Simms v. Dept. of Health , 467 Md. 238 ( 2020 )

Romechia Simms v. Maryland Department of Health, et al., No. 20, September Term, 2019
DUE PROCESS — CONDITIONAL RELEASE — HOSPITAL WARRANT —
DANGEROUSNESS — The legal standard for a court issuing a hospital warrant pursuant
to § 3-121 of the Criminal Procedure Article of the Maryland Code (2001, 2008, 2018 Repl.
Vol.) (“CP”) is whether the court has probable cause to believe that an individual violated
her conditional release. Because a committed person is presumed dangerous if she violates
a term of her conditional release, a separate finding of dangerousness is not required for
the issuance of a hospital warrant. The Court of Special Appeals did not err in concluding
that CP § 3-121 does not violate due process under the Federal Constitution or the
Maryland Declaration of Rights.
Circuit Court for Howard County
Case No. 13-C-17-112909
Argued: October 4, 2019 IN THE COURT OF APPEALS
OF MARYLAND
No. 20
September Term, 2019
ROMECHIA SIMMS
v.
MARYLAND DEPARTMENT OF HEALTH,
ET AL.
Barbera, C.J.
McDonald
Watts
Hotten
Getty
Booth
Greene, Clayton Jr. (Senior Judge,
Specially Assigned)
JJ.
Opinion by Barbera, C.J.
Pursuant to Maryland Uniform Electronic Legal
Filed: January 30, 2020
Materials Act
(§§ 10-1601 et seq. of the State Government Article) this document is authentic.
2020-01-30 11:42-05:00
Suzanne C. Johnson, Clerk
Maryland law provides a mechanism by which a person can be determined to have
been guilty of a crime but “not criminally responsible” for its commission. See generally
Incompetency and Criminal Responsibility in Criminal Cases, Md. Code (2001, 2008
Repl. Vol., 2018 Cum. Supp.) Crim. Proc. (“CP”) §§ 3-101–123. Under that
circumstance, the person is committed to the Maryland Department of Health (“Health
Department”). The statutory scheme provides, in appropriate circumstances, the option
of a court order allowing for the committed person’s “conditional release” to the
community with specific conditions to which the committed person must adhere. The
statutory scheme also spells out what occurs if a committed person, after having been
placed on conditional release, is alleged to have violated one or more conditions of release.
The present case focuses on the steps a court is to take upon receiving a State’s Attorney
(“State”) petition alleging that a committed person has violated conditional release.
Ms. Romechia Simms, upon pleading guilty in the Circuit Court for Charles County
to involuntary manslaughter in connection with the death of her young child, was found
not criminally responsible. She was committed to the Health Department and
conditionally released pursuant to court order. Later, the State filed with the circuit court
a petition for revocation or modification of Ms. Simms’ conditional release, alleging that
she had violated a condition of her release. Acting pursuant to CP § 3-121, the court
reviewed the petition, and upon “determin[ing] that there is probable cause to believe”
that Ms. Simms “has violated a conditional release,” issued a hospital warrant. Upon
execution of the warrant and in furtherance of the court’s order, Ms. Simms was
recommitted to a mental health facility in anticipation of a required hearing before an
Administrative Law Judge (“ALJ”) “[w]ithin 10 days after the committed person is
returned to the Health Department in accordance with the hospital warrant.” CP § 3-
121(e)–(f).
Ms. Simms asserts that the process for issuing a hospital warrant and recommitment
pending the hearing on the petition for revocation or modification violates constitutional
due process. Ms. Simms argues that recommitment of a person alleged to have violated
conditional release must be based not only upon the stated requirement that the court find
“probable cause to believe that the committed person has violated a conditional release,”
CP § 3-121(e), but must also include a finding, not mentioned in that subsection or
elsewhere in Title 3 of the Criminal Procedure Article (“Title 3”), that the committed
person was currently a danger to self or to the person or property of others.
For reasons that follow, we hold that CP § 3-121(e) does not violate due process
under either the Federal Constitution or the Maryland Declaration of Rights. We are
satisfied that a court may issue a hospital warrant upon a finding of probable cause to
believe that the committed person violated a term of her conditional release, without also
having to make a finding that the committed person is presently dangerous. Accordingly,
we affirm the judgment of the Court of Special Appeals.
I.
