Powell v. Maryland Department of Health

Fredia Powell, et al. v. Maryland Department of Health, et al.
No. 77, September Term 2016

Civil Procedure – Mootness – Issue Capable of Repetition, Yet Evading Review.
Appellants were criminal defendants who had been found incompetent to stand trial and
were committed for treatment at a psychiatric hospital. None of them was admitted to the
hospital by the deadline specified in their commitment orders. They collectively brought
suit challenging that delay as a violation of the statute authorizing their commitment and
of the Maryland Declaration of Rights. However, each of the Appellants had ultimately
been admitted to the hospital well before the case reached the Court of Appeals. Although
courts ordinarily will not decide a moot issue, the Appellants’ challenge would be
considered under an exception to the mootness doctrine for cases that raise an issue
“capable of repetition, yet evading review.”

Criminal Procedure – Commitment of Defendant Found Incompetent to Stand Trial
and Dangerous as a Result of a Mental Disorder. When a defendant in a criminal case
is alleged to be incompetent to stand trial, the trial court is to determine, pursuant to statute,
the competency, dangerousness, and restorability to competence of the defendant. If all
three criteria are met, the court may commit the defendant to a psychiatric hospital
designated by the Maryland Department of Health for treatment. A failure by the
Department to admit the defendant to a designated facility on the timetable specified in the
commitment order may be a violation of the order, but is not a violation of the statute itself,
which does not require admission on a specific timetable or explicitly authorize the trial
court to set a deadline. Maryland Code, Criminal Procedure Article, §3-104 through §3-
108.

Due Process – Commitment of Defendant in Criminal Case Found Incompetent to
Stand Trial and Dangerous. A defendant in a criminal case may be detained in custody
pending trial without violating the defendant’s due process liberty interest when detention
is justified by important governmental interests such as ensuring the defendant’s presence
for trial and protecting the public. When a court finds a defendant incompetent to stand
trial and dangerous to self or others as a result of a mental disorder, the defendant may not
be continued in detention with respect to the criminal case (as opposed to a separate civil
commitment) unless, within a reasonable time, the State undertakes efforts to restore the
defendant to competence. An unreasonable delay in the transfer of an incompetent
defendant who is the subject of a commitment order from pretrial detention to the
designated psychiatric hospital violates the defendant’s substantive due process rights.
Article 24, Maryland Declaration of Rights.
Circuit Court for Baltimore City
Case No. 24-C-16-003484
Argument: March 31, 2017
IN THE COURT OF APPEALS
OF MARYLAND

No. 77

September Term, 2016

FREDIA POWELL, ET AL.

V.

MARYLAND DEPARTMENT OF HEALTH, ET AL.
_____________________________________

Barbera, C.J.
Greene
Adkins
McDonald
Hotten
Getty
Raker, Irma S. (Senior Judge,
Specially Assigned),

JJ.

______________________________________

Opinion by McDonald, J.
Getty, J., dissents.
______________________________________

Filed: August 28, 2017
 A criminal prosecution may not proceed against a defendant who is not competent

to stand trial. For that reason, a defendant may not be continued in pretrial detention

unless the government is taking steps to provide treatment to restore the defendant to

competence or to have the defendant civilly committed. Maryland law provides for a trial

court to determine whether a defendant is competent, is dangerous to self or others, and,

if incompetent, has the potential to be restored to competence. If these criteria are met,

the trial court may commit the defendant to a mental health facility designated by Appellee

Maryland Department of Health1 (“MDH”) for appropriate treatment to restore the

defendant to competence. Maryland Code, Criminal Procedure Article (“CP”), §3-104 et

seq. This case concerns implementation of that law within constitutional parameters.

MDH and its head, Appellee Secretary of Health,2 have adopted a policy on

admission to State psychiatric hospitals to manage the demand for the limited beds

available at those facilities. That policy has resulted in the creation of a waiting list for

admission to State psychiatric hospitals – a list that has included criminal defendants who

1
During the pendency of this appeal, the official name of the Appellee agency was
changed from the “Department of Health and Mental Hygiene” to the “Maryland
Department of Health” as of July 1, 2017. Chapter 214, Laws of Maryland 2017. The
same law changed the title of the head of that department from the “Secretary of Health
and Mental Hygiene” to the “Secretary of Health.” Id.
2
The incumbent Secretary resigned while this case was on appeal. Because he was
sued in his official capacity, his successor will be substituted as a defendant pursuant to
Maryland Rule 2-241(a)(5). We recognize that there is currently a dispute between the
executive and legislative branches concerning appointment of his successor. We express
no opinion on the merits of that dispute, but simply note that whoever heads MDH will be
bound by the resolution of this case.
have been found incompetent to stand trial and committed for treatment, including the

four Appellants in this case. The Circuit Court for Baltimore City – at least in the four

instances spotlighted in this case – has adopted a practice of requiring admission of a

defendant to a hospital within one day of the issuance of the commitment order.

In this case, the Circuit Court found each of the Appellants – defendants in separate

criminal cases – to be incompetent to stand trial and dangerous. The court committed each

of them to a State psychiatric facility pursuant to the statute and ordered their admission

within one day of the commitment order. When MDH failed to admit them by that

deadline, they collectively brought this action challenging the MDH policy on statutory

and constitutional grounds.

We hold that the statute itself does not set a deadline for admission to a psychiatric

hospital. Nor does it authorize a circuit court to do so. Accordingly, a delay in admitting

a criminal defendant by a deadline set forth in a commitment order does not violate the

statute, although it may violate the commitment order. Nevertheless, depending on the

circumstances of the particular case, such delay may violate the due process guarantee of

the Maryland Declaration of Rights unless the delay is reasonable under the circumstances

of the particular case.

2
 I

Background

A. Procedures Concerning Defendants Found Incompetent to Stand Trial

Competency Standard

Under the common law, a criminal prosecution could not proceed if the defendant

was unable, as a result of a mental or physical disability, to understand the proceedings or

to assist in the defense. A criminal defendant in that condition is said to be incompetent

to stand trial.3 See Note, Incompetency to Stand Trial, 81 Harv. L. Rev. 454 (1967). That

standard has prevailed in Maryland since 1967. Raithel v. State, 280 Md. 291, 297-98

(1977); see also CP §3-101(f) (“‘[i]ncompetent to stand trial’ means not able: (1) to

understand the nature or object of the proceeding; or (2) to assist in one’s defense.”).

Because the prohibition against trying or convicting an incompetent defendant is

considered “fundamental to the adversary system of justice,” it is also an element of the

due process right to a fair trial under the United States Constitution. Drope v. Missouri,

420 U.S. 162, 172 (1975). While the State thus has no legitimate interest in criminally

prosecuting a defendant who is incompetent to stand trial, it does have an interest in

3
The condition of being incompetent to stand trial is to be distinguished from the
defense of “not criminally responsible by reason of insanity.” The former concerns the
mental condition of the defendant at the time of prosecution; the latter concerns the mental
condition of the defendant at the time of the alleged offense. See CP §3-109 through 3-
114 (procedures relating to defense of not criminally responsible and commitment of
defendant); Maryland Rule 4-242(b)(1) (entry of plea of not criminally responsible); 4-
314 (trial procedure when defendant raises defense of not criminally responsible).

3
restoring a defendant to competency for the purpose of resolving the criminal charges.

See Allmond v. Dept. of Health & Mental Hygiene, 448 Md. 592, 608-13 (2016).

Trial Court Determination

Under Maryland law, trial courts are charged with determining whether a defendant

is in fact incompetent to stand trial and, if so, what to do about it. CP §§3-104 through 3-

108. If it appears that a defendant may be incompetent to stand trial (or the defense alleges

incompetence), the trial court must determine, from “evidence presented on the record,”

whether the defendant is in fact competent to stand trial. CP §3-104. Part of the evidence

considered by the court may be a report from MDH following its examination of the

defendant.

Examination of Defendant for Competence and Dangerousness

To obtain an assessment by MDH, the court may order MDH to examine the

defendant and submit a report to the court, the prosecutor, and defense counsel concerning

whether the defendant is competent to stand trial. CP §3-105(d)(1). If, upon examination,

MDH determines that the defendant is incompetent to stand trial, the report must include

a supplementary opinion concerning “whether, because of mental retardation or mental

disorder, the defendant would be a danger to self or the person or property of another, if

released.” CP §3-105(d)(3).

Disposition after Determination of Incompetence

If the court finds that the defendant is incompetent to stand trial, but is not

dangerous to self or the person or property of others, the court is to set bail or release the

defendant on personal recognizance. CP §3-106(a). The court is then required to hold a

4
hearing at least annually to reconsider the issues of competence and dangerousness. CP

§3-106(f).

