www.antipsychiatry.org - last modified December 28, 2000
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"Despite statutory protections for commitment, research has found that procedures for involuntary commitment tend to be perfunctory and a legal charade, which merely 'rubber stamp' psychiatric recommendations" (Douglas S. Stransky, University of Miami Law Review, "Civil Commitment and the Right to Refuse Treatment..." Vol. 50:413, page 417, note 29). Although many courts have ruled that a jury is not essential to due process, in point of actual fact, experience has shown that only when the case is decided by a jury are persons accused of mental illness given a fair trial - a fair trial being the essence of due process. Those who have taken the time to investigate have found that judges who hear civil commitment cases without a jury always or almost always automatically and routinely commit everyone doctors recommend for commitment without a real attempt to use their own judgment to determine the appropriateness of the incarceration; and the doctors making the recommendations for commitment are often motivated by the income they earn from the commitment rather than benefit to the "patient" or society. Some courts have ruled that due process does require a right to demand a jury trial in civil commitment for mental illness. Additionally, every state in the U.S.A. that does not provide for a right to jury trial by statute - except Louisiana and New Jersey - have a state constitutional provision that by its terms guarantees a right to jury trial in civil (as well as criminal) cases, at least to the extent it existed at common law; and, as the highest courts of New York, Tennessee, Texas, and Washington have found, people accused of "lunacy" were tried by juries at common law. Unfortunately, these state constitutional provisions are not enforced in every state that has one. Some state supreme courts have even disregarded the the plain language of their state constitutions protecting the right to a jury trial when the right is asserted in a case of civil commitment for alleged mental illness, e.g., Florida and West Virginia.
DO YOU HAVE A RIGHT TO JURY TRIAL IN PSYCHIATRIC COMMITMENT?
If the right to a jury trial in involuntary civil commitment for mental illness is not currently recognized in the state where you live, write to the state senator and state representative that represent the part of the state where you live explaining that lack of a right to jury trial leaves people vulnerable to unjustified involuntary psychiatric commitment. Consider sending a copy of Unjustified Psychiatric Commitment in the U.S.A. with your letter, and refer your legislator to this web site. Legislators often can't keep track of the mail they get, so it might be a good idea to send your letter by certified mail - return receipt requested, allowing you to know your letter was in fact received when you telephone and are told your letter can't be found. About a week after mailing you letters, make telephone calls to the offices of the legislators you wrote to politely but firmly asking them to introduce a bill giving people accused of mental illness a right to be tried by a jury. If they say they will not introduce such a bill, ask the senator or representative or the aides working in his/her office who in the legislature might be interested in sponsoring such legislation. Consider contacting the American Civil Liberties Union (ACLU) chapter in your state for advice about which members of the legislature are most likely to sponsor it. Then write to and telephone the appropriate legislators asking them to sponsor a bill to create a right to jury trial in civil commitment for mental illness. If the deadline for introducing legislation in the current legislative session has already passed, ask if a right to jury trial can be amended into currently pending legislation. If that doesn't work, find out when the deadline is for the next legislative session, and then contact the legislators prior to the next bill filing deadline.
Your right to a jury trial is your most important right in the judicial system.
Protect it always.
"I consider trial by jury as the only anchor yet imagined by man, by which a government can be held to the principles of its constitution." - Thomas Jefferson, quoted in a pamphlet, "Serving on a North Carolina Jury," published by the North Carolina Bar Association - a state in which there is no right to trial by jury in civil commitment for mental illness.
"The right to jury trial has been shown to be critical, numerous studies indicating that the exrcise of that right may well mean the difference between release and commitment." Opinion by SPREECHER, Circuit Judge, in Lessard v. Schmidt, 349 F.Supp. at 1100 (Oct. 18, 1972).
- Read excerpts from decisions by the Supreme Court of California and the Supreme Court of Washington saying a right to jury trial in civil commitment for mental illness is required by due process.
- If you find an error on this page, please send a correction to firstname.lastname@example.org or P.O. box 1253, Topeka, Kansas 66601-1253.
- The law of most states is available from the Cornell Law School web site or from this scruffy web page. See also List of State Government Home Pages where the current version of your state's laws can usually be found. Try looking under law, code (e.g., Delaware Code), statutes, or legislative. The state constitution is often listed under code or statutes.
- Click here for civil commitment for mental illness law in Ontario, Canada
United States of America
alphabetically - by state
ALABAMA - no - see paragraph (4) below:
Conduct of hearings.
At all hearings, including probable cause hearings, conducted by the probate judge in relation to a petition to involuntarily commit a respondent, the following rules shall apply:
(1) The respondent shall be present unless, prior to the hearing, the attorney for the respondent has filed in writing a waiver of the presence of the respondent on the ground that the presence of the respondent would be dangerous to the respondent's physical or mental health or that the respondent's conduct could reasonably be expected to prevent the hearing from being held in an orderly manner, and the probate judge has judicially found and determined from evidence presented in an adversary hearing that the respondent is so mentally or physically ill as to be incapable of attending such proceedings. Upon such findings an order shall be entered approving the waiver.
(2) The respondent shall have the right to compel the attendance of any witness who may be located anywhere in the State of Alabama and to offer evidence including the testimony of witnesses, to be confronted with the witnesses in support of the petition, to cross-examine them and to testify in his own behalf, but the respondent shall not be compelled to testify against himself. The attorney representing the respondent shall be vested with all of the rights of said respondent during all of the hearings if the respondent is not present in court to exercise his rights.
(3) The probate judge shall cause the hearing to be transcribed or recorded stenographically, mechanically or electronically and shall retain such transcription for a period of not less than three years from the date the petition is denied or granted and not less than the duration of any commitment pursuant to such hearing.
(4) All hearings shall be heard by the probate judge without a jury and shall be open to the public unless the respondent or his attorney requests in writing that the hearings be closed to the public. [underline added]
(5) The rules of evidence applicable in other judicial proceedings in this state shall be followed in involuntary commitment proceedings.
(Acts 1975, No. 1226, p. 2562, §8; Acts 1977, No. 670, p. 1143; Acts 1991, No. 91-440, p. 783, §10.)
Article I - Declaration of Rights
Right to trial by jury.
That the right of trial by jury shall remain inviolate.
ALASKA - yes
AS 47.30.735. 30-Day Commitment.
. . . (e) The court shall specifically state to the respondent, and give the respondent written notice, that if commitment or other involuntary treatment beyond the 30 days is to be sought, the respondent has the right to a full hearing or jury trial. [underline added]
SECTION 16. CIVIL SUITS; TRIAL BY JURY. In civil cases where the amount in controversy exceeds two hundred fifty dollars, the right of trial by a jury of twelve is preserved to the same extent as it existed at common law. The legislature may make provision for a verdict by not less than three-fourths of the jury and, in courts not of record, may provide for a jury of not less than six or more than twelve.
ARIZONA - The commitment statutes make no reference to jury trial:
Title 36 - Public Health and Safety
Chapter 5 - Mental Health Services
Article 1 - General Provisions
36-501 and following statutes
Title 36 - 539. Conduct of hearing; record; transcript
A. The medical director of the agency shall issue instructions to the physicians treating the proposed patient to take all reasonable precautions to insure that at the time of the hearing the proposed patient shall not be so under the influence of or so suffer the effects of drugs, medication or other treatment as to be hampered in preparing for or participating in the hearing. The court at the time of the hearing shall be presented a record of all drugs, medication or other treatment which the person has received during the seventy-two hours immediately prior to the hearing.
B. The patient and his attorney shall be present at all hearings and the patient's attorney may subpoena and cross-examine witnesses and present evidence. The evidence presented by the petitioner or the patient shall include the testimony of two or more witnesses acquainted with the patient at the time of the alleged mental disorder and testimony of the two physicians who performed examinations in the evaluation of the patient. The physicians shall testify as to their personal examination of the patient. They shall also testify as to their opinions concerning whether the patient is, as a result of mental disorder, a danger to self or to others, is persistently or acutely disabled or is gravely disabled and as to whether the patient requires treatment. Such testimony shall state specifically the nature and extent of the danger to self or to others, the persistent or acute disability or the grave disability. If the patient is gravely disabled the physicians shall testify concerning the need for guardianship or conservatorship, or both, and whether or not the need is for immediate appointment. Other persons who have participated in the evaluation of the patient or, if further treatment was requested by a mental health treatment agency, persons of that agency who are directly involved in the care of the patient shall testify at the request of the court or of the patient's attorney. Witnesses shall testify as to placement alternatives appropriate and available for the care and treatment of the patient. The clinical record of the patient for the current admission shall be available and may be presented in full or in part as evidence at the request of the court, the county attorney or the patient's attorney.
C. If the patient, for medical reasons, is unable to be present at the hearing and the hearing cannot be conducted where the patient is being treated or confined, the court shall require clear and convincing evidence that the patient is unable to be present at the hearing and upon such a finding may proceed with the hearing in the patient's absence.
D. The requirements of subsection B are in addition to all rules of evidence and the Arizona rules of civil procedure, not inconsistent with subsection B.
E. A verbatim record of all proceedings under this section shall be made by stenographic means by a court reporter if a written request for a court reporter is made by any party to the proceedings at least twenty-four hours in advance of such proceedings. If stenographic means are not requested in the manner provided by this subsection, electronic means shall be directed by the presiding judge. The stenographic notes or electronic tape shall be retained as provided by statute.
F. A patient who has been ordered to undergo treatment may request a certified transcript of the hearing. To obtain a copy, the patient shall pay for a transcript or shall file an affidavit that he is without means to pay for a transcript. If the affidavit is found true by the court, the expense of the transcript is to be a charge upon the county in which the proceedings were held, or, if an intergovernmental agreement by the counties has required evaluation in a county other than that of the patient's residence, such expense may be charged to the county of the patient's residence or in which the patient was found prior to evaluation.
Trial by jury; number of jurors specified by law
Article 2, Section 23. The right of trial by jury shall remain inviolate. Juries in criminal cases in which a sentence of death or imprisonment for thirty years or more is authorized by law shall consist of twelve persons. In all criminal cases the unanimous consent of the jurors shall be necessary to render a verdict. In all other cases, the number of jurors, not less than six, and the number required to render a verdict, shall be specified by law.
ARKANSAS - no
The statute seems to leave calling a jury to the discretion of the probate court judge, and court clerks in Arkansas advise jury trials in psychiatric commitment do not take place:
20-47-103. Sanity inquest.
(a) If any person shall give information in writing to the probate court that any person in his county is an idiot, lunatic, or of unsound mind and pray that an inquiry thereof be had, the probate court, if satisfied that there is good cause for the exercise of its jurisdiction, shall cause the person so charged to be brought before the court and inquire into the facts by a jury, if the facts are doubtful.
(b) The court, if just cause appear and at any time during the term at which an inquisition is had, may set aside the verdict and cause a new jury to be summoned to inquire into the facts. However, when two (2) juries concur in any case, the verdict shall not be set aside.
To see this law on the State of Arkansas official web site, click on this link, then click on "Arkansas Code" (upper left of page), scroll to "Chapter 20 - Public Health & Welfare" and click on that link.
Sec. 7. Jury trial - Right to - Waiver - Civil cases, nine jurors agreeing.
The right of trial by jury shall remain inviolate, and shall extend to all cases at law, without regard to the amount in controversy; but a jury trial may be waived by the parties in all cases in the manner prescribed by law; and in all jury trials in civil cases, where as many as nine of the jurors agree upon a verdict, the verdict so agreed upon shall be returned as the verdict of such jury, provided, however, that where a verdict is returned by less than twelve jurors all the jurors consenting to such verdict shall sign the same.
This amendment to the Constitution of Arkansas shall be self-executing and require no enabling act, but shall take and have full force and effect immediately upon its adoption by the electors of the State. [As amended by Const. Amend. 16.]
CALIFORNIA - yes
Welfare & Institutions Code
§5302. At the time of filing of a petition for postcertification treatment the court shall advise the person named in the petition of his right to be represented by an attorney and of his right to demand a jury trial...
For an official copy of this law, follow this link, which will take you to an "Official California Legislative Information" web site. Click on the "CALIFORNIA LAW" button (bottom center of page). Check "Welfare & Institutions Code" and do a search for "5302". Then click on the "WELFARE & INSTITUTIONS CODE SECTIONS 5300-5309" link and scroll down to §5302.
ARTICLE 1 - DECLARATION OF RIGHTS
SEC. 7. (a) A person may not be deprived of life, liberty, or property without due process of law or denied equal protection of the laws...[emphasis added]
SEC. 16. Trial by jury is an inviolate right and shall be secured to all, but in a civil cause three-fourths of the jury may render a verdict. A jury may be waived in a criminal cause by the consent ofboth parties expressed in open court by the defendant and the defendant's counsel. In a civil cause a jury may be waived by the consent of the parties expressed as prescribed by statute. In civil causes the jury shall consist of 12 persons or a lesser number agreed on by the parties in open court. In civil causes other than causes within the appellate jurisdiction of the court of appeal the Legislature may provide that the jury shall consist of eight persons or a lesser number agreed on by the parties in open court. In criminal actions in which a felony is charged, the jury shall consist of 12 persons. In criminal actions in which a misdemeanor is charged, the jury shall consist of 12 persons or a lesser number agreed on by the parties in open court.
