State Ex Rel. Kiritsis v. Marion Probate Court , 269 Ind. 550 ( 1978 )

Givan, C.J.

— On November 18, 1977, the Superintendent of LaRue D. Carter Memorial Hospital filed in the Marion Probate Court a petition for the involuntary commitment of Anthony G. Kiritsis. On the same day he also filed a motion for an order permitting a physical and mental examination of Mr. Kiritsis. The respondent court granted the motion on November 23, 1977, and set the commitment hearing for December 15, 1977. On December 2, 1977, the Superintendent filed a petition for an order to show cause why Mr. Kiritsis should not be held in contempt of court for failure to cooperate with the examining psychiatrists. A hearing on said petition was held on December 8, 1977, and on the following day the Marion Probate Court adjudged Kiritsis in contempt of court, finding that he willfully disobeyed an order of the court by refusing to permit the psychiatrists to conduct a mental examination.

Relator then petitioned this Court for a writ of mandate and prohibition, asking this Court to order the respondent to recognize relator’s constitutional right to remain silent and therefore to discharge him from custody. Oral argument was held and on March 15, 1978, this Court denied issuance of a writ. For the reasons herein stated, we now deny the application for a permanent writ.

Original actions are viewed with extreme disfavor and writs will not be issued unless there is a clear and obvious emergency where the failure of this Court to act will result in substantial injustice. State ex rel. Gibson General Hospital v. Warrick Cir. Ct., (1966) 247 Ind. 240, 214 N.E.2d 655. Nor will this Court issue a writ to prevent an individual from being subjected to the contempt power of a trial court so long as that court had jurisdiction to act. State ex rel. Ely v. Allen Cir. Ct., (1973) 261 Ind. 419, 304 N.E.2d 777, interpreting, State ex rel. Roberts v. Morgan Cir. Ct., (1968) 249 Ind. 649, 232 N.E.2d 871. In the case at bar the Marion Probate Court, pursuant to IC § 16-14-9.1-5 [Burns Supp. 1978], has both subject matter and personal jurisdiction over the relator. An original action to prevent the contempt power from being used is therefore impermissible.

Relator cites State ex rel. Rose v. Hoffman, (1949) 227 Ind. 256, 85 N.E.2d 486, for the proposition that a trial court may be purged of jurisdiction to act when it denies a person a fundamental constitutional right. He then argues he has a fundamental right to avoid self-incrimination in any proceeding which may result in the deprivation of his liberty.

The United States Supreme Court has not ruled on this precise question, having expressly reserved ruling in McNeil v. Director, Patuxent Institution, (1972) 407 U.S. 245, 92 S. Ct. 2083, 32 L.Ed.2d 719. However, in the case of In re Gault, (1967) 387 U.S. 1, 87 S.Ct. 1428, 18 L.Ed.2d 527, cited by relator, the Court held that a juvenile delinquency proceeding, although denominated as civil, could lead to a deprivation of liberty and therefore the privilege against self-incrimination was fully applicable.

Notwithstanding the Gault holding, the fact that a proceeding may result in the deprivation of liberty does not automatically invoke the protection of the Fifth Amend- ment, applicable to the states through the due process clause of the Fourteenth Amendment. As noted by the Court in Williams v. Director, Patuxent Institution, (1975) 276 Md. 272, 347 A.2d 179, cert. denied, 425 U.S. 976 (1976), it is only where a proceeding seeks to impose a criminal or quasi-criminal sanction upon an individual for a violation of its law that a proceeding can properly be labeled “criminal.” For purposes of the Fifth Amendment, the United States Supreme Court in Gault held the privilege applicable because the juvenile delinquency proceeding was criminal in that it may have subjected the juvenile to a sanction criminal in nature; that is, the incarceration in a state institution for juveniles.

In the case at bar, however, the civil commitment statute, IC § 16-14-9.1-10 [Burns Supp. 1978], does not seek to impose a criminal or quasi-criminal sanction upon relator for violation of any statute. Rather, the purpose of a civil commitment proceeding is merely to inquire into the mental and emotional status of the individual to determine if he is mentally ill, either gravely disabled or dangerous and in need of treatment. Hence, the privilege against self-incrimination is inapplicable. French v. Blackburn, (M.D.N.C. 1977) 428 F.Supp. 1351; Williams v. Director, Patuxent Institution, supra.

In deciding this case we are not unmindful of Haskett v. State, (1970) 255 Ind. 206, 263 N.E.2d 529, cited by relator. In that case a majority of this Court held a statute unconstitutional where it compelled a person charged with being a criminal sexual psychopath to answer questions propounded by examining physicians under penalty of contempt. The Court found that the proceeding was indeed a criminal proceeding and therefore that the privilege against self-incrimination applied. Here, however, it is clear that the civil commitment proceeding, though it may result in a deprivation of a person’s liberty, is not a criminal proceeding within the meaning of the Fifth Amendment. Hence, Haskett does not control.

We are aware of the cases contrary to our position which hold the privilege against self-incrimination applicable to civil commitment proceedings. See Suzuki v. Quisenberry, (D.Haw. 1976) 411 F.Supp. 1113; Lynch v. Baxley, (M.D. Alab. 1974) 386 F.Supp. 378; Lessard v. Schmidt, (E.D. Wis. 1972) 349 F.Supp. 1078. Counsel for relator has made a cogent argument both in oral argument and in his brief that these holdings should apply. However, we are persuaded that these cases completely disregard the legitimate interest of the State in civil commitment proceedings. As put by the Texas Court of Civil Appeals in Moss v. State, (Tex. 1976), 539 S.W.2d 936, a balancing test should be used with the interest of the individual in maintaining his liberty being weighed against the interest of the state in providing treatment for mentally ill persons and in protecting its citizens against injury from such persons. In our view, the balance weighs heavily in the State’s favor. The legitimate obj ectives of the statute and the interests of the State would be wholly frustrated were individuals permitted to claim the privilege in civil commitment proceedings. The State could commit virtually no one to its mental institutions.

Accordingly, we hold that the privilege against self-incrimination has no applicability in civil commitment proceedings under our statute. Relator was bound to comply with the court order directing him to submit to psychiatric examination. His failure to do so subjected him to the contempt power of the court. So long as the trial court has held a hearing on the contempt charge and determined that relator’s conduct was willful and not a manifestation of mental illness for which he was not responsible, the court has complied with the requirements of due process of law. See McNeil v. Director, Patuxent Institution, supra. Here, the trial court conducted a hearing and expressly found that relator’s conduct was a willful disobedience of the court order. Thus, there has been no abridgment of a fundamental constitutional right. We hold that an action for a writ of mandate and prohibition does not lie.

Relator’s second contention is that the trial court failed to conduct a hearing on his commitment. This contention has no merit. The trial court had scheduled a hearing on relator’s - commitment. However, before that date arrived relator violated a court order and was adjudged in contempt. To our knowledge, relator has not been committed but is in custody under the contempt citation. Relator has not shown that he has been committed without a hearing and he therefore can obtain no relief from this Court.

The application for a permanent writ of mandate and prohibition is hereby denied.

Hunter and Prentice, JJ., concur; DeBruler, J., concurs in result; Pivamik, J., concurs with opinion in which Prentice, J., also concurs.