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Powell v. Maryland Department of Health

Court of Appeals of Maryland

August 28, 2017

Fredia Powell, et al.
v.
Maryland Department of Health, et al.

          Argument: March 31, 2017

         Circuit Court for Baltimore City Case No. 24-C-16-003484

          Barbera, C.J., Greene, Adkins, McDonald, Hotten, Getty, Raker, Irma S. (Senior Judge, Specially Assigned), JJ.

          OPINION

          McDONALD, J.

         A criminal prosecution may not proceed against a defendant who is not competent to stand trial. For that reason, a defendant may not be continued in pretrial detention unless the government is taking steps to provide treatment to restore the defendant to competence or to have the defendant civilly committed. Maryland law provides for a trial court to determine whether a defendant is competent, is dangerous to self or others, and, if incompetent, has the potential to be restored to competence. If these criteria are met, the trial court may commit the defendant to a mental health facility designated by Appellee Maryland Department of Health[1] ("MDH") for appropriate treatment to restore the defendant to competence. Maryland Code, Criminal Procedure Article ("CP"), §3-104 et seq. This case concerns implementation of that law within constitutional parameters.

         MDH and its head, Appellee Secretary of Health, [2] have adopted a policy on admission to State psychiatric hospitals to manage the demand for the limited beds available at those facilities. That policy has resulted in the creation of a waiting list for admission to State psychiatric hospitals - a list that has included criminal defendants who have been found incompetent to stand trial and committed for treatment, including the four Appellants in this case. The Circuit Court for Baltimore City - at least in the four instances spotlighted in this case - has adopted a practice of requiring admission of a defendant to a hospital within one day of the issuance of the commitment order.

         In this case, the Circuit Court found each of the Appellants - defendants in separate criminal cases - to be incompetent to stand trial and dangerous. The court committed each of them to a State psychiatric facility pursuant to the statute and ordered their admission within one day of the commitment order. When MDH failed to admit them by that deadline, they collectively brought this action challenging the MDH policy on statutory and constitutional grounds.

         We hold that the statute itself does not set a deadline for admission to a psychiatric hospital. Nor does it authorize a circuit court to do so. Accordingly, a delay in admitting a criminal defendant by a deadline set forth in a commitment order does not violate the statute, although it may violate the commitment order. Nevertheless, depending on the circumstances of the particular case, such delay may violate the due process guarantee of the Maryland Declaration of Rights unless the delay is reasonable under the circumstances of the particular case.

         I

         Background

         A. Procedures Concerning Defendants Found Incompetent to Stand Trial

         Competency Standard

         Under the common law, a criminal prosecution could not proceed if the defendant was unable, as a result of a mental or physical disability, to understand the proceedings or to assist in the defense. A criminal defendant in that condition is said to be incompetent to stand trial.[3] See Note, Incompetency to Stand Trial, 81 Harv. L. Rev. 454 (1967). That standard has prevailed in Maryland since 1967. Raithel v. State, 280 Md. 291, 297-98 (1977); see also CP §3-101(f) ("'[i]ncompetent to stand trial' means not able: (1) to understand the nature or object of the proceeding; or (2) to assist in one's defense."). Because the prohibition against trying or convicting an incompetent defendant is considered "fundamental to the adversary system of justice, " it is also an element of the due process right to a fair trial under the United States Constitution. Drope v. Missouri, 420 U.S. 162, 172 (1975). While the State thus has no legitimate interest in criminally prosecuting a defendant who is incompetent to stand trial, it does have an interest in restoring a defendant to competency for the purpose of resolving the criminal charges. See Allmond v. Dept. of Health & Mental Hygiene, 448 Md. 592, 608-13 (2016).

         Trial Court Determination

         Under Maryland law, trial courts are charged with determining whether a defendant is in fact incompetent to stand trial and, if so, what to do about it. CP §§3-104 through 3-108. If it appears that a defendant may be incompetent to stand trial (or the defense alleges incompetence), the trial court must determine, from "evidence presented on the record, " whether the defendant is in fact competent to stand trial. CP §3-104. Part of the evidence considered by the court may be a report from MDH following its examination of the defendant.

