Michael Edward Shone, Petitioner, Appellant, v. State of Maine et al., Respondents, Appellees, 406 F.2d 844 (1st Cir. 1969)

After exhausting state remedies, appellant, Michael Edward Shone, petitioned the district court for a writ of habeas corpus alleging that he was confined in the Men's Correctional Center, South Windham, Maine, (hereinafter "Correctional Center"), in violation of the due process and equal protection provisions of the 14th Amendment to the Federal Constitution. The district court found no such violation and dismissed the petition. Shone v. State of Maine, 286 F. Supp. 511 (D.C.Me., 1968). This appeal followed.

Appellant was adjudged a juvenile offender on May 15, 1967, by a Maine juvenile court and was ordered committed to the Boys Training Center (hereinafter "Training Center") pursuant to Me.Rev.Stat.Ann., tit. 15, sec. 2611(4) (B), for the term of his minority unless sooner discharged by the superintendent. Me.Rev.Stat.Ann., tit. 15, sec. 2714.¹  Shortly after his commitment to the Training Center, administrators of that institution deemed appellant incorrigible, and on or about May 28, 1967, he was transferred, at the age of fifteen, to the Men's Correctional Center²  in accordance with Me.Rev.Stat.Ann., tit. 15, sec. 2717, which provided in pertinent part:³ 

"Any child committed to the center whose presence therein may be seriously detrimental to the well-being of the center, or who willfully and persistently refuses to obey the rules and regulations of said center may be deemed incorrigible, and upon recommendation of the superintendent may be transferred to a reformatory with the approval of the Commissioner of Mental Health and Corrections, but no child shall be transferred under the age of 15. To so transfer, the superintendent shall certify that the child is incorrigible upon the mittimus in the case with the recommendation that transfer to the appropriate reformatory be effected. Upon approval by the Commissioner of Mental Health and Corrections, the transfer may be effected any time thereafter. It shall be the duty of the officers of the reformatory to receive any person so transferred and the remainder of the original commitment shall be executed at the reformatory, except that in the event a child so transferred has, in the opinion of the superintendent of the reformatory and of the superintendent of the center, benefited from the program at the reformatory, to such an extent that return to the center would be in the best interest of the child and of the community, such child may be returned to the center. * * *"

In Baxstrom v. Herold, 383 U.S. 107, 86 S. Ct. 760, 15 L. Ed. 2d 620 (1966), the Supreme Court decided that Baxstrom, a prisoner who had been placed in a mental hospital while serving his time, was denied equal protection of the laws by the operation of a New York statutory procedure whereby he was: (1) civilly committed to a mental institution at the expiration of his sentence without the jury review available to all others civilly committed; and (2) administratively transferred, in effect, from a civil mental hospital to a functionally distinct institution for the dangerously insane without the judicial determination that he was dangerously mentally ill such as that afforded to all others so committed, except those about to terminate a prison sentence.⁴  Appellant contends that under the Court's holding in Baxstrom he was denied equal protection of the laws because he was transferred to the functionally distinct Correctional Center pursuant to a statute that did not provide for a judicial hearing, while those youths who were not in the Training Center's custody were committed to the Correctional Center only after a statutorily mandated judicial hearing.⁵  Similar arguments have proven persuasive in other recent cases.

In Bolton v. Harris, 395 F.2d 642 (D.C. Cir. 1968), petitioner, who had successfully pleaded not guilty to a crime by reason of insanity, argued that he was denied equal protection of the laws because he was committed to a mental institution without benefit of the protections afforded those civilly committed under the District of Columbia's Hospitalization of the Mentally Ill Act of 1964.⁶  The court reasoned that since Baxstrom decided that an individual's past criminal conduct, standing alone, did not give rise to a presumption of dangerousness which would justify substantially different commitment procedures and confinement conditions for the mentally ill, it was likewise impermissible to provide "radically different procedures for patients acquitted by reason of insanity and for civilly committed patients."⁷  395 F.2d at 650. Previously, the same court had held, relying upon Baxstrom, that it was unlawful to commit to a mental institution in a manner different from those committed under the Hospitalization of the Mentally Ill Act one who was involuntarily found not guilty by reason of insanity. Cameron v. Mullen, 128 U.S.App.D.C. 235, 387 F.2d 193 (1967).

And in People ex rel. Goldfinger v. Johnston, 53 Misc.2d 949, 280 N.Y.S.2d 304 (Sup.Ct. 1967), the New York Supreme Court was confronted with a factual situation strikingly analogous to that presented here. There, the petitioner was sentenced to an indeterminate term at a correctional school. He was eventually paroled, but was returned to the school as a parole violator. Five years later, he was administratively transferred to an institution for defective delinquents without receiving the notice and hearing granted under New York law to others adjudged dangerous mental defectives.⁸  The court held that Baxstrom and Specht v. Patterson, 386 U.S. 605, 87 S. Ct. 1209, 18 L. Ed. 2d 326 (1967), required issuance of the habeas corpus writ, but managed to preserve the constitutionality of the administrative transfer statute by reading into it, inter alia, provisions for notice and hearing.⁹ 

