In re Tew

CAMPBELL, Judge.

The sole issue presented on this appeal is the validity of the portion of G.S. 122-86 providing that no judge, issuing a writ of habeas corpus upon application of a person committed to a hospital under the provisions of G.S. 122-84, “shall order his discharge until the superintendents of the several State Hospitals shall certify that they have examined such person and find him to be sane, and that his detention is no longer necessary for his own safety or the safety of the public.”

Petitioner contends that the provision of the statute requiring a certificate from the superintendents of the several State Hospitals is violative of due process of law as guaranteed by the Federal and State Constitutions. We do not agree. Clearly, the General Assembly has the power to establish mental institutions and rules and regulations for the care and custody of the insane. State v. Craig, 176 N.C. 740, 97 S.E. 400 (1918); see also N. C. Const. art. XI, §§ 7 & 10.

In the case of In re Boyett, 186 N.C. 415, 48 S.E. 789 (1904), the petitioner Boyett had been tried for the capital offense of murder of his wife. On his trial he was acquitted by the jury on the ground of insanity. The trial judge, without any inquisition of lunacy, committed Boyett to the hospital for the dangerous insane and ordered him retained there until discharged. In the Boyett habeas corpus proceeding, the statute authorizing the commitment was held to be invalid as not conforming to due process of law since Boyett had not been given notice or an opportunity to be heard before the commitment. Likewise, an attack was made for that there was no provision by which in a judicial proceeding his mental condition could be inquired into, and the sole power to grant relief was conferred upon the legislature. The court held that the proceeding was invalid in both respects. In connection with the original commitment, Judge Connor for the court stated:

“ . . . We do not wish to be understood as saying that a person acquitted of a grave crime upon the ground of insanity may not be detained for a reasonable time, so that by some appropriate proceedings the condition of his mind may, either under the direction of the Judge presiding or some other judicial officer, or commission, be examined into for the purpose of ascertaining whether his own safety and that of other persons, or the public generally, requires that he be committed to the hospital for treatment and care. It is well settled that it is not necessary that a jury trial be had — it is sufficient if the inquiry be had in some way by some tribunal conforming to the constitutional requirement of due process of law. ...” (Emphasis added.)

In the instant case Tew was not committed until after an inquisition as to his mental condition. Thus, this aspect of the Boyett case was rectified. The attack now being made is under the second aspect of the Boyett case, namely, the release from the hospital of a person lawfully committed.

In enacting the provision now complained of, the General Assembly has merely followed the guidelines laid down in the Boyett case, supra. The “superintendents of the several State Hospitals” have been designated to determine whether the person committed is sane and “that his detention is no longer necessary for his own safety or the safety of the public.” The superintendents thus constitute a commission as suggested in the Boyett case, supra. If, as suggested by the Boyett case, supra, a commission could make the determination at the time of the initial commitment proceeding and thus constitute due process, the same proceeding should be sufficient to constitute due process in determining whether or not the commitment should terminate.

While the passage of time since the enactment of G.S. 122-86 and the increase in the number of superintendents of the several State Hospitals increases the difficulty of procuring the necessary certificate, this in no way violates due process. Any change in the procedure is a matter for the legislative branch of the government and not the judicial. We think the proceeding as now enacted provides due process.

Other states, having similar provisions, have considered this same problem and have upheld the requirement of a certificate, either from several heads of institutions or the head of the institution where the mentally ill person is committed, before the mentally ill person can be released. See In re Clark, 86 Kans. 539, 121 P. 492 (1912); Parker v. People, 108 Colo. 362, 117 P. 2d 316 (1941) ; Bartosik v. People, 155 Colo. 219, 393 P. 2d 571 (1964); Blalock v. Markley, 207 Va. 1003, 154 S.E. 2d 158 (1967) ; and Rogers v. State, 459 S.W. 2d 713 (Tex. Civ. App. 1970). For an annotation of various views and situations see 95 A.L.R. 2d 54 (1964).

Petitioner does not allege and makes no attempt to show that the failure to obtain the required certificate was the result of arbitrary or capricious action on the part of the superintendents.

For the reasons stated, the order of the trial judge remanding petitioner to the custody of Dorothea Dix Hospital is

Affirmed.

Judge Graham concurs. Judge Britt dissents.