State ex rel. D. W. v. Hensley

FINCH, Judge.

Separate petitions for a writ of habeas corpus and for declaratory judgment¹ were filed in this court by D.W. and E.B. These petitions, filed pursuant to § 202.850,² requested release from custody under previous commitments to the Department of Mental Health pursuant to which they had been placed at St. Joseph State Hospital No. 2. We ordered the two cases consolidated.

Except for dates and names, the petitions are identical. They allege that on January 10,1977, as to E.B. and on April 25,1977, as to D.W., an application for an order of involuntary hospitalization of a person who is mentally ill was filed in the Probate Court of Jackson County. In each instance, a notice of hearing on the application was personally served on the person whom the petition sought to have hospitalized and an attorney was appointed to represent each subject. Thereafter, hearings were held after which an order of hospitalization was entered pursuant to § 202.807.³ The orders recite that the patient appeared in person and by attorney and that after a hearing at which one of the witnesses was a licensed physician, the court found that the subject of the hearing was mentally ill, as defined by law, and was in need of custody, care and treatment in a hospital for the mentally ill. It further found that the person had not voluntarily sought such hospitalization and that due to such illness the person lacked sufficient insight and capacity to make responsible decisions with respect to such hospitalization.

The petitioners did not avail themselves of the right of appeal to the circuit court pursuant to § 202.807.7 nor did they subsequently institute a proceeding in the Probate Court of Jackson County for reexamination of the orders of hospitalization as authorized by § 202.837.⁴

In these proceedings petitioners seek release from custody plus associated relief on the basis that § 202.807, under which they were committed, is unconstitutional under various provisions of the Missouri and United States Constitutions. The reasons assigned are that the statute is vague and overly broad, its notice requirements are deficient, it neither permits nor requires use of the rules of evidence, it requires proof by only a preponderance of the evidence, it does not require that incarceration be in the least restrictive setting appropriate and it does not require mandatory periodic review hearings.

On July 14, 1978, we ordered writs of habeas corpus to issue. Respondents filed returns thereto which assert that their custody of petitioners is pursuant to valid orders of the Probate Court of Jackson County, that § 202.807 is constitutional on its face and as applied and that habeas corpus relief is inappropriate for the reason that petitioners have available a remedy pursuant to § 202.837. Thereafter, no evidentia-ry hearing was requested by either party and the case was set for oral argument.

The briefs filed herein disclose that on July 31, 1978, E.B. was placed on out-patient care and subsequently on August 18, 1978, was released from the care and custody of the Department of Mental Health. On August 11, 1978, D.W. was released from the care and custody of the Department of Mental Health. Both releases were pursuant to § 202.827.

Relators, by their petitions for writ of habeas corpus, sought to challenge their custody by respondents and to effect their release. That custody has been terminated by their release pursuant to § 202.827. As a result, the petitions have become moot. At issue is whether we should dismiss them for that reason or whether we should in our discretion retain and decide them as we may do with cases which present issues of great importance which may arise again. Boone v. Danforth, 463 S.W.2d 825 (Mo.banc 1971); O.H. v. French, 504 S.W.2d 269 (Mo.App.1973).

Petitioners argue in their reply brief that we should retain and decide these cases because they might subsequently be recommitted pursuant to § 202.807. However, the recent session of the General Assembly enacted a new Missouri civil commitment law, H.C.S.S.B. 651,⁵ effective January 2, 1979, which repeals § 202.807. Consequently, commitments on and after that date will be pursuant to the provisions of the new statute which differs in numerous respects from the present statute. Therefore, neither petitioners nor others will be subject to commitment under § 202.807.⁶

Petitioners next argue that we should retain and decide these cases because otherwise they will suffer adverse consequences from the orders of commitment even though they now have been released from custody. They suggest that any attempt to commit them under the new law will be influenced by the prior commitments of which they now complain and that records of the prior commitments will be used in any subsequent proceeding for civil commitment. We are not persuaded that this will be so. They cite In re Ballay, 157 U.S.App. D.C. 59,482 F.2d 648 (1973), but no Missouri cases supporting the proposition asserted are cited. Relators also claim that future employment in various fields will be affected adversely. The only allegation in the petitions for habeas corpus which might be said to relate to this contention is the allegation that petitioners, as a result of the adjudication and confinement, suffer the stigmatization of being adjudicated and labeled as mentally ill. As previously noted, petitioners did not request an evidentiary hearing and no evidence has been received. Therefore, there is no record to support petitioners’ contentions. They have attached to their reply brief an appendix which purports to consist of copies of documents said to show that future employment in certain areas will be affected adversely. Such copies are not evidence in this case and we do not consider them. If petitioners wanted these documents considered, a hearing should have been requested and evidence offered.

Under these circumstances we have concluded not to retain and decide these cases. The petitions for writ of habeas corpus are dismissed as moot and the writs heretofore issued are quashed.

MORGAN, C. J., BARDGETT, REND-LEN and SIMEONE, JJ„ and ALDEN A. STOCKARD, Special Judge, concur. SEILER, J., dissents in separate dissenting opinion filed. DONNELLY, J., not sitting.

1 . In their brief petitioners withdraw their request for a declaratory judgment.

2 . RSMo Cum.Supp.1975.

3 . All references to § 202.807 are to RSMo Cum. Supp.1975.

4 . All statutory references are to RSMo 1969 unless otherwise indicated.

5 . 1978 Mo.Legis.Serv. 83 (Vernon) (codified as §§ 202.010-.225 RSMo).

6 . The new statute further provides in § 202.220 that “[t]he commitment of any person pursuant to section 202.807 RSMo Cum.Supp.1975, shall terminate not more than one year after January 2, 1979, unless further detention and treatment is authorized pursuant to section 202.145 or pursuant to the provisions of chapter 475, RSMo.” Section 202.173 thereof also authorizes any person detained pursuant to the act to apply for a writ of habeas corpus.