E.S. v. State

E.S v. State (2004-096); 178 Vt. 519; 872 A.2d 356

2005 VT  33

[Filed 15-Mar-2005]

                                 ENTRY ORDER

                                 2005 VT  33

                      SUPREME COURT DOCKET NO. 2004-096

                             DECEMBER TERM, 2004

       	                               }	APPEALED FROM:
  E.S.	                               }
                                       }
       v.	                       }	Washington Family Court
                                       }	
  State of Vermont	               }
                                       }	DOCKET NO. 7-04-Wy-MH-AIT

                                                Trial Judge: Geoffrey Crawford

             In the above-entitled cause, the Clerk will enter:

       ¶  1.  E.S. appeals a Washington Family Court order finding probable
  cause to hold E.S. for involuntary mental health treatment pending a
  preliminary hearing.  E.S. claims that the court erred by admitting
  evidence obtained following an unlawful detention and that the State failed
  to meet its burden to show probable cause.  We dismiss the appeal as moot.  

       ¶  2.  On January 8, 2004, E.S., a resident of Mississippi, was at
  the Veteran's Administration (VA) hospital in White River Junction, Vermont
  to obtain copies of personal records.  Some of the VA staff became
  concerned about him after his stepfather told them that E.S. was suicidal. 
  At 2:15 p.m., a VA police officer told E.S. that he could not leave the
  hospital until he was seen by a psychiatrist.  E.S. then met with a staff
  psychiatrist, who completed a physician's certificate for an emergency
  examination of E.S.  The certificate stated that E.S. was "acutely manic"
  and was "very irritable and angry and threatening staff and patients" and
  was "very delusional and agitated."  It added that E.S. had threatened to
  "clock" various staff and had pushed a VA employee, and that his family
  reported that he had made "multiple suicidal and violent statements over
  the past several days."  

       ¶  3.  Because E.S. had no local relatives, the VA police officer
  and other staff held E.S. in a hospital room until a mental health
  professional could arrive to complete the commitment papers.  See 18 V.S.A.
  § 7504(a)(commitment application must be signed by interested party and
  physician); id. § 7101(9) (mental health professional is an interested
  party).  In response to the restraint, E.S. became increasingly
  belligerent.  As the court found: "He threatened to hurt anyone who came
  near him.  He was shouting and swearing.  He kicked at hospital staff, the
  police officer, and a physician.  He received emergency psychiatric
  medication and was placed in restraints."  The mental health professional
  arrived at the hospital at 6:00 p.m. and completed the commitment papers,
  relying in large part on E.S.'s conduct in response to the restraint.  E.S.
  was transported to the Vermont State Hospital (VSH), where a staff
  psychiatrist conducted the emergency examination and completed the
  admission certificate.  The State filed an application for involuntary
  treatment on January 9, 2004.  E.S. requested a probable cause hearing on
  January 13, 2004, 18 V.S.A. § 7510(a), and the hearing was held on January
  21, 2004.  
   
       ¶  4.  At the hearing, the State offered the testimony of the VA
  police officer and E.S.'s treating physician at VSH in support of its case
  to demonstrate that there was probable cause to hold E.S.  E.S. objected to
  the admission of their testimony, claiming that he was illegally detained
  by the VA police officer at the VA hospital and that any information
  gleaned as a consequence of this illegal detention could not be admitted
  under the exclusionary rule.  The family court denied E.S.'s motion to
  exclude the evidence and found probable cause.  It ordered E.S. to remain
  at the VSH pending a hearing on the application for involuntary treatment. 
  The State dismissed the application on February 13, 2004, and E.S. left VSH
  and returned to his home state of Mississippi.  E.S. filed this appeal on
  February 24, 2004.

       ¶  5.  We first address the State's arguments that the appeal should
  be dismissed because the case is moot and E.S. did not appeal from a final
  order.  With respect to the mootness claim, a case becomes moot when "the
  issues presented are no longer 'live' or the parties lack a legally
  cognizable interest in the outcome."  In re P.S., 167 Vt. 63, 67, 702 A.2d 98, 100 (1997).  A live controversy must exist during all stages of review. 
  Id.  At the time E.S. filed this appeal, he had been released from custody
  and the State had dismissed its application for involuntary treatment. 
  Thus, this Court can no longer issue a ruling that would affect E.S's
  custodial status, and the case is moot unless an exception to the mootness
  rule applies.