If, however, the court finds that the defendant is dangerous as well as incompetent,

“the court may order the defendant committed to the facility that [MDH] designates until

the court finds that: (i) the defendant no longer is incompetent to stand trial; (ii) the

defendant no longer is, because of mental retardation or a mental disorder, a danger to self

or the person or property of others; or (iii) there is not a substantial likelihood that the

defendant will become competent to stand trial in the foreseeable future.” CP §3-

106(b)(1).4 In other words, the three criteria for commitment and retention of a criminal

defendant in a psychiatric hospital under this provision can be understood as

incompetence, dangerousness, and restorability. See State v. Ray, 429 Md. 566, 578-79

(2012).

If the court finds that a defendant meets these criteria5 and commits the defendant,

the court is to conduct a hearing at least once a year from the commitment date to

determine whether the defendant continues to meet the criteria for commitment. CP §3-

106(c)(1)(i). The court may hold earlier or additional hearings on its own initiative, upon

4
If the defendant is committed “because of mental retardation,” the Developmental
Disabilities Administration is to provide the defendant with necessary care or treatment.
CP §3-106(b)(2).
5
The statute does not require that the court explicitly find that the defendant is
restorable in the commitment order. However, if the court finds that the defendant is not
restorable, it is to take other action. See CP §3-106(d); State v. Ray, 429 Md. at 451-52.

5
receipt of a report from MDH containing new information, or upon motion of a party

setting forth new facts or circumstances. CP §3-106(c)(1)(ii)-(iii), (2).

If a defendant remains incompetent to stand trial, the court must eventually decide

whether to take other action. If it appears that the defendant remains incompetent and is

not restorable – i.e., “not likely to become competent in the foreseeable future” – the court

may civilly commit the defendant if certain criteria are met. CP §3-106(d).6 If the

defendant has not been restored to competence and the criminal charges have not been

resolved, the statute also requires the court to dismiss the criminal charges after specified

periods of time (based on the nature of the charges and the potential penalty) have elapsed,

unless the State petitions the court “for extraordinary cause” to extend the statutory

deadline. CP §3-107.

6 The statute provides that the court shall:

(1) civilly commit the defendant as an impatient in a
medical facility that the [MDH] designates provided the court
finds by clear and convincing evidence that:
(i) the defendant has a mental disorder;
(ii) inpatient care is necessary for the defendant;
(iii) the defendant presents a danger to the life or
safety of self or others;
(iv) the defendant is unable or unwilling to be
voluntarily committed to a medical facility; and
(v) there is no less restrictive form of intervention
that is consistent with the welfare and safety of the defendant
…

CP §3-106(d)(1).

6
 Under the statute, MDH thus functions as a legislatively-designated expert that may

assist the court in making the necessary findings and as the provider of treatment that may

restore the defendant to competence. The statute contemplates a cooperative process in

which MDH evaluates the defendant initially and periodically, provides reports and

opinions to the court, and designates facilities at which evaluation and treatment take

place. The court is charged with determining whether the criteria of incompetence,

dangerousness, and restorability are met, revisiting those determinations periodically, and

taking appropriate action based on its findings.

Hospital Facilities Operated by MDH

MDH’s Behavioral Health Administration operates five psychiatric hospitals in

Maryland. Maryland Code, Health-General Article (“HG”), §10-406. The Director of the

Behavioral Health Administration is charged by State law with setting standards for

admission to those facilities. HG §10-407.

There are four regional hospitals to which individuals are committed by courts in

the region served by the particular hospital.7 However, individuals charged with serious

7
Spring Grove Hospital Center receives individuals committed by courts in
Baltimore City and Baltimore, Calvert, Cecil, Charles, Harford, and St. Mary’s counties.
Thomas B. Finan Center receives individuals committed by courts in Allegany, Frederick,
Garrett, and Washington counties. Eastern Shore Hospital Center receives individuals
committed by courts in Caroline, Dorchester, Kent, Queen Anne’s, Somerset, Talbot,
Wicomico, and Worcester counties. Springfield Hospital Center receives individuals
committed by courts in Anne Arundel, Carroll, Howard, Montgomery, and Prince
George’s counties.

7
crimes are generally committed to the Clifton T. Perkins Hospital Center (“Perkins”),

regardless of the location of the court that ordered the commitment.

B. Facts and Legal Proceedings

The basic facts of this case are set forth in the complaint and accompanying

affidavit of Appellants’ counsel, and in an affidavit supporting the motion to dismiss

subsequently filed by MDH and the Secretary. These facts are largely undisputed,

although the parties differ on the characterization of those facts, the inferences to be drawn

from them, and their legal significance.

The Complaint

The complaint was filed on behalf of Fredia Powell, James Powell, Shane Dorsey,

and Ivan Burrell in the Circuit Court for Baltimore City on June 8, 2016. Different labels

have been applied to Ms. Powell, Mr. Powell, Mr. Dorsey, and Mr. Burrell in connection

with this litigation. Each has been a defendant facing criminal charges in separate cases

in the Circuit Court. Each also became a plaintiff prosecuting the civil complaint that

initiated this action. Each now is an appellant pursuing the appeal before us. In the hope

of avoiding confusion, we shall refer to them consistently in this opinion as “Appellants.”

The complaint named MDH and the Secretary as defendants. Because the

Secretary was sued in his official capacity as the head of MDH, we shall refer to the

Appellees collectively as “MDH,” unless the context requires otherwise.

The complaint alleged that each of the Appellants was a defendant in a criminal

case in the Circuit Court for Baltimore City. In each case, according to the complaint, the

Circuit Court determined prior to trial that the Appellant was both incompetent to stand

8
trial and dangerous.8 In each case, the Circuit Court issued a written order on a pre-printed

Judiciary form committing the Appellant to MDH as a result of those findings. (A copy

of each order was attached as an exhibit to the complaint in this case).

In each case, the order directed the Department of Public Safety and Correctional

Services to transport the Appellant immediately to Perkins “or such other facility as

[MDH] designates.” The designation of Perkins was a handwritten addition to the form

order. Each order included another handwritten addition requiring that the Appellant be

admitted as an inpatient “no later than” a specified date – in each case, the day after the

date of the commitment order. In each case, additional paragraphs of the pre-printed form

order provided for a status conference in six months and an annual hearing a year after the

date of the order.9

None of the Appellants was admitted to Perkins by the deadline set forth in their

respective orders. At the time of the filing of the complaint on June 8, 2016, each of the

Appellants was being held in a pretrial detention facility, still awaiting admission to

Perkins. After the filing of the complaint, each of the Appellants was admitted to Perkins

8
It is not clear from the record in this case whether any of these Appellants pled
not criminally responsible, or had the opportunity to do so, in their respective criminal
cases.
9
The dates set for these conferences and hearings have since passed. The record
before us does not include the results of those hearings and conferences or what additional
determinations, if any, were made as to each Appellant’s competence, dangerousness, and
restorability. According to Case Search, the Judiciary’s on-line website concerning case
records, it appears that Mr. Powell was found to be competent to stand trial in November
2016 and entered an Alford plea to one of the charges against him in February 2017.

9
on various dates between June 13 and June 30, 2016. Instead of being admitted within

one day of the commitment order, as stated in the handwritten addition to each form order,

the Appellants were admitted between 12 and 36 days after the dates of their respective

commitment orders. The individual chronologies with respect to each Appellant were as

follows:

 Fredia Powell was charged with second-degree attempted
murder and first-degree assault. On June 1, 2016, the Circuit
Court found Ms. Powell incompetent to stand trial and
dangerous because of a mental disorder and ordered that she
be admitted to Perkins no later than the following day – June
2, 2016. Ms. Powell was not admitted to Perkins until June
13, 2016. In the meantime, Ms. Powell was confined in
pretrial detention at the Baltimore City Detention Center.

 James Powell was charged with first-degree arson. On May
25, 2016, the Circuit Court found Mr. Powell incompetent to
stand trial and dangerous because of a mental disorder and
ordered that he be admitted to Perkins no later than the
following day – May 26, 2016. Mr. Powell was not admitted
to Perkins until June 21, 2016. In the meantime, he was
confined at the Baltimore City Booking and Intake Center.

 Shane Dorsey was charged with first-degree attempted
murder and second-degree attempted murder. On May 25,
2016, the Circuit Court found Mr. Powell incompetent to
stand trial and dangerous because of a mental disorder and
ordered that he be admitted to Perkins no later than the
following day – May 26, 2016. Mr. Dorsey was not admitted
to Perkins until June 30, 2016. In the meantime, he was
confined at the Baltimore City Detention Center.

