State v. Koch

Annotate this Case
State v. Koch   (97-261); 169 Vt. 109; 730 A.2d 577

[Filed  5-Mar-1999]

       NOTICE:  This opinion is subject to motions for reargument under
  V.R.A.P. 40 as well as  formal revision before publication in the Vermont
  Reports.  Readers are requested to notify  the Reporter of Decisions,
  Vermont Supreme Court, 109 State Street, Montpelier, Vermont  05609-0801 of
  any errors in order that corrections may be made before this opinion goes
  to  press.

                                 No. 97-261

State of Vermont	                          Supreme Court

                                                  On Appeal from
     v.		                                  District Court of Vermont
                                                  Unit No. 1, Windham Circuit

Frederick K. Koch	                          March Term, 1998

John P. Wesley, J.

       Robert B. Hemley and Dennis R. Pearson of Gravel and Shea, Burlington,
  for Intervenors-Appellants.

       David A. Gibson, Brattleboro, for Defendant-Appellee.

PRESENT:  Amestoy, C.J., Dooley, Morse, Johnson and Skoglund, JJ.

       SKOGLUND, J.   Two newspaper publishers and their reporters,
  intervenors in the above  entitled criminal proceedings, appeal the
  district court's decision closing two hearings concerning  a motion to
  revoke defendant Koch's order of nonhospitalization and the court's
  decision sealing  the nonhospitalization order that resulted from those
  hearings.  Intervenors allege that the district  court violated their
  qualified First Amendment right of access by erroneously requiring closure 
  of the hearing upon defendant's request and by giving 18 V.S.A. § 7103 an
  overly broad  construction, incompatible with the presumptive public nature
  of court documents when it sealed  the nonhospitalization order.  Without
  reaching the qualified, constitutional right-of-access issue,  we reverse
  both the trial court's decision to close the revocation hearing and to seal
  the  nonhospitalization order.

       The parties do not dispute the relevant facts.  Defendant Koch was
  arraigned in March  1997 on two misdemeanor counts of disorderly conduct. 
  The district court ordered a forensic  evaluation of defendant at the state
  hospital in Waterbury to determine his competence to stand  trial and his
  sanity at the time of the offense.  See 13 V.S.A. §§ 4814, 4815.  After the 


  competency hearing, the parties stipulated that defendant was competent. 
  Nonetheless, based on  the report of the examining psychiatrist that
  defendant had likely been insane at the time of the  events charged by the
  information, the court ordered defendant's continued confinement at the 
  state hospital pending a hospitalization hearing.  See 13 V.S.A. § 4820(1).

       The court conducted the hospitalization hearing on April 22, 1997,
  pursuant to 13 V.S.A.  §§ 4821 and 4822.  Defendant did not request a
  closed hearing; it was conducted in open court  and covered by
  representatives of the news media.  At the conclusion of the hearing, the
  court  made oral findings on the record determining that defendant was in
  need of treatment as set out  in 18 V.S.A. § 7101 but deciding that
  defendant could receive treatment outside a hospital setting.  See 18
  V.S.A. § 7617.  The court subsequently issued a written order of

       On May 14, 1997, the State and the Commissioner of Mental Health
  joined in a motion  requesting the court to revoke its order of
  nonhospitalization and subject defendant to  hospitalization.  Petitioners
  based their request on defendant's alleged admission that he struck  a
  pedestrian with his car on May 9, 1997, in Stowe, Vermont, but could not
  explain how the  accident occurred.  The pedestrian died three days later
  from injuries sustained in the  accident.(FN1)  The motion for revocation
  alleged that the program of nonhospitalization  treatment as outlined in
  the court's order of April 22, 1997, had become inadequate to meet 
  defendant's need for treatment and that "[s]pecifically, Mr. Koch presents
  a danger to other  persons which is incompatible with his continued
  presence outside a hospitalized setting."