Statutory Procedures Related to
Conditional Release and Hospital Warrants
The question before us requires that we focus on the hospital warrant procedure set
forth in CP § 3-121(e)(1). It is helpful, though, to consider that subsection together with
2
the remainder of that section and others contained in Title 3. We therefore begin with a
brief overview of the relevant portions of Title 3.1
Title 3 provides that a court2 is to commit a person to the Health Department if that
person has been found not criminally responsible for the commission of a criminal act.3
Once committed, the “committed person”4 may be granted conditional release if that
person “would not be a danger . . . to self or to the person or property of others if released
from confinement with conditions imposed by the court.” CP § 3-114(c).
CP § 3-121 (“Allegations of violations of conditional release”) lays out the process
by which such allegations are addressed. Subsections 3-121(a) through (e) provide,
among other procedures, that upon a petition from the State for revocation or modification
of conditional release,5 the court is to review the petition to determine whether “there is
1
Title 3 also provides procedures involving competency to stand trial, which are
not at issue in this case. See CP §§ 3-101(f), 3-103–08.
2
CP § 3-101 defines certain terms used throughout Title 3. Subsection 3-101(c)
defines “[c]ourt” to mean “a court that has criminal jurisdiction.”
3
The test for criminal responsibility is found in CP § 3-109. That section provides
in relevant part:
A defendant is not criminally responsible for criminal conduct if, at the time
of that conduct, the defendant, because of a mental disorder or mental
retardation, lacks substantial capacity to:
(1) appreciate the criminality of that conduct; or
(2) conform that conduct to the requirements of law.
4
CP § 3-101(b) defines “[c]ommitted person” to mean “a person committed to the
Health Department as not criminally responsible under the test for criminal
responsibility.”
5
CP § 3-121 provides the following in subsections (a) through (c):
3
(a) Determination of factual basis by a State’s Attorney. —
(1) If the State’s Attorney receives a report that alleges that a
committed person has violated a condition of a conditional release, or
if the State’s Attorney is notified by the court or Health Department
under subsection (b) of this section, the State’s Attorney shall
determine whether there is a factual basis for the complaint.
(2) If the State’s Attorney determines that there is no factual basis for
the complaint, the State’s Attorney shall notify the person who made
the report and take no further action.
(3) If the State’s Attorney determines that there is a factual basis to
believe that the committed person has violated the terms of a
conditional release and believes further action by the court is
necessary, the State’s Attorney promptly shall:
(i) notify the Health Department of the alleged violation; and
(ii) file with the court a petition for revocation or modification
of conditional release and send a copy of the petition to the
Health Department.
(b) Action by the court and Health Department. —
(1) If a court receives a report that alleges that a committed person has
violated a condition of a conditional release, the court promptly shall:
(i) notify the Health Department; and
(ii) notify the State’s Attorney and provide the name, address,
and telephone number of the person who reported the violation
and a copy of the order for conditional release.
(2) If the Health Department receives a report that alleges that a
committed person has violated conditional release, the Department
shall:
(i) notify the court and the State’s Attorney; and
(ii) provide the State’s Attorney with the name, address, and
telephone number of the person who reported the violation and
a copy of the order for conditional release.
(c) Petition for revocation or modification. — The petition for revocation or
modification of a conditional release shall contain:
(1) a statement that the committed person has violated a term of a
conditional release and that there is therefore reason to believe that
the committed person no longer meets the criteria for eligibility for
conditional release;
(2) a statement of the conditions violated;
(3) the factual basis for the statements in items (1) and (2) of this
subsection;
(4) the most recent evaluation report on the committed person; and
4
probable cause to believe that the committed person has violated a conditional release[.]”
CP § 3-121(e). If the court finds there is such probable cause, then the court “promptly
shall . . . issue a hospital warrant6 for the committed person and direct that on execution
the committed person shall be transported to the facility designated by the Health
Department[.]” CP § 3-121(e)(1). The court then sends a copy of the hospital warrant to
the State, the Public Defender, counsel of record for the committed person, the Office of
Administrative Hearings (“Office”), and the Health Department. CP § 3-121(e)(2).
“Within 10 days after the committed person is returned to the Health Department
in accordance with the hospital warrant, the Office shall hold a hearing[.]” CP § 3-121(f).