 Ivan Burrell was charged with first-degree attempted murder
and second-degree attempted murder. On May 25, 2016, the
Circuit Court found Mr. Burrell incompetent to stand trial and
dangerous because of a mental disorder and ordered that he be
admitted to Perkins no later than the following day – May 26,
2016. Mr. Burrell was not admitted to Perkins until June 16,

10
 2016. In the meantime, Mr. Burrell was confined at the
Baltimore City Booking and Intake Center.

The complaint further alleged that the Appellants’ cases were not unique and that

MDH had failed, and continued to fail, to comply with the deadlines in court orders for

the commitment of criminal defendants who had been judicially determined to be

incompetent to stand trial and dangerous as a result of mental disorder. Attached to the

complaint as an exhibit was a letter dated April 28, 2016, from the Secretary to the

Administrative Judge of the Circuit Court for Prince George’s County. In that letter, the

Secretary described a “crisis” that prevented MDH from “responding expeditiously to

court requirements.” The letter stated that MDH’s in-patient facilities were full and, in

fact, “over census,” that MDH was at risk of having insufficient staff to provide the

necessary care, that the problem was “particularly acute” at Perkins, and that the Secretary

was forming a workgroup to solve the problems. He asked for the Judiciary’s assistance

and participation in the workgroup. The complaint characterized the Secretary’s letter as

justifying an “optional compliance” policy with respect to court orders.

The complaint alleged two causes of action, both premised to some extent on the

fact that none of the Appellants had been admitted to Perkins at the time the complaint

was filed. Count One alleged that MDH had violated CP §3-106(b) with respect to each

Appellant because it had failed to comply with the court order concerning that Appellant.

Count Two alleged that MDH had violated the Appellants’ right to due process guaranteed

by Article 24 of the Maryland Declaration of Rights. In a prayer for relief, the complaint

11
asked the court to grant a motion for a preliminary injunction,10 to hold a hearing on a

motion to certify a plaintiff class, to set an expedited schedule, and to order declaratory

and permanent injunctive relief.

A separate motion for class certification was filed with the complaint. The motion

sought certification of a plaintiff class of “persons determined to be not competent to stand

trial who are being denied court ordered mental health treatment in mental health facility.”

The motion sought certification of a plaintiff class under Maryland Rule 2-231(b)(2) and

(b)(3),11 with the Appellants designated as representatives of that class.12

10
It does not appear from the record that such a motion has yet been filed.
11
Maryland Rule 2-213(b)(2) provides for certification of a class if the threshold
prerequisites for a class action – i.e., numerosity, commonality, typicality, and adequacy
of representation – are otherwise satisfied and “the party opposing the class has acted or
refused to act on grounds generally applicable to the class, thereby making appropriate
final injunctive relief or corresponding declaratory relief with respect to the class as a
whole.”

Maryland Rule 2-231(b)(3) provides for certification of a class if the prerequisites
for a class action are otherwise satisfied and the court finds that questions of law or fact
common to the members of the class predominate over questions affecting individual
members “and that a class action is superior to other available methods for the fair and
efficient adjudication of the controversy.” The rule sets forth additional factors to be
considered in making that determination.
12
As noted in the text, each of the Appellants has been judicially determined to be
incompetent to stand trial – i.e., he or she is unable to understand the proceedings or to
assist in his or her defense. It seems anomalous that an individual who has been judicially
determined to be unable to understand the proceedings in the criminal case and to assist
in the defense of that case has the capacity to prosecute a civil case, much less act as the
representative of others, without the assistance of a next friend or other fiduciary. See
Maryland Rules 2-202(b) (suits by individuals under disability), and 1-202(m) (definition
of “individual under disability”). Perhaps this has already been sorted out by the trial
court – or would be in connection with the class certification motion. In any event, it is
not before us.

12
 The Motion to Dismiss

On July 13, 2016, MDH moved to dismiss the Appellants’ complaint as moot and

also moved to dismiss the claims for injunctive relief for failure to state a claim on which

relief can be granted. With respect to the issue of mootness, MDH submitted an affidavit

of the Director of the Behavioral Health Administration. That affidavit recounted the

chronology on which each of the Appellants was admitted to Perkins. In the affidavit, the

Director stated that, as of the time she made the affidavit, only three individuals on the

waiting list for Perkins had been found incompetent to stand trial and that none of those

individuals was the subject of an order with a specific deadline for admission. The

affidavit also stated that there were no individuals who had been found incompetent to

stand trial on the waiting lists for MDH’s other four psychiatric hospitals. The affidavit

stated that the hospitals were currently operating at or above maximum capacity and

described efforts undertaken to reduce admission delays.

MDH also opposed the motion for class certification, arguing that the claims of the

individual Appellants were moot and that, in any case, they failed to establish that the

threshold requirements for a class action under Maryland Rule 2-231(a) – i.e., numerosity,

commonality, typicality, and adequacy of representation – were satisfied. In the

alternative, MDH argued that any plaintiff class should be limited to individuals who had

been found incompetent to stand trial and dangerous, and were designated for admission

to Perkins within one day in a commitment order issued by the Circuit Court for Baltimore

City.

13
 Circuit Court Ruling on Motion to Dismiss

On August 30, 2016, the Circuit Court held a hearing at which it heard argument

on the motion to dismiss.13 The parties agreed that the court should decide the motion to

dismiss before addressing the class certification motion.14

In a brief oral ruling at the conclusion of the hearing, the Circuit Court granted

MDH’s motion to dismiss the Appellants’ claims for injunctive relief. The Circuit Court

reasoned that CP §3-106(b) did not authorize a court to set a deadline for admission to a

hospital and, accordingly, that a failure to comply with a deadline in an order did not

violate the statute. The Circuit Court also held that the delays in placing the Appellants,

even if the delays subsequent to the filing of the complaint were considered, did not violate

Article 24 of the Maryland Declaration of Rights. The court did not explicitly address the

issue of mootness. The court later entered a brief written declaratory judgment consistent

with its oral ruling.

13
All of the commitment orders in the Appellants’ criminal cases had been issued
by the same judge of the Circuit Court. A different judge of the Circuit Court presided at
the hearing on the motion to dismiss in their joint civil case.
14
The parties disagreed as to the whether the Circuit Court should delay
determination of the class certification motion after it resolved the motion to dismiss for
purposes of discovery. That dispute became moot when the court granted the motion to
dismiss the complaint and is not before us.

14
 The Appeal

The Appellants filed a timely notice of appeal. Prior to consideration of the appeal

by the Court of Special Appeals, they filed a petition for a writ of certiorari with this

Court, which we granted.

II

Discussion

Appellants contend that the Circuit Court erred when it concluded that MDH’s

delay in admitting Appellants to Perkins did not violate either CP §3-106(b) or Article 24

of the Maryland Declaration of Rights. MDH raises the preliminary issue of whether

Appellants’ claims are moot.

A. Standard of Review

When a circuit court considers a motion to dismiss a complaint for failure to state

a claim, the court accepts the well-pleaded facts of the complaint, and reasonable

inferences that may be drawn from those allegations, in the light most favorable to the

plaintiff. Balfour Beatty Infrastructure, Inc. v. Rummel Klepper & Kahl, LLP, 451 Md.

600, 609 (2017). The court’s decision is thus based on its application of the law to those

facts and inferences. Similarly, when a circuit court looks to undisputed facts outside the

complaint – and the motion to dismiss is treated as one for summary judgment 15 − the

court’s decision likewise involves the application of the law to a given set of facts. See

Smith v. Danielczyk, 400 Md. 98, 104-5 (2007). Again, the court is to consider the record

15
See Maryland Rule 2-322(c).

15
in the light most favorable to the non-moving party and consider any reasonable inferences

that may be drawn from the undisputed facts in favor of that party. Mathews v. Cassidy

Turley Maryland, Inc., 435 Md. 584, 598 (2013). In either case, the court’s decision

concerns a question of law. Accordingly, in reviewing that legal decision, an appellate

court accords no special deference to the circuit court’s legal conclusions.

B. Mootness

MDH renews the contention it made in the Circuit Court that the Appellants’ claims

are moot and urges us to decline to reach the merits of the appeal for that reason. A case

is moot if “there is no longer an existing controversy between the parties, so that there is

no longer any effective remedy which the court can provide.” Mercy Hosp., Inc. v.

Jackson, 306 Md. 556, 561 (1986) (citation and quotation marks omitted). Although there

is no constitutional bar to this Court expressing its views on a moot issue, we rarely do so

and usually dismiss the appeal without addressing the merits of the issue. Id. at 562.