         Examination of Defendant for Competence and Dangerousness

         To obtain an assessment by MDH, the court may order MDH to examine the defendant and submit a report to the court, the prosecutor, and defense counsel concerning whether the defendant is competent to stand trial. CP §3-105(d)(1). If, upon examination, MDH determines that the defendant is incompetent to stand trial, the report must include a supplementary opinion concerning "whether, because of mental retardation or mental disorder, the defendant would be a danger to self or the person or property of another, if released." CP §3-105(d)(3).

         Disposition after Determination of Incompetence

         If the court finds that the defendant is incompetent to stand trial, but is not dangerous to self or the person or property of others, the court is to set bail or release the defendant on personal recognizance. CP §3-106(a). The court is then required to hold a hearing at least annually to reconsider the issues of competence and dangerousness. CP §3-106(f).

         If, however, the court finds that the defendant is dangerous as well as incompetent, "the court may order the defendant committed to the facility that [MDH] designates until the court finds that: (i) the defendant no longer is incompetent to stand trial; (ii) the defendant no longer is, because of mental retardation or a mental disorder, a danger to self or the person or property of others; or (iii) there is not a substantial likelihood that the defendant will become competent to stand trial in the foreseeable future." CP §3-106(b)(1).[4] In other words, the three criteria for commitment and retention of a criminal defendant in a psychiatric hospital under this provision can be understood as incompetence, dangerousness, and restorability. See State v. Ray, 429 Md. 566, 578-79 (2012).

         If the court finds that a defendant meets these criteria[5] and commits the defendant, the court is to conduct a hearing at least once a year from the commitment date to determine whether the defendant continues to meet the criteria for commitment. CP §3-106(c)(1)(i). The court may hold earlier or additional hearings on its own initiative, upon receipt of a report from MDH containing new information, or upon motion of a party setting forth new facts or circumstances. CP §3-106(c)(1)(ii)-(iii), (2).

         If a defendant remains incompetent to stand trial, the court must eventually decide whether to take other action. If it appears that the defendant remains incompetent and is not restorable - i.e., "not likely to become competent in the foreseeable future" - the court may civilly commit the defendant if certain criteria are met. CP §3-106(d).[6] If the defendant has not been restored to competence and the criminal charges have not been resolved, the statute also requires the court to dismiss the criminal charges after specified periods of time (based on the nature of the charges and the potential penalty) have elapsed, unless the State petitions the court "for extraordinary cause" to extend the statutory deadline. CP §3-107.

         Under the statute, MDH thus functions as a legislatively-designated expert that may assist the court in making the necessary findings and as the provider of treatment that may restore the defendant to competence. The statute contemplates a cooperative process in which MDH evaluates the defendant initially and periodically, provides reports and opinions to the court, and designates facilities at which evaluation and treatment take place. The court is charged with determining whether the criteria of incompetence, dangerousness, and restorability are met, revisiting those determinations periodically, and taking appropriate action based on its findings.

         Hospital Facilities Operated by MDH

         MDH's Behavioral Health Administration operates five psychiatric hospitals in Maryland. Maryland Code, Health-General Article ("HG"), §10-406. The Director of the Behavioral Health Administration is charged by State law with setting standards for admission to those facilities. HG §10-407.

         There are four regional hospitals to which individuals are committed by courts in the region served by the particular hospital.[7] However, individuals charged with serious crimes are generally committed to the Clifton T. Perkins Hospital Center ("Perkins"), regardless of the location of the court that ordered the commitment.

         B. Facts and Legal Proceedings

         The basic facts of this case are set forth in the complaint and accompanying affidavit of Appellants' counsel, and in an affidavit supporting the motion to dismiss subsequently filed by MDH and the Secretary. These facts are largely undisputed, although the parties differ on the characterization of those facts, the inferences to be drawn from them, and their legal significance.