At that hearing the committed person is entitled “to be represented by counsel[,] . . . to
offer evidence, to cross-examine adverse witnesses, and to exercise any other rights . . .
consider[ed] necessary for a fair hearing[.]” CP § 3-121(g)(1)–(2).
The ALJ presiding over the revocation hearing determines “(i) whether, by a
preponderance of the evidence, the State has proved that the committed person violated
(5) the designation by the Health Department of the facility to receive
the returned committed person.
CP § 3-121(a)–(c).
6
CP § 3-101(e) defines “[h]ospital warrant” to mean the following:
a legal document issued by a court that:
(1) authorizes any law enforcement officer in the State to apprehend
a person who is alleged to have violated an order for conditional
release and transport the person to a facility designated by the
Health Department; and
(2) requires that the issuance of the warrant is entered in the person’s
criminal history record information of the criminal justice
information system.
5
conditional release; and (ii) whether, by a preponderance of the evidence, the committed
person nevertheless has proved eligibility for conditional release.” CP § 3-121(g)(3).
Once the hearing is concluded, the ALJ “promptly shall: (i) send a report of the hearing
and determination to the court; and (ii) send copies of the report to the committed person,
counsel for the committed person, the State’s Attorney, and the Health Department.” CP
§ 3-121(h)(1).
Section 3-121(h)(2) provides a five-day opportunity for the committed person, the
State, or the Health Department to file exceptions to the determination of the ALJ. Section
3-121(i) addresses the court’s obligations upon receiving the ALJ’s report:
After the court considers the report of the Office, the evidence, and any
exceptions filed, within 10 days after the court receives the report, the court
shall:
(1) revoke the conditional release and order the committed person
returned to the facility designated by the Health Department;
(2) modify the conditional release as required by the evidence;
(3) continue the present conditions of release; or
(4) extend the conditional release by an additional term of 5 years.
CP § 3-121(i). The committed person has the right to appeal the court’s decision. CP § 3-
121(k).7
7
Subsection 3-121(k) provides: “(1) An appeal from a District Court order shall
be on the record in circuit court. (2) An appeal from a circuit court order shall be by
application for leave to appeal to the Court of Special Appeals.”
6
II.
This Case: The Facts and Procedural History
A. Underlying Facts and Court’s Imposition of Conditional Release
The facts of this case are undisputed. In February 2016, Ms. Simms appeared
before the Circuit Court for Charles County and entered an Alford plea to the commission
of involuntary manslaughter in causing the death of her three-year old son.8 After
accepting the plea, the court found that, at the time of the crime, Ms. Simms suffered from
a mental disorder that caused her to lack the capacity to appreciate the criminality of her
act and act in accordance with the law. Then, pursuant to CP § 3-110, the court made the
additional finding that Ms. Simms was not criminally responsible at the time of the
offense.
The circuit court determined that Ms. Simms would not be a danger to herself or
others if released from confinement with certain conditions. Pursuant to CP § 3-111 and
§ 3-112, the court issued an Order of Conditional Release in March 2016 that detailed
sixteen conditions requiring Ms. Simms’ compliance over a five-year period. Among
those conditions Ms. Simms was required to attend regularly scheduled therapy
appointments. In March 2017 the court amended its original Order of Conditional Release
8
The reported opinion of the Court of Special Appeals contains a thorough
description of the facts surrounding the death of the child, Ms. Simms’ mental health
history, and the state of her mental health at the time of the child’s death. Simms v. Md.
Dep’t of Health, 240 Md. App. 294, 300–01 (2019). We cannot improve upon that
summary and therefore do not repeat or summarize it here.
7
to change Ms. Simms’ treatment from the Assertive Community Treatment team to
regular out-patient clinical services with QCI Behavioral Health.
B. The Court’s Revocation of Conditional Release and Issuance of Hospital Warrant
In September 2017, Ms. Simms’ therapist expressed concerns to the Health
Department that Ms. Simms was exhibiting a “decrease in psychological functioning.”