In this case, Appellants were all admitted to Perkins by June 30, 2016. There is no

longer a controversy between them and MDH over their admission to Perkins pursuant to

their respective commitment orders. Thus, to the extent that they seek an injunction

ordering their admission, the case is moot. However, this is not the case with respect to

declaratory relief. It is not uncommon for an individual who has been found incompetent

to stand trial to be restored to competence through treatment and then, for any variety of

reasons, to later lapse back into incompetence. See, e.g., Sibug v. State, 445 Md. 265

(2015). Indeed, the statute contemplates that the court may need to reconsider the

defendant’s competence during the course of the prosecution. CP §3-104(c).

16
 It is thus conceivable that one or more of the Appellants, having experienced that

cycle, will again be the subject of a commitment order under CP §3-106(b) in connection

with his or her criminal case. The question whether, and to what extent, the judge who

issues that commitment order may specify a deadline for admission of the Appellant to

Perkins and whether MDH’s admission policy complies with the statute and Constitution

would likely again be an issue. And, assuming that Appellant again challenges any delay

under the MDH policy in his or her admission to Perkins, it seems likely that the Appellant

would again be admitted to Perkins before that challenge reaches this Court. If we decline

to decide the case on the ground of mootness, this important question of MDH’s

compliance with the statutory and constitutional provisions governing commitment of an

incompetent defendant will escape decision.

This is thus a classic example of one of the limited exceptions to the mootness

doctrine. Under that exception, even if no controversy exists at the precise moment that

the case is before the appellate court, it will not be deemed moot if the controversy

between the parties is “capable of repetition, yet evading review.” See State v. Parker,

334 Md. 576, 585-86 (1994). This exception applies when “(1) the challenged action was

too short in its duration to be fully litigated prior to its cessation or expiration; and (2)

there was a reasonable expectation that the same complaining party would be subjected to

the same action again.” Id. Even if it is unlikely that the same party will be subject to the

same action, the exception may also apply if the issue is of public importance and affects

an identifiable group for whom the complaining party is an appropriate surrogate (even if

17
a class action is not certified). See LaValle v. LaValle, 432 Md. 343, 351-52 (2013); cf.

Loisel v. Rowe, 660 A.2d 323, 330-32 (Conn. 1995).

Here, the Appellants alleged that delays that ultimately ranged from 12 days to 36

days in admitting them to Perkins for treatment violated not only the respective court

orders, but also the statute and the Maryland Declaration of Rights. The challenged action

– the failure to admit the Appellants to Perkins – was too short in duration to be fully

litigated prior to its cessation. It is also entirely possible that the complaining party – one

of the Appellants – would be subject to the same circumstances again. Moreover, the

complaint alleges that the Appellants’ experience is not unique and that other criminal

defendants found to be incompetent have experienced similar delays. The Court of

Special Appeals recently concluded that this exception to the mootness doctrine applied

to a claim similar to the one made in this case. State v. Dixon, 230 Md. App. 273, 277-78

(2016) (case concerning court order on conditions of detention for criminal defendant

awaiting psychological examination on competency and criminal responsibility was not

moot because the issue was capable of repetition, yet would evade review).

For that reason, we decline to dismiss this appeal on the ground of mootness. We

do not reach the other exceptions to the mootness doctrine advanced by the Appellants.16

16
Among other things, Appellants primarily argued that this case falls within the
framework of Frazier v. Castle Ford, Ltd., 430 Md. 144 (2013), in which this Court held
that the defendant’s effort to moot a potential class action by tendering individual
monetary relief (that had previously been refused) to the putative class representative did
not moot the case when the individual plaintiff had not had a reasonable opportunity to
seek class certification. However, this case does not involve a defendant “picking off” a
proposed class representative by offering individual monetary relief that was denied prior
to commencement of the litigation. MDH has never disputed that it was required to
18
C. Alleged Violation of CP §3-106(b)

Count One of the complaint alleges that MDH violated CP §3-106(b). The focus

of the alleged violation has shifted slightly over the course of this litigation. At the time

the complaint was filed, none of the Appellants had been admitted to Perkins and Count

One might have been treated as alleging a violation of the statute for the failure to admit

them at all. However, the complaint appears to acknowledge that the essence of the

controversy is not a complete failure to admit criminal defendants committed by the court

based on a finding of incompetency and dangerousness, but rather delay in admission

beyond the deadline set by the court in the commitment order. By the time of the filing

of the motion to dismiss, all four Appellants had been admitted to Perkins. Appellants

then argued that the failure to admit them to Perkins within one day of their commitments

violated the orders under which they were committed and, by dint of that violation, MDH

also violated CP §3-106(b). The Circuit Court dismissed Count One on the rationale that

there was no authority in the statute for a court to set a deadline for admission to Perkins.

Before us, Appellants argue both that CP §3-106(b) authorizes a court to set a

deadline for admission to Perkins and that, when a court sets a deadline, the failure of

MDH to meet that deadline is a violation of the statute. In our view, both arguments lack

merit.

provide the relief – admission to Perkins – to the individual Appellants. Nor are
Appellants alleging that MDH is flatly refusing to admit defendants found incompetent
and dangerous to Perkins – just that there is a delay in “accepting the person within the
time the court specified.” The dispute concerns whether a delay in admission to Perkins
amounted to a statutory and constitutional violation.

19
 Whether CP §3-106(b) Authorizes the Court to Set a Deadline for Admission

First, the statute does not provide for a court to specify a date for admission of a

criminal defendant to a psychiatric hospital after the court has made the requisite findings

of incompetency and dangerousness for commitment. CP §3-106(b) provides:

(1) If, after a hearing, the court finds that the defendant
is incompetent to stand trial and, because of mental retardation
or a mental disorder, is a danger to self or the person or
property of another, the court may order the defendant
committed to the facility that the Health Department
designates until the court finds that:

(i) the defendant no longer is incompetent to stand
trial;

(ii) the defendant no longer is, because of mental
retardation or a mental disorder, a danger to self or the person
or property of others; or

(iii) there is not a substantial likelihood that the
defendant will become competent to stand trial in the
foreseeable future;

(2) If a court commits the defendant because of mental
retardation, the Health Department shall require the
Developmental Disabilities Administration to provide the care
or treatment that the defendant needs.

As is evident from the language of the statute, nothing in the text of CP §3-106(b) sets a

deadline for admission, or authorizes the court to set one. Nor can such authority be found

in other parts of the statute. This is in contrast to other portions of the statutory scheme

that set deadlines or that confer explicit authority on the court to establish conditions. See,

e.g., CP §3-105(d)(2) (defendant entitled to have report of examination within seven days

after court orders examination, although court may extend time “for good cause”); CP §3-

20
105(a)(2) (court “shall set and may change the conditions” of MDH examination of a

defendant); CP§3-106(c) (court to hold hearing on defendant’s competency within 30 days

of certain events); CP §3-106(f)(1)(i) (court must hold hearing at least annually at which

it must reconsider its findings as to defendant’s competency and dangerousness)

The pre-printed form used by the Circuit Court as to each of the Appellants

provided as follows in the pertinent paragraph:

It is further ORDERED that upon receipt of this Order
___________ will transport the Defendant immediately to
________________________ or such other facility as the
Department designates.

In each case, the court modified this paragraph in three ways: (1) It inserted “DPSCS” –

the Department of Public Safety and Correctional Services − in the first blank; (2) it

inserted “Clifton T. Perkins Hospital” in the second blank; and (3) it added a handwritten

clause at the end of the paragraph requiring the defendant to be admitted as an inpatient

“no later than” a specified date – in each case, one day after the date of the order.

As is evident, the pre-printed form contemplates that the court may designate a

hospital, although it hedges that designation with the qualification “or such other facility

as the Department designates,” thus rendering the form consistent with CP §3-106(b),

which provides for MDH (as opposed to the court) to designate the facility. The pre-

printed form also provides for a defendant to be transported “immediately” to the

designated hospital. Presumably, the drafter of the form contemplated immediate

admission to the hospital as well – as opposed to waiting indefinitely outside the door of

the facility. The handwritten additions to each of the orders setting a one-day deadline for

21
admission of the Appellants could be viewed as an elaboration, a shortening, or even a

lengthening of the term “immediately” in the pre-printed form. In any event, neither the

term “immediately” nor any other timetable appears in the statute.17

Appellants essentially argue that CP §3-106(b) should be read to provide that “the

court may order the defendant committed to the facility that the Health Department

designates by the date designated by the court ….” We cannot revise the statute to that

effect by judicial interlineation. Price v. State, 378 Md. 378, 387 (2003) (“A court may

neither add nor delete language so as to reflect an intent not evidenced in the plain and

unambiguous language of the statute...”).

