Commonwealth v. A.Z.

• Court: Massachusetts Supreme Judicial Court
• Decided: January 25, 2024
• Docket: SJC 13455
• Status: Published

Opinion

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SJC-13455

COMMONWEALTH vs. A.Z.

Norfolk. November 6, 2023. - January 25, 2024.

Present: Gaziano, Lowy, Kafker, Wendlandt, & Georges, JJ.

Incompetent Person, Criminal charges, Commitment. Due Process of Law, Competency to stand trial. Practice, Criminal, Competency to stand trial. Moot Question.

Complaint received and sworn to in the Wrentham Division of the District Court Department on July 9, 2018.

A hearing on an order for hospitalization and examination was had before Steven E. Thomas, J.

The Supreme Judicial Court granted an application for direct appellate review.

Devorah Anne Vester, Committee for Public Counsel Services, for the defendant. Michael McGee, Assistant District Attorney, for the Commonwealth. Justin M. Woolf, Tatum A. Pritchard, Steven J. Schwartz, Alex Bou-Rhodes, Phillip Kassel, & Jennifer Honig, for Disability Law Center, Inc., & others, amici curiae, submitted a brief. 2

LOWY, J. This case involves the constitutional rights of a

criminal defendant who was involuntarily hospitalized for a

competency determination pursuant to G. L. c. 123, § 15 (b)

(§ 15 [b]). An involuntary commitment infringes upon a

defendant's fundamental right to liberty and thus must satisfy

strict scrutiny under the Massachusetts Declaration of Rights

and the United States Constitution. See Matter of a Minor, 484

Mass. 295, 309 (2020). To pass strict scrutiny, the involuntary

commitment must be the least restrictive means available to

vindicate the governmental interest at stake. Id.

Accordingly, we conclude that substantive due process

mandates that a judge find that hospitalization is required

before involuntarily committing a criminal defendant to a

hospital for a competency determination. Specifically, we hold

that it is unconstitutional, as applied, for a court to

hospitalize a pretrial defendant under § 15 (b), for a clinical

evaluation and observation of competency, absent a finding by

the judge, by clear and convincing evidence, that

hospitalization is the least restrictive means available to

determine adequately a criminal defendant's competency to stand

trial.

We have not previously held that a District Court judge

acting pursuant to § 15 (b) must make such findings, and the 3

judge here did not do so. Accordingly, we conclude that the

defendant's constitutional rights were violated.1

1. Background. a. G. L. c. 123, § 15. As this court has

observed previously, G. L. c. 123, § 15, provides for two

categories of competency evaluations. See Garcia v.

Commonwealth, 487 Mass. 97, 106 n.15 (2021). First, pursuant to

G. L. c. 123, § 15 (a) (§ 15 [a]),

"a judge may order an evaluation of a defendant by a court clinician before trial if the judge doubts whether the defendant is competent to stand trial or criminally responsible by reason of mental illness . . . . That examination is typically brief and takes place in the court house or in a place where the defendant is being detained before trial."

Garcia, supra. Second, following a § 15 (a) evaluation and

pursuant to § 15 (b),

"the judge may then order that the person be involuntarily hospitalized for up to twenty days, for observation and a more detailed examination, if, based on the court clinician's evaluation, the court 'has reason to believe that such observation and further examination are necessary in order to determine whether mental illness or mental defect have so affected a person that he is not competent to stand trial or not criminally responsible.'"

Garcia, supra, quoting G. L. c. 123, § 15 (b). The judge may

specifically order the person be hospitalized under § 15 (b) at

1 We acknowledge the amicus brief submitted by Disability Law Center, Inc., Mental Health Legal Advisors Committee, Center for Public Representation, and Massachusetts Association for Mental Health. 4

Bridgewater State Hospital if the person is male and appears to

require strict security. G. L. c. 123, § 15 (b).

b. Facts. On July 9, 2018, the defendant was arraigned in

the Wrentham Division of the District Court Department for a

"bomb/hijack threat" in violation of G. L. c. 269, § 14 (b).2 On

January 10, 2019, while released on personal recognizance, she

underwent a § 15 (a) evaluation with a court clinician, Dr. Leah

Robertson. The District Court judge held a hearing later that

day to determine whether a § 15 (b) evaluation was necessary.

The defendant asserted that hospitalization was not

necessary for further evaluation of competency, and she

requested an outpatient § 15 (b) examination. In support of the

defendant's motion, defense counsel asserted that Dr. Patricia

Schmitz, an independently retained clinician, "told [counsel]

that she believes that she could complete a [§ 15] evaluation on

an outpatient basis."

