Matter of Stokes

BELSON, Associate Judge,

dissenting:

Respectfully, I dissent. A fair reading of the transcript establishes, in my view, that the trial judge found that inpatient treatment was the least restrictive treatment for Ms. Stokes. The evidence was sufficient to support that finding.

As a member of the division that decided In re James, 507 A.2d 155 (D.C. 1986), I joined in Judge Rogers’ opinion for the court. Although the trial judge who decided the instant case did not have the benefit of our as yet unannounced holding and treatment of the law in James, the focus of the hearing he conducted and the essential findings he made in the context of that hearing satisfy the test to which we subjected the James record. In James, we reaffirmed that the trial court, in weighing a petition to revoke the outpatient status of a committed patient pursuant to D.C. Code § 21-545(b) (1981), “must abide by the least restrictive treatment principle,” and we announced for the first time that the trial court’s decision must “be supported by an explicit finding that the proposed treatment is the least restrictive alternative.” Id. at 158. Evaluating the record in James, we stated:

[I]n the absence of an indication in the record that the judge recognized his obligation to determine whether revocation of James’ outpatient commitment was the least restrictive treatment alternative, we decline to construe the Act to permit the trial judge to fulfill his duty on the basis of conclusory medical and imprecise factual information.

Id. at 159. Our language indicated that we reversed the trial court not because of its failure to observe our newly announced requirement of an explicit finding regarding alternative treatment, but because it did not recognize its obligation to consider that question at all.

In her opinion expressing her views and announcing the result of this appeal,1 Judge Mack notes that in Griffith v. Kentucky, 479 U.S. 314, 107 S.Ct. 708, 93 L.Ed. *3652d 649 (1987), the Supreme Court “held that a new rule for the conduct of criminal prosecutions applies retroactively to all cases pending on direct review or not yet final, with no exception for cases in which the new rule constitutes a ‘clear break’ with the past.” Maj. Opinion at 359. The opinion then goes on to observe that James was decided while the instant case was pending direct review, and concludes that, “by analogy,” we should apply James to the instant case. Id. Griffith, however, does not control this civil commitment case, for Griffith deals specifically with criminal cases. Griffith, supra, 107 S.Ct. at 716 (“We therefore hold that a new rule for the conduct of criminal prosecutions is to be applied retroactively to all cases_” (emphasis supplied)). Notably, Griffith and its predecessors “did not address the area of civil retroactivity,” id. at 713 n. 8, which continues to be governed by the standard announced in Chevron Oil Co. v. Huson, 404 U.S. 97, 106-07, 92 S.Ct. 349, 355, 30 L.Ed.2d 296 (1971) (retroactivity determined after considering whether a new principle of law has been established, the prior history of the rule in question, and whether substantial inequitable results would be produced).2 Applying Chevron, I would conclude that James is not retroactive.3 Indeed, as I point out above, our reversal in James flowed from our conclusion that absent from the record was any indication that the judge recognized his obligation to apply the least restrictive treatment alternative. Thus, while James confirmed the trial court's obligation in that respect, it did not purport to apply its new requirement of an explicit finding retroactively; it reversed because of the absence of any “indication” that the trial judge applied the right test, not because of the absence of an explicit finding.

Turning to the hearing in this case, its entire context demonstrates that the parties and the court dealt with the petition for revocation of outpatient status as raising the issue of whether inpatient treatment was the least restrictive alternative, i.e., whether inpatient status was necessary. To put it plainly, that was what the hearing was all about. Focusing on that issue, the government argued that Ms. Stokes “does need a period of hospitalization to stabilize_” (emphasis supplied). Ms. Stokes’ counsel, in his closing argument, stated: “Your Honor, the burden today is on the Government to establish by a preponderance of the evidence that Ms. Stokes is so dangerous to herself or others as a result of mental illness that she must be treated on an inpatient basis.” The judge did not disagree. To the contrary, he referred to the least restrictive alternative himself when he noted that the Mental Health Commission is “charged by the statute to do all that they can to have the least restrictive circumstance.” He continued,

isn’t it fair to say that first time up we’ll resolve all doubts in favor of release, even though it may strike us that maybe that’s not the thing to do. But let’s bend over backwards, if you will, to attempt to find some sort of program in the community that the patient will benefit from. Having done that, it seems that a more subsequent history since March of well, we tried, but it just didn’t work. Isn’t that really what we have here?