In In re Mabel ROULET, 590 P.2d 1 (1979), the Supreme Court of California said a right to jury trial in civil commitment for mental illness and in involuntary guardianship is required by the above quoted due process clause in the California Constitution .
COLORADO - yes
27-10-107. Certification for short-term treatment.
(3) Within twenty-four hours of certification, copies of the certification shall be personally delivered to the respondent, and a copy shall be kept by the evaluation facility as part of the person's record. The respondent shall also be asked to designate one other person whom he wishes informed regarding certification. If he is incapable of making such a designation at the time the certification is delivered, he shall be asked to designate such person as soon as he is capable. In addition to the copy of the certification, the respondent shall be given a written notice that a hearing upon his certification for short-term treatment may be had before the court or a jury upon written request directed to the court pursuant to subsection (6) of this section.
Section 23. Trial by jury grand jury. The right of trial by jury shall remain inviolate in criminal cases; but a jury in civil cases in all courts, or in criminal cases in courts not of record, may consist of less than twelve persons, as may be prescribed by law. Hereafter a grand jury shall consist of twelve persons, any nine of whom concurring may find an indictment; provided, the general assembly may change, regulate or abolish the grand jury system; and provided, further, the right of any person to serve on any jury shall not be denied or abridged on account of sex, and the general assembly may provide by law for the exemption from jury service of persons or classes of persons.
[As amended November 7, 1944. (See Laws 1945, p. 424.)]
CONNECTICUT - There is no mention of jury trial in the commitment statutes:
Sec. 17a-510 (Formerly Sec. 17-192). Release or transfer; procedure.
Any person who is a patient in a hospital for psychiatric disabilities upon the order of any court of probate, or his or her representative, may make application to the court of probate for the district in which such hospital is located for his or her release from said hospital. Upon receipt of any such application, such court shall assign a time, not later than ten days thereafter, and a place for hearing such application, and shall cause reasonable notice thereof to be given to the applicant, the superintendent of the hospital where the applicant is confined and to such relative or relatives and friends as it deems advisable. Such notice shall inform the applicant that he or she has a right to be present at the hearing and to present evidence at the hearing; that he or she has a right to counsel; that he or she, if indigent, has a right to have counsel appointed to represent him or her; and that he or she has a right to cross-examine witnesses at any hearing upon such application. Notwithstanding the provisions of chapter 899, hospital records shall be admissible in evidence. Nothing herein shall prevent timely objection to the admissibility of evidence in accordance with the rules of civil procedure. Unless the court finds that further confinement of the applicant is necessary in accordance with the standards set forth in section 17a-498, the court shall order the release of such person. All of the expenses in connection with an application filed under this section shall be paid by the applicant, unless the applicant is indigent or otherwise unable to pay such expenses, in which case such expenses shall be paid by the state from funds appropriated to the Department of Mental Health and Addiction Services, in accordance with rates established by said department, and attorney's fees shall be established by, and paid from funds appropriated to, the Judicial Department, however, if funds have not been included in the budget of the Judicial Department for such attorney's fees, such fees shall be established by the Probate Court Administrator and paid from the Probate Court Administration Fund, provided in no event shall the expenses be paid for any one applicant for more than two hearings in any one year, including the hearing provided for in subsection (g) of section 17a-498. Such court may, for reasonable cause shown, order any person confined in a hospital for psychiatric disabilities to be removed to any other hospital for psychiatric disabilities in this state. If the officers, directors or trustees of a state hospital for psychiatric disabilities are notified by the superintendent of such institution or other person in a managerial capacity that he has reason to believe that any person committed thereto by order of a probate court does not have psychiatric disabilities or a suitable subject to be confined in such institution, or is appropriate for voluntary status, such officers, directors or trustees may discharge such person or convert the status of such person to voluntary status pursuant to section 17a-506. The superintendent or other director of such institution shall notify such person's next of kin or close friend of such person's discharge, provided such patient consents in writing to such notification."
Article First - Declaration of Rights
Sec. 19. The right of trial by jury shall remain inviolate.
In L&R Realty v. Connecticut National Bank, 715 A.2d 748, 752, the Supreme Court of Connecticut said: The constitution of Connecticut, article first, § 19, provides that '[t]he right of trial by jury shall remain inviolate.' That provision 'guarantees the right to a jury trial in all cases for which such a right existed at the time of the adoption of that constitutional provision in 1818.'"
The Connecticut statutes specifically provide for involuntary psychiatric drugging and ECT:
Sec. 17a-543. (Formerly Sec. 17-206d). Procedures governing medication, treatment, psychosurgery and shock therapy.
(a) No patient shall receive medication for the treatment of the psychiatric disabilities of such patient without the informed consent of such patient, except in accordance with procedures set forth in subsections (b), (d), (e) and (f) of this section or in accordance with section 17a-566 or 54-56d. (b) No medical or surgical procedures may be performed without the patient's written informed consent or, if the patient has been declared incapable of caring for himself or herself pursuant to sections 45a-644 to 45a-662, inclusive, and a conservator of the person has been appointed pursuant to section 45a-650, the written consent of such conservator. If the head of the hospital, in consultation with a physician, determines that the condition of an involuntary patient not declared incapable of caring for himself or herself pursuant to said sections is of an extremely critical nature and such patient is incapable of informed consent, medical or surgical procedures may be performed with the written informed consent of: (1) The patient's conservator or guardian, if he or she has one; or (2) such person's next of kin; or (3) a qualified physician appointed by a judge of the Probate Court. Notwithstanding the provisions of this section, if obtaining the consent provided for in this section would cause a medically harmful delay to a voluntary or involuntary patient whose condition is of an extremely critical nature, as determined by personal observation by a physician or the senior clinician on duty, emergency treatment may be provided without consent. (c) No psychosurgery or shock therapy shall be administered to any patient without such patient's written informed consent, except as provided in this subsection. Such consent shall be for a maximum period of thirty days and may be revoked at any time. If it is determined by the head of the hospital and two qualified physicians that the patient has become incapable of giving informed consent, shock therapy may be administered upon order of the Court of Probate if, after hearing, such court finds that the patient is incapable of informed consent and there is no other reasonable alternative procedure. (d) A facility may establish an internal procedure governing decisions concerning involuntary medication treatment for inpatients. This procedure shall provide (1) that any decision concerning involuntary medication treatment shall be made by a person who is not employed by the facility in which the patient is receiving treatment, provided the selection of such person shall not be made until the patient's advocate has had reasonable opportunity to discuss such selection with the facility, (2) written and oral notification to the patient of available advocacy services, (3) notice to the patient and his advocate, if one has been chosen, of any proceeding for the determination of the necessity for involuntary treatment not less than forty-eight hours prior to such proceeding, (4) the right of the patient to representation during any such proceeding, (5) questioning of any witness at any such proceeding including, if requested, one or both of the physicians who made the determination pursuant to subsection (e) of this section concerning the patient's capacity to give informed consent and the necessity of medication for the patient's treatment, and (6) a written decision. If a decision is made in accordance with the standards set forth in this section that a patient shall receive involuntary medication, and there is substantial probability that without such medication for the treatment of the psychiatric disabilities of such patient the condition of the patient will rapidly deteriorate, such involuntary medication may be provided for a period not to exceed thirty days or until a decision is made by the Probate Court under subsection (e) or (f), whichever is sooner. (e) (1) If it is determined by the head of the hospital and two qualified physicians that a patient is incapable of giving informed consent to medication for the treatment of such patient's psychiatric disabilities and such medication is deemed to be necessary for such patient's treatment, a facility may utilize the procedures established in subsection (d) of this section and may apply to the Court of Probate for appointment of a conservator of the person with specific authority to consent to the administration of medication or, in a case where a conservator of the person has previously been appointed under section 45a-650, the facility or the conservator may petition the Probate Court to grant such specific authority to the conservator. The conservator shall meet with the patient and the physician, review the patient's written record and consider the risks and benefits from the medication, the likelihood and seriousness of adverse side effects, the preferences of the patient, the patient's religious views, and the prognosis with and without medication. After consideration of such information, the conservator shall either consent to the patient receiving medication for the treatment of the patient's psychiatric disabilities or refuse to consent to the patient receiving such medication. (2) The authority of a conservator to consent to the administration of medication under subdivision (1) of this subsection shall be effective for no more than one hundred twenty days. In the case of continuous hospitalization of the patient beyond such one hundred twenty days, if the head of the hospital and two qualified physicians determine that the patient continues to be incapable of giving informed consent to medication for the treatment of such patient's psychiatric disabilities and such medication is deemed to be necessary for such patient's treatment, the authority of the conservator to consent to the administration of medication may be extended for a period not to exceed one hundred twenty days by order of the Probate Court without a hearing upon application by the head of the hospital. Prompt notice of the order shall be given to the patient, conservator and facility. (f) (1) If it is determined by the head of the hospital and two qualified physicians that (A) a patient is capable of giving informed consent but refuses to consent to medication for treatment of such patient's psychiatric disabilities, (B) there is no less intrusive beneficial treatment and (C) without medication, the psychiatric disabilities with which the patient has been diagnosed will continue unabated, and place the patient or others in direct threat of harm, as defined in subsection (l) of section 17a-540, the facility may utilize the procedures established in subsection (d) of this section and may apply to the Court of Probate to authorize the administration to the patient of medication for the treatment of the patient's psychiatric disabilities, despite the refusal of the patient to consent to such medication. (2) An order authorizing the administration of medication under subdivision (1) of this subsection shall be effective for no more than one hundred twenty days. In the case of continuous hospitalization of the patient beyond such one hundred twenty days, if the head of the hospital and two qualified physicians determine that (A) the patient continues to be capable of giving informed consent but refuses to consent to medication for treatment of such patient's psychiatric disabilities, (B) there is no less intrusive beneficial treatment and (C) without medication, the psychiatric disabilities with which the patient has been diagnosed will continue unabated, and place the patient or others in direct threat of harm, as defined in subsection (l) of section 17a-540, the order may be extended for a period not to exceed one hundred twenty days by order of the Probate Court without a hearing. Prompt notice of the order shall be given to the patient and facility. (g) If a decision has been made to administer involuntary medication to a patient pursuant to subsection (d) of this section, the patient may petition the Court of Probate to expedite the hearing on an application filed by the facility pursuant to subsection (e) or (f) of this section or, if no application has been filed, to hold a hearing to decide whether to allow the administration of involuntary medication. Either hearing shall be held within fifteen days after the date of the patient's petition. (h) For the purposes of this section, "voluntary patient" means any patient sixteen years of age or older who applies in writing for, and is admitted to, a hospital for observation, diagnosis or treatment of a mental disorder. (i) Unless there is a serious risk of harm to the patient or others, based upon the patient's past history or current condition, nothing in this section authorizes any form of involuntary medical, psychological or psychiatric treatment of any patient who in the sincere practice of his religious beliefs is being treated by prayer alone in accordance with the principles and practices of a church or religious denomination by a duly accredited practitioner or ordained minister, priest or rabbi thereof. (j) The Department of Mental Health and Addiction Services shall adopt regulations, in accordance with chapter 54, to implement the purposes of this section.
DELAWARE - The statute specifically states that there will be no jury:
§ 5006. Procedural rights of involuntary patients.
A person whom the hospital has determined to be a mentally ill person shall be entitled:
(1) To notice (including a written statement) of the factual grounds upon which the proposed hospitalization is predicated and the reasons for the necessity of confinement.
(2) To hearings before the court and to judicial determinations of (i) whether the involuntary patient's confinement is based upon probable cause and (ii) whether or not the involuntary patient is a mentally ill person. Such hearings shall be without jury and not open to the public, shall be preceded by adequate notice to the involuntary patient, and the involuntary patient shall be entitled to be present at all such hearings. [underline added]
(3) To be represented by counsel at all judicial proceedings, such counsel to be court appointed if the involuntary patient cannot afford to retain counsel; and to be examined by an independent psychiatrist or other qualified medical expert and to have such psychiatrist or other expert testify as a witness in the patient's behalf, such witness to be court appointed if the involuntary patient cannot afford to retain such witness.
(4) To conduct discovery, to summon and cross-examine witnesses, to present evidence on the person's own behalf and to avail the person's own self of all other procedural rights afforded litigants in civil causes. The privilege against self-incrimination shall be applicable to all proceedings under this chapter.
(5) To have a full record made of the proceedings, including findings adequate for review. All records and pleadings shall remain confidential unless the court for good cause orders otherwise.
(60 Del. Laws, c. 95, § 1; 70 Del. Laws, c. 186, § 1.)
§ 4. Trial by jury.
Section 4. Trial by jury shall be as heretofore.
(Amended 38 Del. Laws, Part II, c. 3; 65 Del. Laws, c. 186.)
DISTRICT OF COLUMBIA - yes
§21-544. Determinations of Commission; report to court; copy to person affected; right to jury trial.
