § 16-1321, the parties agree
that that is a typographical error and that the intended reference is to § 16-2321.)
Section 7-1231.14 (a) does not contain an exception for inpatient mental-health
treatment of minors being criminally prosecuted as adults.
III.
By its terms, § 24-531.07 (a)(2) authorizes the trial court to require J.P. to
undergo inpatient mental-health treatment during the pendency of the civil-
commitment proceeding. On the other hand, § 7-1231.14 (a) by its terms appears
to prohibit inpatient mental-health treatment for J.P. in the absence of parental
consent.1 Our task is to determine which of these seemingly conflicting provisions
1
As previously noted, § 7-1231.14 (a) is part of the Mental Health
Consumers‟ Rights Protection Act. Many of the provisions of that Act apply only
to “consumers,” who are defined as “adults, children, or youth who seek or receive
mental health services or mental health supports in the District of Columbia under
(continued . . .)
8
governs. We review questions of statutory interpretation de novo. Lopez-Ramirez
v. United States, 171 A.3d 169, 172 (D.C. 2017).
A.
For several reasons, we agree with the trial court that § 24-531.07 (a)(2)
governs in the present case. First, § 24-531.07 (a)(2) was enacted as part of a
chapter of the D.C. Code providing a general framework for criminal-competence
procedures. D.C. Code §§ 24-531.01 to -.13. Those procedures are plainly
intended to apply to minors who are being criminally prosecuted as adults. D.C.
Code § 24-531.01 (3) (defining “defendant” to include a person being criminally
prosecuted). In fact, the procedures are applicable to some minors who are
charged as juveniles, if there is a pending motion to transfer them for adult
prosecution. Id. (defining “defendant” to include “a respondent in a transfer
proceeding”).
(. . . continued)
Chapter 5 of Title 21 [of the D.C. Code], without regard to voluntary, non-
protesting, or involuntary status.” D.C. Code § 7-1231.02 (4). Section 7-
1231.14 (a) is not expressly so limited, instead referring more broadly to minors.
Because we conclude that § 7-1231.14 (a) is inapplicable on other grounds, we
need not and do not express a view about whether that provision should be
construed as limited to “consumers” and whether, if so, J.P. would qualify as a
consumer for purposes of the provision.
9
Second, imposing a parental-consent requirement on top of the criminal-
competency procedures makes little sense. The criminal-competency procedures
were designed to strike a balance between “public safety and defendants‟ rights.”
D.C. Council, Report on Bill 15-967 at 11 (Nov. 17, 2004). Granting parents full
veto power over the ability of a trial court to order inpatient mental-health
treatment of criminal defendants presenting competency issues would disrupt that
balance. That disruption would not be limited to the situation in which a minor
defendant has been determined to be incompetent and unlikely to attain
competence. Rather, on J.P.‟s theory, parental consent apparently would be
required before a trial court could order inpatient mental-health treatment either to
study whether the minor defendant is incompetent or to attempt to restore
competence. D.C. Code §§ 24-531.04, .05.
Third, imposing a parental-consent requirement in the context of minors
prosecuted as adults would have surprising consequences extending beyond
competency proceedings. For example, parental consent apparently would be
required before a trial court could order inpatient mental-health treatment of a
criminal defendant who was a minor: as a condition of pretrial release (D.C. Code
§ 23-1321 (c)(1)(B)(x) (2012 Repl.)); following an acquittal by reason of insanity
10
(D.C. Code § 24-501 (d)(1) (2012 Repl.)); as a condition of supervised release
(D.C. Code § 24-403.01 (b)(6) (2012 Repl.); 18 U.S.C.A. §§ 3583(d), 3563(b)(9)
(Westlaw through Pub. L. No. 115-182)); and as a condition of probation (D.C.
Code § 24-304 (a) (2012 Repl.)). Granting parents veto power over the ability of a
trial court to order inpatient mental-health treatment in those circumstances would
be very disruptive to the criminal process.
Fourth, imposing a parental-consent requirement in the context of minors
prosecuted as adults would create puzzling distinctions. For example, § 7-
1231.14 (a) by its terms does not require parental consent before the trial court can
order a minor charged with a juvenile offense to undergo inpatient mental-health
treatment to determine or restore competency. D.C. Code § 16-2315 (b)(2), (c)(2).