The therapist noted that Ms. Simms missed therapy appointments and showed “symptoms
of depression, anxiety, irritable mood,” and had become “easily distracted[.]” The
therapist added that Ms. Simms was “unable to concentrate/focus,” experienced “short
term memory loss, and” was “grieving the death of her son.” The therapist recommended
that Ms. Simms “obtain a psychological evaluation and be reconsidered for a higher level
of treatment than what is currently being given.” The State conducted an investigation
pursuant to CP § 3-121(a) and, on September 13, 2017, filed a petition for revocation of
Ms. Simms’ conditional release. The petition alleged that Ms. Simms violated conditional
release by missing required therapy appointments. On the same day, at what had been a
regularly scheduled status hearing,9 the court, although not required by Title 3 to do so,
allowed Ms. Simms’ counsel to address his concerns about the procedures set forth in § 3-
9
Both the original and modified conditional release orders issued in Ms. Simms’
case include a condition that, in the first year, “the Court will hold a hearing every 90 days
to determine [Ms. Simms’] progress and compliance with her treatment and release[;]” in
subsequent years, such hearings are to be conducted at the discretion of the court. That
condition directs Ms. Simms to “appear at each hearing.”
8
121(e).10 As described earlier, those procedures governed the court’s decision whether to
issue a hospital warrant in response to the State’s petition for revocation of conditional
release. Counsel for Ms. Simms argued, among other matters, that the procedure for
issuance and resultant execution of the hospital warrant violates constitutionally based
notions of procedural due process.
The hearing spanned portions of September 13 and 14. The circuit court heard
from Ms. Lori Mannino. Ms. Mannino generally described Title 3’s procedural regime
including—most relevant to the matter before the court at the time—the provisions of § 3-
121(a) through (e).
Ms. Simms argued, through counsel, that a hospital warrant could not be properly
issued under § 3-121(e) unless the court first found not only probable cause to believe that
Ms. Simms had violated conditional release, but also that she currently was a danger to
herself, others, or property. Absent such a finding of dangerousness, Ms. Simms argued,
the hospital warrant procedures as set forth in § 3-121(e) violate due process.11
10
Also present at the hearing were Ms. Simms, her counsel, Assistant State’s
Attorney Tiffany Campbell, and Lori Mannino, a Community Forensic Aftercare Provider
and Ms. Simms’ treatment monitor.
11
Ms. Simms, through counsel, further argued at the hearing before the Circuit
Court for Charles County that CP § 3-121(e) violates due process because that subsection
does not provide Ms. Simms or other similarly situated persons notice and an opportunity
to defend against issuance of a hospital warrant. Ms. Simms continued to press that
constitutional claim at the subsequent hearing on her petition for habeas corpus relief. Ms.
Simms no longer makes that argument.
9
When the hearing resumed on September 14, counsel for Ms. Simms informed the
court that at the close of the previous day’s hearing Ms. Mannino, with defense counsel’s
concurrence, advised Ms. Simms to go to the hospital for a psychiatric evaluation. That
same evening, Ms. Simms reported to University of Maryland Charles Regional Medical
Center for evaluation but was told to return early the following morning, which she did.
Ms. Simms was evaluated by a licensed clinical professional counselor and a doctor who
together determined that Ms. Simms did not meet the criteria for in-patient admission at
the time of the evaluation. Counsel for Ms. Simms, incorrectly assuming that Ms. Simms
was not dangerous to herself or others simply because she did not meet the criteria for in-
patient admission, argued, without success, that the court could not legitimately issue a
hospital warrant based solely on a probable cause finding that Ms. Simms had violated
conditional release.12
At the close of the September 14 proceedings, the court, finding probable cause to
believe that Ms. Simms had violated conditional release, issued a hospital warrant
directing that she be recommitted to the Clifton T. Perkins Hospital Center (“Perkins”) for
evaluation and examination. The court noted that pursuant to CP § 3-121(f) and (g), an
ALJ would determine Ms. Simms’ dangerousness at an administrative hearing within ten
days of execution of the hospital warrant.
12
As far as we can discern, nothing in Title 3 or elsewhere in the Maryland Code
or the Code of Maryland Regulations suggests that the evaluation of Ms. Simms at
University of Maryland Charles Regional Medical Center served to assess a committed
person’s dangerousness, as that concept is described in Title 3.
10
C. The ALJ’s Hearing and Circuit Court’s Ruling
Seven days after Ms. Simms’ admission to Perkins, an ALJ conducted the required
hearing to determine whether Ms. Simms violated her conditional release and, if so,
whether she was eligible for conditional release.13 See CP § 3-121(f). Among other
exhibits presented at that hearing was a report by Dr. Monica Chawla. Dr. Chawla had
evaluated Ms. Simms following her admission to Perkins on September 14, 2017. Ms.