If the Commission finds, after a hearing under section 21-542, that the person with respect to whom the hearing was held is not mentally ill or if mentally ill, is not mentally ill to the extent that he is likely to injure himself or other persons if allowed to remain at liberty, the Commission shall immediately order his release and notify the court of that fact in writing. If the Commission finds, after the hearing, that the person with respect to whom the hearing was held is mentally ill, and because of the illness is likely to injure himself or other persons if allowed to remain at liberty, the Commission shall promptly report that fact, in writing, to the Superior Court of the District of Columbia. The report shall contain the Commission's findings of fact, conclusions of law, and recommendations. A copy of the report of the Commission shall be served personally on the alleged mentally ill person and his attorney. An alleged mentally ill person with respect to whom the report is made has the right to demand a jury trial, and the Commission, orally and in writing, shall advise him of this right. [underline added]
FLORIDA - no
...394.467 Involuntary placement .--
(6) HEARING ON INVOLUNTARY PLACEMENT
(a)1. The court shall hold the hearing on involuntary placement within 5 days, unless a continuance is granted. The hearing shall be held in the county where the patient is located and shall be as convenient to the patient as may be consistent with orderly procedure and shall be conducted in physical settings not likely to be injurious to the patient's condition. If the court finds that the patient's attendance at the hearing is not consistent with the best interests of the patient, and the patient's counsel does not object, the court may waive the presence of the patient from all or any portion of the hearing. The state attorney for the circuit in which the patient is located shall represent the state, rather than the petitioning facility administrator, as the real party in interest in the proceeding.
2. The court may appoint a master to preside at the hearing. One of the professionals who executed the involuntary placement certificate shall be a witness. The patient and the patient's guardian or representative shall be informed by the court of the right to an independent expert examination. If the patient cannot afford such an examination, the court shall provide for one. The independent expert's report shall be confidential and not discoverable, unless the expert is to be called as a witness for the patient at the hearing. The testimony in the hearing must be given under oath, and the proceedings must be recorded. The patient may refuse to testify at the hearing.
(b) If the court concludes that the patient meets the criteria for involuntary placement, it shall order that the patient be transferred to a treatment facility or, if the patient is at a treatment facility, that the patient be retained there or be treated at any other appropriate receiving or treatment facility, or that the patient receive services from a receiving or treatment facility, on an involuntary basis, for a period of up to 6 months. The order shall specify the nature and extent of the patient's mental illness. The facility shall discharge a patient any time the patient no longer meets the criteria for involuntary placement, unless the patient has transferred to voluntary status.
(c) If at any time prior to the conclusion of the hearing on involuntary placement it appears to the court that the person does not meet the criteria for involuntary placement under this chapter, but instead meets the criteria for involuntary assessment, protective custody, or involuntary admission pursuant to s. 397.675, then the court may order the person to be admitted for involuntary assessment for a period of 5 days pursuant to s. 397.6811. Thereafter, all proceedings shall be governed by chapter 397.
(d) At the hearing on involuntary placement, the court shall consider testimony and evidence regarding the patient's competence to consent to treatment. If the court finds that the patient is incompetent to consent to treatment, it shall appoint a guardian advocate as provided in s. 394.4598.
(e) The administrator of the receiving facility shall provide a copy of the court order and adequate documentation of a patient's mental illness to the administrator of a treatment facility whenever a patient is ordered for involuntary placement, whether by civil or criminal court. Such documentation shall include any advance directives made by the patient, a psychiatric evaluation of the patient, and any evaluations of the patient performed by a clinical psychologist or a clinical social worker. The administrator of a treatment facility may refuse admission to any patient directed to its facilities on an involuntary basis, whether by civil or criminal court order, who is not accompanied at the same time by adequate orders and documentation.
(7) PROCEDURE FOR CONTINUED INVOLUNTARY PLACEMENT.--
(a) Hearings on petitions for continued involuntary placement shall be administrative hearings and shall be conducted in accordance with the provisions of s. 120.57(1), except that any order entered by the hearing officer shall be final and subject to judicial review in accordance with s. 120.68. Orders concerning patients committed after successfully pleading not guilty by reason of insanity shall be governed by the provisions of s. 916.15.
1(b) If the patient continues to meet the criteria for involuntary placement, the administrator shall, prior to the expiration of the period during which the treatment facility is authorized to retain the patient, file a petition requesting authorization for continued involuntary placement. The request shall be accompanied by a statement from the patient's physician or clinical psychologist justifying the request, a brief description of the patient's treatment during the time he or she was involuntarily placed, and an individualized plan of continued treatment. Notice of the hearing shall be provided as set forth in s. 394.4599. If at the hearing the hearing officer finds that attendance at the hearing is not consistent with the best interests of the patient, the hearing officer may waive the presence of the patient from all or any portion of the hearing, unless the patient, through counsel, objects to the waiver of presence. The testimony in the hearing must be under oath, and the proceedings must be recorded.
(c) Unless the patient is otherwise represented or is ineligible, he or she shall be represented at the hearing on the petition for continued involuntary placement by the public defender of the circuit in which the facility is located.
(d) If at a hearing it is shown that the patient continues to meet the criteria for involuntary placement, the administrative law judge shall sign the order for continued involuntary placement for a period not to exceed 6 months. The same procedure shall be repeated prior to the expiration of each additional period the patient is retained.
(e) If continued involuntary placement is necessary for a patient admitted while serving a criminal sentence, but whose sentence is about to expire, or for a patient involuntarily placed while a minor but who is about to reach the age of 18, the administrator shall petition the administrative law judge for an order authorizing continued involuntary placement.
2(f) If the patient has been previously found incompetent to consent to treatment, the hearing officer shall consider testimony and evidence regarding the patient's competence. If the hearing officer finds evidence that the patient is now competent to consent to treatment, the hearing officer may issue a recommended order to the court that found the patient incompetent to consent to treatment that the patient's competence be restored and that any guardian advocate previously appointed be discharged.
SECTION 21. Access to courts.--The courts shall be open to every person for redress of any injury, and justice shall be administered without sale, denial or delay.
SECTION 22. Trial by jury.--The right of trial by jury shall be secure to all and remain inviolate. The qualifications and the number of jurors, not fewer than six, shall be fixed by law.
SECTION 23. Right of privacy.--Every natural person has the right to be let alone and free from governmental intrusion into the person's private life except as otherwise provided herein. This section shall not be construed to limit the public's right of access to public records and meetings as provided by law.
[Section 23] History.--Added, C.S. for H.J.R. 387, 1980; adopted 1980; Am. proposed by Constitution Revision Commission, Revision No. 13, 1998, filed with the Secretary of State May 5, 1998; adopted 1998.
The Supreme Court of Florida ruled against a right to jury trial in civil psychiatric commitment with a 6 to 1 vote in In re Mabel Jones, 339 So.2d 1117 (1978). The basis of the decision was that there was (allegedly) no right to jury trial in Florida when the state constitution was adopted and that the U.S. Supreme Court had not decided whether a jury trial is required under the U.S. Constitution. Justice Boyd filed a dissenting opinion:In my opinion, the Constitutions of the United States and the State of Florida contemplate that persons who are about to be denied their personal freedom by incarceration of any kind should have jury trials when they request them. ... I have difficulty in understanding why a person accused of violating the criminal statutes should be entitled to a jury trial when, at the same time, a person who is about to be involuntarily confined in an institution by the State should not...
It is well recognized that unsupported allegations of insanity can have a detrimental effect upon the personal lives and careers of people. It should not be left to the discretion of a single judge to make determinations of such allegations. Whenever insanity is used as a defense for crime, juries evaluate and determine the question and likewise, when requested, they should make determinations in civil commitment proceedings.
... persons accused of mental illness are sent away to institutions through the benevolence of the State without what I consider to be constitutional safeguards granted to the most vicious criminals. This is inherently unfair and a denial of Fourteenth Amendment rights to due process of law.
I respectfully dissent.
GEORGIA - The commitment law specifically states that there shall be no jury:
37-3-150. The patient, the patient's representatives, or the patient's attorney may appeal any order of the probate court or hearing officer rendered in a proceeding under this chapter to the superior court of the county in which the proceeding was held, except as otherwise provided in Article 6 of Chapter 9 of Title 15, and may appeal any order of the juvenile court rendered in a proceeding under this chapter to the Court of Appeals and the Supreme Court. The appeal to the superior court shall be made in the same manner as appeals from the probate court to the superior court, except that the appeal shall be heard before the court sitting without a jury as soon as practicable but not later than 30 days following the date on which the appeal is filed with the clerk of the superior court. The appeal from the order of the juvenile court to the Court of Appeals and the Supreme Court shall be as provided by law but shall be heard as expeditiously as possible. The patient must pay all costs upon filing any appeal authorized under this Code section or must make an affidavit that he or she is unable to pay costs. The patient shall retain all rights of review of any order of the superior court, the Court of Appeals, and the Supreme Court, as provided by law. The patient shall have a right to counsel or, if unable to afford counsel, shall have counsel appointed for the patient by the court. The appeal rights provided to the patient, the patient's representatives, or the patient's attorney in this Code section are in addition to any other appeal rights which the parties may have, and the provision of the right for the patient, the patient's representatives, or the patient's attorney to appeal does not deny the right to the Department of Human Resources to appeal under the general appeal provisions of Code Sections 5-3-2 and 5-3-3. [underline added]
Article 1. Bill of Rights
Section I. Rights of Persons
Paragraph XI. Right to trial by jury; number of jurors; selection and compensation of jurors.
(a) The right to trial by jury shall remain inviolate, except that the court shall render judgment without the verdict of a jury in all civil cases where no issuable defense is filed and where a jury is not demanded in writing by either party. In criminal cases, the defendant shall have a public and speedy trial by an impartial jury; and the jury shall be the judges of the law and the facts.
(b) A trial jury shall consist of 12 persons; but the General Assembly may prescribe any number, not less than six, to constitute a trial jury in courts of limited jurisdiction and in superior courts in misdemeanor cases.
(c) The General Assembly shall provide by law for the selection and compensation of persons to serve as grand jurors and trial jurors.
HAWAII - no - See §334-60.5 Hearing on petition
§334-60.2 Involuntary hospitalization criteria. A person may be committed to a psychiatric facility for involuntary hospitalization, if the court finds: (1) That the person is mentally ill or suffering from substance abuse; (2) That the person is imminently dangerous to self or others, is gravely disabled or is obviously ill; and (3) That the person is in need of care or treatment, or both, and there is no suitable alternative available through existing facilities and programs which would be less restrictive than hospitalization. [L 1984, c 188, pt of §3; am L 1985, c 75, §2; am L 1986, c 335, §4]
Sec. 10. In suits at common law where the value in controversy shall exceed one hundred dollars, the right of trial by jury shall be preserved. The legislature may provide for a verdict by not less than three-fourths of the members of the jury.
IDAHO - no
STATE CHARITABLE INSTITUTIONS
HOSPITALIZATION OF MENTALLY ILL
66-329. COMMITMENT TO DEPARTMENT DIRECTOR UPON COURT ORDER -- JUDICIAL PROCEDURE.
(a) Proceedings for the involuntary care and treatment of mentally ill persons by the department of health and welfare may be commenced by the filing of a written application with a court of competent jurisdiction by a friend, relative, spouse or guardian of the proposed patient, or by a licensed physician, prosecuting attorney, or other public official of a municipality, county or of the state of Idaho, or the director of any facility in which such patient may be.
(b) The application shall state the name and last known address of the proposed patient; the name and address of either the spouse, guardian, next of kin or friend of the proposed patient; whether the proposed patient can be cared for privately in the event commitment is not ordered; if the proposed patient is, at the time of the application, a voluntary patient; whether the proposed patient has applied for release pursuant to section 66-320, Idaho Code; and a simple and precise statement of the facts showing that the proposed patient is mentally ill and either likely to injure himself or others or is gravely disabled due to mental illness.
(c) Any such application shall be accompanied by a certificate of a designated examiner stating that he has personally examined the proposed patient within the last fourteen (14) days and is of the opinion that the proposed patient is (i) mentally ill; (ii) likely to injure himself or others or is gravely disabled due to mental illness; and (iii) lacks capacity to make informed decisions about treatment, or a written statement by the applicant that the proposed patient has refused to submit to examination by a designated examiner.
(d) Upon receipt of an application for commitment, the court shall, within forty-eight (48) hours appoint another designated examiner to make a personal examination of the proposed patient or if the proposed patient has not been examined, the court shall appoint two (2) designated examiners to make individual personal examinations of the proposed patient and may order the proposed patient to submit to an immediate examination. If neither designated examiner is a physician, the court shall order a physical examination of the proposed patient. At least one (1) designated examiner shall be a psychiatrist, licensed physician or licensed psychologist; no more than one (1) designated examiner may be a physician not practicing psychiatry, a holder of an earned master's level or higher degree in social work from an accredited program, a registered nurse with an earned master's level or higher degree in psychiatric nursing from an accredited program, or a holder of an earned master's level or higher degree in psychology from an accredited program. The designated examiners shall report to the court their findings within the following seventy-two (72) hours as to the mental condition of the proposed patient and his need for custody, care, or treatment by a facility. The reports shall be in the form of written certificates which shall be filed with the court. The court may terminate the proceedings and dismiss the application without taking any further action in the event the reports of the designated examiners are to the effect that the proposed patient is not mentally ill or, although mentally ill, is not likely to injure himself or others or is not gravely disabled due to mental illness. If the proceedings are terminated, the proposed patient shall be released immediately.
