Hattison v. State

Louis HATTISON v. STATE of Arkansas

95-563                                             ___ S.W.2d ___

                    Supreme Court of Arkansas
                  Opinion delivered May 6, 1996


1.   Statutes -- construction of -- no sanctions existed for
     violation. -- When the General Assembly uses the word "shall,"
     the effect is mandatory unless an absurdity would result; the
     thirty-day requirement of Ark.Code Ann.  5-2-314(d)(Supp.
     1995) is thus mandatory in the literal sense; however, the
     statute does not address any sanction to be employed, and
     appellant cited no case suggesting that it was the General
     Assembly's intent to deprive the probate court of jurisdiction
     should the report be untimely. 

2.   Jurisdiction -- court found appellant lacking in mental
     capacity to have committed the crimes -- jurisdiction of
     probate court established by "automatic" order of committment. 
     Where appellant had been committed by the court, after having
     been found lacking in mental capacity sufficient to have
     committed the crimes with which he was charged, Ark. Code Ann.
      5-2-314(e) placed on appellant the burden of proving to the
     probate court that "his release would not create a substantial
     risk of bodily injury to another person or serious damage to
     property of another due to a present mental disease or
     defect"; jurisdiction of the probate court was established by
     the "automatic" order of commitment entered by the circuit
     court.

3.   Statutes -- court not deprived of jurisdiction due to late
     psychiatric report -- dismissal and loss of jurisdiction not
     appropriate remedy. -- While a commitment cannot be
     "indefinite," there was no reason to deprive the probate court
     of jurisdiction due to a late psychiatric report; the supreme
     court found no announced penalty in the statute or in the case
     law interpreting the statute for the State's failure to meet
     the statutory time limits, and the appellant gave no support
     for his contention that the remedy was dismissal and loss of
     jurisdiction; no such sanction as is provided in the speedy
     trial law was provided by the statutes governing acquittals on
     the ground of insanity.


     Appeal from Pulaski Probate Court; Mary Spencer McGowan,
Probate Judge; affirmed.
     William R. Simpson, Jr., Public Defender, by:  Stephen Wade
Parker, for appellant.
     Winston Bryant, Att'y Gen., by:  Patricia Van Ausdall, Asst.
Att'y Gen., for appellee.

     David Newbern, Justice.

May 6, 1996   *ADVREP1*


LOUIS HATTISON                          95-563
                                        Opinion Delivered:

          Appellant                     

     v.                                 Appeal from Pulaski
                                        County Probate Court


STATE OF ARKANSAS                       Honorable Mary Spencer
                                        McGowan, Probate Judge

          Appellee                      Affirmed


                     David Newbern, Justice.
     On March 3 and March 7, 1995, judgments of acquittal of
criminal charges were entered in favor of Louis Hattison, the
appellant.  In each judgment the Circuit Court recited a finding
that Mr. Hattison lacked the mental capacity to commit the crime
charged.  There was a provision in each for automatic commitment of
Mr. Hattison to the custody of the Director of the Department of
Human Services for examination by a psychologist or psychiatrist in
accordance with Ark. Code Ann.  5-2-314(b) (Supp. 1995). 
Subsection (d) of the statute states the Director "shall file the
psychiatric or psychological report with a probate court ... within
thirty (30) days following entry of order of acquittal."  The
report was not filed until April 7, 1995.  Mr. Hattison argues
that, due to the late filing of the report, the Probate Court
lacked jurisdiction to order continuation of his commitment.  We
affirm the Probate Court's order denying Mr. Hattison's petition
for release.
     We agree with Mr. Hattison's first point of appeal which is
essentially that the report was late and the Probate Court erred in
stating it was timely.  We cannot, however, agree with his second
point which is that the Probate Court lost jurisdiction as a result
of the report being late and thus erred in approving his continued
commitment for treatment.
     When the General Assembly uses the word "shall," we hold the
effect is mandatory unless an absurdity would result.  Campbell v.
State, 311 Ark. 641, 846 S.W.2d 639 (1993).  The 30-day requirement
is thus mandatory in the literal sense.  The question remains,
however, whether the sanction for violation of it is, as Mr.
Hattison argues, loss of jurisdiction in the Probate Court to
decide whether continuation of his commitment is justified.  The
statute does not address any sanction to be employed, and Mr.
Hattison cites no case suggesting it was the General Assembly's
intent to deprive the Probate Court of jurisdiction should the
report be untimely. 
     In Campbell v. State, supra, we held that where a petition for
involuntary commitment was not filed within 72 hours of an
individual's confinement, as required by the mandatory language of
Ark. Code Ann.  20-47-210, the Probate Court lacked jurisdiction
to decide the petition. 
     At first blush, it might seem that the Campbell case should
control this one; however, there is a significant distinction.  Mr.
Campbell had not been committed by a court.  The State had the
burden of proving Mr. Campbell should be committed, and the
petition was to be filed for the purpose of initiating that
proceeding.  Mr. Hattison, on the other hand, has been found
lacking in mental capacity sufficient to have committed the crimes
with which he was charged.  According to  5-2-314(e), Mr. Hattison
now has the burden of proving to the Probate Court that "his
release would not create a substantial risk of bodily injury to
another person or serious damage to property of another due to a
present mental disease or defect."  Jurisdiction of the Probate
Court was established by the "automatic" order of commitment
entered by the Circuit Court. 
     While a commitment cannot be "indefinite," Schock v. Thomas,
274 Ark. 493, 625 S.W.2d 521 (1981), citing Jackson v. Indiana, 406 U.S. 715 (1972), we know of no reason to deprive the Probate Court
of jurisdiction due to a late psychiatric report.  Had that been
the intention of the General Assembly, it could easily have so
provided.  As the Supreme Court of Nebraska stated in State v.
Steele, 399 N.W.2d 267 (Neb. 1987), a case cited by the State that
is almost exactly like this one:

     we find no announced penalty in the statute or the case
     law interpreting the statute for the State's failure to
     meet the statutory time limits.  The appellant gives no
     support for his contention that the remedy is dismissal
     and loss of jurisdiction....  We note that no such
     sanction [as is provided in the speedy trial law] is
     provided by the statutes governing acquittals on the
     ground of insanity.