The judge then noted that Barbara D. Bas-ta, M.D., a psychiatrist with St. Elizabeth’s Hospital who had treated Ms. Stokes, “didn’t say bend over backwards but she *366almost said that her inclination is to try her best to find some sort of program in the community. I think that is what the Commission did here.” The trial judge then concluded, in light of Ms. Stokes’ poor performance in outpatient status as described and interpreted in the testimony of Dr. Basta, that Ms. Stokes “would be a serious problem if returned to the community.” In other words, he concluded that nothing short of inpatient status was appropriate for Ms. Stokes. Weighing the adequacy of the trial judge’s findings, just as we did in James, I think we should conclude that he gave clear indication that he recognized his obligation to apply the least restrictive alternative treatment principle, and indicated unmistakably his conclusion that outpatient treatment was, at the time, inappropriate.

I turn briefly to the additional conclusion of Judge Mack’s opinion that the record here would not support a finding that inpatient treatment was necessary. The record, to the contrary, contains telling evidence of the need for inpatient treatment. Dr. Basta testified that Stokes

was readmitted on August the 6th in the evening, brought in by her mother who stated that Ms. Stokes was semi-delusional, became assaultive towards the mother, threatening, aggressive, hostile. And at the admission she presented herself very much the same way. Her condition was described by the admitting psychiatrist as ... agitated, uncooperative, hostile, threatening at that time.

Dr. Basta stated that she had “taken care of Ms. Stokes before and I knew her very well.” The doctor demonstrated that she was quite familiar with Stokes’ drug treatment protocol, and testified that Stokes had no insight into her mental condition and the impact of her drug problem upon it. Dr. Basta also testified that based on all this,

her history, her coming and going, I can say very well that she will not survive for a long time if released right now. As long as Ms. Stokes does not understand that she needs treatment for her emotional problem, she will stop taking her medication and then go back to drugs, and a few days later she’s right back in the hospital.4

She stated finally that she could “see clearly that she cannot function on outpatient even as a committed.”

In light of the foregoing, I cannot agree with Judge Mack’s conclusion that “the evidence of [Ms. Stokes’] mental illness and dangerousness was insufficient.” Opinion at 2. While more specifically with regard, for example, to Stokes’ hostile and threatening behavior upon readmission would have been preferable, the testimony was more substantial than that which we found inadequate in James, and was sufficient to support the trial court’s ruling. It was not necessary for the hospital to call witnesses other than the psychiatrist who treated Stokes in order to establish the need for inpatient status. While I agree that the court’s inquiry can be aided substantially by the testimony of witnesses such as family members who have direct knowledge of the patient’s conduct, it seems too much to say that this court concluded in James that “the hospital should present the testimony or affidavits of witnesses, such as family members, with direct knowledge of the respondent’s conduct.” Maj. Opinion at 363. Rather, we referred in James to the lack of such evidence in the course of commenting on the general weakness of the hospital’s case.

In summary, I view the case before us as a close one in which the record affords the requisite indication that the judge recognized his obligation to determine whether revocation of Ms. Stokes’ outpatient status was the least restrictive alternative, and contains sufficient evidence to warrant our affirming the trial court’s conclusion that oulpatient status was not at that time a viable alternative for Ms. Stokes.

I add that in view of the fact that Ms. Stokes was already on convalescent leave at the time the case came before us for argument, the principal utility of the three *367opinions here is to reemphasize our holding in James that the trial court must both abide by the least restrictive treatment principle, and make an explicit finding regarding least restrictive alternative, before it can revoke an outpatient commitment.

. There is no opinion of the court in this appeal, as no judge has joined in the opinion of another judge.

. Contrary to the apparent purport of the lead opinion, supra at p. 359 n. 4, the applicability of Chevron to this case flows not from a "literal application strategy" regarding the controlling statute, but from the fact that the case before us is not a criminal proceeding. While it is true that this court held in In re Lomax, 386 A.2d 1185 (D.C. 1978), that the government may not appeal an adverse result in a civil commitment case, this court has not accorded to such proceedings all the trappings of a criminal proceeding.

. The specific application of the Chevron standards is as follows: in James, we created a new standard governing the manner in which trial judges must adjudicate such revocation hearings; the particular standard we imposed was not foretold by previous case law; and, finally, it would be inequitable to reverse for failure to adhere to particular form in making findings when the proceedings as a whole make it clear that the court applied the correct legal standard and found that the patient required inpatient treatment.

. Dr. Basta specified three dates on which Stokes was readmitted. She was interrupted by counsel for Ms. Stokes when she was enumerating the dates of readmissions. It therefore is not clear whether there were other readmis-sions before August.