Thereafter, Dr. Robertson testified as to her observations

of the defendant during the § 15 (a) evaluation. Dr. Robertson

specifically testified that, based on the § 15 (a) evaluation,

she did not believe the defendant "possesse[d] the ability to

consult with her attorney in a rational manner in her own best

2 On August 13, 2018, the Commonwealth amended the charge to a "threat to commit crime: 'shoot someone'" in violation of G. L. c. 275, § 2. 5

interest."3 She then recommended that the defendant receive

further evaluation at a psychiatric hospital. At the conclusion

of the hearing, the judge endorsed Dr. Robertson's

recommendation and ordered that the defendant be committed to

the Solomon Carter Fuller Mental Health Center for twenty days

for observation and further examination.

Although the defendant was ultimately found competent to

stand trial,4 the Commonwealth dismissed the case against her on

October 1, 2019.

2. Discussion. a. Mootness. The Commonwealth contends

that we need not reach the merits of this appeal because the

case has been dismissed and the defendant's appeal is moot. But

"[w]hen considering other statutory provisions that allow

involuntary civil commitment, we have determined that the

continuing stigma of a potentially wrongful commitment alone

sufficed to defeat a claim of mootness." Garcia, 487 Mass. at

102, quoting Matter of a Minor, 484 Mass. at 299. The same

3 A defendant is incompetent to stand trial if he or she "lacks the capacity to understand the nature and object of the proceedings against him [or her], to consult with counsel, and to assist in preparing his [or her] defense." Commonwealth v. Jones, 479 Mass. 1, 12 (2018), quoting Commonwealth v. Crowley, 393 Mass. 393, 398 (1984).

4 Following the defendant's commitment pursuant to § 15 (b), she was found incompetent to stand trial. The defendant was then committed for further observation and examination under G. L. c. 123, § 16 (a), after which she was found to be competent. 6

continuing stigma follows a wrongful, involuntary commitment

under § 15 (b), and therefore, the defendant has a surviving

personal interest in adjudicating whether the nature of her

confinement was wrongful. Further, "even absent the defendant's

surviving interest, 'it is well established that cases involving

the confinement of mentally ill persons present classic examples

of issues that are capable of repetition, yet evading review,

which thus warrant appellate review even after the confinement

ends.'" Garcia, supra, quoting Pembroke Hosp. v. D.L., 482

Mass. 346, 351 (2019). Accordingly, the defendant's appeal is

not moot.

b. Standard of commitment under G. L. c. 123, § 15 (b).

The defendant argues that § 15 (b) requires a judge to make two

factual findings before involuntarily committing a defendant:

(i) a finding of a likelihood of serious harm absent

hospitalization and (ii) a finding that hospitalization is the

least restrictive means of determining competency. We review

questions of statutory interpretation de novo. Pembroke Hosp.,

482 Mass. at 351.

i. Likelihood of serious harm. The defendant contends

that § 15 (b) only authorizes an involuntary commitment if the

failure to detain a defendant would create a likelihood of

serious harm to the defendant or others. We decline to adopt

this statutory interpretation. 7

"Our primary duty is to interpret a statute in accordance

with the intent of the Legislature." Pembroke Hosp., 482 Mass.

at 352, quoting Pyle v. School Comm. of S. Hadley, 423 Mass.

283, 285 (1996). Here, the Legislature expressly incorporated a

likelihood of serious harm standard in several nearby provisions

of c. 123. See, e.g., G. L. c. 123, §§ 7, 8, 9, 12. That the

Legislature chose to exclude this standard in § 15 (b)

demonstrates that the Legislature did not intend for this

standard to govern a § 15 (b) determination. See Commonwealth

v. Gagnon, 439 Mass. 826, 833 (2003), quoting 2A N.J. Singer,

Sutherland Statutory Construction § 46.06, at 194 (6th ed. rev.

2000) ("[W]here the legislature has carefully employed a term in

one place and excluded it in another, it should not be implied

where excluded").