     Affirmed. 
Corbin, J., concurs.Associate Justice Donald L.
Corbin, 5-6-96 (concurrence)
May 6, 1996   *ADVREP1-A*





LOUIS HATTISON,
                    APPELLANT,

V.

STATE OF ARKANSAS,
                    APPELLEE,



95-563








CONCURRING OPINION.







     I agree with the majority opinion.  I concur only to emphasize
two distinctions between this case and Campbell v. State, 311 Ark.
641, 846 S.W.2d 639 (1993).  The first distinction is that these
cases involve interpretations of two different statutory
provisions:  Campbell involved an interpretation of Ark. Code Ann.
 20-47-210 (Repl. 1991), which pertains to civil involuntary
commitment procedures, while this case involves an interpretation
of Ark. Code Ann.  5-2-314 (Supp. 1989), which pertains to
continued confinement of persons acquitted of criminal wrongdoing
on the ground of mental disease or defect.  The second distinction
lies in the purposes behind each statutory provision.
     Section 20-47-210 sets out the necessary steps for immediate
confinement of a person suffering from a mental disease or defect
to the extent that he or she is a danger to himself or others. 
Specifically, that section provides not only that a petition must
be filed with the probate court within seventy-two hours from the
time the person is confined, but also that a hearing must be held
to determine if there is probable cause to believe the person has
a mental disease or defect, and, if so, to order that an evaluation
be done.  The purpose behind such statutory safeguards is to insure
that persons who do not actually suffer from a mental disease or
defect, or who are in no way a danger to themselves or others, are
not confined against their will for an indefinite period of time. 
See Ark. Code Ann.  20-47-201 (Supp. 1989) Purpose -- Policy.  
     Section 5-2-314, on the other hand, provides that one
acquitted of a crime on the ground of mental disease or defect
shall be committed to the custody of the Director of the Department
of Human Services for the purpose of further psychological
evaluation, following the circuit court's determination that the
crime involved injury to another person or serious property damage
or a substantial risk of such injury or damage.  Arguably, the
purpose behind such an automatic confinement is to protect members
of our society from being harmed by one who has already
demonstrated a propensity to violate the law, as well as to protect
that person from harming himself.  According to the original
legislative commentary to that section, this special
hospitalization procedure was created expressly for those persons
who have violated the law and would have been punished by our
criminal justice system but for their suffering from a mental
disease or defect.  Because of the diverse situations addressed by
the two statutes, as well as their different purposes, the time
periods for which to file the necessary documents should be
interpreted differently.  
     In Campbell, the appellant was held at the state hospital on
an emergency basis, but the petition for his involuntary commitment
was not filed until five days later.  We reversed and dismissed the
lower-court proceeding, holding that the seventy-two-hour period
for which to file a petition was mandatory.  The reason that
provision must be interpreted as mandatory is so that one person
may not unilaterally affect the involuntary commitment of another
person at his or her whim, without an impartial jurist having first
reviewed a valid petition and having conducted a hearing.  Were the
seventy-two-hour filing requirement not interpreted as mandatory,
one person--be it a police officer acting on a complaint, a friend
or family member with a vendetta, an estranged spouse attempting to
secure custody of the children, or any other interested citizen--
could unilaterally and arbitrarily affect a virtual imprisonment of
another person for an indefinite period of time.  The fact that the
petition for Mr. Campbell's involuntary commitment was not timely
filed violated the very essence of the statutory provision, as that
time period is a statutory safeguard that must be strictly
observed.  
     In this case, the circuit court found Mr. Hattison not guilty
of violating his probation on the ground that he suffered from a
mental disease or defect.  Immediately following that ruling,
Mr. Hattison was, pursuant to statute, confined to the Arkansas
State Hospital by the same circuit court.  By that stage of the
proceedings, Mr. Hattison had already been evaluated by mental
health experts who determined that he was either currently
suffering from a mental disease or defect or that he had so
suffered at the time the violations of his probation were
committed.  Mr. Hattison's continued confinement was, therefore,
neither arbitrarily nor unilaterally affected.  
     The essence of section 5-2-314 is to ensure that those persons
acquitted of criminal acts on the ground of mental disease or
defect are not carelessly released upon society without further
evaluation and treatment of their condition.  Accordingly, the fact
that Dr. Hall's written report was not timely filed did not require
an automatic discharge of the appellant, as doing so would defeat
the entire legislative purpose behind the law.  In other words,
unlike the situation which was presented to us in Campbell, the
timely filing of the doctor's report in this case did not violate
the very essence of the statute.   
     In conclusion, the seventy-two-hour time period for filing a
petition and conducting a hearing, as set out in section 20-47-210,
must be viewed as a mandatory, built-in safeguard which is
necessary to ensure that no person is involuntarily committed
without a court having reviewed his or her case.  Under the
provisions of section 5-2-314, however, there is no need for
similar insurance, as the person committed has already been
evaluated as having a mental disease or defect, and his case has
already been reviewed by a court.  For this reason, that section's
thirty-day time period in which to file the necessary written
report of the doctor's findings more closely resembles a procedural
guideline which must be followed in order to confine a person
beyond the initial statutory evaluation period.  Accordingly, the
decision in this case may be reconciled with that handed down in
Campbell.