(dissenting) :
I dissent for the reason that, with all respect, I am unable to understand just *665what the majority’s concept of finality is in civil commitment proceedings for the mentally ill.
As for the instant case, appellant sought only her outright release on habeas corpus. Represented by counsel, she endeavored to show by evidence that her condition did not require further custody of any kind, and that, in any event, her husband and other relatives could furnish such care and supervision as might be required. The District Court found the facts to be otherwise on both of these approaches, and no one suggests that those findings are erroneous. That ordinarily would end the matter, subject always to the right of appellant to seek hereafter a different disposition of her person, either on habeas corpus or under the specific provisions of the new law referred to hereinafter.
Appellant’s original commitment in mental health proceedings was under a statute which, effective September 15, 1964, was replaced by a new one, which is now codified as 21 D.C.Code §§ 501-591 (Supp. V, 1966). The majority opinion may perhaps mean that all those originally committed under the old law may, by means of habeas corpus, have a new original commitment hearing under the terms of the new statute. This would presumably be for the purpose of giving everyone a chance to have the committing tribunal consider “any other alternative course of treatment which the court believes will be in the best interests of the person or of the public.” 1 21 D.C.Code § 545. Under this approach, all commitment proceedings which became final before the new statute are now open for a de now inquiry, with the party seeking the commitment cast in the usual role of moving party. But, if the majority opinion be regarded as accomplishing this much, it is by no means clear that the replay on habeas corpus is limited only to those finally committed before the new law became effective.
I am by no means persuaded that Congress, by the enactment of the new statute, intended either of these consequences. The new law, indeed, contains its own provisions for periodic review of commitments made either under it or the old law, 21 D.C.Code §§ 546, 589; and those provisions are hardly to be identified with what is prescribed on the remand which the court orders. And it may well come as a surprise to Congress to know that the new mental hospitalization act is fully retrospective in operation to the point of reopening all commitments which had become final earlier. It may have thought, contrarily, that such complete retroactivity was not necessary in view of the traditional availability of habeas corpus under which any person under commitment, aided by counsel either retained or provided, may come into court and show that the particular relief sought is justified. In any event, it seems likely that it was this kind of habeas corpus which Congress expressly preserved in the new law, 21 D.C.Code § 549, for the benefit of all persons originally committed under either the new or the old law.
Judges DANAHER, BURGER, and TAMM have authorized me to say that they concur in this opinion.
. Just how much of a change in substance there is between the new law and the old in this respect is problematical. The corresponding language of the latter, 21 D.C. Code § 315 (1961 ed.), is as follows:
If the judge be satisfied that the alleged insane person is insane, or if a jury shall so find, the judge may commit the insane person as he in his discretion shall find to be for the best interests of the public and of the insane person. (Emphasis added.)