We recognize that in juvenile proceedings the trial court has a responsibility under
the parens patriae doctrine to protect the child‟s best interests, e.g., Kent v. United
States, 130 U.S. App. D.C. 343, 346, 401 F.2d 408, 411 (1968), whereas no such
responsibility exists in the context of criminal prosecution as an adult.
Nevertheless, it is difficult to understand why the Council would choose to permit
inpatient mental-health treatment without parental consent for juvenile respondents
but provide a parental veto for minors who are being criminally prosecuted as
adults.
11
Fifth, § 7-1231.14 (a)‟s parental-consent requirement does not appear to
have been directed at criminal proceedings. Rather, § 7-1231.14 largely focuses on
delineating the circumstances in which a minor can consent to receive voluntary
mental-health services and those in which a parent must give consent, so that the
minor‟s consent alone will not suffice. D.C. Code §§ 7-1231.14 (b)(1) (minor may
obtain certain voluntary outpatient mental-health services, other than
administration of medication, without parental consent), -1231.14 (c)(1)-(2)
(identifying circumstances in which minor‟s consent will suffice to permit
administration of psychotropic medication and circumstances in which parental
consent is required). Moreover, § 7-1231.14 (a) specifically carves out a number
of important contexts in which the trial court is authorized to order minors to
undergo inpatient mental-health services on an involuntary basis. See, e.g., D.C.
Code §§ 21-521 to -528 (procedures for emergency hospitalization); D.C. Code
§ 21-545 (order of civil commitment); D.C. Code § 16-2320 (order of commitment
after dispositional hearing in juvenile proceeding); D.C. Code § 16-2321
(procedure for detention of juvenile in appropriate facility after factfinding but
before dispositional hearing pending civil-commitment proceedings). Here too we
see no logical reason why the D.C. Council would have permitted trial courts in all
of these settings to order inpatient mental-health treatment without requiring
12
parental consent yet would require parental consent in the context of minors being
prosecuted as adults.
These considerations strongly support the conclusion that § 7-1231.14 (a)‟s
parental-consent requirement does not apply to orders entered under the trial
court‟s authority to handle criminal proceedings against minors.
B.
This case is not free from doubt, however, because J.P. raises a number of
counter-arguments, some of which do provide support for his contrary position.
On balance, though, we are persuaded that the trial court correctly ruled that
parental consent was not required in this case.
First, J.P. points out that § 7-1231.14 (a) provides several explicit exceptions
to the parental-consent requirement, but does not include an exception for § 24-
531.07 (a)(2). J.P. thus argues that we should infer that the D.C. Council did not
intend additional implicit exceptions. J.P. invokes the established canon of
statutory construction “expressio unius est exclusio alterius”: “when a legislature
makes express mention of one thing, the exclusion of others is implied.” Odeniran
13
v. Hanley Wood, LLC, 985 A.2d 421, 427 (D.C. 2009) (internal quotation marks
omitted). That canon identifies a relevant consideration, but it is far from
dispositive. Id. (“[T]he expressio unius maxim must be applied with a
considerable measure of caution, [but] it is useful where the context shows that the
draft[ers‟] mention of one thing does really necessarily, or at least reasonably,
imply the preclusion of alternatives.”) (citation, ellipses, and internal quotation
marks omitted); Andrus v. Glover Constr. Co., 446 U.S. 608, 616-17 (1980)
(“Where Congress explicitly enumerates certain exceptions to a general
prohibition, additional exceptions are not to be implied, in the absence of evidence
of a contrary legislative intent.”). The Supreme Court has specifically emphasized
the canon‟s limits: “As we have held repeatedly, the canon expressio unius est
exclusio alterius does not apply to every statutory listing or grouping; it has force
only when the items expressed are members of an associated group or series,
justifying the inference that items not mentioned were excluded by deliberate
choice, not inadvertence.” Barnhart v. Peabody Coal Co., 537 U.S. 149, 168
(2003) (internal quotation marks omitted). The list of exceptions in § 7-
1231.14 (a) does not include any proceedings in which individuals are being
criminally prosecuted, although it does include delinquency proceedings in which
juveniles are alleged to have committed criminal acts. For the reasons we have
explained, we are convinced that the omission of criminal proceedings from the list
14
of explicit exceptions reflects an inadvertent failure to focus on the less typical
circumstance in which minors are subject to criminal prosecution as adults.
