In Re Alleged Insanity of Brewer ( 1937 )

I find myself unable to agree with the majority and therefore respectfully dissent.

The question which confronts us is an all-important one. It involves depriving a citizen of her liberty without a trial by jury. It gives to the court the right to pass upon a fact question, namely, the sanity of an individual, rather than having that question determined by a jury.

In section 3560 of the 1935 Code the legislature did not make any definite provisions concerning the manner of trial of cases of this character. However, it should be noted that the section does not provide that an appeal must be tried without a jury.

The majority opinion holds that this is a special proceeding because there is no plaintiff and no defendant. Anyone is given the right to file an information charging an individual with being insane. In this case Mathilda M. Enes is the informant. She is in truth and in fact the plaintiff and Helen Brewer is the defendant. What prompted Mathilda M. Enes to file this information does not appear in the record. She may have imagined or considered the person charged with being insane as a menace, threatening some rights of hers, and for that reason instituted the cause. There being a plaintiff and a defendant, under the statute this is a civil action, and on appeal it is triable as an ordinary action. This is borne out, it seems to me, by the last part of section 3560 of the 1935 Code, which reads as follows:

"* * * Upon appeal it shall be the duty of the county attorney, without additional compensation, to prosecute the action on behalf of the informant", not upon behalf of the county, the public, or the commission, but upon behalf of the informant. To sustain the allegations of the informant by proof is what the county attorney is required to do.

Section 10940 of the 1935 Code abolishes all forms of action.

Let us look now at the cases cited in the majority opinion.

Black Hawk County v. Springer, 58 Iowa 417, 10 N.W. 791, was not an insanity case but an action in which the county claimed compensation from an estate of one who had been adjudged insane by the commissioners and who was committed to the State Hospital and there cared for at the expense of the county. The question of a trial to a jury on appeal, under section 3560 of the Code, was not put in issue, nor was it referred to by this court.

In re Bresee, 82 Iowa 573, 48 N.W. 991, did not involve the question of whether the lady was entitled to have the appeal tried to a jury. The sole question was whether she was entitled to the appeal at all. So it is apparent that whatever this court may have said in the Bresee case as to the right of a jury trial, was mere dictum.

In the case at bar we are not confronted with the question of whether or not the appellant is entitled to an appeal. That is conceded. The question is: Must she submit her case to the court, without a jury?

The case of Wissenburg v. Bradley, 209 Iowa 813, 819,229 N.W. 205, 208, does not involve an insane person, but rather a child, a minor, sent to a state industrial school. The opinion is based upon the fact that the "State [is] the legitimate guardian and protector of children where other guardianship fails." The party involved in the case at bar is not a minor.

The only case involving an appeal from the finding of an insanity commission that this court has passed upon is the case of In re Insanity of Fleming, 196 Iowa 639, 195 N.W. 242. In that case, under the very statute with which we are here concerned, Fleming's case was submitted to a jury, which passed upon the question of whether he was insane. It is true, in the Fleming case the question of whether he was entitled to a trial by jury was not raised. But, isn't it fair to assume that if he was not entitled to a jury trial, surely the lower court and the able county attorney and his assistant would have called attention to that fact? And certainly this court would have called attention to the error in the trial of the case when it was before it for review. The truth is that it has been understood and regarded by both the bench and the bar that the person informed against in an insanity case is entitled to a jury trial upon appeal. To show the intent of the legislature it seems to me we need but call attention to the fact that where it is sought to have a guardian appointed for the person or property of one charged with being insane, that question must be submitted to a jury. Surely, when the individual's liberty is at stake, where is concerned the question of whether that individual shall be sent to the State Hospital and confined there for a period of time, that all-important question of the taking away of the liberty of that person should be submitted to a jury.

I would reverse the case.

I am authorized to state that Justice Sager joins in this dissent.