(e) If the designated examiner's certificate states a belief that the proposed patient is mentally ill and either likely to injure himself or others or is gravely disabled due to mental illness, the judge of such court shall issue an order authorizing any health officer, peace officer, or director of a facility to take the proposed patient to a facility in the community in which the proposed patient is residing or to the nearest facility to await the hearing and for good cause may authorize treatment during such period subject to the provisions of section 66-346(a)(4), Idaho Code. Under no circumstances shall the proposed patient be detained in a nonmedical unit used for the detention of individuals charged with or convicted of penal offenses.
(f) Upon receipt of such application and designated examiners' reports the court shall appoint a time and place for hearing not more than seven (7) days from the receipt of such designated examiners' reports and thereupon give written notice of such time and place of such hearing together with a copy of the application, designated examiner's certificates, and notice of the proposed patient's right to be represented by an attorney, or if indigent, to be represented by a court-appointed attorney, to the applicant, to the proposed patient, to the proposed patient's spouse, guardian, next of kin or friend. With the consent of the proposed patient and his attorney, the hearing may be held immediately. Upon motion of the proposed patient and attorney and for good cause shown, the court may continue the hearing up to an additional fourteen (14) days during which time, for good cause shown, the court may authorize treatment.
(g) An opportunity to be represented by counsel shall be afforded to every proposed patient, and if neither the proposed patient nor others provide counsel, the court shall appoint counsel in accordance with chapter 8, title 19, Idaho Code, no later than the time the application is received by the court.
(h) The hearing shall be held at a facility, at the home of the proposed patient, or at any other suitable place not likely to have a harmful effect on the proposed patient's physical or mental health. Venue for the hearing shall be in the county of residence of the proposed patient, unless the patient waives the right to have venue fixed there.
(i) In all proceedings under this section, any existing provision of the law prohibiting the disclosure of confidential communications between the designated examiner and proposed patient shall not apply and any designated examiner who shall have examined the proposed patient shall be a competent witness to testify as to the proposed patient's condition.
(j) The proposed patient, the applicant, and any other persons to whom notice is required to be given shall be afforded an opportunity to appear at the hearing, to testify, and to present and cross-examine witnesses. The proposed patient shall be required to be present at the hearing unless the court determines that the mental or physical state of the proposed patient is such that his presence at the hearing would be detrimental to the proposed patient's health or would unduly disrupt the proceedings. A record of the proceedings shall be made as for other civil hearings. The hearing shall be conducted in as informal a manner as may be consistent with orderly procedure. The court shall receive all relevant and material evidence consistent with the rules of evidence.
(k) If, upon completion of the hearing and consideration of the record, the court finds by clear and convincing evidence that the proposed patient (1) is mentally ill; and
(2) is, because of such condition, likely to injure himself or others, or is gravely disabled due to mental illness; the court shall order the proposed patient committed to the custody of the department director for an indeterminate period of time not to exceed one (1) year. The department director, through his dispositioner, shall determine within twenty-four (24) hours the least restrictive available facility consistent with the needs of each patient committed under this section for observation, care, and treatment.
(l) Nothing in this chapter or in any rule adopted pursuant thereto shall be construed to authorize the detention or involuntary admission to a hospital or other facility of an individual who
(1) has epilepsy, a developmental disability, a physical disability, mental retardation, is impaired by chronic alcoholism or drug abuse, or aged, unless in addition to such condition, such person is mentally ill;
(2) is a patient under treatment by spiritual means alone, through prayer, in accordance with the tenets and practices of a recognized church or religious denomination by a duly accredited practitioner thereof and who asserts to any authority attempting to detain him that he is under such treatment and who gives the name of a practitioner so treating him to such authority; or
(3) can be properly cared for privately with the help of willing and able family or friends, and provided, that such persons may be detained or involuntarily admitted if such persons are mentally ill and present a substantial risk of injury to himself or others if allowed to remain at liberty.
(m) The order of commitment shall state whether the proposed patient lacks capacity to make informed decisions about treatment, the name and address of the patient's attorney and either the patient's spouse, guardian, adult next of kin, or friend.
(n) If the patient has no spouse or guardian and if the patient has property which may not be cared for pursuant to chapter 5, title 66, Idaho Code, or by the patient while confined at a facility, the court shall appoint a guardian ad litem for the purpose of preserving the patient's estate, pending further guardianship or conservatorship proceedings.
(o) The commitment shall continue until the commitment is terminated and shall be unaffected by the patient's conditional release or change in disposition.
CONSTITUTION OF THE STATE OF IDAHO
Article I - Declaration Of Rights
SECTION 7. RIGHT TO TRIAL BY JURY. The right of trial by jury shall remain inviolate; but in civil actions, three-fourths of the jury may render a verdict, and the legislature may provide that in all cases of misdemeanors five-sixths of the jury may render a verdict. A trial by jury may be waived in all criminal cases, by the consent of all parties, expressed in open court, and in civil actions by the consent of the parties, signified in such manner as may be prescribed by law. In civil actions the jury may consist of twelve or of any number less than twelve upon which the parties may agree in open court. Provided, that in cases of misdemeanor and in civil actions within the jurisdiction of any court inferior to the district court, whether such case or action be tried in such inferior court or in district court, the jury shall consist of not more than six.
ILLINOIS - yes
(405 ILCS 5/3-802) Sec. 3-802. The respondent is entitled to a jury on the question of whether he is subject to involuntary admission. The jury shall consist of 6 persons to be chosen in the same manner as are jurors in other civil proceedings.
(Source: P.A. 80-1414.)
Article I - Bill of Rights
SECTION 13. TRIAL BY JURY
The right of trial by jury as heretofore enjoyed shall remain inviolate.
SECTION 19. NO DISCRIMINATION AGAINST THE HANDICAPPED
All persons with a physical or mental handicap shall be free from discrimination in the sale or rental of property and shall be free from discrimination unrelated to ability in the hiring and promotion practices of any employer.
INDIANA - The commitment statutes make no reference to jury trial, but the state constitution by its terms protects a right to jury trial in both criminal and civil cases.
IC [Indiana Code] 12-26-6 and 12-16-7.
Article I - Bill of Rights
Section 19. Right of jury to determine law and facts in criminal cases
Section 19. In all criminal cases whatever, the jury shall have the right to determine the law and the facts.
Section 20. Trial by jury in civil cases
Section 20. In all civil cases, the right of trial by jury shall remain inviolate.
IOWA - The commitment statutes make no reference to jury trial, but the state constitution by its terms protects the right to jury trial in civil cases.
229.12 Hearing procedure.
1. At the hospitalization hearing, evidence in support of the contentions made in the application shall be presented by the county attorney. During the hearing the applicant and the respondent shall be afforded an opportunity to testify and to present and cross-examine witnesses, and the court may receive the testimony of any other interested person. The respondent has the right to be present at the hearing. If the respondent exercises that right and has been medicated within twelve hours, or such longer period of time as the court may designate, prior to the beginning of the hearing or an adjourned session thereof, the judge shall be informed of that fact and of the probable effects of the medication upon convening of the hearing.
2. All persons not necessary for the conduct of the proceeding shall be excluded, except that the court may admit persons having a legitimate interest in the proceeding and shall permit the advocate from the respondent's county of legal settlement to attend the hearing. Upon motion of the county attorney, the judge may exclude the respondent from the hearing during the testimony of any particular witness if the judge determines that witness's testimony is likely to cause the respondent severe emotional trauma.
3. The respondent's welfare shall be paramount and the hearing shall be conducted in as informal a manner as may be consistent with orderly procedure, but consistent therewith the issue shall be tried as a civil matter. Such discovery as is permitted under the Iowa rules of civil procedure shall be available to the respondent. The court shall receive all relevant and material evidence which may be offered and need not be bound by the rules of evidence. There shall be a presumption in favor of the respondent, and the burden of evidence in support of the contentions made in the application shall be upon the applicant. If upon completion of the hearing the court finds that the contention that the respondent is seriously mentally impaired has not been sustained by clear and convincing evidence, it shall deny the application and terminate the proceeding.
4. If the respondent is not taken into custody under section 229.11, but the court subsequently finds good cause to believe that the respondent is about to depart from the jurisdiction of the court, the court may order such limited detention of the respondent as is authorized by section 229.11 and is necessary to insure that the respondent will not depart from the jurisdiction of the court without the court's approval until the proceeding relative to the respondent has been concluded.
5. The clerk shall furnish copies of any orders to the respondent and to the applicant if the applicant files a written waiver signed by the respondent.
Right of trial by jury--due process of law. SEC. 9. The right of trial by jury shall remain inviolate; but the general assembly may authorize trial by a jury of a less number than twelve men in inferior courts; but no person shall be deprived of life, liberty, or property, without due process of law.
KANSAS - yes
59-2963 (b)(2)(4): ...the proposed patient has a right to a jury trial if a written demand for such is filed with the court at least four days prior to the time set for trial...
Kansas Bill of Rights
§ 5. Trail [sic] by jury. The right of trial by jury shall be inviolate
§ 10. Trial; defense of accused. In all prosecutions, the accused shall be allowed to appear and defend in person, or by counsel; to demand the nature and cause of the accusation against him; to meet the witness face to face, and to have compulsory process to compel the attendance of the witnesses in his behalf, and a speedy public trial by an impartial jury of the county or district in which the offense is alleged to have been committed. No person shall be a witness against himself, or be twice put in jeopardy for the same offense.
Note!:§10 applies "In all prosecutions..." and is not, by its terms, limited to "criminal" prosecutions.
KENTUCKY - yes
202A.076 CONDUCT OF HEARINGS:
The respondent shall be afforded an opportunity to testify, to present, and cross-examine witnesses against him. The manner of proceeding and rules of evidence shall be the same as those in any criminal proceeding including the burden of proof beyond a reasonable doubt. Proceedings shall be heard by a judge unless a party requests a jury trial. [underline added]
Kentucky Constitution, Section 7
Right of trial by jury.
The ancient mode of trial by jury shall be held sacred, and the right thereof remain inviolate, subject to such modifications as may be authorized by this Constitution.
Text as Ratified on: August 3, 1891, and revised September 28, 1891.
LOUISIANA: No right to jury trial is mentioned in the commitment law nor in the state constitution (other than in criminal cases and when private property is taken for public use).
In Louisiana, psychologists as well as physicians can commit people: Title 28, Chapter 1, Section 53, B (1): Any physician or psychologist may execute an emergency certificate only after an actual examination of a person alleged to be mentally ill or suffering from substance abuse who is determined to be in need of immediate care and treatment in a treatment facility because the examining physician or psychologist determines the person to be dangerous to self or others or to be gravely disabled.
MAINE - The commitment statutes make no reference to jury trial, but the state constitution appears to protect it.
§ 3864. Judicial procedure and commitment
... 5. Hearing. Hearings under this section are governed as follows.
A. The District Court shall hold a hearing on the application not later than 15 days from the date of the application.
(1) On a motion by any party, the hearing may be continued for cause for a period not to exceed 10 additional days.
(2) If the hearing is not held within the time specified, or within the specified continuance period, the court shall dismiss the application and order the person discharged forthwith.
(3) In computing the time periods set forth in this paragraph, the District Court Civil Rules shall apply. [1983, c. 459, §7 (new).]
B. The hearing must be conducted in as informal a manner as may be consistent with orderly procedure and in a physical setting not likely to have harmful effect on the mental health of the person. If the setting is outside the hospital to which the patient is currently admitted, the Department of Mental Health, Mental Retardation and Substance Abuse Services shall bear the responsibility and expense of transporting the patient to and from the hearing. If the patient is to be admitted to a hospital following the hearing, then the responsible hospital shall transport the patient to the admitting hospital. If the patient is to be released following the hearing, then the responsible hospital shall return the patient to the hospital or, at the patient's request, return the patient to the patient's place of residence. [1997, c. 422, §17 (amd).]
C. The court shall receive all relevant and material evidence which may be offered in accordance with accepted rules of evidence and accepted judicial dispositions.
(1) The person, the applicant and all other persons to whom notice is required to be sent shall be afforded an opportunity to appear at the hearing to testify and to present and cross-examine witnesses.
(2) The court may, in its discretion, receive the testimony of any other person and may subpoena any witness. [1983, c. 459, §7 (new).]
D. The person shall be afforded an opportunity to be represented by counsel, and, if neither the person nor others provide counsel, the court shall appoint counsel for the person. [1983, c. 459, §7 (new).]
E. In addition to proving that the patient is a mentally ill individual, the applicant shall show:
(1) By evidence of the patient's actions and behavior, that the patient poses a likelihood of serious harm; and
(2) That, after full consideration of less restrictive treatment settings and modalities, inpatient hospitalization is the best available means for the treatment of the person. [1983, c. 459, §7 (new).]