Second, J.P. argues that § 7-1231.14 (a) and § 24-531.07 (a)(2) are not
squarely incompatible, because the latter provision is permissive. In other words,
§ 24-531.07 (a)(2) provides that the trial court “may” order inpatient mental-health
treatment during the pendency of a civil-commitment petition but does not require
the trial court to issue such an order. In contrast, J.P. points out, § 7-1231.14 (a) is
mandatory: it prohibits inpatient mental-health treatment in the absence of parental
consent. Thus, a trial court can comply with both provisions by honoring the
prohibition in § 7-1231.14 (a). It is true that compliance with both provisions is
not “a physical impossibility.” Goudreau v. Standard Fed. Sav. & Loan Ass’n, 511
A.2d 386, 391 (D.C. 1986) (internal quotation marks omitted). Nevertheless, the
conflict between the two provisions “does not evaporate” simply because one is
permissive and one is mandatory. Id. (internal quotation marks omitted). To the
contrary, when one provision seems to permit what another provision seems to
forbid, courts have often treated the provisions as conflicting. See, e.g., RadLAX
Gateway Hotel, LLC v. Amalgamated Bank, 566 U.S. 639, 645-46 (2012)
(discussing situations “in which a general permission or prohibition is contradicted
by a specific prohibition or permission”). We take the same approach in the
15
present case. Our task is to determine the interpretation of both provisions that
best harmonizes them, taking into account their language; their context; their place
in the overall statutory scheme; their evident legislative purpose; and the principle
that statutes should not be construed to have irrational consequences. See, e.g.,
Lopez-Ramirez, 171 A.3d at 177 (in addition to statutory language, court must
consider “the legislative history and the larger statutory scheme”; court has
“reject[ed] a statutory interpretation that would lead to incongruous consequences
and was in tension with other statutes”) (internal quotation marks omitted); Office
of the People’s Counsel v. Pub. Serv. Comm’n, 163 A.3d 735, 740 (D.C. 2017)
(“[A] word in a statute may or may not extend to the outer limits of its definitional
possibilities. The meaning -- or ambiguity -- of certain words or phrases may only
become evident when placed in context. . . . We consider not only the bare
meaning of the word but also its placement and purpose in the statutory scheme.
Statutory interpretation is a holistic endeavor.”) (internal quotation marks omitted).
Third, J.P argues that it “transcends the judicial function” to read an implicit
exception into § 7-1231.14 (a). It is true that this court has sometimes said, in
categorical terms, that correcting legislative errors or omissions is not a proper
judicial function. See, e.g., Moore v. Gaither, 767 A.2d 278, 285 (D.C. 2001).
That is certainly the ordinary rule, but in practice the rule is not categorical.
16
Although the court does not reach such a conclusion lightly, the court has in certain
unusual circumstances concluded that a statute could not reasonably be interpreted
according to its explicit terms. See, e.g., Office of the People’s Counsel, 163 A.3d
at 739-41 (accepting Public Service Commission‟s conclusion that unqualified
language of notice provision was implicitly limited to certain proceedings);
Gilmore v. United States, 699 A.2d 1130, 1132 (D.C. 1997) (“[A] provision which
is the result of obvious mistake should not be given effect, particularly when it
overrides common sense and evident statutory purpose.”) (internal quotation marks
omitted). For the reasons we have explained in this case, we conclude that it does
not exceed the proper judicial role to reconcile the apparent conflict between § 7-
1231.14 (a) and § 24-531.07 (a)(2) by holding that the former provision‟s parental-
consent requirement does not apply to criminal defendants. To the contrary, we
understand ourselves to be permissibly performing the “classic judicial task of
reconciling . . . laws enacted over time, and getting them to „make sense‟ in
combination.” O’Rourke v. District of Columbia Police & Firefighters’ Ret. &
Relief Bd., 46 A.3d 378, 387 (D.C. 2012) (quoting United States v. Fausto, 484
U.S. 439, 453 (1988)).
Fourth, J.P. argues that § 7-1231.14 (a) should control because it is more
specific than § 24-531.07 (a)(2). See, e.g., Bolz v. District of Columbia, 149 A.3d
17
1130, 1143 n.30 (D.C. 2016) (“To the extent that two statutes conflict, the more
specific statute governs the more general one.”) (internal quotation marks omitted).