Appellants argue somewhat vaguely that the legislative history of the statute

demonstrates that the General Assembly intended to authorize a court to set a specific

deadline in a commitment order. They do not point to any particular evidence from the

legislative history of CP §3-106(b) other than to make a general reference to the 2006

revision of statutory provisions concerning restorability. See generally State v. Ray, 429

Md. 566, 581-96 (2012) (summarizing legislative history of competency statute with focus

on 2006 revision and restorability provisions).

As recounted in Ray, the only amendment made to CP §3-106(b) by the 2006 law

was to add the restorability criterion that is now found in CP §3-106(b)(1)(iii) and related

17
In contrast, a separate paragraph of the pre-printed form orders that an annual
review hearing will be held on a date within one year and contains a space for the court to
insert a date. In that instance, the statute specifically states a deadline for that event, and
the failure to comply with that portion of the order would be a violation of the statute as
well as of the order. See CP §3-106(c)(1)(i).

22
provisions. See Chapter 353, Laws of Maryland 2006. That provision concerned the end

of an effort to restore a defendant to competency – not, as in these cases, the beginning.

Consequently, that amendment did not address the timetable for the initial admission of a

defendant to a facility under a commitment order. Moreover, no change was made in the

operative language of the provision authorizing commitment of a defendant found to be

incompetent and dangerous. Indeed, that language is essentially unchanged from the

predecessor statute that was enacted in 1967. Chapter 709, Laws of Maryland 1967, then

codified at Maryland Code, Article 59, §8(a). We have reviewed the various

recodifications of that provision over the subsequent five decades and the extant

legislative history for those recodifications.18 Nothing supports Appellants’ contention

that the General Assembly affirmatively intended for a court to set a deadline for

admission in a commitment order under what is now CP §3-106(b).

That is not to say that a court order issued under CP §3-106(b) may not include a

deadline for admission to a facility. Nor does it mean that such a deadline in a court order

may not be enforced through the court’s contempt powers. But the authority for including

a deadline must come from somewhere other than the statute. One possible source of such

authority might be a constitutional constraint on government that a court must recognize

in issuing an order. That is a question more pertinent to Count Two of the complaint, in

18
See, e.g., Chapter 407, Laws of Maryland 1970 (slightly revising and recodifying
statute as Article 59, §24(a)); Chapter 21, Laws of Maryland 1982 (recodifying statute in
Health-General Article, §12-104(b)); Chapter 501, Laws of Maryland 1984 (recodifying
statute as Health-General Article, §12-105(b)); Chapter 10, Laws of Maryland 2001
(recodifying statute as CP §3-106(b)).

23
which the Appellants alleged a violation of due process. It is addressed in Part II.D. of

this opinion.

Whether Failure to Meet a Deadline in a Court Order Violates CP §3-106(b)

Second, even if the statute could be read to authorize the court to impose a deadline

for admission or even if there is another source for that authority, a failure to meet that

deadline does not mean that MDH has violated the statute. There may be a violation of

the court order issued pursuant to the statute, but that does not logically translate into a

violation of the statute itself. Many statutes and rules authorize courts to issue orders. But

a failure to comply with every condition or detail of a court order issued pursuant to a

statute or rule is not per se a violation of the underlying statute or rule.19 If a court order

has been violated, a party with standing, or the court itself, may institute contempt

proceedings for that violation.20 See, e.g., Maryland Rule 15-206(a).

19
For example, if a court issues an injunction pursuant to Maryland Rule 15-502(b)
(“the court … may grant an injunction upon the terms and conditions justice may require”)
and the enjoined party fails to comply with that injunction, the enjoined party may be in
violation of the court order and subject to contempt proceedings for such a violation, but
that violation would not be characterized as a violation of Rule 15-502. Similarly, the
Declaratory Judgments Act authorizes a court, among other things, to construe a contract.
Maryland Code, Courts & Judicial Proceedings Article, §3-407. A party to the contract
that fails to carry out its obligations, as construed by the court, may have committed a
breach of the contract, but not a violation of the Declaratory Judgments Act.
20
We are advised by MDH in its brief that the Circuit Court in fact conducted
contempt proceedings with respect to the orders as to each of the Appellants and declined
to hold MDH officials in contempt. Similarly, Appellants appended to their brief an
opinion and order issued by a circuit court in another jurisdiction that found the MDH in
contempt based on a delay in admitting a criminal defendant to Perkins.

24
 Finally, as part of their argument before us that the Circuit Court erred in dismissing

Count One of the complaint, Appellants raise a number of issues that are not reflected in

the complaint and that were not presented to the Circuit Court: whether the court had

authority to set a deadline for admission to Perkins under its parens patriae authority over

individuals with a disability,21 whether MDH’s conduct violated the constitutional

separation of powers,22 and whether CP §3-106(b) creates a “right to treatment” and an

implied right of action to enforce that right.23 None of these issues were raised in, or

decided by, the Circuit Court and thus ordinarily would not be addressed by an appellate

court. Maryland Rule 8-131(a). Nor were they identified as issues in the Appellants’

petition for certiorari. In any event, none of these contentions advance the argument that

a failure to meet a deadline for hospital admission in a commitment order is a violation of

CP §3-106(b), as alleged in Count One.

21
All of the commitment orders in this case were issued on a form that is designed
to implement CP §3-106(b) and that explicitly cites that statute. There is no reference to
the court’s parens patriae authority.
22
Appellants cite Article 8 of the Maryland Declaration of Rights and assert that
MDH, as an executive branch agency, violated the constitutional separation of powers by
failing to meet the deadlines in the commitment orders.
23
This argument appeared for the first time in Appellants’ reply brief in this Court.
On its face, the statute does not provide for a generalized right to treatment for
incompetent defendants. CP §3-106(b) provides for commitment only of criminal
defendants found to be both incompetent and, as a result of mental disorder, dangerous.
It does not provide for commitment – or treatment in some other forum – of a defendant
found to be incompetent but not dangerous. Protection of the public and of the defendant,
as well as treatment for restoration to competency, appears to be the purpose of
commitment.

25
D. Alleged Violation of Substantive Due Process

Count Two of the complaint asserts that MDH has deprived the Appellants of their

substantive due process rights under Article 24 of the Maryland Declaration of Rights.

Substantive due process refers to the principle that there are certain liberties protected by

the due process clauses in the federal and State Constitutions from government

interference, unless the governmental action is narrowly tailored to satisfy an important

government interest. Allmond, 448 Md. at 609-10.

Liberty Interest of Criminal Defendant Found Incompetent to Stand Trial

A defendant in a criminal case who has not yet been convicted of the charge has a

liberty interest in being free of confinement, unless there has been a determination of

probable cause and pretrial detention is necessary to ensure the presence of the defendant

for trial or the safety of the community. United States v. Salerno, 481 U.S. 739, 746-52

(1987); Bell v. Wolfish, 441 U.S. 520, 534 (1979); see also Gerstein v. Pugh, 420 U.S. 103

(1975). When the prosecution of the criminal case cannot proceed because the defendant

is incompetent to stand trial, the defendant may not be detained on account of the criminal

charge more than a reasonable period of time to determine whether there is a substantial

probability that the defendant will become competent in the foreseeable future. Jackson

v. Indiana, 406 U.S. 715, 738 (1972). If the defendant is not restorable – i.e., not likely

to become competent within the foreseeable future – the government must either release

the defendant or institute civil commitment proceedings. Id. Even if it is foreseeable that

the defendant will become competent, the continued commitment of the defendant “must

be justified by progress toward that goal.” Id.

26
 In Jackson, the United States Supreme Court confronted a case in which a

defendant who was incompetent to stand trial on criminal charges had been indefinitely

committed solely on the basis of his lack of capacity to face those charges. He had already

spent three and a half years in confinement as a result of that commitment with no

indication that he was likely to become competent in the foreseeable future. The Court

held that the defendant could not constitutionally be held indefinitely in custody simply

on the basis of his incompetency to stand trial on the criminal charges. Id. at 720. The

Court declined to “prescribe arbitrary time limits,” noting a lack of evidence in the record

and the existence of “differing state facilities and procedures.” Id. at 738.

Jackson thus concerned the timing of the termination of a commitment to restore a

defendant to competence, while the case before us concerns the beginning of that process.

See State v. Ray, 429 Md. 566, 585–87 (2012) (discussing restorability provisions of

Maryland statute in relation to Jackson). However, the due process principle that the

Supreme Court articulated in that case applies here as well: “[D]ue process requires that

the nature and duration of commitment bear some reasonable relation to the purpose for

which the individual is committed.” 406 U.S. at 738.