       ¶  6.  Even if moot, a case may be  reviewed if: (1) "negative
  collateral consequences are likely to result from the action being
  reviewed;" or (2) "the underlying situation is capable of repetition, yet
  evades review."  Id., 702 A.2d  at 101.  The second exception applies when
  the challenged action is too short to be fully litigated and there is a
  reasonable expectation that the individual will be subject to the same
  action again.  In re PCB File No. 92.27, 167 Vt. 379, 381, 708 A.2d 568,
  569-70 (1998).  In this case, neither exception is applicable.

       ¶  7.  In the past, we have recognized that when involuntary
  commitment results in social stigma it may satisfy the first exception. 
  See, e.g., State v. J.S., 174 Vt. 619, 620, 817 A.2d 53, 55-56 (2002)
  (mem.) (holding that case is reviewable because "negative collateral
  consequences of being initially adjudicated mentally ill and then
  involuntarily hospitalized may continue to plague appellant with both legal
  disabilities and social stigmatization").  The cases where we applied this
  exception, however, have involved a trial court adjudication of commitment
  and the appeal sought to reverse that adjudication.  Id.; State v.
  Condrick, 144 Vt. 362, 364, 477 A.2d 632, 633 (1984); State v. O'Connell,
  136 Vt. 43, 45, 383 A.2d 624, 625 (1978).  In the one case where the mental
  health order on appeal was an order of involuntary medication, not a
  commitment judgment, we held that expiration of the order rendered the case
  moot.  In re C.C., 150 Vt. 112, 113, 549 A.2d 1058, 1059 (1988).  Here, we
  conclude that the possible negative collateral consequences that will
  result from E.S.'s detention at VSH are not sufficient to avoid mootness. 
  E.S. never went through a full hearing, was never formally adjudicated
  mentally ill and was never under an order of involuntary treatment.  To the
  extent there is a stigma, it arises more from the fact that the State
  sought to commit E.S., and this is a fact that no decision by this Court
  can erase.
        
       ¶  8.  We have also applied the second exception in an involuntary
  commitment case where the individual was likely to be under state review
  again.  In re P.S., 167 Vt. at 68, 702 A.2d  at 101 (holding that "[g]iven
  P.S.'s past history, the general circumstances that gave rise to the
  revocation of P.S.'s nonhospitalization order" were likely to occur again
  and therefore not moot).  There is no "reasonable expectation" that E.S.
  will be subject to the same action again because he is a resident of a
  distant state, has no ties to Vermont and was here once for a unique set of
  circumstances.  See State v. Gundlah, 160 Vt. 193, 196, 624 A.2d 368, 370
  (1993) (holding exception did not apply because "[a] repetition of the fact
  pattern presented seems highly unlikely and certainly does not rise to a
  reasonable expectation"). 

       ¶  9.    We also agree with the State that the order from which E.S.
  appealed-finding that probable cause was present-was not a final judgment,
  and E.S. failed to obtain permission for an interlocutory review.  Like
  preliminary detention rulings in CHINS juvenile cases, the order resolved
  only a preliminary question and not the merits.  See In re C.K., 156 Vt.
  194, 198, 591 A.2d 57, 60 (1991) (denying review for rulings in preliminary
  stages of CHINS process "absent grounds for extraordinary relief"). 

       ¶  10.  Because we find the appeal is moot and applied for
  prematurely without permission from this Court, we do not reach the
  question of whether the exclusionary rule applies to preliminary hearings. 
  In reaching this conclusion, however, we emphasize that we are not
  endorsing or finding lawful the VA hospital's conduct when it restrained
  E.S. pending completion of the commitment application.  The record does not
  disclose under what power VA police and staff held E.S., and we understand
  the difficulties in following the statutory commitment procedure when the
  proposed patient lacks ties to Vermont so that there is no
  readily-available person to act as an applicant.  Nevertheless, the denial
  of liberty the commitment process allows must be based on the procedures
  the Legislature has required.  

       Appeal dismissed.


                                       BY THE COURT:


                                       _______________________________________
                                       John A. Dooley, Associate Justice

                                       _______________________________________
                                       Denise R. Johnson, Associate Justice

                                       _______________________________________
                                       Marilyn S. Skoglund, Associate Justice

                                       _______________________________________
                                       Paul L. Reiber, Associate Justice

                                       _______________________________________
                                       Frederic W. Allen, Chief Justice (Ret.),
                                       Specially Assigned