It can be difficult to determine which of two statutes is more general and which is
more specific. See, e.g., Larsen v. Bd. of Parole & Post-Prison Supervision, 138
P.3d 16, 21 (Or. Ct. App. 2006) (“We are mindful of the fact that it is not always
easy to discern which among statutes is the „general‟ and which the „specific‟
. . . .”). In the present case, each of the provisions at issue is more specific than the
other in some respects and more general than the other in some respects. Section
7-1231.14 (a) focuses more narrowly on minors, whereas § 24-531.07 (a)(2)
applies to adults and some minors. Section 24-531.07 (a)(2) focuses more
narrowly on criminal defendants, whereas § 7-1231.14 (a)(2) is not so limited. In
fact, § 24-531.07 applies to a very narrow category of criminal defendants: those
who have been deemed unlikely to attain competence and as to whom a petition for
civil commitment has been filed. All things considered, we conclude that § 7-
1231.14 (a) is not more specific than § 24-531.07 (a)(2).
Fifth, J.P. argues that imposing a parental-consent requirement in the present
context will not lead to irrational consequences, because the prosecutor in a
criminal case can have the defendant hospitalized on an emergency basis, under
D.C. Code §§ 21-521 to -528, or civilly committed, under D.C. Code § 21-545. To
18
the extent those alternatives are available in a given case, they would permit the
trial court to order inpatient mental-health treatment of a minor being prosecuted as
an adult without obtaining parental consent. The availability of those alternatives
thus does to a degree ameliorate the practical consequences of accepting J.P.‟s
position. It is not clear, however, whether those alternatives would typically be
available and practical in all of the various circumstances in which a trial court in a
criminal case could have a legitimate need to order inpatient mental-health
treatment of a minor being prosecuted as an adult. See supra pp. 9-10. In any
event, we do not view this consideration as sufficient to outweigh the other
considerations that lead us to affirm the trial court‟s ruling.
Sixth, J.P. argues that it is not irrational to require parental consent with
respect to inpatient mental-health treatment of minors being prosecuted as adults,
but not to impose such a requirement as to minors charged with juvenile offenses.
Specifically, J.P. argues that minors in juvenile proceedings are accorded greater
statutory protections with respect to the suitability of the facilities to which they
might be sent to receive inpatient mental-health treatment. See, e.g., D.C. Code
§ 16-2315 (b)(1) (juvenile may be admitted for inpatient treatment to “suitable
medical facility”). In J.P.‟s view, parental consent can help to ensure that minors
being prosecuted as adults are not sent to unsuitable facilities for inpatient mental-
19
health treatment. We do not find this contention persuasive. Various provisions
address the appropriateness of facilities to which minors prosecuted as adults may
be sent. See D.C. Code § 24-531.01 (6)(B), 10(D) (provisions specifying
requirements to qualify as “[i]npatient treatment facility” and “[t]reatment
provider”); D.C. Law 21-238, §§ 202-04, 63 DCR 15312, 15316-18 (Dec. 16,
2016) (to be codified at D.C. Code §§ 24-911 to -913) (establishing conditions of
confinement for “juveniles,” defined as “individual[s] under 18 years of age”).
Moreover, § 24-531.07 (a)(2) grants the trial court discretionary authority to order
inpatient mental-health treatment. In exercising that authority, the trial court
should take into account whether there is a suitable facility for such treatment. The
trial court in this case considered the suitability of available facilities in making its
determination, requiring the District to find an appropriate facility because St.
Elizabeths was not equipped with a juvenile wing.2 In any event, the blunt
2
J.P. argues that § 24-531.07 (a)(2) does not provide for suitable treatment
in this case, because that provision authorizes treatment only for the purpose of
restoring competence even though it is undisputed that J.P. is not likely to attain
competence. We disagree. Section 24-531.07 (a)(2) provides for “continued”
treatment. J.P. argues that this continued treatment must relate back to the
treatment ordered under § 24-531.06 (c)(4), which contemplates treatment to
restore competence under D.C. Code § 24-531.05 (a). But “continued” treatment
under § 24-531.07 (a)(2) is not limited to treatment to restore competency. Section
24-531.06 (c)(4) includes more general language authorizing a trial court to order
“treatment” pursuant to § 24-531.07 (a)(2). Moreover, “treatment” is defined as
“the services or supports provided to persons with mental illness or intellectual
disabilities, including services or supports that are offered or ordered to restore a
(continued . . .)
20
instrument of a parental-consent requirement, which can completely preclude
inpatient mental-health treatment under § 24-531.07 (a)(2) even where suitable
facilities are available, is not a reasonable substitute for an inquiry into the
suitability of facilities.