In our view, this due process principle applies to the operation of the Maryland

statutory scheme as follows: After a court has made the requisite findings of

incompetence and dangerousness, a criminal defendant is committed to MDH for purpose

of restoring the defendant to competence, while protecting the defendant (and others) from

whatever danger the defendant’s condition poses. Any delay in transferring that defendant

27
to a designated facility pursuant to a commitment order must be reasonable in relation to

the purpose of treating the defendant while protecting both the defendant and the public.

Facial Challenge v. As-Applied Challenge

The parties have debated whether Count Two poses a “facial challenge” or an “as

applied challenge” to the MDH policy on admitting committed defendants to Perkins. In

a facial challenge based on substantive due process, a law or policy is invalid only if the

challenger can demonstrate that there is no set of circumstances under which it would be

valid. Allmond, 448 Md. at 615-16. An as-applied challenge is defined as a claim that a

statute or government practice “is unconstitutional on the facts of a particular case or in

its application to a particular party.” Motor Vehicle Administration v. Seenath, 448 Md.

145, 181 (2016).

In dismissing Count Two, the Circuit Court opined that it believed that Count Two

asserted a facial challenge and found it meritless. The court went on to say that, even if it

regarded the claim as an as-applied challenge, it did not believe that the facts before the

court concerning the delays in admission rose to a constitutional violation.

The tendency to regard Count Two as a facial challenge to the MDH policy is

understandable given the generality of the allegations made in that count. It first states

generally that “the conduct of [MDH and the Secretary] violate Article 24 …” Complaint

¶35. It further alleges that MDH “without right or authority (and in violation of a court

order), intentionally and deliberately, or at least with deliberate indifference" violated the

due process guarantee of Article 24 when it failed to admit the Appellants to a mental

health facility and forced them to remain in pretrial detention when they had not been

28
convicted of a crime and had been determined to be incompetent to stand trial. Complaint,

¶¶36, 37. It goes on to allege that, in addition to a liberty interest in being free of pretrial

detention, the Appellants have a liberty interest “in restorative treatment” and “in

reasonable care and safety and other treatment.” Complaint, ¶38. It further alleges that

there was “no legitimate governmental interest that justifies holding incompetent criminal

defendants in jail” after a court had issued a commitment order and concludes that

Appellants were being “unlawfully and unconstitutionally punished” in violation of

Article 24. Complaint, ¶¶39, 40. In their opening brief, Appellants summarize these

allegations as alleging that MDH is “violating Article 24 by failing to admit [A]ppellants

… into a [MDH] facility by the date set in the court’s order or within a constitutionally

permissible period of time.” Appellants’ Brief at 7.

If Count Two is treated as a facial due process challenge, we have little difficulty

agreeing with the Circuit Court that it does not survive a motion to dismiss (or for

summary judgment). It is not the case that no delay at all in admission is tolerated by the

due process clause. See Lakey v. Taylor, 435 S.W.3d 309 (Tex. Ct. App. 2014) (state

health department’s use of waiting list that resulted in delays of admission of incompetent

defendants to state psychiatric hospitals was not a facial violation of substantive due

process). Appellants themselves implicitly accept that some delay is inevitable or

permissible as they did not challenge the one-day (or slightly greater) delay allowed by

their respective commitment orders.

While it is tempting to treat the Appellants’ due process claim as a facial challenge

to the MDH admission policy, at the time the complaint was filed, all of the Appellants

29
were still in pretrial detention awaiting admission to Perkins. Thus, it is understandable

that Count Two did not relate the alleged due process violations to specific delays

applicable to the Appellants, as the full extent of the delay was unknown. Perhaps it can

be inferred that Appellants were asserting that the delays in admission that they had

already experienced as of the time of the filing of the complaint – which, at that time,

ranged from seven days (Fredia Powell) to 14 days (the other three Appellants) – exceeded

whatever delay would be tolerated by the substantive due process guarantee.24 In this

context – whether MDH’s motion is considered as a motion to dismiss or a motion for

summary judgment – we are to take inferences in favor of the Appellants. We will

construe Count Two as an as-applied challenge to the reasonableness of the delay in their

respective admissions to Perkins under the MDH policy.

Reasonableness of the Delay in Admission

What delay is reasonable with respect to a particular defendant depends on the

circumstances of the particular case: e.g., the nature of the defendant’s disorder, the

circumstances of the defendant’s confinement at the pretrial detention facility, the

treatment needs of the defendant, the treatment needs of other patients at the hospital

facility, the need to provide a setting to deal with the nature of the dangerousness found

by the court with respect to that defendant, the basis for a policy that results in a waiting

24
The Appellants did not amend the complaint to allege the actual period of delay
before their respective admissions to Perkins. That information has been provided by
MDH in connection with its motion to dismiss, but is apparently not disputed.

30
list, and the experience under that policy. While the due process clause sets some outside

constraints, a one-size fits all approach is unlikely to be reasonable.

Other courts that have been called upon to decide whether a delay in the transfer of

an incompetent defendant from pretrial detention to a psychiatric hospital have come to

varying conclusions as to what constitutes an acceptable delay based on the particular

circumstances. In contrast to this case, those courts have generally had the benefit of a

detailed record after a trial or evidentiary hearing. One cannot simply compare the delays

permitted or proscribed in those cases and attempt to decide whether a delay of 12 or 36

days in this case violated due process.

Some cases have simply held that a lengthy delay is unacceptable under due process

without specifying what, if any, delay would pass muster. Disability Law Center v. Utah,

180 F.Supp.3d 998, 1004 (D. Utah 2016) (denying motion to dismiss due process claim

on behalf of incompetent defendants forced to wait as much as six months for admission

to state psychiatric hospital); Terry ex rel. Terry v. Hill, 232 F.Supp.2d 934, 938, 944 (E.D.

Ark. 2002) (concluding that the six-month average wait in Arkansas for a defendant to be

admitted to the state psychiatric hospital was “far beyond any constitutional boundary”).

Other courts that have found delays to be violative – or likely violative – of due

process have issued remedial injunctions that presumably reflect what those courts

believed to be reasonable, and presumably acceptable for purposes of due process. In

Advocacy Center for the Elderly and Disabled v. Louisiana Department of Health and

Hospitals, 731 F.Supp.2d 603, 620, 627 (E.D.La. 2010), the court conducted an extensive

evidentiary hearing on a motion for a preliminary injunction and concluded that the

31
plaintiffs were likely to prevail on their claim that extended delays in the admission of

incompetent defendants to the state psychiatric hospital – some longer than nine months

– violated due process. The court issued a preliminary injunction setting a 21-day deadline

for admission of a defendant following a commitment order.

In Cooper v. Kliebert, 2016 WL 3892445 (M.D. La. 2016), in an action similar to

this one challenging delays in the hospital admission of pretrial detainees who had been

found incompetent to stand trial, a federal district court denied a motion to dismiss a due

process claim, among others. In recounting the history of the case, the court noted that a

previous litigation concerning the same issue had resulted in a consent decree that set a

30-day deadline for admission of an incompetent defendant to a state hospital following a

commitment order.

Several courts have required admission within a period as short as seven days of a

commitment order, although those time periods have been made with reference to

legislative determinations or qualified in other ways. In Oregon Advocacy Center v. Mink,

322 F.3d 1101 (9th Cir. 2003), the Ninth Circuit affirmed an injunction requiring hospital

admission within seven days of commitment order by a state court in Oregon. That court

held that the trial court had not abused its discretion in setting a “reasonably short time

limit” in light of the circumstances of the case and the fact that the Oregon state legislature

itself had chosen the same time limit in a previous version of the pertinent statute.

Similarly, in Trueblood v. Washington State Department of Social and Health Services,

101 F.Supp.3d 1010 (W.D. Wash. 2015), a federal district court issued an injunction

requiring the Washington state health department to commence evaluations and

32
restorative services for criminal defendants within seven days of a state court order. The

order with respect to evaluations was later reversed by the Ninth Circuit. 822 F.3d 1037

(9th Cir. 2016). (The state did not appeal the injunction with respect to hospital

admissions for treatment.). It is notable that in both cases, the courts gave significant

weight to the fact that the state legislature had established statutory deadlines or goals for

evaluations and provision of services. See Mink, 322 F.3d at 1122 n.13; Trueblood, 822

F.3d at 1040-41 & n.2, 1046.

In People v. Brewer, 235 Cal. Rptr. 4th 122 (Cal. App. 2015), the California

intermediate appellate court considered an injunction issued by a trial court requiring

admission to a psychiatric hospital within seven days of commitment or of the facility’s

receipt of certain information from the committing court, whichever was later. That period

was later extended to 14 days, and, ultimately overturned by the appellate court in light of

intervening legislative action. In remanding the case for the trial court to determine

whether a 14-day deadline remained reasonable, the court suggested that a benchmark in

determining reasonableness was the 90-day statutory deadline for the hospital to provide

a progress report to the court. In a subsequent case, the same appellate court later affirmed

that a 60-day deadline for transferring incompetent defendants to a state psychiatric

facility complied with due process requirements. In re Loveton, 244 Cal. App. 4th 1025

(2016).