       At the May 16, 1997, hearing on the motion to revoke the order of
  nonhospitalization,  defendant requested that the court close the hearing
  to the public.  The court received written  requests from reporters for The
  Brattleboro Reformer and The Rutland Herald to attend the  proceedings. 
  The court, relying on 18 V.S.A. § 7615(e), ordered the hearing closed, and


  its position that under the statute "the proposed patient [has] an absolute
  election to have  proceedings with respect to mental health commitments
  conducted in private."  On May 29, 1997,  the State and defendant filed a
  stipulation (later referred to by the court as a "consent decree") in 
  support of defendant's release from the state hospital and entry of a new
  order of  nonhospitalization.(FN2)  

       On June 2, 1997, the court held a hearing to consider the parties'
  consent decree.  Again,  this hearing was closed to the public.  The same
  day, the court issued an order pursuant to 18  V.S.A. § 7103(a) adopting
  the parties' proposed consent decree.  The order required that the full 
  contents of the consent decree, including the terms and conditions of
  nonhospitalization and  methods of enforcement, remain under seal.  

       Also on June 2, the court issued a written order in which it
  reconsidered the closure of the  revocation hearings but ultimately denied
  the appellants' motion seeking access to the hearings and 
  nonhospitalization order.  The court reasoned that "the  proceedings are
  cloaked in a general  presumption of confidentiality."  Notwithstanding its
  holding that hearings were closed absent a  waiver of confidentiality by
  the proposed patient, the court went on to analyze whether the public  and
  press had a qualified First Amendment right of access under the test set
  forth in Press-Enterprise Co. v. Superior Court, 478 U.S. 1, 8, (1986)
  (Press-Enterprise II).  In its analysis, the  court compared involuntary
  commitment proceedings to juvenile proceedings and opined that the  court's
  exclusive concern in both was the welfare of the proposed patient. Further,
  it read  narrowly the discretion afforded the court to "exclude all persons
  not necessary to the conduct of  the hearing" found in § 7615(e).  Based on
  its conclusions that the public and press were not  "necessary" for the
  hearing, that in most cases their presence would likely undermine the goals 
  of the mental health statute, and that hospitalization hearings were
  traditionally closed to the 


  public, the court held that the public did not have a qualified right of
  access to the June 2, 1997,  proceedings.  Intervenors' appeal followed.

       Intervenors raise both constitutional and statutory arguments in
  support of their claim that  the press should have access to
  hospitalization hearings and resultant orders when such hearings  have been
  initiated as part of a criminal proceeding.  Since we reverse on statutory
  grounds, we  do not specifically address the court's application of the
  two-part test for determining whether a  qualified First Amendment right of
  access attaches to a particular criminal proceeding.  See State  v.
  LaBounty, 167 Vt. 25, 29-30, 702 A.2d 82, 85 (1997) (citing
  Press-Enterprise Co. v. Superior  Court, 478 U.S. 1, 8, (1986) regarding
  test under which qualified right attaches if place and  process have
  historically been open to press and general public, and if public access
  plays  significant, positive role in functioning of particular process in
  question).  This appeal therefore  does not require us to decide if there
  is a qualified constitutional right for the public and the press  to attend
  such hearings.   

       The statutory issues on appeal concern questions of law:  (1) whether,
  pursuant to 18  V.S.A. §§ 7615(e) and 7103(a), a district court must close
  involuntary commitment hearings  absent a waiver of confidentiality by
  defendant; and (2) whether 18 V.S.A. § 7103(a) creates a  statutory
  presumption that nonhospitalization orders remain confidential.  Thus, our
  "review is  nondeferential and plenary."  Godino v. Cleanthes, 163 Vt. 237,
  239, 656 A.2d 991, 993 (1995).  We address the issues in turn.