The official state web site says:
There are Three Classes of Courts in Maine
I. Courts of Limited Jurisdiction:
At the first level of the Maine court system are the courts of limited jurisdiction. These are the District Court, the Probate Courts and the Administrative Court. Each of these courts has power to hear and decide different types of cases.
A. District Court: The District Court system was created by the legislature in 1961. The District Court has 22 judges who hold court in 13 districts at 33 locations throughout Maine. This court hears both civil and criminal matters and always sits without a jury. Suits in which no more than $30,000 is at issue, domestic relations cases (divorces, separations, custody and property disputes), and involuntary commitments are examples of civil cases.
A plaintiff who has a right to trial by jury in a civil action waives the right by bringing the action in District Court; a defendant with a right to a civil jury may remove the action to a Superior Court for jury trial.
The court also tries cases involving civil violations and Class D and E criminal offenses when the defendant waives the right to a jury trial. In addition, the court hears all juvenile matters.
Although some decisions of the District Court may be appealed directly to the Supreme Judicial Court, most cases are appealed to the Superior Court. Appeals are limited to questions of law. [underline added]
Section 20. Trial by jury. In all civil suits, and in all controversies concerning property, the parties shall have a right to a trial by jury, except in cases where it has heretofore been otherwise practiced; the party claiming the right may be heard by himself or herself and with counsel, or either, at the election of the party.
In Harriman v. Maddocks, 560 A.2d 11 (1989), the Supreme Judicial Court of Maine said: "Under our constitution, jury trials are available, '[i]n all civil suits, and in all controversies concerning property ... except in cases where it has heretofore been otherwise practiced.' Me. Const. art. I, §20. The court's practice in analyzing the right to a jury trial is to find there is such a right unless it is affirmatively shown that a jury trial was unavailable in such a case in 1820."
MARYLAND, - yes
Sec. 10-805 ...(e) If the petitioner requests trial by jury, the trial shall be held with a jury as in a civil action at law. (f) The trier of fact shall determine: (1) Whether the individual has a mental disorder; and (2) If so, whether the individual needs inpatient medical care or treatment for the protection of the individual or another.
Declaration of Rights
Art. 5. (a) That the Inhabitants of Maryland are entitled to the Common Law of England, and the trial by Jury, according to the course of that Law, and to the benefit of such of the English statutes as existed on the Fourth day of July, seventeen hundred and seventy-six; and which, by experience, have been found applicable to their local and other circumstances, and have been introduced, used and practiced by the Courts of Law or Equity; and also of all Acts of Assembly in force on the first day of June, eighteen hundred and sixty-seven; except such as may have since expired, or may be inconsistent with the provisions of this Constitution; subject, nevertheless, to the revision of, and amendment or repeal by, the Legislature of this State. And the Inhabitants of Maryland are also entitled to all property derived to them from, or under the Charter granted by His Majesty Charles the First to Caecilius Calvert, Baron of Baltimore.
(b) The parties to any civil proceeding in which the right to a jury trial is preserved are entitled to a trial by jury of at least 6 jurors.
(c) That notwithstanding the Common Law of England, nothing in this Constitution prohibits trial by jury of less than 12 jurors in any civil proceeding in which the right to a jury trial is preserved (amended by Chapters 203, 204, Acts of 1992, ratified Nov. 3, 1992).
MASSACHUSETTS - no
Chapter 123: Section 5. Commitment or retention hearings; right to counsel; medical examination; notice.
Section 5. Whenever the provisions of this chapter require that a hearing be conducted in any court for the commitment or further retention of a person to a facility or to the Bridgewater state hospital or for medical treatment including treatment with antipsychotic medication, it shall be held as hereinafter provided. Such person shall have the right to be represented by counsel and shall have the right to present independent testimony. The court shall appoint counsel for such person whom it finds to be indigent and who is not represented by counsel, unless such person refuses the appointment of counsel. The court may provide an independent medical examination for such indigent person upon request of his counsel or upon his request if he is not represented by counsel. The person shall be allowed not less than two days after the appearance of his counsel in which to prepare his case and a hearing shall be conducted forthwith after such period unless counsel requests a delay. Notice of the time and place of hearing shall be furnished by the court to the department, the person, his counsel, and his nearest relative or guardian. The court may hold the hearing at the facility or said hospital. (Amended by 1986, 599, Sec. 38.)
Article XV. In all controversies concerning property, and in all suits between two or more persons, except in cases in which it has heretofore been otherways used and practiced, the parties have a right to a trial by jury; and this method of procedure shall be held sacred, unless, in causes arising on the high seas, and such as relate to mariners' wages, the legislature shall hereafter find it necessary to alter it.
PASSED AT THE SESSION BEGUN AND HELD AT BOSTON,
ON THE TWELFTH DAY OF OCTOBER, A.D., 1692
An Act Setting Forth General Priviledges.
Be it declared and enacted by the Governor, Coucil and Representatives of their majesties' province of the Massachusetts Bay in New England, in General Court assembled, and by the authority of the same,
That all and every the rights and liberties of the people, in this present act mentioned, shall be firmly and strictly holden and observed; that is to say, -
[Art. 1] That no freeman shall be taken and imprisoned or be disseized of his freehold or libertys or his free customes, or be outlawed or exiled, or in any manner destroyed, nor shall be passed upon, adjudged or condemned, but the the lawful judgment of his peers or the law of this province.
. . .
[Art. 6] All trials shall be by the verdict of twelve men, peers or equals, and of the neighbourhood and in the country or shire where the fact shall arise or grow, whether the same be by indictment, information, or otherwise against the person offending, except in cases where the law of the province shall otherwise provide.
AN ACT FOR THE ESTABLISHING OF JUDICATORIES AND COURTS OF JUSTICE WITHIN THIS PROVINCE
For the more orderly regulation and establishment of courts of justice throughout this province, -
Be it enacted and ordained by His Excellency the Governor, Council and Representatives convened in General Assembly, and it is hereby enacted and ordained by the authority of the same,
[Sect. 10] That all matters and issues in fact arising or happening within the said province, shall by tryed by twelve good and lawful men of the neighbourhood; and that no person or persons shall be chosen and returned to serve upon any such jury but such as shall have a real estate of freehold worth forty shillings per annum, or personal estate worth fifty pounds.
[sic: liberties, libertys, customes, neighbourhood, shire, trials, tryed]
Disallowed by the privy council, August 22, 1695
Acts and Resolves of the Province of the Massachusetts Bay - Volume I. 1692 - 1714. Boston: Wright & Potter, Printers to the State...1869, pages 40, 72, & 74.
According to Peter Charles Hoffer, resesearch professor of history at the University of Georgia in his book The Salem Witchcraft Trials: A Legal History (Univ. Press of Kansas, 1997), the 19 people convicted of being witches or of practicing witchcraft in Salem, Massachusetts, and executed (hanged) for this reason in 1692 and 1693, were all indicted by grand juries and tried by trial juries, and "The verdict had to be unanimous" (page 87). How likely is it that people accused of being witches were entitled to jury trial but people accused of insanity or lunacy were not?
MICHIGAN - yes:
330.1448. Information and documents to be furnished hospitalized persons
Sec. 448. (1) Not later than 12 hours after an individual is hospitalized under section 423 or 438, the hospital director shall ensure that the individual receives all of the following:
(a) A copy of the application or petition that asserted that the individual is a person requiring treatment.
(b) A written statement explaining that the individual will be examined by a psychiatrist within 24 hours after his or her hospitalization, excluding legal holidays.
(c) A written statement in simple terms explaining the rights of the individual to a full court hearing pursuant to sections 451 to 465, to be present at the hearing, to be represented by legal counsel, to a jury trial, and to an independent clinical evaluation.
MINNESOTA - no
253B.08 Judicial commitment; hearing procedures.
Subdivision 1.Time for commitment hearing. The hearing on the commitment petition shall be held within 14 days from the date of the filing of the petition. For good cause shown, the court may extend the time of hearing up to an additional 30 days. The proceeding shall be dismissed if the proposed patient has not had a hearing on a commitment petition within the allowed time. The proposed patient, or the head of the treatment facility in which the person is held, may demand in writing at any time that the hearing be held immediately. Unless the hearing is held within five days of the date of the demand, exclusive of Saturdays, Sundays and legal holidays, the petition shall be automatically discharged if the patient is being held in a treatment facility pursuant to court order. For good cause shown, the court may extend the time of hearing on the demand for an additional ten days.
Subd. 2. Notice of hearing. The proposed patient, patient's counsel, the petitioner, the county attorney, and any other persons as the court directs shall be given at least five days' notice that a hearing will be held and at least two days' notice of the time and date of the hearing, except that any person may waive notice. Notice to the proposed patient may be waived by patient's counsel.
Subd. 2a. Place of hearing. The hearing shall be conducted in a manner consistent with orderly procedure. The hearing shall be held at a courtroom meeting standards prescribed by local court rule which may be at a treatment facility.
Subd. 3. Right to attend and testify. All persons to whom notice has been given may attend the hearing and, except for the proposed patient's counsel, may testify. The court shall notify them of their right to attend the hearing and to testify. The court may exclude any person not necessary for the conduct of the proceedings from the hearings except any person requested to be present by the proposed patient. Nothing in this section shall prevent the court from ordering the sequestration of any witness or witnesses other than the petitioner or the proposed patient.
Subd. 4. Repealed, 1997 c 217 art 1 s 118
Subd. 5. Absence permitted. (a) The court may permit the proposed patient to waive the right to attend the hearing if it determines that the waiver is freely given. At the time of the hearing the patient shall not be so under the influence of drugs, medication, or other treatment so as to be hampered in participating in the proceedings. When the licensed physician or licensed psychologist attending the patient is of the opinion that the discontinuance of drugs, medication, or other treatment is not in the best interest of the patient, the court, at the time of the hearing, shall be presented a record of all drugs, medication or other treatment which the patient has received during the 48 hours immediately prior to the hearing.
(b) The court, on its own motion or on the motion of any party, may exclude or excuse a proposed patient who is seriously disruptive or who is incapable of comprehending and participating in the proceedings. In such instances, the court shall, with specificity on the record, state the behavior of the proposed patient or other circumstances justifying proceeding in the absence of the proposed patient.
Subd. 5a. Witnesses. The proposed patient or the patient's counsel and the county attorney may present and cross-examine witnesses, including examiners, at the hearing. The court may in its discretion receive the testimony of any other person. Opinions of court-appointed examiners may not be admitted into evidence unless the examiner is present to testify, except by agreement of the parties.
Subd. 6. Repealed, 1997 c 217 art 1 s 118
Subd. 7. Evidence. The court shall admit all relevant evidence at the hearing. The court shall make its determination upon the entire record pursuant to the rules of evidence.
In any case where the petition was filed immediately following a criminal proceeding in which the proposed patient was acquitted under section 611.026 , the court shall take judicial notice of the record of the criminal proceeding.
Subd. 8. Record required. The court shall keep accurate records containing, among other appropriate materials, notations of appearances at the hearing, including witnesses, motions made and their disposition, and all waivers of rights made by the parties. The court shall take and preserve an accurate stenographic record or tape recording of the proceedings.
HIST: 1982 c 581 s 8; 1983 c 348 s 9; 1984 c 623 s 5; 1986 c 444; 1991 c 255 s 19; 1997 c 217 art 1 s 49-54
Sec. 4. TRIAL BY JURY. The right of trial by jury shall remain inviolate, and shall extend to all cases at law without regard to the amount in controversy. A jury trial may be waived by the parties in all cases in the manner prescribed by law. The legislature may provide that the agreement of five-sixths of a jury in a civil action or proceeding, after not less than six hours' deliberation, is a sufficient verdict. The legislature may provide for the number of jurors in a civil action or proceeding, provided that a jury have at least six members. [Amended, November 8, 1988]
Chapter Title: CIVIL COMMITMENT ACT
Section: 253B.092 Standards and criteria for administration of neuroleptic medication; procedures.
Subdivision 1. General. Neuroleptic medications may be administered to patients subject to early intervention or civil commitment as mentally ill or mentally ill and dangerous only as provided in this section. For purposes of this section, "patient" includes a proposed patient who is the subject of a petition for early intervention or commitment.
Subd. 2. Administration without judicial review.
Neuroleptic medications may be administered without judicial review in the following circumstances:
(1) the patient has the capacity to make an informed decision under subdivision 4;
(2) the patient does not have the present capacity to consent to the administration of neuroleptic medication, but prepared a health care directive under chapter 145C or a declaration under section 253B.03, subdivision 6d, requesting treatment or authorizing an agent or proxy to request treatment, and the agent or proxy has requested the treatment;
(3) a substitute decision-maker appointed by the court consents to the administration of the neuroleptic medication and the patient does not refuse administration of the medication; or
(4) the substitute decision-maker does not consent or the patient is refusing medication, and the patient is in an emergency situation.
