In the Matter of Van Zant

338 N.W.2d 1, 126 Mich. App. 732

• Court: Michigan Court of Appeals
• Decided: July 6, 1983
• Docket: Docket 57095
• Status: Published

Opinions

D. E. Holbrook, Jr., P.J.

The respondent in this matter was originally determined to be a mentally ill person by the Wayne County Probate Court and ordered to submit to treatment for 60 days. The respondent appealed to the Wayne County Circuit Court which affirmed the probate court’s order. Thereafter, respondent appealed to this Court and on July 28, 1980, we dismissed the appeal in an unpublished per curiam opinion holding that the matter was moot since respondent had been discharged by the time the matter was heard. We additionally held that MCL 330.1452; MSA 14.800(452), which requires a hearing "in no case more than 7 days” after the filing of a petition and medical certificates, was mandatory. Thereafter, on April 1, 1981, the Supreme Court, in lieu of granting leave to appeal, remanded the case to this Court for further consideration because "the appeal is not moot”. 411 Mich 859 (1981).

Initially we turn to respondent’s contention that the probate court erred by refusing to dismiss the petition to have respondent involuntarily committed because a hearing, pursuant to MCL 330.1452; MSA 14.800(452), was not held within the required seven days of the filing of the petition and certificates. Respondent’s hearing was not held until 15 days after the filing of said documents.

The statute in issue presently reads in part as follows:

"The court shall fix a date for every hearing convened pursuant to this chapter. The hearing shall be convened promptly, but in no case more than 7 days after the court’s receipt of any of the following:

"(a) An application for hospitalization which shall serve as a petition for a determination that an individual is a person requiring treatment, a certificate executed by a physician, and a certificate executed by a psychiatrist.

"(b) A petition for a determination that an individual is a person requiring treatment, a certificate executed by a physician, and a certificate executed by a psychiatrist.”

A review of the statutory changes pointed out in respondent’s brief, and a reading of the present language in said statute, leads us to the conclusion that said statute mandates a hearing "in no case more than 7 days” after the filing of the petition and medical certificates.

Moreover, we hold that the failure to meet the seven-day requirement requires that we set aside the probate court’s order and the circuit court’s order affirming same. The section of the Mental Health Code which authorizes the probate court to hear involuntary commitment hearings is § 452. As quoted above it states, "The court shall fix a date * * * in no case more than 7 days * * The language of the statute indicates that the probate court was without authority to set a date which was more than seven days after the date on which the petition and certificates were received. We do not equate civil commitment with a criminal conviction and thereby dismiss appellee’s arguments to the contrary as without merit.

Even though the foregoing is dispositive of this appeal, we will briefly discuss respondent’s remaining allegations of error.

On the date set for trial the probate court informed the respondent that if he wanted a jury trial he would have to wait 24 days. Respondent, having a statutory right to a jury trial in an involuntary commitment hearing, MCL 330.1458; MSA 14.800(458), waived this right. Respondent claims on appeal that his waiver of his right to a jury trial was not voluntarily made because he was forced to choose between an additional 24 days of confinement and the waiver of a jury trial. We agree. The dilemma posed by the probate court clearly chilled the respondent’s right to exercise his statutory right to a jury trial.

The probate court relied on PCR 735 which allows continuances for good cause shown; a crowded docket herein. PCR 735, however, must be read in conjunction with PCR 740.2 which provides:

"The respondent may demand a jury trial any time before testimony is received at the hearing for which the jury is sought. When the demand is made less than 7 days before the date set for the hearing, the court may grant a continuance not to exceed 7 days from the receipt of the demand.”

A court rule providing that continuances are to be allowed only for good cause does not provide that an absolute deadline for a hearing may be ignored. If the court rules are interpreted consistently, PCR 735 allows continuances only for good causes and only within the seven-day period within which the hearing must be held.

Finally, respondent claims there was insufficient evidence to support the probate court’s finding that respondent was a person in need of treatment. We agree. We hold that the evidence produced at trial was patently insufficient to support a finding that respondent was a "person requiring treatment” as defined in MCL 330.1401; MSA 14.800(401).

Reversed.

V. J. Brennan, J., concurred.