       Intervenors maintain that the court improperly construed the relevant
  statutes to give rise  to a presumption of confidentiality, rather than a
  presumption of public access.  Specifically,  intervenors argue that the
  court erroneously relied on §§ 7615(e) and 7103(a) of Title 18 to close 
  the hospitalization hearings and to seal the full and complete order of
  nonhospitalization.  In the  alternative they contend that, even if §
  7103(a) is applicable to involuntary treatment hearings, the  court here
  could have accommodated all interests by conducting the hearings in such a
  manner that 


  it would not have required the wholesale disclosure of any clinical
  information in defendant's  medical records.  Intervenors maintain that
  they were wrongfully deprived of the court's reasoning  and rationale for
  its actions regarding defendant's mental health status, even if they had no
  right  to view the specific contents of psychiatric reports.

       Defendant claims that 18 V.S.A. § 7615(e), authorizing exclusion of
  all unnecessary  persons from hospitalization hearings, supports the
  argument for closed hearings.  In addition,  defendant argues that the
  issues addressed in a hospitalization hearing must be kept confidential 
  under 18 V.S.A. § 7103(a), which prohibits the commissioner and other
  employees of the  Department of Developmental and Mental Health Services
  from releasing documents or  information unless one of the three statutory
  exceptions of § 7103(a) applies.  

       The court found a presumption in § 7615 that is not there. Section
  7615, which permits  the proposed patient to attend the hearing "at his
  election" and which permits the court to "exclude  all persons not
  necessary for the conduct of the hearing," indicates the discretion
  afforded the  court; it is not a signal that the hearings are presumptively
  confidential.	Even evaluating § 7615  in light of the confidentiality
  afforded "certificates, applications, records and reports" that identify 
  persons subjected to civil commitment under § 7103 of Title 18, does not
  result in such a  presumption.  Section 7103 was enacted pursuant to the
  Mental Health Act of 1968, as part of the  legislative policy of
  deinstitutionalization that began in 1963 with the creation of a Department 
  of Mental Health.  See 1967, No. 305 (Adj. Sess.).  The Mental Health Act
  marked the first effort  to acknowledge the stigma attached to the label of
  mental illness, as seen in the confidentiality  provisions found in § 7103. 
  Nonetheless, § 7103's attempt to protect sensitive medical  information,
  coupled with the ability of the judge to exclude persons from the hearing
  room  pursuant to § 7615, does not equate to a legislative pronouncement
  that commitment hearings are  confidential and closed to the public.  See
  Miami Herald Publ'g Co. v. Chappell, 403 So. 2d 1342  (Fla. Dist. Ct. App.
  1981) (emphasizing that pretrial competency hearing could not be closed 
  solely on basis that mental health statutes generally call for
  confidentiality of medical records and 


  clinical treatment information.)

       Historically, the commitment to a mental institution has been a public
  function, attended  to over the years by the selectmen of a town, the
  "supervisors of the insane," the probate court  or juries.  These were
  public procedures, of public interest.  There was nothing confidential
  about  them.

       As early as 1882, no one could be committed to the insane asylum
  without the certificate  of two physicians of "unquestioned integrity and
  skill" attesting to such person's insanity.(FN3)  Friends or relatives of
  a person so committed could appeal the commitment to the "supervisors  of
  the insane," who then held an examination in the town where the appellant
  resided.  There was  no provision for confidentiality attached to these
  procedures.  See 1882, No. 48.  In re Allen,  which the district court
  cited in support of its conclusion that commitment hearings were  conducted
  privately, in fact merely emphasizes the private nature of the physician's
  examination  and certificates of insanity.  82 Vt. 365, 376, 73 A. 1078,
  1082 (1909).  The Allen court   concluded that, because such examinations
  were not of a public nature nor made to inform the  public of what the
  court held to be a matter of public interest, see id., they could not be
  used as  a substitute for a trial of the issues before the court, see id.
  at 376-78, 73 A.  at 1082-83.  