None of these cases is necessarily a template for the result in this case. It may well

be that the Circuit Court’s assessment that the delays experienced by the Appellants were

reasonable under the circumstances and did not violate the substantive due process

33
guarantee of Article 24 is correct. But we cannot reach that conclusion as a matter of law

based on the limited record in this case.

III

Conclusion

For the reasons set forth above, a failure by MDH to comply with a deadline for

admission to a psychiatric hospital set forth in a commitment order under CP §3-106(b)

may violate the order, but is not a violation of the statute itself. Accordingly, Count One

of the Appellants’ complaint does not state a claim upon which relief may be granted and

was properly dismissed by the Circuit Court.

To the extent that Count Two of the complaint challenges the MDH policy as

violating on its face the guarantee of substantive due process in Article 24 of the Maryland

Declaration of Rights, it also fails to state a claim upon which relief may be granted. To

the extent that Count Two alleges that the MDH policy violates due process as that policy

was applied to the Appellants, it does state a claim upon which relief may be granted.

Whether that claim has merit depends on the particular circumstances of each case.

JUDGMENT OF THE CIRCUIT COURT FOR
BALTIMORE CITY AFFIRMED AS TO COUNT
ONE OF THE COMPLAINT AND VACATED AS TO
COUNT TWO OF THE COMPLAINT. CASE
REMANDED TO THAT COURT FOR FURTHER
PROCEEDINGS CONSISTENT WITH THIS
OPINION. COSTS TO BE PAID ONE-HALF BY
APPELLANTS AND ONE-HALF BY APPELLEES.

34
Circuit Court for Baltimore City
Case No. 24-C-16-003484
Argument: March 31, 2017
IN THE COURT OF APPEALS
OF MARYLAND

No. 77

September Term, 2016

FREDIA POWELL, ET AL.

V.

MARYLAND DEPARTMENT OF HEALTH,
ET AL.
_____________________________________

Barbera, C.J.
Greene
Adkins
McDonald
Hotten
Getty
Raker, Irma S. (Senior Judge,
Specially Assigned),

JJ.

______________________________________

Dissenting Opinion by Getty, J.
______________________________________

Filed: August 28, 2017
 Respectfully, I dissent.

To briefly summarize the central facts of this case, the Circuit Court for Baltimore

City issued a series of separate commitment orders mandating that Appellants, criminal

defendants who had been found incompetent to stand trial and dangerous, be committed to

the care of Appellee, Maryland Department of Health (“MDH”) at the Clifton T. Perkins

Hospital (“Perkins”)1 within one day after the date of each respective commitment order.

Majority Slip Op. at 2, 7-9. Appellants subsequently brought suit challenging an MDH

policy that resulted in a delay in their admission to Perkins as a violation of the statute

authorizing their commitment and of the Maryland Declaration of Rights. Id. at 8-11.

MDH brought a motion to dismiss those claims, pointing out that all Appellants had

ultimately been admitted to Perkins within 12 to 36 days from the date of their respective

commitment orders. Id. at 9, 12-13. Thereafter, the trial court granted the motion to

dismiss. Id. at 14.

I would affirm the trial court’s grant of the motion to dismiss. In my view, the

Appellants’ claims were moot because they had already obtained the relief they sought,

namely, admission to Perkins. Although there are instances in which it is appropriate to

address a moot question that may arise again and would otherwise evade review, this case

is not one of them. As I shall explain, remanding this particular case for further proceedings

will not resolve the rights of Appellants in the event that they are once again committed to

1
The commitment orders at issue specified Appellants be committed to Perkins or
other facilities designated by MDH. Majority Slip Op. at 9. However, as the Majority
notes, “individuals charged with serious crimes are generally committed to [Perkins],
regardless of the location of the court that ordered the commitment.” Id. at 7.
MDH and once again face a delay in admission, or provide helpful guidance on a “recurring

matter of public concern.” See La Valle v. La Valle, 432 Md. 343, 352 (2013) (quoting

Office of Pub. Def. v. State, 413 Md. 411, 423 (2010)).

Furthermore, I write out of concern that the Majority has failed to address a critical

issue raised by the facts of this case―whether a trial court has the authority to set a binding

deadline by which MDH must place a defendant committed to its custody in an inpatient

psychiatric treatment facility. I doubt that a trial court has the authority to set such a

deadline without, at a minimum, conducting a hearing and making findings of fact that

such a deadline is necessary to prevent a violation of a defendant’s due process rights.

Moreover, trial courts should be mindful of the limited number of beds available in

inpatient facilities and give substantial deference to MDH’s policy and determinations as

to the timing of admissions to those facilities. Therefore, I would hold that trial courts

should generally refrain from imposing admission deadlines unless there are extraordinary

circumstances that necessitate a rapid or immediate admission to inpatient care.

A. Mootness

“A case is moot when there is no longer an existing controversy between the parties

at the time it is before the court so that the court cannot provide an effective remedy.”

Hammen v. Balt. Cty. Police Dep’t, 373 Md. 440, 449 (2003) (quoting Coburn v. Coburn,

342 Md. 244, 250 (1996)). This Court generally dismisses moot cases without deciding

the merits of the controversy, in order to avoid issuing advisory opinions or resolving

purely academic questions. See Green v. Nassif, 401 Md. 649, 655 (2007); In re

Riddlemoser, 317 Md. 496, 502 (1989).

2
 However, the Court has the authority to express its opinions as to moot questions,

and has done so in some limited circumstances. One of those limited exceptions is when a

moot question is “capable of repetition, yet evading review.” Majority Slip Op. at 17

(quoting State v. Parker, 334 Md. 576, 585 (1994)). The exception generally applies when

“(1) the challenged action was too short in its duration to be fully litigated prior to its

cessation or expiration; and (2) there was a reasonable expectation that the same

complaining party would be subjected to the same action again.” Id. (quoting Parker, 334

Md. at 585). A court may also apply the exception to consider a moot issue even when it

is “unlikely that the same party will be subject to the same action,” so long as the issue is

“of public importance and affects an identifiable group for whom the complaining party is

an appropriate surrogate[.]” Id. As the Court explained in La Valle, when a matters’

recurrence

will involve a relationship between government and its citizens, or a duty of
government, and upon any recurrence, the same difficulty which prevented
the appeal at hand from being heard in time is likely again to prevent a
decision, then [the] Court may find justification for deciding the issues raised
by a question which has become moot, particularly if all these factors concur
with sufficient weight.

432 Md. at 352 (quoting Lloyd v. Bd. of Supervisors of Elections of Balt. Cnty., 206 Md.

36, 43 (1954)).

Here, prior to the trial court’s grant of the motion to dismiss, each of the four

Appellants had obtained the relief sought in their Complaint, namely, admission to Perkins.

Thus, Appellants’ claims would ordinarily be deemed moot, and the trial court’s grant of

the motion to dismiss upheld on that basis. The Majority, however, declines to hold that

3
Appellants claims are moot. The Majority believes that Appellants may, at some point in

the future, again “be the subject of a commitment order.” Majority Slip Op. at 17.

According to the Majority, in such event “[t]he question whether, and to what extent, the

judge who issues that commitment order may specify a deadline for admission of the

Appellant to Perkins and whether MDH’s admission policy complies with the statute and

Constitution would likely again be an issue.” Id. And, the Majority notes that if one of the

Appellants were to “again challenge[] any delay under the MDH policy in his or her

admission to Perkins, it seems likely that the Appellant would again be admitted to Perkins

before that challenge reaches this Court.” Id. Furthermore, the Majority concludes that

even if the individual Appellants do not face the same circumstances again, Appellants’

Complaint “alleges that the Appellants’ experience is not unique and that other criminal

defendants found to be incompetent have experienced similar delays. Id. at 18. Therefore,

the Majority would decline to dismiss the appeal as moot. Id.

It is highly speculative to suggest that, simply because Appellants have once been

the subject of a commitment order, there is a “reasonable expectation” that at some point

in the future they will once again be the subject of a commitment order, and once again

face a delay in admission due to MDH policy. However, even if the Majority is correct

that this case is capable of repetition as to these particular defendants, the Court should still

hold Appellants’ claims to be moot, as there is no point to remanding the case and

expending further judicial resources to resolve their remaining claim.