In Specht, supra, petitioner was convicted for indecent liberties under one Colorado statute, but sentenced to an indefinite sentence under another (the Colorado Sex Offenders Act). Petitioner argued that he had been denied due process because the trial court's critical new finding as to whether he constituted a threat of bodily harm to the public, or was an habitual offender and mentally ill, had been made without a hearing and on the basis of hearsay evidence to which he did not have access. The Court agreed, noting:

"The Sex Offenders Act does not make the commission of a specified crime the basis for sentencing. It makes one conviction the basis for commencing another proceeding under another Act to determine whether a person constitutes a threat of bodily harm to the public, or is an habitual offender and mentally ill. That is a new finding of fact * * * that was not an ingredient of the offense charged. The punishment under the second Act is criminal punishment even though it is designed not so much as retribution as it is to keep individuals from inflicting future harm. * * *" 386 U.S. at 608-609, 87 S. Ct. at 1211. (Emphasis added.)

In the instant case, as in Specht, the fact (incorrigibility) that controlled appellant's ultimate fate (transfer to the Correctional Center) was no part of the original adjudication as to whether he was a juvenile offender.¹⁰  Instead, he was subjected to a new decision by a new decision-maker on the basis of conduct committed after his placement in the Training Center.¹¹  Standing alone, this new finding of incorrigibility may not have been violative of constitutional rights; but when solely on the basis thereof, and without benefit of those procedural safeguards enjoyed by young boys not transferred from the Training Center, appellant was committed to the concededly "functionally distinct" Correctional Center, he was denied due process and equal protection of the law.¹² 

The Supreme Court in Baxstrom realized that petitioner therein might well require treatment in a criminal-type hospital, but stated that it was unconstitutionally arbitrary to allow state administrators to determine ex parte whether those nearing the end of a penal sentence were too dangerous for a civil hospital when the same issue was judicially determined for nonprisoners. Thus, where judicial procedures exist for determining the suitability issue for one class, a less fair process cannot be substituted merely because one is in the custodial care of the state. In the present case we do not dispute the possibility that appellant may be unsuited for the permissive milieu of the Training Center, or that his presence in the institution might be "seriously detrimental to the well-being of the center," Me.Rev.Stat.Ann., tit. 15, Sec. 2717, for he may indeed be incorrigible and require placement in the stricter environment of the Correctional Center; but we think it constitutionally impermissible for state officials to determine ex parte this issue as to him, when the same issue is judicially decided for all those not in the Training Center's custody. Under Maine's statutory scheme, a member of the latter class may be committed to the Correctional Center only after a judicial hearing and decision, Me.Rev.Stat.Ann., tit. 15, Sec. 2611(4) (A) (Supp.), which decision is subject to a full de novo judicial review, Me.Rev.Stat.Ann., tit. 15, Sections 2661(2) to 2666, with the further right to appeal to the Maine Supreme Court. Me.Rev.Stat.Ann., tit. 15, Sec. 2667. Benefit is also derived from the full measure of procedural safeguards enumerated in In re Gault, 387 U.S. 1, 87 S. Ct. 1428, 18 L. Ed. 2d 527 (1967). Baxstrom and Specht require that substantially the same procedural protections be extended to a juvenile committed to the Training Center before he can be lawfully transferred to a functionally distinct institution on the basis of a critically new finding of fact.¹³ 

The state contends, inter alia, that Baxstrom does not apply to factual situations where there is no extension of sentence.¹⁴  With this we cannot agree. It is our view that even if Baxstrom had been properly committed to a civil mental hospital following the expiration of his sentence, the Court would have nevertheless invalidated his transfer to a functionally distinct institution if it was based, as it was, on a proscribed presumption and an arbitrary classification.

It is next argued that the judgment of the district court should be affirmed because the transfer statute in question was enacted before appellant's committal to the Training Center, and therefore the committal must be held to have been pronounced subject to the provisions of the transfer statute.¹⁵  This argument can be of no comfort to the state because we have already held that application of those very provisions denied appellant due process and equal protection of the laws. The more difficult question is whether we can read into the statute, as did the courts in Bolton v. Harris, supra, and People ex rel. Goldfinger v. Johnston, supra, those precedural protections that would save its constitutionality. This we might be inclined to do were it not for the statement of the Supreme Judicial Court of Maine in Shone v. State, 237 A.2d 412, 414 (Me. 1968), that:

"The transfer statute, 15 M.R.S.A. § 2717, as can readily be observed, does not expressly provide either for notice and hearing at the hands of the administrative officials nor does it intimate even by implication any requirement of court approval. * * *" (Emphasis added.)

In view of the above statement so recently made by Maine's highest court, we think that proper regard for our Federal system precludes us from reading into the statute — even to prevent its demise — that which the Maine Supreme Judicial Court said was not impliedly there.

After carefully considering all the contentions advanced by the state, we have concluded that the district court erred in not granting the writ. Accordingly, the judgment of the district court will be vacated and the cause will be remanded to that court with instructions to grant the writ of habeas corpus returning appellant to the Training Center.