The defendant argues that the Legislature's intent is

instead demonstrated through § 15 (b)'s reference to a "strict

security" standard, which incorporates a likelihood of serious

harm standard. Section 15 (b) provides for two independent

alternatives: "hospitaliz[ation] [(i)] at a facility or, [(ii)]

if such person is a male and appears to require strict security,

at the Bridgewater state hospital" (emphasis added). See G. L.

c. 123, § 15 (b); Miller v. Miller, 448 Mass. 320, 329 (2007),

quoting Bleich v. Maimonides Sch., 447 Mass. 38, 46-47 (2006)

("It is fundamental to statutory construction that the word 'or' 8

is disjunctive 'unless the context and the main purpose of all

the words demand otherwise'"). The latter "strict security"

standard is thus inapposite to the preceding clause of the

statute and provides no evidence of the Legislature's intent as

to commitments that, like the one in this case, do not take

place at Bridgewater State Hospital.

ii. Least restrictive means. The question we address next

is whether a defendant's hospitalization for twenty (or even

forty5) days for the purpose of determining competency is the

least restrictive means available to vindicate a compelling

governmental interest. The Commonwealth has a compelling

governmental interest in determining whether a defendant is

competent to stand trial, and a defendant has a constitutional

right not to be tried if he or she is incompetent. See Matter

of E.C., 479 Mass. 113, 119 (2018) (there is "a compelling

interest in [the defendant] not being tried if incompetent").

To further this compelling interest, § 15 (b) authorizes a

court to involuntarily hospitalize a defendant for up to twenty,

or forty, days. Section 15 (b) thus infringes upon a

5 Section 15 permits a court to extend the twenty-day period to up to forty days if "an examining qualified physician or an examining qualified psychologist believes that observation for more than twenty days is necessary," "notif[ies] the court and . . . request[s] in writing an extension of the twenty day period, specifying the reason or reasons for which such further observation is necessary." See G. L. c. 123, § 15 (b). 9

"paradigmatic fundamental right" -- "[t]he right of an

individual to be free from physical restraint." Garcia, 487

Mass. at 102-103, quoting Matter of E.C., 479 Mass. at 119.

Indeed, "[w]e have previously described a temporary

hospitalization as short as three days under G. L. c. 123, § 12,

as a 'massive curtailment' of liberty." Garcia, supra at 103,

quoting Newton-Wellesley Hosp. v. Magrini, 451 Mass. 777, 784

(2008).6

As § 15 (b) encroaches upon a fundamental right, it is

subject to strict scrutiny. See Matter of a Minor, 484 Mass. at

309. To satisfy strict scrutiny, the law must be "narrowly

tailored to a compelling government interest," Garcia, 487 Mass.

at 103, and "be the least restrictive means available to

vindicate that interest," Matter of a Minor, supra, quoting

Commonwealth v. Weston W., 455 Mass. 24, 35 (2009).

We note that the analysis infra applies only to defendants 6

who are not detained pretrial. Pretrial detainees' "liberty is curtailed" as soon as the individual is detained, see Velazquez v. Commonwealth, 491 Mass. 279, 283 (2023), and therefore, pretrial detainees have a different liberty interest from that of defendants who have been released. Cf. Richardson v. Sheriff of Middlesex County, 407 Mass. 455, 461 (1990) (restrictions or conditions of confinement for pretrial detainees need only be "reasonably related to a legitimate governmental objective" and not constitute punishment). 10

Accordingly, for § 15 (b) to pass constitutional muster as

applied,7 a judge may only involuntarily hospitalize a defendant

if the judge finds that the Commonwealth, the party with the

burden of proof, demonstrates, "by clear and convincing

evidence, that there are no appropriate, less restrictive

alternatives that adequately would [allow for a determination of

a defendant's competency]." See Matter of a Minor, 484 Mass. at

310. See also Commonwealth v. O'Neal, 367 Mass. 440, 448, S.C.,

369 Mass. 242 (1975) (strict scrutiny requires "show[ing] [of]

the absence of less restrictive means to reach its compelling

goal"). Cf. Commonwealth v. Gomes, 407 Mass. 206, 213 (1990)

("before incarcerating a defendant for nonpayment, a judge must

inquire into reasonable alternatives to incarceration, such as a

long-term payment schedule or community service"). The "focus"

of a judge's analysis should be on whether there are any other

"viable, plausibly available options." See Matter of a Minor,

supra. Requiring judges to consider less restrictive

We recognize that we discussed the constitutionality of 7

§ 15 in Garcia, which concerned the interpretation of G. L. c. 123, § 16 (§ 16). See Garcia, 487 Mass. at 106 n.15. We did so because the Commonwealth argued that the court's interpretation of § 16 would have an impact on the interpretation of § 15. We disagreed and explained that § 15 is distinguishable from § 16. See id. We specifically stated -- in dicta -- that, unlike § 16, § 15 is narrowly tailored because "only defendants for whom a longer period of observation and examination is needed will be hospitalized against their will." Id. We did not resolve this issue in Garcia, and now, squarely facing the issue, we do so. 11

alternatives "ensure[s], in accordance with the principle of due

process, that involuntary commitment remains a viable, but

carefully circumscribed, tool of last resort." See id. at 310-

311.