         The Complaint

         The complaint was filed on behalf of Fredia Powell, James Powell, Shane Dorsey, and Ivan Burrell in the Circuit Court for Baltimore City on June 8, 2016. Different labels have been applied to Ms. Powell, Mr. Powell, Mr. Dorsey, and Mr. Burrell in connection with this litigation. Each has been a defendant facing criminal charges in separate cases in the Circuit Court. Each also became a plaintiff prosecuting the civil complaint that initiated this action. Each now is an appellant pursuing the appeal before us. In the hope of avoiding confusion, we shall refer to them consistently in this opinion as "Appellants."

         The complaint named MDH and the Secretary as defendants. Because the Secretary was sued in his official capacity as the head of MDH, we shall refer to the Appellees collectively as "MDH, " unless the context requires otherwise.

         The complaint alleged that each of the Appellants was a defendant in a criminal case in the Circuit Court for Baltimore City. In each case, according to the complaint, the Circuit Court determined prior to trial that the Appellant was both incompetent to stand trial and dangerous.[8] In each case, the Circuit Court issued a written order on a pre-printed Judiciary form committing the Appellant to MDH as a result of those findings. (A copy of each order was attached as an exhibit to the complaint in this case).

         In each case, the order directed the Department of Public Safety and Correctional Services to transport the Appellant immediately to Perkins "or such other facility as [MDH] designates." The designation of Perkins was a handwritten addition to the form order. Each order included another handwritten addition requiring that the Appellant be admitted as an inpatient "no later than" a specified date - in each case, the day after the date of the commitment order. In each case, additional paragraphs of the pre-printed form order provided for a status conference in six months and an annual hearing a year after the date of the order.[9]

         None of the Appellants was admitted to Perkins by the deadline set forth in their respective orders. At the time of the filing of the complaint on June 8, 2016, each of the Appellants was being held in a pretrial detention facility, still awaiting admission to Perkins. After the filing of the complaint, each of the Appellants was admitted to Perkins on various dates between June 13 and June 30, 2016. Instead of being admitted within one day of the commitment order, as stated in the handwritten addition to each form order, the Appellants were admitted between 12 and 36 days after the dates of their respective commitment orders. The individual chronologies with respect to each Appellant were as follows:

• Fredia Powell was charged with second-degree attempted murder and first-degree assault. On June 1, 2016, the Circuit Court found Ms. Powell incompetent to stand trial and dangerous because of a mental disorder and ordered that she be admitted to Perkins no later than the following day - June 2, 2016. Ms. Powell was not admitted to Perkins until June 13, 2016. In the meantime, Ms. Powell was confined in pretrial detention at the Baltimore City Detention Center.
• James Powell was charged with first-degree arson. On May 25, 2016, the Circuit Court found Mr. Powell incompetent to stand trial and dangerous because of a mental disorder and ordered that he be admitted to Perkins no later than the following day - May 26, 2016. Mr. Powell was not admitted to Perkins until June 21, 2016. In the meantime, he was confined at the Baltimore City Booking and Intake Center.
• Shane Dorsey was charged with first-degree attempted murder and second-degree attempted murder. On May 25, 2016, the Circuit Court found Mr. Powell incompetent to stand trial and dangerous because of a mental disorder and ordered that he be admitted to Perkins no later than the following day - May 26, 2016. Mr. Dorsey was not admitted to Perkins until June 30, 2016. In the meantime, he was confined at the Baltimore City Detention Center.
• Ivan Burrell was charged with first-degree attempted murder and second-degree attempted murder. On May 25, 2016, the Circuit Court found Mr. Burrell incompetent to stand trial and dangerous because of a mental disorder and ordered that he be admitted to Perkins no later than the following day - May 26, 2016. Mr. Burrell was not admitted to Perkins until June 16, 2016. In the meantime, Mr. Burrell was confined at the Baltimore City Booking and Intake Center.

