Virginia Supreme Court holds commitment criteria must be met at time of appeal; case not moot due to loss of firearms right.
In most prior cases appealed to the Supreme Court, the Court has dismissed the appeal as moot because the commitment order appealed from, which lasts only 30 days in the case of an initial commitment and 180 days for continued commitments, has long since expired before it considers the case. (46) Although the majority opinion did not so explicitly state, the collateral consequence argued by Paugh and alluded to in Justice William Mims concurring opinion and Justice Elizabeth McClanahan's opinion concurring in part and dissenting in part, is an individual's Second Amendment right to possess a firearm. In their separate opinions, Justice Mims and Justice McClanahan wrote that the proper procedure to challenge the validity of the underlying commitment decision is through a petition filed under Virginia Code [section] 37.2-846(A), a post-discharge process available to a person who has been committed but is no longer in custody, (47) and not Code [section] 37.2-821, the statute that authorizes an appeal. Justice Mims then invited the General Assembly to clarify the process.
Facts and Procedural History
On March 19, 2012, a Henrico County Magistrate issued a temporary detention order ("TDO") for Michael Paugh. The next day, March 20, 2012, a special justice involuntarily committed Paugh for a period of up to 30 days. The day after he was discharged, but within the 10-day time frame specified in the statute, Paugh appealed his commitment to the Henrico County Circuit Court under Virginia Code [section] 37.2-821. Although the statute requires that an appeal be given priority over all other pending matters, including criminal cases, the circuit court did not hear the case until May 18, 2012.
Over his objection, the circuit court admitted Paugh's pre-admission screening report into evidence. The report contained information provided by Henrico police that they had obtained from a friend of Paugh's indicating her belief that Paugh was suicidal and possessed guns. (48) Paugh also argued that the circuit court should make a de novo determination as to whether he met the commitment criteria as of the date of the circuit court hearing, not as of the date of his admission under the TDO. The Commonwealth advised the court that because Paugh had been discharged, he no longer met the commitment criteria and it was not seeking his further hospitalization or commitment. The court ruled, however, that "common sense" required the court to conduct a de novo appeal of whether Paugh should have been admitted on the date the TDO was executed. After hearing the evidence, the circuit court determined that Paugh met the commitment criteria on the date of his temporary detention and denied his appeal.
On appeal, the Virginia Supreme Court reviewed whether the circuit court should evaluate the evidence as of the 1) date of admission, 2) the date of the hearing conducted by the general district court or special justice, or 3) the date of the de novo hearing in the circuit court. The Court relied on the principle of statutory construction that if the words of a statute are clear and unambiguous it need not look further than the plain meaning of the statute itself. It held therefore that "the day that the de novo hearing is conducted is the proper date on which to consider whether the individual should be committed." Section 37.2-821(B) provides:
The appeal shall be heard de novo in accordance with the provisions set forth in [section][section] 37.2-802, 37.2-804, 37.2-804.1, 37.2-804.2, and 37.2-805, and (i) [section] 37.2-806 or (ii) 37.2-814 through 37.2-819, except that the court in its discretion may rely upon the evaluation report in the commitment hearing from which the appeal is taken instead of requiring a new evaluation pursuant to [section] 37.2-815. Any order of the circuit court shall not extend the period of involuntary admission or mandatory outpatient treatment set forth in the order appealed from. An order continuing the involuntary admission shall be entered only if the criteria in [section] 37.2-817 are met at the time the appeal is heard. (Emphasis added.)
The Court stated that this interpretation is further supported by the provision permitting the circuit court to order a new evaluation report rather than relying upon the previous one prepared at the time of the original commitment hearing.
As to the proper relief to be granted, the Court's majority then found that a de novo hearing constitutes a statutory grant of a new trial and annuls the judgment of the district court as completely as if there had been no previous trial. The Court then determined that the case was before the circuit court on the petition for involuntary commitment. Because the Commonwealth conceded that Paugh had been discharged from his commitment and no longer met the criteria, the proper outcome therefore was to dismiss the petition for involuntary commitment. As a result, the original commitment order became a nullity.
The Supreme Court's decision would have been straightforward had not Justice Mims filed a concurring opinion, and Justice McClanahan filed an opinion concurring in part and dissenting in part.
Justice Mims' Opinion
Justice Mims reluctantly concurred in the result of this case, but only because he believed the circuit court, and hence the majority of the Supreme Court, incorrectly applied [section] 37.2-821 to this case, but the Commonwealth failed to object in the circuit court or to assign cross error. Justice Mims strongly agreed with the majority of the Court that this case was not moot because collateral consequences of constitutional magnitude were at stake for Paugh. In particular, he referenced in his footnote 2 that the particular consequence aggrieving Paugh was the effect of the initial commitment order which denied him the right to possess a firearm under Virginia Code [section] 18.2-308.1:3(A).
However, because his commitment order had expired and he no longer met the commitment criteria at the time of the circuit court de novo hearing, Justice Mims wrote that [section] 37.2-821 was not the proper process for Paugh to challenge his commitment in the general district court and the loss of his firearms rights. Section 37.2-821 should therefore be available only when the person remains involuntarily committed or, if no longer committed, remains subject to an involuntary commitment order.