Simms was placed on ward observation and met with her treatment team on September
18 and 19.
Dr. Chawla’s report detailed Ms. Simms’ history, symptoms, and risk assessment.
Dr. Chawla determined that Ms. Simms would not pose a danger to herself or others if she
was discharged with modifications to the conditions of her release. The parties agreed to
modify the terms of her release to include a condition that she would voluntarily remain
at Perkins until she could be placed at a residential treatment center.
On September 28, 2017, pursuant to CP § 3-121(h), the ALJ recommended that
the Circuit Court for Charles County modify Ms. Simms’ release conditions to conform
with the proposed agreement. On October 20, 2017, that court adopted the findings and
recommendations of the ALJ and ordered Ms. Simms’ conditional release.
13
Present at the hearing before the ALJ were Ms. Simms and her counsel, Assistant
Attorney General Rhonda Edwards, representing the Health Department, and Assistant
State’s Attorney Campbell.
11
D. The Intervening Petition for Writ of Habeas Corpus, Hearing, Ruling, and Appeal
On September 27, 2017, the day before the ALJ issued his report to the Circuit
Court for Charles County, Ms. Simms filed a petition for writ of habeas corpus in the
Circuit Court for Howard County14 seeking her immediate release from confinement at
Perkins. The Health Department filed a motion to dismiss the habeas petition, arguing
that Ms. Simms had agreed to remain at Perkins as a voluntary patient and had not been
denied due process.
On October 23, 2017, the Circuit Court for Howard County, evidently opting not
to rule on the motion to dismiss, proceeded to a hearing on the habeas petition. Counsel
for Ms. Simms argued that she was eligible for conditional release and that the habeas
court should release her pending the Health Department finding a suitable residential
program for her.
Most relevant here, Ms. Simms also challenged the Circuit Court for Charles
County’s issuance of the hospital warrant, contending that CP § 3-121(e) fails to comply
with due process. In furtherance of that contention, Ms. Simms argued that the proper
legal standard for issuance of a hospital warrant is not merely probable cause that Ms.
Simms violated her conditional release, but also probable cause that she is a danger to
herself or others.15
14
Perkins is in Howard County.
15
Ms. Simms also argued in the habeas petition that before the hospital warrant
issued she had a right to a preliminary hearing, at which she was entitled to have legal
representation, notice, and an opportunity to be heard. As noted previously, supra note
11, Ms. Simms does not advance that argument here.
12
The Health Department argued that the Circuit Court for Charles County followed
the procedures set forth in CP § 3-121 when issuing the hospital warrant and that those
procedures comport with due process. The Health Department explained that the circuit
court need not make a dangerousness determination at the hospital warrant stage because
the committed person is inherently dangerous based on that person’s criminal conviction.
The Health Department further argued that Title 3 provides that a committed person can
be conditionally released so long as the committed person abides by the conditions. The
Health Department added that the State’s petition for revocation gave the circuit court the
information it needed to determine whether Ms. Simms violated conditional release and,
based on that information, the circuit court properly issued the hospital warrant. The
Health Department responded to Ms. Simms’ claim of a lack of procedural due process,
noting that § 3-121 affirmatively provides due process, as reflected by the multiple layers
of review set forth in that section of Title 3.
The habeas court issued a memorandum opinion and order denying the petition on
October 31, 2017. The court rejected Ms. Simms’ contention that the court’s issuance of
the hospital warrant deprived her of procedural due process. The habeas court ruled that
the hospital warrant was supported by probable cause that Ms. Simms had violated
conditional release, and that Ms. Simms’ recommitment pursuant to the hospital warrant
did not violate her due process rights.
13
Ms. Simms noted an appeal to the Court of Special Appeals. That court affirmed
the circuit court’s denial of the writ of habeas corpus. Simms v. Md. Dep’t of Health, 240
Md. App. 294 (2019).16
We granted certiorari to answer three interrelated questions presented by Ms.
