In re L.G.

Annotate this Case

                                ENTRY ORDER

                      SUPREME COURT DOCKET NO. 91Ä488

                            DECEMBER TERM, 1991


In re L.G.                        }          APPEALED FROM:
                                  }
                                  }
                                  }          Washington Family Court
                                  }
                                  }
                                  }          DOCKET NO. 163Ä91-Wy-MH-AIT


             In the above entitled cause the Clerk will enter:

     Appellant, appealing an order of involuntary hospitalization, seeks to
proceed in forma pauperis and to have the transcripts of lower court pro-
ceedings prepared at state expense.

     Because appellant receives Supplemental Security Income of $472 per
month and does not receive income from any other source, she may proceed in
forma pauperis.  V.R.C.P. 3.1(b).  An appellant proceeding in forma pauperis
is entitled to all or part of a transcript at state expense "when required
by law."  V.R.A.P. 24 (d).  The relevant legal requirements are the equal
protection and due process clauses of the fourth amendment to the United
States Constitution.  Reporter's Notes to V.R.A.P. 24.

      Ordinarily, civil litigants are not entitled by law to a transcript on
appeal.  Audet v. Koier, ___ Vt. ___, 595 A.2d 279 (1991).  In this case,
however, a recognized liberty interest is at stake: freedom from restraint
is protected by Chapter I, Article 1 of the Vermont Constitution.  Appellant
has been involuntarily committed to the state hospital.  Such confinement is
"'a massive curtailment of liberty,'" In re W.H., 144 Vt. 595, 597, 481 A.2d 22, __ (1984) (quoting Humphrey v. Cady, 405 U.S. 504, 509 (1972)), and pro-
cedures that lead to it must comply with due process, id. at 598, 481 A.2d
at __.

     To determine whether due process requires that appellant be provided
with a transcript at state expense, the Court must weigh several factors:
appellant's interest affected by the litigation, the risk of harm to this
interest posed by an erroneous decision, the value of providing procedural
safeguards in protecting against error, and the cost to the state in
providing them.  Mathews v. Eldridge, 424 U.S. 319, 335 (1976); see In re
G.K., 147 Vt. 174, 179, 514 A.2d 1031, ____ (1986) (Mathews provides appro-
priate test for procedural due process).

     Here, appellant's interest is in freedom from confinement, a right of
constitutional dimension; this right will be totally eviscerated if appel-
lant is wrongly held.  See W.H., 144 Vt. at 598, 481 A.2d at __ (even lim-
ited involuntary stay at state hospital is "significant intrusion upon . . .
personal liberty").  The state permits appellate review of commitment
proceedings, and consequently equal protection requires that indigents
involuntarily committed have equal access to the review process.  Cf.
Griffin v. Illinois, 351 U.S. 17, 18Ä19 (1956) (if state provides right of
appellate review to criminal defendants, due process and equal protection
require that state provides equal access to review for indigent defendants).

     Because cost is a relevant factor, the state need not automatically
provide a transcript to every indigent litigant in danger of being invol-
untarily confined.  Id. at 20.  Rather, it must provide some "means of
affording adequate and effective appellate review to [indigents]." Id.; see
Draper v. Washington, 372 U.S. 497, 499 (1963) (indigents must receive a
"'record of sufficient completeness' to permit proper consideration of their
claims").

     In this case, appellant fired her attorney immediately before the
commencement of her commitment hearing.  The attorney requested appointment
of alternative counsel, but the court refused.  The attorney was ordered to
leave the hearing, and appellant appeared pro se.  Appellant was found to be
suffering from manic psychosis and was committed to the state hospital.  She
later filed a motion for a new trial, alleging that her waiver of counsel
was not knowingly, intelligently, and voluntarily made.  The court denied
the motion without a written opinion, stating that "[t]he transcript speaks
for itself."

     No effective review can be made without transcripts of the trial and
motion hearing.  Appellee agrees that these are the relevant hearings for
the appeal.  No alternative record exists; the transcripts are the sole
record of "sufficient completeness" to provide for adequate review.

     Appellant may proceed in forma pauperis on appeal.  Transcripts of the
July 19, 1991 commitment hearing and the August 30, 1991 motion for a new
trial shall be prepared at state expense.



                                   BY THE COURT:



                                   Frederic W. Allen, Chief Justice


                                   Ernest W. Gibson III, Associate Justice


[ ]  Publish                       John A. Dooley, Associate Justice

[x]  Do Not Publish
                                   Denise R. Johnson, Associate Justice