Seventh, J.P. appears to suggest that we should employ the doctrine of
constitutional avoidance in deciding how § 24-531.07 (a)(2) and § 7-1231.14 (a) fit
together, because § 24-531.07 (a)(2) is “an extremely troubling statute that is likely
unconstitutional.” See generally, e.g., Mack v. United States, 6 A.3d 1224, 1234
(D.C. 2010) (“[T]he canon of constitutional avoidance is an interpretive tool,
counseling that ambiguous statutory language be construed to avoid serious
constitutional doubts.”) (internal quotation marks omitted). It is undisputed that
J.P. did not adequately raise a direct challenge to the constitutionality of § 24-
531.07 (a)(2) in the trial court, and the issue was not raised in this court until the
(. . . continued)
person to competence, to assist a person in becoming competent, or to ensure that a
person will be competent.” D.C. Code § 24-531.01 (9) (2017 Cum. Supp.).
Appropriate treatment under § 24-531.07 (a)(2) thus can include, but is not limited
to, treatment to restore competency. J.P. therefore is entitled to appropriate
mental-health treatment during the pendency of the civil-commitment proceeding
in this case. Cf. D.C. Code § 21-562 (2012 Repl.) (“person detained as an
emergency involuntary patient by or committed to the care of the Department, a
provider, or a hospital for mental illness” is “entitled to medical and psychiatric
care and treatment”).
21
reply brief. We therefore express no view on the constitutional issue. See, e.g.,
Winston v. United States, 106 A.3d 1087, 1092 n.12 (D.C. 2015) (“This court
ordinarily declines to consider constitutional contentions which are being presented
for the first time on appeal unless the alleged constitutional shortcoming in the
proceedings was so plain that the judge should have ruled on it notwithstanding the
litigant‟s failure to raise it.”) (internal quotation marks omitted); Aeon Fin., LLC v.
District of Columbia, 84 A.3d 522, 530 (D.C. 2014) (“It is the longstanding policy
of this court not to consider arguments raised for the first time in a reply brief.”)
(brackets and internal quotation marks omitted). With respect to J.P.‟s reliance on
the doctrine of constitutional avoidance, we conclude that the doctrine does not
apply in this case. J.P.‟s challenge to the constitutional validity of § 24-
531.07 (a)(2) does not turn on J.P.‟s status as a minor. Rather, J.P. argues that
legislature acted impermissibly by generally authorizing potentially lengthy
inpatient mental-health treatment of criminal defendants who have been found
unlikely to attain competence. Because § 24-531.07 (a)(2) applies to adults, the
constitutional concern J.P. raises would persist even if we were to agree with J.P.
that § 24-531.07 (a)(2) cannot be applied to minors absent parental consent. Under
the circumstances, we do not view the doctrine of constitutional avoidance as
supporting J.P.‟s argument. See Ileto v. Glock, Inc., 565 F.3d 1126, 1143 n.12 (9th
Cir. 2009) (point of constitutional-avoidance doctrine is to adopt interpretation that
22
“avoids any constitutional problem,” not to leave alternative that “still raises the
identical issue in a slightly different form”).
Finally, J.P. argues that we should apply the rule of lenity. The rule of
lenity, however, “is a secondary canon of construction, and is to be invoked only
where the statutory language, structure, purpose, and history leave the intent of the
legislature in genuine doubt.” See Whitfield v. United States, 99 A.3d 650, 656
(D.C. 2014) (brackets and internal quotation marks omitted). For the reasons we
have explained, the rule of lenity does not tip the balance in this case.3
In sum, we conclude that § 7-1231.14 (a) does not prevent a court from
ordering, pursuant to § 24-531.07 (a)(2), the continued inpatient mental-health
treatment of a criminal defendant who has been declared incompetent and unlikely
to attain competence. As we did in our emergency order, we note that we express
no view with respect to other possible challenges to the trial court‟s order.
3
J.P. and the District extensively debate the applicability and force of two
additional statutory-interpretation doctrines: the District argues that § 24-
531.07 (a)(2) should control because it was enacted after § 7-1231.14 (a), whereas
J.P. argues that § 7-1231.14 (a) should control because there is a presumption
against interpreting a later statute to impliedly repeal an earlier statute. In our
view, that debate is at best for J.P. a draw. Because we find the considerations in
text sufficient to resolve the question before us, we see no need to wade into the
details of that debate.
23
For the foregoing reasons, the judgment of the trial court is
Affirmed.