         The complaint further alleged that the Appellants' cases were not unique and that MDH had failed, and continued to fail, to comply with the deadlines in court orders for the commitment of criminal defendants who had been judicially determined to be incompetent to stand trial and dangerous as a result of mental disorder. Attached to the complaint as an exhibit was a letter dated April 28, 2016, from the Secretary to the Administrative Judge of the Circuit Court for Prince George's County. In that letter, the Secretary described a "crisis" that prevented MDH from "responding expeditiously to court requirements." The letter stated that MDH's in-patient facilities were full and, in fact, "over census, " that MDH was at risk of having insufficient staff to provide the necessary care, that the problem was "particularly acute" at Perkins, and that the Secretary was forming a workgroup to solve the problems. He asked for the Judiciary's assistance and participation in the workgroup. The complaint characterized the Secretary's letter as justifying an "optional compliance" policy with respect to court orders.

         The complaint alleged two causes of action, both premised to some extent on the fact that none of the Appellants had been admitted to Perkins at the time the complaint was filed. Count One alleged that MDH had violated CP §3-106(b) with respect to each Appellant because it had failed to comply with the court order concerning that Appellant. Count Two alleged that MDH had violated the Appellants' right to due process guaranteed by Article 24 of the Maryland Declaration of Rights. In a prayer for relief, the complaint asked the court to grant a motion for a preliminary injunction, [10] to hold a hearing on a motion to certify a plaintiff class, to set an expedited schedule, and to order declaratory and permanent injunctive relief.

         A separate motion for class certification was filed with the complaint. The motion sought certification of a plaintiff class of "persons determined to be not competent to stand trial who are being denied court ordered mental health treatment in mental health facility." The motion sought certification of a plaintiff class under Maryland Rule 2-231(b)(2) and (b)(3), [11] with the Appellants designated as representatives of that class.[12]

         The Motion to Dismiss

         On July 13, 2016, MDH moved to dismiss the Appellants' complaint as moot and also moved to dismiss the claims for injunctive relief for failure to state a claim on which relief can be granted. With respect to the issue of mootness, MDH submitted an affidavit of the Director of the Behavioral Health Administration. That affidavit recounted the chronology on which each of the Appellants was admitted to Perkins. In the affidavit, the Director stated that, as of the time she made the affidavit, only three individuals on the waiting list for Perkins had been found incompetent to stand trial and that none of those individuals was the subject of an order with a specific deadline for admission. The affidavit also stated that there were no individuals who had been found incompetent to stand trial on the waiting lists for MDH's other four psychiatric hospitals. The affidavit stated that the hospitals were currently operating at or above maximum capacity and described efforts undertaken to reduce admission delays.

         MDH also opposed the motion for class certification, arguing that the claims of the individual Appellants were moot and that, in any case, they failed to establish that the threshold requirements for a class action under Maryland Rule 2-231(a) - i.e., numerosity, commonality, typicality, and adequacy of representation - were satisfied. In the alternative, MDH argued that any plaintiff class should be limited to individuals who had been found incompetent to stand trial and dangerous, and were designated for admission to Perkins within one day in a commitment order issued by the Circuit Court for Baltimore City.

         Circuit Court Ruling on Motion to Dismiss

         On August 30, 2016, the Circuit Court held a hearing at which it heard argument on the motion to dismiss.[13] The parties agreed that the court should decide the motion to dismiss before addressing the class certification motion.[14]

         In a brief oral ruling at the conclusion of the hearing, the Circuit Court granted MDH's motion to dismiss the Appellants' claims for injunctive relief. The Circuit Court reasoned that CP §3-106(b) did not authorize a court to set a deadline for admission to a hospital and, accordingly, that a failure to comply with a deadline in an order did not violate the statute. The Circuit Court also held that the delays in placing the Appellants, even if the delays subsequent to the filing of the complaint were considered, did not violate Article 24 of the Maryland Declaration of Rights. The court did not explicitly address the issue of mootness. The court later entered a brief written declaratory judgment consistent with its oral ruling.

         The Appeal

         The Appellants filed a timely notice of appeal. Prior to consideration of the appeal by the Court of Special Appeals, they filed a petition for a writ of certiorari with this Court, which we granted.

         II

         Discussion

         Appellants contend that the Circuit Court erred when it concluded that MDH's delay in admitting Appellants to Perkins did not violate either CP §3-106(b) or Article 24 of the Maryland Declaration of Rights. MDH ...


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