       Under the 1933 Public Laws of Vermont, the selectmen were to petition
  the probate court  when an insane person in town was liable to be supported
  by the state.  The court would hold a  hearing, and, upon evidence
  satisfactory to the judge that such person was insane and dangerous,  the
  court could "order the removal of such person to the Vermont state hospital
  for the insane at  Waterbury."  1933 P.L. § 3982.  Again, there was no
  provision for confidentiality.  An appeal  from the probate court decision
  could be taken to the county court, and a jury trial could be had.  See
  1933 P.L. § 3986.  By 1947 the Public Laws had added a jury appeal at the
  probate court 


  level.  See 1947 V.S. § 6639.  If the jury found the person insane, the
  court certified the verdict,  and the person was committed.  See id. at §
  6641.  From this verdict, appeal could still be taken  to the county court. 
  See id. at § 6642.  None of these statutorily mandated procedures were 
  designated as confidential. 

       As the confidentiality provision of our contemporary juvenile law
  demonstrates, the  Legislature knows how to create a confidential, closed
  hearing when it so desires.  

       [T]he general public shall be excluded from hearings under this 
  chapter and only the parties, their counsel, witnesses and other  persons
  accompanying a party for his assistance and such other  persons as the
  court finds to have a proper interest in the case or in  the work of the
  court, may be admitted by the court.  

       33 V.S.A. § 5523(c).  This section requires that juvenile court
  proceedings be kept confidential.  See In re J.S., 140 Vt. 458, 438 A.2d 1125 (1981).  It further states, "[t]here shall be no  publicity given by
  any person to any proceedings under the authority of this chapter except
  with  the consent of the child and his parent or guardian."  33 V.S.A. §
  5523(d).  Provisions of this  section "are clear and unambiguous.  The
  Legislature did not intend that either the news media  or the general
  public should attend juvenile hearings or report what transpired there." 
  In re J.S.,  140 Vt. at 470, 438 A.2d 1130.  Note, however, that even in
  juvenile cases the legislative cloak  of confidentiality may not shield all
  details of the matter from the public eye.  Where a juvenile  initially
  faces criminal charges in district court, a motion to transfer the case to
  juvenile court is  open to the public.  See In re R.D., 154 Vt. 173,
  178-79, 574 A.2d 160, 163 (1990); In re K.F.,  151 Vt. 211, 559 A.2d 663
  passim (1989).  That is, the confidentiality afforded to juveniles 
  pursuant to Chapter 55 of Title 33 attaches only after a case is
  transferred out of the district court. 

       Given the historical development of the commitment procedures and the
  lack of an express  presumption of confidentiality in the current statute,
  we cannot find, as the district court did, that  the Legislature has made a
  similar explicit effort to preserve the confidentiality of hospitalization 

       Further, as we have noted, "the Title 13 procedure closely parallels
  but is not identical to 


  the involuntary civil commitment procedure contained in Title 18."  State
  v. Condrick, 144 Vt.  362, 364, 477 A.2d 632, 634 (1984).  For example, the
  Legislature emphasized the criminal  aspects of the Title 13 commitment by
  involving the prosecuting attorney in any decision of the  court to
  discharge a defendant from the custody of the commissioner of mental
  health, presumably  because there are public safety issues to be
  considered.  See 13 V.S.A. § 4822.(FN4)  The mere  adoption of the civil
  commitment "procedures" for the conduct of hearings pursuant to Title 13, 
  is not sufficient to deduce, as defendant suggests, that the Legislature
  intended to distance  hospitalization hearings from the criminal context
  and create a presumption of confidentiality.(FN5)

       Finally, the court erred in concluding that in a hospitalization
  hearing the court's exclusive  concern is the welfare of the mentally ill
  defendant.  It is not.  The mental health statutes are  equally concerned
  with the danger to the public posed by a person suffering from mental
  illness.  In the case of a mentally ill defendant, with serious criminal
  charges pending against him and  who has allegedly violated the conditions
  of the nonhospitalization order under which he was  released into the
  community, the public interest is profound.  "Justice must not only be
  done; it  must be perceived as being done."  Westchester Rockland
  Newspapers, Inc. v. Leggett, 399 N.E.2d 518, 522 (N.Y. 1979) (ruling that,
  absent particularized showing and findings establishing  likelihood of harm
  to some other compelling interest, pretrial competency hearing in criminal
  case  is presumptively open). 