Subd. 3. Emergency administration. A treating physician may administer neuroleptic medication to a patient who does not have capacity to make a decision regarding administration of the medication if the patient is in an emergency situation. Medication may be administered for so long as the emergency continues to exist, up to 14 days, if the treating physician determines that the medication is necessary to prevent serious, immediate physical harm to the patient or to others. If a request for authorization to administer medication is made to the court within the 14 days, the treating physician may continue the medication through the date of the first court hearing, if the emergency continues to exist. If the request for authorization to administer medication is made to the court in conjunction with a petition for commitment or early intervention and the court makes a determination at the preliminary hearing under section 253B.07, subdivision 7, that there is sufficient cause to continue the physician's order until the hearing under section 253B.08, the treating physician may continue the medication until that hearing, if the emergency continues to exist. The treatment facility shall document the emergency in the patient's medical record in specific behavioral terms.
Subd. 4. Patients with capacity to make informed decision. A patient who has the capacity to make an informed decision regarding the administration of neuroleptic medication may consent or refuse consent to administration of the medication. The informed consent of a patient must be in writing.
Comment: The above section illustrates the value of having a written declaration of your wishes prior to being subjected to involuntary psychiatric "hospitalization" stating that you wish to refuse all psychotropic "medication," electroconvulsive "therapy," and use of physical restraints in all circumstances. This prevents use of the argument that you would consent to such (mis)treatment if only you did not have a mental illness. Having a psychiatrist, psychologist, or a physician attach a statement (preferably notarized) stating that in his or her opinion you are competent to make the declaration refusing "treatment" and perhaps also that the psychiatrist, psychologist, or other physician agrees with your decision would add strength to your declaration.
MISSISSIPPI - There is no mention of jury trial in the commitment statutes.
SEC. 41-21-73. Procedures for hearing; evidence; witnesses; commitment; disposition and findings.
(3) The respondent shall have the right to offer evidence, to be confronted with the witnesses against him and to cross-examine them and shall have the privilege against self-incrimination. The rules of evidence applicable in other judicial proceedings in this state shall be followed.
(4) If the court finds by clear and convincing evidence that the proposed patient is a mentally ill or mentally retarded person and, if after careful consideration of reasonable alternative dispositions, including, but not limited to, dismissal of the proceedings, the court finds that there is no suitable alternative to judicial commitment, the court shall commit the patient for treatment in the least restrictive treatment facility which can meet the patient's treatment needs.
Article 3, Section 31. The right of trial by jury shall remain inviolate, but the legislature may, by enactment, provide that in all civil suits tried in the circuit and chancery court, nine or more jurors may agree on the verdict and return it as the verdict of the jury.
SOURCES: 1817 art I § 28; 1832 art I § 28; 1869 art I § 12; 1916 ch 158.
In Fant v. Buchanan, 17 S. 371 (1895), the Supreme Court of Mississippi said "prior to the Code of 1880, a jury of 12 men was provided for in inquests of lunacy ... the code of 1880 provided for an inquest by 6 men and was in force when the constitution of 1890 was adopted, and conferred on the chancery court full jurisdiction in cases of idiocy, lunacy, and persons of unsound mind".
MISSOURI - yes
The respondent shall have the following rights in addition to those specified elsewhere:
(1) To be represented by an attorney;
(2) To present evidence on his own behalf;
(3) To cross-examine witnesses who testify against him;
(4) To remain silent;
(5) To view and copy all petitions and reports in the court file of his case;
(6) To have the hearing open or closed to the public as he elects;
(7) To be proceeded against according to the rules of evidence applicable to civil judicial proceedings;
(8) A hearing before a jury if requested by the patient or his attorney.
Right of trial by jury--qualification of jurors--two-thirds verdict.
Section 22(a). That the right of trial by jury as heretofore enjoyed shall remain inviolate; provided that a jury for the trial of criminal and civil cases in courts not of record may consist of less than twelve citizens as may be prescribed by law, and a two-thirds majority of such number concurring may render a verdict in all civil cases; that in all civil cases in courts of record, three-fourths of the members of the jury concurring may render a verdict; and that in every criminal case any defendant may, with the assent of the court, waive a jury trial and submit the trial of such case to the court, whose finding shall have the force and effect of a verdict of a jury.
Source: Const. of 1875, Art. II, § 28 (as amended Nov. 6, 1900).
MONTANA - yes
Part 1. Treatment of the Seriously Mentally Ill
118 (2) Whenever possible, a person detained pursuant to this part must be detained in a mental health facility and in the county of residence. If the person detained demands a jury trial and trial cannot be held within 7 days, the individual may be sent to the state hospital until time of trial if arrangements can be made to return him to trial. The trial must be held within 30 days.
ARTICLE II - DECLARATION OF RIGHTS
Section 15. Rights of persons not adults. The rights of persons under 18 years of age shall include, but not be limited to, all the fundamental rights of this Article unless specifically precluded by laws which enhance the protection of such persons.
Section 26. Trial by jury. The right of trial by jury is secured to all and shall remain inviolate. But upon default of appearance or by consent of the parties expressed in such manner as the law may provide, all cases may be tried without a jury or before fewer than the number of jurors provided by law. In all civil actions, two-thirds of the jury may render a verdict, and a verdict so rendered shall have the same force and effect as if all had concurred therein. In all criminal actions, the verdict shall be unanimous.
NEBRASKA - No right to jury trial is mentioned in the commitment statute. Hearings are by a "mental health board":
Chapter 83, 83-1018: The members of the mental health board shall be appointed for terms of two years by the presiding judge of the district court in the district in which the board is located. The board shall consist of a lawyer licensed to practice law in this state, and any two of the following, but not more than one from each class: A physician; a psychologist; a psychiatric social worker; a psychiatric nurse; a clinical social worker; or a layperson with a demonstrated interest in mental health issues. ...
NEBRASKA CONSTITUTION (requires Acrobat Reader)
Article I - Bill of Rights
Sec. 2. There shall be enither slavery nor involuntary servitude in this state, otherwise than for punishment of crime, whereof the party shall have been duly convicted. ...
Sec. 6. The right of trial by jury shall remain inviolate, but the Legislature may authorize trial by a jury of a less number than twelve in courts inferior to the District Court, and may be general law suthorize a verdict in civil cases in any court by not less than five-sixts of the jury. (Amended 1920.)
Sec. 7. The right of the people to be secure in their persons, houses, papers, and effects against unreasonable searches and seizures shall not be violated; and no warrant shall issue but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched, and the person or thing to be seized.
NEVADA - The commitment statutes make no mention of right to jury trial, and the description of commitment procedure makes clear trial will by the court without a jury. See NRS 433A.220 Hearing on petition; notice . The court must appoint two examiners, at least one of whom must be a physician. The other may be a psychologist. The "Declaration of legislative intent" (below) says it was not the intention of the state legislators to violate the civil rights of people accused of "mental illness." The legislators apparently simply do not understand the necessity of a lay jury to avoid unjust imprisonment (or "hospitalization") in mental "hospitals" and therefore might change the law if it is called to their attention:
Administration of Programs
NRS 433.003 Declaration of legislative intent. The legislature hereby declares that it is the intent of this Title:
1. To eliminate both the forfeiture of any civil and legal rights of any person and the imposition of any legal disability on any person, based on an allegation of mental illness or mental retardation...
Article 1 - Declaration of Rights
Sec: 3. Trial by jury; waiver in civil cases. The right of trial by Jury shall be secured to all and remain inviolate forever; but a Jury trial may be waived by the parties in all civil cases in the manner to be prescribed by law; and in civil cases, if three fourths of the Jurors agree upon a verdict it shall stand and have the same force and effect as a verdict by the whole Jury, Provided, the Legislature by a law passed by a two thirds vote of all the members elected to each branch thereof may require a unanimous verdict notwithstanding this Provision.
NEW HAMPSHIRE - The right to jury trial in civil commitment for mental illness is not currently (in the year 2000) recognized in New Hampshire:
Sec. 135-C:43 Conduct of Hearing. – For hearings held under this chapter, the person sought to be admitted shall have the right to legal counsel, to present evidence on his own behalf, to have a closed hearing unless he requests otherwise, and to cross-examine witnesses. He shall also have the right to summon as a witness the psychiatrist who filed the report pursuant to RSA 135-C:40 and to cross-examine him. A transcript, which may consist only of any audio recording of the proceedings, and at the court's discretion, shall be made of the entire proceeding. The transcript may serve as the basis for an appeal and the costs of the transcript shall be apportioned, within the judge's discretion, between the state and the person sought to be admitted. The transcript or recording shall be retained by the court for 2 years or until official notice is received of discharge, if the person is admitted on an involuntary basis and subsequently discharged.
Source. 1986, 212:1, eff. Jan. 1, 1987.
NEW HAMPSHIRE CONSTITUTION
Bill of Rights
[Art.] 20. [Jury Trial in Civil Causes.] In all controversies concerning property, and in all suits between two or more persons except those in which another practice is and has been customary and except those in which the value in controversy does not exceed $1,500 and no title to real estate is involved, the parties have a right to a trial by jury. This method of procedure shall be held sacred, unless, in cases* arising on the high seas and in cases relating to mariners' wages, the legislature shall think it necessary hereafter to alter it.
June 2, l784
Amended in l877 to prohibit jury trials unless the amount in controversy exceeds $l00.
Amended in l960 to increase the amount to $500 before a jury trial may be requested.
*"Cases" appears in l792 parchment copy of constitution. Original constitution had "causes."Amended in 1988 to change $500 to $1,500
In 1987 in the case of McElroy v. Gaffney, 529 A.2d 889, at page 891, the Supreme Court of New Hampshire said Article 20 "affords the unqualified right to a trial by jury in actions at common law, as it was understood to apply at common law prior to 1784."
In H. v. S., decided by the Superior Court of Judicature of the State of New Hampshire in 1827, the Court said:This was an appeal from a decree of the judge of probate in this county, declaring the appellant to be a person non compos mentis, and appointing a guardian of his person and estate. ... The statute of March 21, 1776, enacted that it should be the power of the judge of probate, upon request made by any of the friends, of any idiot, non compos, lunatic, or distracted person, to direct the selectmen of the town to make inquisition thereinto, "and if the person said to be an idiot, or distracted, shall be so determined by the judge of probate in such county, and selectmen of the town or a major part of them, wherein such idiot or distracted person lives, then and in that case the said judge of probate shall assign and appoint some suitable person or persons to be guardian or guardians." ... When the selectmen find a person to be non compos mentis and make return to the judge of probate accordingly, it is competent to such person to traverse the fact before the judge of probate, and to bring the cause by appeal to this court where the fact may be tried by a jury. [Reports of Cases in the Superior Court of Judicature of the State of New Hampshire ... Volume IV. - Chester, Currier, French, and Brown. 1830. Pages 60-68 - underline added]
In colonial New Hampshire and the early days of statehood, appointment of a guardian was the manner of authorizing confinement for reason of mental illness or insanity. As the Supreme Judicial Court of New Hampshire said in 1866 in Davis v. Merrill, 47 NH 208 at 211: "Under our practice in this State, where it becomes pretty certain that one of our citizens has become permanently insane, or is likely to be, and he has property, for the protection of his person and the community, as well as his property, a guardian is required, and may be appointed, agreeably to the requirements of the law. Where a guardian is thus appointed, he assumes the parental relation, and has generally the authority of a parent. Under our law, the guardian, having for the time being the legal custody of the person of the ward, may, of course, commit him to an asylum..."
Similarly, in 1842 in the case of Colby vs. Jackson, 12 NH 526 at 528, the Superior Court of Judicature of New Hampshire ruled that the trial court correctly gave the following jury instruction: "The court instructed the jury...that if the plaintiff were so insane that it was dangerous to himself and others to permit him to be at liberty, the defendant might confine him until application could be made to the proper authority, and a guardian appointed - that such an application must be made in a reasonable time - that the defendant had no right to confine him for an indefinite time, as long as he should think proper, without making any application for, and procuring the appointment of a guardian..."
Since there was a right to jury trial in involuntary guardianship (on appeal from the probate court to the Superior Court of Judicature), and guardianship was the manner of authorizing confinement for reason of mental illness or insanity, it logically follows that the right to jury trial in civil commitment for mental illness is also preserved by the above provision in the New Hampshire Constitution Bill of Rights - if, as the Supreme Court of New Hampshire said in McElroy v. Gaffney, 529 A.2d 889, 891 that Article 20 "affords the unqualified right to a trial by jury in actions at common law, as it was understood to apply at common law prior to 1784."