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 Appellants’ sole surviving claim2 on remand is that the MDH policy “as-applied”

to their respective cases caused a delay in admitting them to Perkins that was sufficiently

unreasonable as to violate the substantive due process guarantees of the Maryland

Declaration of Rights. Id. at 28-30, 34. But, the Majority holds that weighing such a claim

involves a totality of the circumstances inquiry, including “the nature of the defendant’s

disorder, the circumstances of the defendant’s confinement at the pretrial detention facility,

the treatment needs of the defendant, the treatment needs of other patients at the hospital

facility, the need to provide a setting to deal with the nature of the dangerousness found by

the court with respect to that defendant, the basis for a policy that results in a wait list, and

the experience under that policy.” Id. at 30-31.

Therefore, judicial resolution of Appellants’ as-applied substantive due process

claim will involve a detailed, fact-specific judicial inquiry into the circumstances that

existed at the time of Appellants’ commitment order and delay in admission to

Perkins―circumstances that existed over a year from the date of this opinion. The court

will thus need to evaluate each Appellant’s mental state, circumstances, and treatment

needs that obtained over a year ago, as well as the previous state of MDH policy and

basis for that policy. This will doubtless be a difficult inquiry; Appellants are no longer in

2
I agree with the Majority’s conclusion that Count One of Appellants’ Complaint
failed to state a claim for which relief could be granted. Majority Slip Op. at 34. And, I
agree with the Majority that other claims raised by the Appellants that were not included
in their Complaint or argued before the trial court were not preserved for this Court’s
review pursuant to Maryland Rule 8-131. See id. at 25.
5
treatment at Perkins, and MDH will be required to expend significant time and resources

to track down records and personnel pertaining to their stay at Perkins.

More importantly, such an inquiry is simply unnecessary. If the Majority is correct

and one or more Appellants are once again ordered committed for psychiatric treatment at

some time in the future, their own mental state and treatment needs will doubtless have

changed from what they were in 2016, as will the needs of others committed to MDH and,

in all likelihood, MDH policy regarding the wait list for admission. The trial court’s

resolution of Appellants’ instant claim will thus simply have no application to a future

delay in admission involving one of the Appellants.

Nor is the resolution of Appellants’ claim likely to have a broader impact on other

criminal defendants facing a delay in admission to MDH treatment facilities. Appellants

filed a motion with the trial court to be certified as the representatives of a plaintiff class

under Maryland Rule 2-231. But given the highly individualized nature of an “as-applied”

substantive due process, which is dependent on the specific facts of a given defendant’s

condition, it is difficult to envision how Appellants could meet the requirements of class

certification for that claim. In the absence of a class certification, further proceedings as

to Appellants substantive due process claim will not provide relief to other defendants

found incompetent who have faced delays in admission to Perkins or other MDH facilities.

And, while a Maryland appellate court’s resolution of a legal claim has binding

precedential weight, a Maryland trial court’s holding does not. See e.g., Fraternal Order

of Police Montgomery Cty. Lodge 35, Inc. v. Manger, 175 Md. App. 476, 491 (2007)

(“There is no decision or statute which requires one nisi prius judge to accept as final and

6
conclusive the decisions on the law before trial of another judge or court.”) (quoting

Placido v. Citizens Bank & Trust Co. of Md., 38 Md. App. 33, 45 (1977)). Thus, the trial

court’s resolution of the Appellants’ claim on remand will not necessarily be adopted or

applied by other trial courts faced with delays in admitting criminal defendants to inpatient

psychiatric treatment.

In short, now that Appellants have all been admitted to Perkins, Appellants’ claim

presents a purely academic question, and the trial judge’s resolution of that claim will have

no practical consequence or effect. Therefore, Appellants’ claim is precisely the kind of

issue properly deemed moot.

B. Deadlines for Admission to an MDH Treatment Facility

As I have explained, a trial court conducting an after-the-fact examination of

whether MDH’s wait list policy violated a defendant’s substantive due process rights is

likely to be a waste of judicial resources. However, if a trial court is concerned that MDH

policy is likely to result in a delay in admitting a criminal defendant who has been found

incompetent to stand trial and dangerous to a treatment facility, and that the delay is likely

to be of a duration and extent that it would violate the defendant’s substantive due process

rights, the trial court could issue a deadline for admission in the commitment order itself.

Indeed, that is exactly what occurred in the instant action―the Baltimore City circuit court

issued commitment orders mandating that each Appellant be placed in Perkins within one

day after the date of his or her respective commitment order. Majority Slip Op. at 8-9.

The Majority opinion suggests that a trial court may have the authority to issue such

a deadline for admission in a commitment order under the due process guarantees of the

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Maryland Constitution and Maryland Declaration of Rights. Majority Slip Op. at 23.

However, that suggestion raises significant legal and policy concerns that the Majority has

not addressed.

First, at the time of a commitment order, a delay in admitting the defendant yet to

occur, and the controversy between the defendant and MDH is not yet ripe. Thus, a

deadline in a commitment order is in the nature of a prophylactic measure intended to

prevent a violation of a defendant’s due process rights before it actually occurs. Courts

have sanctioned such prophylactic measures in other contexts in order to preserve criminal

defendants’ constitutional rights. See e.g., Smith v. State, 186 Md. App. 498, 512 (2009),

aff’d, 414 Md. 357 (2010) (noting that the Supreme Court has consistently held that

Miranda warnings are a prophylactic measure “designed to implement the undergirding

Fifth Amendment privilege”). But, the Majority does not address or explain whether such

a prophylactic measure is necessary in order to protect the rights of defendants who have

been committed to the treatment of MDH.

Second, even if a trial court does have the authority to impose an admission deadline

as a prophylactic measure, it would not be appropriate to do so for every defendant. As

the Majority notes, not every delay in admission is per se unreasonable and a violation of

a defendant’s substantive due process rights. Majority Slip Op. at 29 (“It is not the case

that no delay at all in admission is tolerated by the due process clause.”). Instead, it is only

when a delay is unreasonable “in relation to the purpose of treating the defendant while

protecting both the defendant and the public” that a delay violates due process protections.

Id. at 27-28. Thus, at a minimum, a trial judge who desires to impose such a deadline on

8
the basis of substantive due process should be required to conduct an inquiry into whether

a deadline is necessary under the circumstances to protect the individual defendant’s rights.

After conducting such an inquiry, if a trial judge finds that a defendant is likely to face a

delay in admission, and that delay is likely to violate his substantive due process rights,

then a deadline may be appropriate.

In addition to the factors stated by the Majority, see id. at 30-31, trial courts should

be mindful that the General Assembly has not mandated a timeline by which MDH must

admit a defendant committed to its care to an inpatient treatment facility. Furthermore, the

record of this case reflects that MDH hospitals have recently been “operating at or above

maximum capacity[,]” and thus may face great difficulties in immediately or rapidly

admitting a particular defendant in response to a court order. Id. at 13. And, MDH is in

the best position to assess the overall needs and dangerousness of all of the defendants

committed to its care, and to determine from that information the order in which defendants

are admitted as beds become available. For all those reasons, trial courts deciding whether

to set a deadline for admission should generally be deferential to MDH’s wait list policy

and be reluctant to “jump the line” by ordering that a particular defendant be admitted

immediately or rapidly. Accordingly, I would hold that trial courts should generally refrain

from imposing an admission deadline similar to the one seen in this case―a single day, or

other relatively short period of time―unless there are extraordinary circumstances such

that a defendant’s immediate or rapid admission to inpatient care is necessary.

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 C. Conclusion

Here, Appellants had already obtained the relief they sought prior to the trial court’s

grant of MDH’s motion to dismiss and, consequently, their claims are moot. I would

decline to apply the exception for review of moot claims that are “capable of repetition, yet

evading review.” In my view, a remand to the trial court to conduct a further inquiry into

Appellants’ surviving due process claim would not resolve Appellants’ rights in the event

that they are once again committed to MDH for inpatient treatment. Nor would such an

inquiry provide relief to other defendants found incompetent who have faced delays in

admission to Perkins, or provide direction to other trial courts faced with similar situations.

Moreover, the Majority’s holding today suggests that a trial court has the authority

to issue a deadline for the admission of a defendant to an MDH facility to prevent a

violation of the defendant’s substantive due process rights. I would hold that a trial court

lacks the authority to impose such a deadline without, at a minimum, conducting an inquiry

and making findings of fact that such a deadline is necessary to prevent a violation of a

defendant’s substantive due process rights. Furthermore, I would hold that trial courts

should generally defer to MDH policy and refrain from imposing such deadlines unless

there are extraordinary circumstances that necessitate a rapid or immediate admission to

inpatient care.

For the above stated reasons, I respectfully dissent.

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