Simms. All three, either directly or indirectly, turn on whether either or both the Due
Process Clause of the Fourteenth Amendment and its counterpart provision in Article 24
of the Maryland Declaration of Rights require a court, before issuing a hospital warrant
pursuant to CP § 3-121(e), to find probable cause to believe (1) the committed person
violated the term(s) of conditional release and (2) the committed person is no longer
eligible for conditional release because the person poses a danger to self, others, or
property.17
16
The parties concede that this matter is not moot. We agree, for reasons we
explained in Powell v. Md. Dep’t of Health, 455 Md. 520 (2017). We stated:
[E]ven if no controversy exists at the precise moment that the case is before
the appellate court, it will not be deemed moot if the controversy between
the parties is capable of repetition, yet evading review. This exception
applies when (1) the challenged action was too short in its duration to be fully
litigated prior to its cessation or expiration; and (2) there was a reasonable
expectation that the same complaining party would be subjected to the same
action again.
455 Md. at 540–41 (internal quotations and citations omitted). This exception applies to
the situation here, given Ms. Simms is subject to conditional release for five years, and
may be charged during the interim with violating one or more conditions of release,
prompting the State to file a petition for a hospital warrant.
Moreover, “[e]ven if it is unlikely that the same party will be subject to the same
action,” the issue Ms. Simms has brought to us “is of public importance and affects an
identifiable group for whom the complaining party is an appropriate surrogate[.]” Id. at
541.
17
Ms. Simms framed the questions as follows:
14
We hold that compliance with procedural due process requires only that before
issuing a hospital warrant, the court find probable cause to believe that the committed
person violated one or more terms of conditional release. Therefore, we need not address
Ms. Simms’ remaining questions, as both rely on the premise that the court should have
made a dangerousness determination before issuing a hospital warrant.
III.
Discussion
A. The Parties’ Contentions
Ms. Simms argues that procedural due process demands that upon the State’s filing
a petition for revocation or modification of a committed person’s conditional release, the
court must find probable cause to believe that the committed person not only (1) violated
1. In order to issue a hospital warrant, which initiates the process of
revoking conditional release granted to individuals who have been
found guilty but not criminally responsible, does a circuit court only
have to find probable cause to believe that the individual violated a
term of the conditional release order, or does the court also have to
find probable cause to believe that the individual poses a danger to
self, others, or property?
2. In order to comply with constitutional due process, must § 3-121 of
the Criminal Procedure Article be interpreted to require that a hospital
warrant may be issued only where the warrant-issuing court finds
probable cause to believe that the patient poses a danger to self,
others, or property?
3. Did the Circuit Court for Howard County err in concluding that the
Circuit Court for Charles County properly issued a hospital warrant
predicated only upon a finding that Petitioner violated a term of the
conditional release order, where Petitioner presented compelling
evidence that she was not a danger to self, others, or property?
15
terms of conditional release but also (2) currently poses a danger to herself, others, or
property. In support of this contention, Ms. Simms asserts that a committed person alleged
to have violated conditional release cannot be presumed dangerous and therefore cannot
be detained pursuant to a hospital warrant unless a court first makes a probable cause
finding of dangerousness.
Ms. Simms recognizes that a presumption of dangerousness attaches when a person
is found guilty of a criminal act but not criminally responsible for its commission. She
argues that once released on conditional release, the dangerousness presumption that
attends the finding of not criminally responsible does not extend to the stage at which the
court must determine whether to issue a hospital warrant. Ms. Simms contends that the
dangerousness associated with a committed person’s having been convicted of a criminal
act is distinct from the dangerousness, if any, that is associated with a violation of a
conditional release order. Based on that premise, Ms. Simms argues that any potential
dangerousness attributable to a violation of conditional release must be assessed
independently, given the therapeutic purpose of conditional release.
According to Ms. Simms, procedural due process demands that the court be
constrained from issuing a hospital warrant without first finding the committed person
dangerous to self, others, or property. She argues that because in her case the court did
not make a dangerousness finding, the court’s issuance of a hospital warrant and Ms.
Simms’ resulting involuntary detention at an in-patient mental hospital violated the
16
procedural process due her under either or both the Federal Constitution or Maryland
Declaration of Rights.18
The Health Department counters that the conditional release procedures laid out in
CP § 3-121 comply with procedural due process under the Federal Constitution and our
Declaration of Rights. The statutory scheme recognizes the presumed dangerousness of
a person who has been convicted of a criminal act yet found not criminally responsible for
the commission of that act. According to the State, Title 3 further reflects that the
presumption of dangerousness does not dissipate over the course of therapeutic treatment.