       We read § 7615 as requiring the court to exercise its discretion by
  balancing the competing  interests at stake -- the public's interest in the
  restrictions placed on a mentally ill patient in the 


  community and the defendant's right to privacy concerning his mental health
  status.  Thus, the  court erred when it permitted defendant to make the
  unfettered decision to stop the flow of  information to the public
  concerning his mental condition, dangerousness, and custody status.  


       We next address whether 18 V.S.A. § 7103(a) provides a statutory
  presumption of  confidentiality of the nonhospitalization order itself. 
  Section 7103(a) states:

     All certificates, applications, records and reports, other than an 
     order of a court made for the purposes of this part of this title, and 
     directly or indirectly identifying a patient or former patient or an 
     individual whose hospitalization or care has been sought under this 
     part, together with clinical information relating to such persons 
     shall be kept confidential and shall not be disclosed by any person 
     except insofar:

     (1)  as the individual identified or his legal guardian, if any (or, if 
     he be a minor, his parent or legal guardian), shall consent in 
     writing; or

     (2)  as disclosure may be necessary to carry out any of the 
     provisions of this part; or

     (3)  as a court may direct upon its determination that disclosure is 
     necessary for the conduct of proceedings before it and that failure 
     to make disclosure would be contrary to the public interest.

  18 V.S.A. § 7103(a) (emphasis added).  Defendant's argument that § 7103
  requires all issues  addressed in a hospitalization hearing to be kept
  confidential fails because the section itself  specifically exempts court
  orders from its confidentiality provisions.  The court does have the 
  discretion to redact from an order of hospitalization or nonhospitalization
  terms or conditions that  disclose confidential, clinical information.  We
  caution, however, against a trial court redacting  information necessary
  for the public to maintain its confidence in the judicial system,
  particularly  given the often significant interrelationship between court
  records of a pending criminal  proceeding and a civil commitment hearing on
  the same matter.  See In re Billy Jo W., 514 N.W.2d 707, 715 (Wis. 1994)
  (construing statute making civil commitment court records  confidential
  except by order of court, and identifying circumstances in which court may


  them).  Further, pursuant to subsection (a)(3) of the statute, the court
  may make any clinical  records or reports public if the court determines
  that failure to make disclosure would be contrary  to the public interest. 

       Reversed and remanded for further proceedings in accord with our
  holding herein; the  order of nonhospitalization shall be unsealed and made
  a part of the public record.(FN6)


Associate Justice

FN1.  Defendant was subsequently charged with a felony, gross
  negligent operation of a  motor vehicle, death resulting, and formally
  arraigned on that charge in Lamoille District  Court on September 22, 1997. 

FN2.  As part of the stipulation, the defendant waived any contest as
  to jurisdiction and the  State dismissed independent hospitalization
  proceedings initiated after the May 9 fatal accident in  Stowe.  

FN3.  In 1906, a law was enacted that provided for imprisonment for
  two years and fines of  not more than one thousand dollars for any
  physician not making a "careful" examination prior  to certifying that a
  person was insane.  See 1906, No. 106, § 1.

FN4.  This has been the case for at least the last 116 years.  See
  1882, No. 49 (requiring notice  to state's attorney and hearing in court
  issuing commitment order when court was to release  persons who were
  confined in insane asylum due to acquittal or failure to indict because of 

FN5.  Whatever "distance" from criminal charges facing defendant that
  may be created by the outcome  of the commitment hearing, charges pending
  in the district court are not affected by the  commitment decision.  See
  State v. Clarke, 145 Vt. 547, 550-51, 496 A.2d 164, 167 (1985).

FN6.  For the reasons stated in our decision in State v. Tallman, 148
  Vt. 465, 468-69, 537 A.2d 422, 424 (1987), we do not treat the issues
  raised in the appeal as moot.