However, the Supreme Court of New Hampshire said otherwise in 1950 in the case of In re Moulton, 77 A2d 26 at 28, in which the Court upheld the constitutionality of a law allowing civil commitment of "sexual psychopaths" at the conclusion of their criminal sentences that specifically said there "shall be no right to trial by jury." The Court said: "The statutes relating to the care, control and treatment of sexual psychopaths are analogous to insanity proceedings and it cannot be said that it is a common law requirement embedded in the Constitution that trial by jury is a prerequisite of the validity of such acts. Such is the weight of authority." The Court is entirely wrong on this point, as shown by decisions of the highest courts of New York (Sporza), Tennessee (Johnson v. Helms), Texas (White v. White), and Washington (Ellern and Quesnell) interpreting similar state constitutional provisions in which these other state supreme courts found that there was a right to jury trial in civil commitment for mental illness at common law that is preserved by a state constitutional provision preserving the right to jury trial as it existed at the time of the adoption of the state constitution. As a New Jersey court also said in In re McLaughlin, 102 A. 439 (1917): "At common law it was the practice to inquire whether a man was an idiot, or not, by the writ of de idiota inquirendo, in which proceeding there was the trial by jury. The method of proving a man non compos was quite the same. ... The act is silent on the method of determining the lunacy; but, as already shown, it was determined by a jury at common law." The Supreme Court of Mississippi reached a similar conclusion in Fant v. Buchanan, 17 S. 371 (1895): "...prior to the Code of 1880, a jury of 12 men was provided for in inquests of lunacy ... the code of 1880 provided for an inquest by 6 men and was in force when the constitution of 1890 was adopted, and conferred on the chancery court full jurisdiction in cases of idiocy, lunacy, and persons of unsound mind".
Moreover, unlike the "the right of trial by jury shall remain inviolate" language found in many state constitutions, the express language of Article 20 of the New Hampshire Constitution Bill of Rights does not merely preserve the right to jury trial as it existed when the state constitution was adopted. It says, "In all controversies concerning property, and in all suits between two or more persons ... the parties have a right to a trial by jury" with certain exceptions: small value in controversy, mariner's wages, and - most importantly - "except those in which another practice is and has been customary." This is a grant of a right to jury trial in all cases that do not fall within one of the exceptions. New Hampshire's state constitutional provision protecting right to jury trial in civil cases is very similar to Maine's, which reads: "In all civil suits, and in all controversies concerning property, the parties shall have a right to a trial by jury, except in cases where it has heretofore been otherwise practiced..." In Harriman v. Maddocks, 560 A.2d 11 (1989), the Supreme Judicial Court of Maine said: "Under our constitution, jury trials are available, '[i]n all civil suits, and in all controversies concerning property ... except in cases where it has heretofore been otherwise practiced.' Me. Const. art. I, §20. The court's practice in analyzing the right to a jury trial is to find there is such a right unless it is affirmatively shown that a jury trial was unavailable in such a case in 1820." It can't be affirmatively shown there was no right to jury trial in confinement because of insanity or lunacy or what we now call mental illness when the New Hampshire state constitution was adopted, because there was one.
Are any New Hampshire lawyers reading this?
NEW JERSEY - The commitment statutes make no mention of jury trial.
Title 30 - 30:4-27.14
A person subject to involuntary commitment has the following rights at a court hearing and any subsequent review court hearing:
a. The right to be represented by counsel or, if indigent, by appointed counsel;
b. The right to be present at the court hearing unless the court determines that because of the person's conduct at the court hearing the proceeding cannot reasonably continue while the person is present;
c. The right to present evidence;
d. The right to cross examine witnesses; and
e. The right to a hearing in camera [in private].
NEW JERSEY STATE CONSTITUTION 1947
RIGHTS AND PRIVILEGES
[§]9. The right of trial by jury shall remain inviolate; but the Legislature may authorize the trial of civil causes by a jury of six persons. The Legislature may provide that in any civil cause a verdict may be rendered by not less than five-sixths of the jury. The Legislature may authorize the trial of the issue of mental incompetency without a jury.
The New Jersey sexual predator law (Megan's Law) states:
a. The rules of evidence applicable in criminal cases shall apply, and all constitutional rights available to a defendant at a criminal trial, other than the right to a trial by jury and the right not to be tried while incompetent, shall apply.
Regarding Electroshock treatment: 30:4-27.11d:
(5) Not to receive electroconvulsive treatment or participate in experimental research without the express and informed, written consent of the patient. The patient shall have the right to consult with counsel or interested party of the patient's choice. A copy of the patient's consent shall be placed in the patient's treatment record. If the patient has been adjudicated incompetent, a court of competent jurisdiction shall hold a hearing to determine the necessity of the procedure. The patient shall be physically present at the hearing, represented by counsel, and provided the right and opportunity to be confronted with and to cross-examine all witnesses alleging the necessity of the procedure. In these proceedings, the burden of proof shall be on the party alleging the necessity of the procedure. In the event that a patient cannot afford counsel, the court shall appoint an attorney not less than 10 days before the hearing. An attorney so appointed shall be entitled to a reasonable fee to be determined by the court and paid by the State.
NEW MEXICO - There is no right to jury trial for 30 day commitments but is for "extended" commitments.
43-1-12. Extended commitment of adults.
B. A hearing shall be held upon the petition prior to the expiration of the thirty-day commitment period, at which the client shall have all rights granted to him under Section 43-1-11 NMSA 1978 and in addition shall have a right to a trial by a six-person jury if requested, and to an expeditious appeal, unless waived.
New Mexico Constitution
Article II - Bill of Rights
Sec. 12. [Trial by jury; less than unanimous verdicts in civil cases.]
The right of trial by jury as it has heretofore existed shall be secured to all and remain inviolate. In all cases triable in courts inferior to the district court the jury may consist of six. The legislature may provide that verdicts in civil cases may be rendered by less than a unanimous vote of the jury.
NEW YORK - yes
S 9.35 Review of court authorization to retain an involuntary patient. If a person who has been denied release or whose retention, continued retention, or transfer and continued retention has been authorized pursuant to this article, or any relative or friend in his behalf, be dissatisfied with any such order he may, within thirty days after the making of any such order, obtain a rehearing and a review of the proceedings already had and of such order upon a petition to a justice of the supreme court other than the judge or justice presiding over the court making such order. Such justice shall cause a jury to be summoned and shall try the question of the mental illness and the need forretention of the patient so authorized to be retained. Any such patientor the person applying on his behalf for such review may waive the trial of the fact by a jury and consent in writing to trial of such fact by the court. No such petition for rehearing and review shall be made by anyone other than the person so authorized to be retained or the father, mother, husband, wife, or child of such person, unless the petitioner shall have first obtained the leave of the court upon good cause shown. If the verdict of the jury, or the decision of the court when jury trial has been waived, be that such person is not mentally ill or is not in need of retention the justice shall forthwith discharge him, but if the verdict of the jury, or the decision of the court where a jury trial hasbeen waived, be that such person is mentally ill and in need of retention the justice shall certify that fact and make an order authorizing continued retention under the original order. Such order shall be presented, at the time of authorization of continued retention of such mentally ill person, to, and filed with, the director of the hospital in which the mentally ill person is authorized to be retained, and a copy thereof shall be forwarded to the department by such director and filed in the office thereof. Proceedings under the order shall notbe stayed pending an appeal therefrom, except upon an order of a justiceof the supreme court, made upon a notice and after a hearing, withprovisions made therein for such temporary care or confinement of the alleged mentally ill person as may be deemed necessary. [underline added]
NEW YORK CONSTITUTION
Article I - Bill of Rights
Sec. 2. Trial by jury in all cases in which it has heretofore been guaranteed by constitutional provision shall remain inviolate forever; but a jury trial may be waived by the parties in all civil cases in the manner to be prescribed by law. The legislature may provide, however, by law, that a verdict may be rendered by not less than five-sixths of the jury in any civil case. A jury trial may be waived by the defendant in all criminal cases, except those in which the crime charged may be punishable by death, by a written instrument signed by the defendant in person in open court before and with the approval of a judge or justice of a court having jurisdiction to try the offense. The legislature may enact laws, not inconsistent herewith, governing the form, content, manner and time of presentation of the instrument effectuating such waiver.
In 1908 in Sporza v. German Savings Bank, Vol. 84 Northeastern Reporter, page 406, the Court of Appeals of New York ruled that trial by jury in civil commitment for mental illness and in involuntary guardianship is guaranteed by the New York State Constitution. The Court said: "It is manifest that in England up to a period long subsequent to the adoption of the New York Constitution of 1777 the verdict of a jury was essential to establish the status of a person alleged to be incompetent either as an idiot or a lunatic. ... A careful examination of the New York statutes and decisions bearing upon the subject leave no doubt in my mind that prior to the Constitution of 1846, and since then until the enactment of section 2323a of the Code of Civil Procedure, the courts in this state have not assumed jurisdiction to appoint a committee of the person or estate of an incompetent person, in the absence of a finding by a jury [pages 413-414]... The unvarying practice seems to have been to require a jury trial as a condition precedent to the appointment of a committee for the person or estate of a lunatic [p. 414]."
See also Matter of Coates, 8 AD2d 441 (1959), Arnold v. Sanchez, 166 Misc 2d 493, 634 NYS2d 343 (1995) and Robert C. v. Wack, 635 NYS2d 677 (1995) interpreting the Sporza case as requiring the allegedly mentally ill person have a right to demand a jury in civil commitment for mental illness pursuant to the state constitutional provision preserving the right to jury trial as it existed when the state constitution was adopted.
NORTH CAROLINA - There is no mention of jury trial in the commitment statutes:
General Statutes of North Carolina
Chapter 122c. Mental Health, Developmental Disabilities, and Substance Abuse Act of 1985, Part 7, § 122C-261 and following statutes
NORTH CAROLINA CONSTITUTION
Article I - Declaration of Rights
Sec. 24. Right of jury trial in criminal cases. No person shall be convicted of any crime but by the unanimous verdict of a jury in open court. The General Assembly may, however, provide for other means of trial for misdemeanors, with the right of appeal for trial de novo.
Sec. 25. Right of jury trial in civil cases. In all controversies at law respecting property, the ancient mode of trial by jury is one of the best securities of the rights of the people, and shall remain sacred and inviolable.
NORTH DAKOTA - There is no mention of jury trial in the commitment statutes:
North Dakota Century Code
Title 25. Mental and Physical Illness or Disability
Chapter 25-01. General Provisions
25-01-01 and following statutes
25-03.1 - Commitment Procedures
25-03.1-19 - Involuntary Treatment Hearing
Involuntary psychosurgery, sterilization or research on a "patient" may be ordered, after a hearing, pursuant to Sec. 25-01.2-11 of the North Dakota Century Code.
NORTH DAKOTA CONSTITUTION
Article I - Declaration of Rights (requires Acrobat Reader)
Section 13. The right of trial by jury shall be secured to all, and remain inviolate. A person accused of a crime for which he may be confined for a period of more than one year has the right of trial by a jury of twelve. The legislative assembly may determine the size of the jury for all other cases, provided that the jury consists of at least six members. All verdicts must be unanimous.
OHIO - There is no mention of jury trial in the commitment statutes:
Chapter 22, Sections 5122.141 and 5122.15 and Chapter 5119 of the Revised Code:
Article 1 - Bill of Rights
§ 1.05 Trial by jury (1851, amended 1912)
The right of trial by jury shall be inviolate, except that, in civil cases, laws may be passed to authorize the rendering of a verdict by the concurrence of not less than three-fourths of the jury.
(As amended September 3, 1912.)
OKLAHOMA - yes
A. A person alleged to be a mentally ill person and a person requiring treatment shall have the following rights: 1. The right to notice, as provided by Section 6 of this act; 2. The right to counsel, including court-appointed counsel, and if the person has no counsel, that the court shall appoint an attorney to represent the person at no cost if the person is an indigent person and cannot afford an attorney; 3. The right to a hearing and the right to a closed hearing, unless the person requests otherwise; 4. Upon request, right to a jury trial. The jury shall be composed of six persons... [underline added]
The statutes provide for involuntary psychiatric drugging:
S 9.35 Review of court authorization to retain an involuntary patient.
A. During the detention periods authorized by the Mental Health and Substance Abuse Services Law, Section 1-101 et seq. of this title, or during the time set forth in the Mental Health and Substance Abuse Services Law for the precommitment screening examination, or while in the custody of the Department of Corrections appropriate treatment and medication, including psychotropic medication, may be administered to a consenting individual.
B. Treatment and medication may be administered to a nonconsenting individual upon the written order of a physician who has personally examined the patient and who finds such medication or treatment is necessary to protect the patient, the facility or others from serious bodily harm, and who so notes in the individual's medication record, with an explanation of the facts leading up to the decision to administer treatment and medication including psychotropic medication. 43A-5-411.
Article II: Bill of Rights
Section II-19: Trial by jury.
The right of trial by jury shall be and remain inviolate, except in civil cases wherein the amount in controversy does not exceed One Thousand Five Hundred Dollars ($1,500.00), or in criminal cases wherein punishment for the offense charged is by fine only, not exceeding One Thousand Five Hundred Dollars ($1,500.00). Provided, however, that the Legislature may provide for jury trial in cases involving lesser amounts. Juries for the trial of civil cases, involving more than Ten Thousand Dollars ($10,000.00), and felony criminal cases shall consist of twelve (12) persons. All other juries shall consist of six (6) persons. However, in all cases the parties may agree on a lesser number of jurors than provided herein.
In all criminal cases where imprisonment for more than six (6) months is authorized the entire number of jurors must concur to render a verdict. In all other cases three-fourths (3/4) of the whole number of jurors concurring shall have power to render a verdict. When a verdict is rendered by less than the whole number of jurors, the verdict shall be signed by each juror concurring therein.