The persistence of the dangerousness presumption notwithstanding, in appropriate
circumstances a committed person’s course of treatment may include release to the
community under specific court-ordered conditions requiring the committed person’s
compliance. The Health Department therefore rests on the assertion that the multi-step
procedures attendant to the revocation or modification of an order of conditional release
comport with procedural due process.
18
Ms. Simms also argues that the habeas court erred in failing to recognize that
the Circuit Court for Charles County wrongly issued a hospital warrant predicated only
upon a finding that she violated a term of the conditional release order, notwithstanding
that Ms. Simms presented compelling evidence that she was not a danger to self, others,
or property. This argument presupposes Ms. Simms’ entitlement to a hearing at the
hospital-warrant-issuing stage.
As noted above, we need not consider this contention because we rest our decision
on constitutional grounds. Even so, because CP § 3-121(e) does not require such a finding,
the habeas court committed no error in rejecting Ms. Simms’ argument that the warrant-
issuing court omitted to make that finding.
17
B. Analysis
It is understood that a person who has been convicted of a crime yet found not
criminally responsible for its commission is presumed dangerous. See Bergstein v. State,
322 Md. 506, 519 (1991) (“The finding [that a person is not criminally responsible]
presupposes that he committed an illegal act. Inherent in this inference is the indicia of
continuing dangerousness.”); see also Jones v. United States, 463 U.S. 354, 364 (1983)
(“The fact that a person has been found, beyond a reasonable doubt, to have committed a
criminal act certainly indicates dangerousness.”).
It is likewise “clear that ‘commitment for any purpose constitutes a significant
deprivation of liberty that requires due process protection.’” Id. at 361 (quoting Addington
v. Texas, 441 U.S. 418, 425 (1979)). Such protection ensures that “the state-created right
is not arbitrarily abrogated.” Vitek v. Jones, 445 U.S. 480, 489 (1980) (quoting Wolff v.
McDonnell, 418 U.S. 539, 557 (1974)). Ms. Simms, having been convicted of a crime but
found not criminally responsible for the criminal act, is entitled to the procedural process
demanded by the Federal Constitution and our Declaration of Rights. See Harrison-
Solomon v. State, 442 Md. 254, 287–88 (2015) (stating that commitment and conditional
release must comply with the Due Process Clause of the Fourteenth Amendment and its
counterpart provision Article 24 of the Maryland Declaration of Rights).
Equally important, however, is the recognition that “[d]ue process is flexible and
calls for such procedural protections as the particular situation demands.” Jones, 463 U.S.
at 367–68 (quoting Morrissey v. Brewer, 408 U.S. 471, 481 (1972)). The question here,
then, is what procedural process was owed Ms. Simms once the State petitioned for
18
revocation or modification of her conditional release and the petition was in the hands of
the court. The legal standard that governs our analysis of this constitutional question is
de novo. See Davis v. Slater, 383 Md. 599, 604 (2004); see also Highmark Inc. v. Allcare
Health Mgmt. Sys. Inc., 134 S.Ct. 1744, 1748 (2014).
We begin our consideration of this question with the observation that Ms. Simms
was presumed dangerous while on conditional release. As we explained in Bergstein,
inherent in the commission of an illegal act “is the indicia of continuing dangerousness.”
Bergstein, 322 Md. at 519 (citing Jones, 463 U.S. at 363–64). This presumption is implied
in Hawkes v. State, 433 Md. 105 (2013). There, we detailed the difference between
discharge from commitment and conditional release. Id. at 133–34 (comparing CP § 3-
114(b) with § 3-114(c)). We held that to qualify for conditional release a person must
demonstrate that appropriate conditions would mitigate dangerousness. Id. at 132–36
(citing CP § 3-114(d) (“a committed person has the burden to establish by a preponderance
of the evidence eligibility for discharge or eligibility for conditional release.”)). We
explained that “the determination of whether a patient poses a danger to himself or others
must take into account proposed conditions of release.” Id. at 108–09. We explained how
discharge from commitment requires “that a person would not be a danger, as a result of
mental disorder or mental retardation, to self or to the person or property of others if
discharged[,]” whereas conditional release requires “that [the] person would not be a
danger, as a result of mental disorder or mental retardation, to self or to the person or
property of others if released from confinement with conditions imposed by the court.”