Instead, Justice Mims wrote that an individual in Paugh's situation can only challenge the collateral consequences resulting from his original commitment order by filing a separate action under [section] 37.2-846(A). (49) That section provides that in cases in which an individual is not confined in a facility or institution, "the person may file his petition in the circuit court of the county or city in which he resides or in which he was found to have a mental illness or in which an order was entered authorizing his continued involuntary inpatient treatment pursuant to Article 5 ([section] 37.2-814 et seq.) of Chapter 8 of this title." Had Paugh followed this process, Justice Mims then determined that the proper inquiry before the circuit court and this Court should have been whether Paugh's commitment was according to the law on the day the order was entered rather than on the day of the hearing as contemplated by Code [section] 37.2-821. He then invited the legislature to take action to clarify the law: "To the extent this predicament resulted from the statutory scheme's failure to anticipate that a Code [section] 37.2-821 hearing could occur long after a commitment had ended and the concomitant commitment order had expired, the General Assembly may wish to consider clarifying the interrelationship between Code [section][section] 37.2-821 and 37.2-846(A)."
Justice McClanahan's Opinion
Justice McClanahan, in her opinion concurring in part and dissenting in part, agreed with Justice Mims that Paugh erroneously filed an appeal under [section] 37.2-821 rather than utilizing the post-release procedure available under [section] 37.2-846(A) to challenge the validity of his underlying commitment. She agreed with the majority's decision and Justice Mims that [section] 37.2-821 requires a determination as to whether the individual meets the commitment criteria at the time of the de novo circuit court decision, but disagreed with the remedy that the petition for involuntary commitment must be dismissed. Justice McClanahan wrote that the expedited appeal is established for the limited purpose of providing an opportunity to the individual to obtain his release if the evidence does not demonstrate he met the criteria for commitment at the time of the appeal. Because [section] 37.2-821(B) specifically states that the circuit court may enter "[a]n order continuing the involuntary admission only if the commitment criteria are met at the time the appeal is heard," she concluded that such a finding does not mean that the initial commitment order was invalid. The remedy is therefore not dismissal of the petition for involuntary commitment.
Justice McClanahan recognized the practical effect of the majority's opinion that every individual who has been involuntarily committed and appeals that commitment under [section] 37.2-821 but has already been discharged before the de novo hearing is held, or otherwise no longer meets the commitment criteria, will have his prohibition from purchasing, possessing or transporting a firearm negated. From arguments presented by Paugh in this appeal, avoidance of the firearms prohibition was his primary objective. Justice McClanahan wrote that "[a] more reasonable construction and application of this statutory scheme is that a successful 821 appeal terminates the effectiveness of the petition for involuntary commitment and accompanying commitment order, but does not result in its outright dismissal. Code [section] 37.2-846 would then provide the procedural avenue for challenging the validity of the underlying petition and commitment order."
Unlike the majority and Justice Mims, Justice McClanahan would also have found the case pending before the circuit court moot based on her reasoning above because Paugh had already been released when he filed the appeal under [section] 37.2-821 and the circuit court could not have granted the relief he requested under that statute.
In spite of the well-reasoned concurring and dissenting opinions, the majority opinion controls. Individuals who have been involuntarily committed, but have been discharged, otherwise no longer meet commitment criteria, or whose 30-day commitment order has simply expired, may negate the collateral effects of the commitment order, such as their right to possess a firearm, simply by filing an appeal of their commitment order under [section] 37.2-821 within the 10-day time period. The Commonwealth will not be able to present evidence denying them relief.
Since the tragedy at Virginia Tech and the General Assembly's mandate enacted in 2008 under Virginia Code [section] 37.2-819, general district court clerks have diligently provided certification of an individual's commitment to the CCRE. Although circuit court clerk's are also required to provide such information to the CCRE, there is no similar mandate that the circuit court clerk report that an individual's commitment order has been negated. As a practical matter, it is therefore not clear whether clerks of court will automatically notify the state police to remove the individual's name from the Central Criminal Records Exchange ("CCRE"), the state's firearms registry, and that it will then be removed from the National Instant Criminal Background Check System ("NICS"), when an individual's appeal succeeds in the circuit court. As Justice McClanahan pointed out, it is also not clear that the General Assembly intended such a result. The General Assembly may want to clarify the interrelationship between [section][section] 37.2-821 and 37.2-846 and their effect on an individual's right to possess a firearm at the next or in future sessions, as Justice Mims has invited.
(44) In an unreported order entered issued the same day, the Court reversed and dismissed Wood v. Commonwealth, (No. 121602, June 6,2013) based upon the Opinion in this case.
(45) The opinion is available on the Supreme Court's website at: http://www.courts.state.va.us/opinions/opnscvwp/1121562.pdf.
(46) There is very little case law in Virginia interpreting the civil commitment process because appellate courts have previously deemed the appeals moot. That may change following this decision.
(47) This process has seldom, if ever, been used.
(48) Paugh objected to admission of the narrative statement in the pre-admission screening report because it was not a fact as contemplated by Virginia Code [section] 37.2-816. Section 37.2-816 requires the report to "be admitted into evidence of the facts stated therein." Although presented as an assignment of error before the Virginia Supreme Court, the Court did not decide this issue because the case was reversed on other grounds.
(49) Neither Justice Mims' opinion nor Justice McClanahan's opinion references the procedure in Virginia Code [section] 18.2-308.1:3(B) providing the procedure available to a person to have his right to possess a firearm restored.
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|Publication:||Developments in Mental Health Law|
|Date:||Jul 1, 2013|
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