The Commonwealth may satisfy this burden through expert

opinion testimony. See Matter of a Minor, 484 Mass. at 310 ("As

a practical matter, in evaluating less restrictive alternatives,

judges may seek guidance from the qualified physicians,

psychologists, and social workers who already are required to

testify in these cases . . . [and] respondent's counsel may

argue [the] sufficiency [of various forms of treatment and

services]"). For example, with respect to whether an outpatient

evaluation may be sufficient, an expert may testify that long-

term observation in a hospital setting as opposed to sporadic

outpatient examinations is necessary to adequately determine

whether a defendant is competent to stand trial.

The Commonwealth also may meet its burden with other types

of evidence. A judge may find that outpatient evaluations are

not viable, for example, if the Commonwealth shows that the

defendant failed to comply with mental health counselling while

on pretrial release or the defendant had a history of not

appearing in court or for various treatment programs. See

Matter of a Minor, 484 Mass. at 310 (judge did not abuse her

discretion in hospitalizing juvenile despite existence of 12

voluntary program, "because she did not have confidence the

juvenile actually would attend that program"). The Commonwealth

may also prove that an alternative suggested by the defendant is

not plausibly available. See, e.g., United States v. Deters,

143 F.3d 577, 583-584 (10th Cir. 1998) (there were

"'sufficiently compelling' reasons to justify detaining the

defendant during her [competency] examination," including

concern that outpatient examination could not occur in State in

which trial was to take place because out-of-State defendant

could not secure place to live).

c. Application. Applying the interpretation of § 15 (b)

outlined supra, we conclude that a judge is required to make a

particularized finding that there are no less restrictive

alternatives before ordering hospitalization. "'[T]he

constitutional demands of due process' dictate that a 'statement

of findings and reasons, either in writing or orally on the

record, is a minimum requirement where a defendant faces a loss

of liberty." Matter of a Minor, 484 Mass. at 306, quoting

Brangan v. Commonwealth, 477 Mass. 691, 708, S.C., 478 Mass. 361

(2017). Specifically, the "judge must make clear, in writing or

orally on the record, the evidence he or she credited in support

of the legal conclusion" that it is necessary to hospitalize the

defendant pursuant to § 15 (b). See Matter of a Minor, supra at

307. This includes evidence the judge credited supporting the 13

conclusion that hospitalization is the least restrictive means

of determining competency. See Brangan, supra at 708-709

("Requiring a particularized statement as to why no less

restrictive condition will suffice to assure the defendant's

presence at future court proceedings is appropriate in light of

the applicable standard of substantive due process . . .").

At the conclusion of the hearing in this case, the District

Court judge made the following factual findings:

"I do understand Dr. Leah Robertson's presentation as [to] her observations, her thoughts concerning the challenges that you're presented with and the way in which she observed your behavior and characteristics today and prior. I understand that she does believe that you have this illness, and that you are not in a position to be able to confidently assist counsel, and therefore she is recommending further evaluation and a work-up under [G. L. c. 123, § 15 (a), (b)].

"I'm going to allow that and endorse her suggestion that you be committed to the Solomon Carter Fuller Mental Health . . . Center for further evaluation under the chapter and section."

That is, the judge made a finding, based on Dr. Robertson's

testimony, that the defendant required further evaluation and

observation to determine whether she was competent to stand

However, the judge did not make an express finding that

hospitalization was, by clear and convincing evidence, the least

restrictive means to complete this further evaluation and

observation, and the clinician was not asked directly to opine 14

on the issue. Due process requires more, and the defendant's

constitutional rights were violated when she was involuntarily

committed absent such an express finding.8 Cf. Matter of a

Minor, 484 Mass. at 306-307 (judge's findings that "there [was]

no less restrictive alternative" to commitment insufficient

because judge did not "elucidate which subsidiary facts she

relied upon in reaching her conclusions").

3. Conclusion. Because the defendant's commitment was

unconstitutional, the order of commitment must be vacated and

set aside. The matter is remanded to the District Court for

entry of an order consistent with this opinion.

So ordered.

8 Hospitalization may well have been required in this case. However, the Commonwealth did not meet its burden because the clinician was never directly asked whether outpatient examination was a viable alternative or whether long-term evaluation and observation was necessary to adequately evaluate the defendant.