Id. at 133 (quoting CP § 3-114(b)–(c)) (emphasis in original). Implicit in this holding is
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that a person on conditional release is presumed dangerous but for imposition of and
compliance with conditions. Our research disclosed no case of the Supreme Court, this
Court, or the Court of Special Appeals that intimates, much less declares, the contrary.
As provided in CP § 3-121(e), the Circuit Court for Charles County, upon receipt
and review of the State’s petition for revocation of her conditional release, found probable
cause to believe that Ms. Simms had violated her conditional release. Based on that
probable cause finding, the court issued a hospital warrant and directed that Ms. Simms
“shall be transported to the facility designated by the Health Department[.]” CP § 3-
121(e)(1). Ms. Simms, as noted earlier, was then taken to Perkins.
To be clear, Ms. Simms has no complaint about the hearing before the ALJ, which
occurred seven days after the hospital warrant was executed and she was recommitted to
Perkins. See CP § 3-121(f)–(g). Her quarrel is solely with the statutory procedure at the
hospital warrant stage. Ms. Simms’ asserted due process concern rests on the omission of
a finding by the court at that stage that she is presently a danger “to self or to the person
or property of others[.]” CP § 3-114(c). Ms. Simms argues that due process demands
such a finding of dangerousness before a hospital warrant may be issued by the court. We
disagree.
Given her presumed dangerousness, Ms. Simms’ recommitment to Perkins upon
execution of the hospital warrant was a reasonable and, it appears, necessary prerequisite
to the revocation hearing that the ALJ convened seven days later. Upon her admission to
Perkins on September 14, 2017, Ms. Simms was medically evaluated by Dr. Chawla,
whose report was presented at the hearing before the ALJ on September 21, 2017. Dr.
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Chawla’s report contained her determination that Ms. Simms would not pose a danger to
herself or others if she was discharged with modifications to the conditions of her release.
We emphasized in Bergstein that, although conditional release is “part of a
continuing course of treatment” for committed persons, it nevertheless remains a form of
commitment. 322 Md. at 516. Underpinning conditional release is the expectation that
the committed person would not pose a danger so long as she follows the terms of her
conditional release. See CP § 3-114(c) (“Conditional release”). Conditional release
presupposes that compliance with the conditions imposed renders the committed person
not a danger to self or the person or property of others. It follows that the failure of
compliance erases the statutory presupposition of mitigated dangerousness that attends
compliance with the conditions of conditional release.
Therefore when, as here, a committed person on conditional release is alleged by
the State to have violated one or more of those conditions, the presupposition of lack of
dangerousness that accompanies compliance dissipates. Upon receipt of the State’s
petition alleging a violation of conditional release, it is incumbent upon the court to
determine whether there is probable cause to believe that the committed person violated
conditional release. CP § 3-121(d)–(e). Inherent in the court’s finding of probable cause
that a violation occurred is the presumption that the committed person is dangerous. That
finding triggers the court’s issuance of the hospital warrant. Commitment pursuant to
execution of the hospital warrant prompts, within ten days, the full hearing before the ALJ
to which Ms. Simms is entitled. See CP § 3-121(f)–(g).
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This procedural sequence of events comports with due process. The court’s
issuance of a hospital warrant, upon a finding of probable cause to believe the committed
person has violated conditional release, is a necessary prerequisite to the revocation
hearing. It is at the revocation hearing that the committed person, entitled to counsel and
given the opportunity to present evidence, has the chance “to demonstrate that,
notwithstanding the violation, the patient would not be a danger to himself/herself or
others if permitted to remain out of the hospital under existing or modified conditions.”
Bergstein, 322 Md. at 517.
IV.
Conclusion
We conclude from all the above that Ms. Simms received the process to which she
was due under CP § 3-121. It is the probable cause finding that a violation of conditional
release occurred that enables the court to properly commit the individual until the speedy
hearing before an ALJ, at which time Ms. Simms was entitled to, and received, full due
process rights.
We therefore hold that CP § 3-121 appropriately balances the interests of society
against a committed individual’s conditional liberty interest. Accordingly, we affirm the
judgment of the Court of Special Appeals, which came to the same conclusion.
JUDGMENT OF THE COURT OF
SPECIAL APPEALS AFFIRMED.
COSTS TO BE PAID BY
PETITIONER.
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