dissenting. Although I agree with the majority that the purpose of a writ of habeas corpus is to secure the release of a petitioner from unlawful confinement, I can not agree that in this case, the discharge of the appellee from confinement is a sufficient reason to dismiss the appeal.
I dissent for the reason that the action of the majority today leaves the petitioner without any remedy to expunge from her record the unlawful deprivation of her liberty. The adverse effect that that permanent record will have upon her opportunity for employment and her personal economic and social life is inestimable. Traditionally, in cases similar to this the confined person has been released upon the filing of a petition for a writ of habeas corpus. Until now the courts have permitted such release by the institution to prevent the court from determining the involved constitutional question of overriding public interest. That question may be stated as follows: Is an indigent, involuntarily confined, without the benefit of counsel at a commitment proceeding, denied a constitutional right of due process?
I do not believe that either the desire of the institution, the correctional system or the state to be shielded from unfavorable publicity, or the fear that the courts will be burdened with such cases, is sufficient reason to permit the traditional holding that a writ of habeas corpus can issue only to secure the release of a person from confinement to override the obvious public interest in having this important constitutional question determined, the constitutional right to counsel established, and the record of those unlawfully confined, cleared.
As noted in the majority opinion, this court has recognized that an appellate court may retain an appeal for hearing and determination even though it has become moot, so far as the parties to the particular action are concerned, if it presents a question of public interest. Wallace v. University Hospitals of Cleveland (1961), 171 Ohio St. 487,172 N. E. 2d 459.
*147At the time the petition herein was filed, the appellee was under confinement. Before the hearing on the petition was held, however, the appellee was released from confinement, thus enabling the appellants to raise the issue of mootness. By its decision, this court has approved a procedure whereby it may easily be prevented from reaching the merit issues in commitment cases.
On the merits, I would affirm the decision of the Court of Appeals. The notion that persons may be deprived of liberty and placed in confinement without representation by counsel, especially where those persons are alleged to be mentally unsound, runs against fundamental precepts of due process. The argument that commitment proceedings are civil and for the purpose of rehabilitation fails to adequately meet that proposition.
The Supreme Court of the United States has held that a juvenile is entitled to the assistance of counsel in delinquency proceedings, which are civil, where the result of such proceedings may be commitment to an institution in which the juvenile’s freedom is curtailed. In re Gault (1967), 387 U. S. 1. Further, a number of lower federal courts have held that the right to counsel in commitment proceedings is a requirement of due process under the Fourteenth Amendment. E.g. Lessard v. Schmidt (E. D. Wisc. 1972), 349 F. Supp. 1078. The Lessard case extensively discusses the need for greater procedural safeguards in involuntary commitment proceedings and is highly pursuasive in demonstrating the need for the assistance of counsel in such proceedings.
I would affirm the decision of the Court of Appeals.
P. Brown, J., concurs in the foregoing dissenting opinion.