OREGON - There is no mention of jury trial in the commitment statutes.
426.090 Citation; service.
The judge shall cause a citation to issue to the allegedly mentally ill person stating the nature of the information filed concerning the person and the specific reasons the person is believed to be mentally ill. The citation shall further contain a notice of the time and place of the commitment hearing, the right to legal counsel, the right to have legal counsel appointed if the person is unable to afford legal counsel, and, if requested, to have legal counsel immediately appointed, the right to subpoena witnesses in behalf of the person to the hearing and other information as the court may direct
426.100 Advice of court; appointment of legal counsel; fee; representation of state's interest.
(1) At the time the allegedly mentally ill person is brought before the court, the court shall advise the person of the following:
(a) The reason for being brought before the court;
(b) The nature of the proceedings;
(c) The possible results of the proceedings;
(d) The right to subpoena witnesses; and
(e) The person's rights regarding representation by or appointment of counsel.
Article I - Bill of Rights
Section 17. Jury trial in civil cases. In all civil cases the right of Trial by Jury shall remain inviolate.-
PENNSYLVANIA: There is no mention of jury trial in the commitment statutes.
§ 5100.84. Persons who may be subject to involuntary emergency examination and treatment under Pennsylvania law
§ 29.42. Procedures for Appointment of Guardians.
Pennsylvania's mental patients' Bill of Rights
PENNSYLVANIA CONSTITUTION (requires Acrobat Reader)
Article I - Declaration of Rights
6. Trial by jury.
Trial by jury shall be as heretofore, and the right thereof remain inviolate. The General Assembly may provide, however, by law, that a verdict may be rendered by not less than five-sixths of the jury in any civil case.
(May 18, 1971, P.L. 765, J.R.1)
RHODE ISLAND: There is no mention of jury trial in the commitment statutes.
Sec. 40.1-5-8 Civil court certification
(i) Hearing. A hearing scheduled under this section shall be conducted pursuant to the following requirements:
(1) All evidence shall be presented according to the usual rules of evidence which apply in civil, non jury cases. The subject of the proceedings shall have the right to present evidence in his or her own behalf, and to cross examine all witnesses against him or her, including any physician who has completed a certificate or filed a report as provided hereunder. The subject of the proceedings shall have the further right to subpoena witnesses and documents, the cost of such to be borne by the court where the court finds upon an application of the subject that the person cannot afford to pay for the cost of subpoenaing witnesses and documents.
RHODE ISLAND CONSTITUTION
ARTICLE I - DECLARATION OF CERTAIN CONSTITUTIONAL RIGHTS AND PRINCIPLES
Section 15. Trial by jury. The right of trial by jury shall remain inviolate. In civil cases the general assembly may fix the size of the petit jury at less than twelve but not less than six.
SOUTH CAROLINA - There is no mention of jury trial in the commitment statutes:
South Carolina Statutes
Title 44 - Health
Provisions Applicable to Both Mentally Ill
And Mentally Retarded Persons
Article 1. - Definitions and General Matter
Section 44-23-10 and following statutes
SOUTH CAROLINA CONSTITUTION
Article I - Declaration of Rights
SECTION 14. Trial by jury; witnesses; defense.
The right of trial by jury shall be preserved inviolate. Any person charged with an offense shall enjoy the right to a speedy and public trial by an impartial jury; to be fully informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor, and to be fully heard in his defense by himself or by his counsel or by both.
SOUTH DAKOTA - There is no mention of jury trial in the commitment statutes. Hearings are before a "Board of Mental Illness."
South Dakota Codified Laws
Title 27a. Mentally Ill Persons
Chapter 27a-1. Definitions and General Provisions
27A-1-1 and following statutes
Chapter 11A - Hearings Procedure - under "statutes" choose "title list"; then choose title "27A" and then "11A".
CONSTITUTION OF SOUTH DAKOTA
ARTICLE VI - BILL OF RIGHT [sic - singular]
§ 6. Jury trial - Reduced jury - Three-fourths vote.
The right of trial by jury shall remain inviolate and shall extend to all cases at law without regard to the amount in controversy, but the Legislature may provide for a jury of less than twelve in any court not a court of record and for the decision of civil cases by three-fourths of the jury in any court.
TENNESSEE - yes
33-3-606 Time for hearing.
The hearing shall be held as soon as possible but not more than twenty (20) days after the complaint was filed except that the court may continue the hearing for up to ten (10) days for good cause and may continue the hearing for as long as necessary to impanel a jury if the defendant demands a jury trial. [underline added]
33-3-609. Jury trial.
Either party may demand a jury trial on the issues.
[Acts 1983, ch. 323, § 9; T.C.A., § 33-368.]
Article I, Sec. 6. Trial by jury - Qualifications of jurors.
That the right of trial by jury shall remain inviolate, and no religious or political test shall ever be required as a qualification for jurors.
In Johnson v. Helms, 100 S.W. 2d 648 (1937), the Supreme Court of Tennessee ruled that the above provision of the state constitution protects a right to jury trial in civil psychiatric commitment because the right existed both under common law and under a statute that existed when the Tennessee state constitution was adopted.
Under section 33-3-102 of the Tennessee statutes: "(a) Any individual who: (1) Without probable cause for believing a person to be mentally retarded or mentally ill, causes or conspires with or assists another to cause the hospitalization or admission of any such person under this title; or (2) Causes or conspires with or assists another to cause the denial to any person of any right accorded to such person under this title; commits a Class E felony." Under Section 33-3-103, "It is a Class C misdemeanor for any person knowingly to furnish false information for the purpose of securing the hospitalization or admission of any individual to any public facility for the mentally ill or mentally retarded."
TEXAS - yes
Sec. 574.032. Right to Jury.
a. A hearing for temporary mental health services must be before the court unless the proposed patient or the proposed patient's attorney requests a jury.
b. A hearing for extended mental health services must be before a jury unless the proposed patient or the proposed patient's attorney waives the right to a jury.
c. A waiver of the right to a jury must be in writing, under oath, and signed and sworn to by the proposed patient and the proposed patient's attorney unless the proposed patient or the attorney orally waives the right to a jury in the court's presence.
d. The court may permit an oral or written waiver of the right to a jury to be withdrawn for good cause shown. The withdrawal must be made not later than the eighth day before the date on which the hearing is scheduled.
e. A court may not require a jury fee.
f. In a hearing before a jury, the jury shall determine if the proposed patient is mentally ill and meets the criteria for court-ordered mental health services. The jury may not make a finding about the type of services to be provided to the proposed patient.
The Texas Legislature once attempted to eliminate the right to jury trial in civil psychiatric commitment and substitute a panel of 6 physicians, but in 1917 the Supreme Court of Texas held the Act unconstitutional under the state constitution. The Court said under the State's constitution, the defendant in involuntary mental commitment has a right to have the issue decided by a lay jury: White v. White, Southwestern Reporter, Vol. 196, page 508. The Supreme Court's ruling was based on the fact that there was a right to jury trial in involuntary commitment of persons of (allegedly) unsound mind at common law at the time of the adoption of the Texas Constitution.
Sec. 15. Right of trial by jury.
Sec. 15. The right of trial by jury shall remain inviolate. The Legislature shall pass such laws as may be needed to regulate the same, and to maintain its purity and efficiency. Provided, that the Legislature may provide for the temporary commitment, for observation and/or treatment, of mentally ill persons not charged with a criminal offense, for a period of time not to exceed ninety (90) days, by order of the County Court without the necessity of a trial by jury.
Amended Aug. 24, 1935.
Sec. 15-a. Commitment of persons of unsound mind.
Sec. 15-a. No person shall be committed as a person of unsound mind except on competent medical or psychiatric testimony. The Legislature may enact all laws necessary to provide for the trial, adjudication of insanity and commitment of persons of unsound mind and to provide for a method of appeal from judgments rendered in such cases. Such laws may provide for a waiver of trial by jury, in cases where the person under inquiry has not been charged with the commission of a criminal offense, by the concurrence of the person under inquiry, or his next of kin, and an attorney ad litem appointed by a judge of either the County or Probate Court of the county where the trial is being held, and shall provide for a method of service of notice of such trial upon the person under inquiry and of his right to demand a trial by jury.
Adopted Nov. 6, 1956.
See Chapter 574, Subchapter A of the Texas statutes for the involuntary commitment criteria and procedure.
DECLARATION FOR [OR AGAINST!] MENTAL HEALTH TREATMENT
Under Texas law, Sections 137.001 through 137.011, Civil Practice and Remedies Code, anyone who is not currently considered "incapacitated" may sign a "Declararion for [or Against!]Mental Health Treatment" indicating which "treatments" - psychoactive medications, electroconvulsive treatment, or physical restraints - you wish to concent to or refuse if you are later considered "incapacitated" by mental illness. The Declaration is valid for 3 years - unless you become "incapacitated" during the three years, in which case it remains valid until you are no longer "incapacitated." The Declaration does not limit the power of mental health providers or law enforcement officers to take the person making the Declaration into custody, or give you drugs or put you in physical restraints while you are under an involuntary commitment order or if you have not made them aware of the fact that you made out the "Declaration."  Nevertheless, everyone who wants to avoid psychiatry's harmful biological "therapies" and cruel use of physical restraints would be well advised to make out one of these "Declarations for Mental Health Treatment" stating that you do not want psychoactive medications or electroconvulsive "treatment" or physical restraints under any circumstances! Nothing in the law requires it, but you could also have a like-minded psychiatrist or psychologist attach a sworn statement attesting to your mental competence at the time of making the "Declaration."
UTAH - The statute makes no reference to jury trial, but the state constitution (below) by its terms allows a jury to be demanded in all civil cases.
62A-12-234. Involuntary commitment under court order -- Examination -- Hearing -- Power of court -- Findings required
(9) (a) Prior to the hearing, an opportunity to be represented by counsel shall be afforded to every proposed patient, and if neither the patient nor others provide counsel, the court shall appoint counsel and allow him sufficient time to consult with the patient prior to the hearing. In the case of an indigent patient, the payment of reasonable attorneys' fees for counsel, as determined by the court, shall be made by the county in which the patient resides or was found. (b) The proposed patient, the applicant, and all other persons to whom notice is required to be given shall be afforded an opportunity to appear at the hearing, to testify, and to present and cross-examine witnesses. The court may, in its discretion, receive the testimony of any other person. The court may allow a waiver of the patient's right to appear only for good cause shown, and that cause shall be made a matter of court record. (c) The court is authorized to exclude all persons not necessary for the conduct of the proceedings and may, upon motion of counsel, require the testimony of each examiner to be given out of the presence of any other examiners. (d) The hearing shall be conducted in as informal a manner as may be consistent with orderly procedure, and in a physical setting that is not likely to have a harmful effect on the mental health of the proposed patient. (e) The court shall receive all relevant and material evidence which is offered, subject to the rules of evidence. (f) A local mental health authority or its designee, or the physician in charge of the patient's care shall, at the time of the hearing, provide the court with the following information: (i) the detention order; (ii) admission notes; (iii) the diagnosis; (iv) any doctors' orders; (v) progress notes; (vi) nursing notes; and (vii) medication records pertaining to the current commitment. That information shall also be supplied to the patient's counsel at the time of the hearing, and at any time prior to the hearing upon request. (10) The court shall order commitment of an individual who is 18 years of age or older to a local mental health authority if, upon completion of the hearing and consideration of the record, the court finds by clear and convincing evidence that: (a) the proposed patient has a mental illness; (b) because of the proposed patient's mental illness he poses an immediate danger of physical injury to others or himself, which may include the inability to provide the basic necessities of life such as food, clothing, and shelter, if allowed to remain at liberty; (c) the patient lacks the ability to engage in a rational decision-making process regarding the acceptance of mental treatment as demonstrated by evidence of inability to weigh the possible costs and benefits of treatment; (d) there is no appropriate less-restrictive alternative to a court order of commitment; and (e) the local mental health authority can provide the individual with treatment that is adequate and appropriate to his conditions and needs. In the absence of the required findings of the court after the hearing, the court shall forthwith dismiss the proceedings. (11) (a) The order of commitment shall designate the period for which the individual shall be treated. When the individual is not under an order of commitment at the time of the hearing, that period may not exceed six months without benefit of a review hearing. Upon such a review hearing, to be commenced prior to the expiration of the previous order, an order for commitment may be for an indeterminate period, if the court finds by clear and convincing evidence that the required conditions in Subsection (10) will last for an indeterminate period.
Article I, Section 10. [Trial by jury.]
In capital cases the right of trial by jury shall remain inviolate. In capital cases the jury shall consist of twelve persons, and in all other felony cases, the jury shall consist of no fewer than eight persons. In other cases, the Legislature shall establish the number of jurors by statute, but in no event shall a jury consist of fewer than four persons. In criminal cases the verdict shall be unanimous. In civil cases three-fourths of the jurors may find a verdict. A jury in civil cases shall be waived unless demanded.
VERMONT - There is no mention of jury trial in the commitment statutes.
§ 7510. Preliminary hearing
(a) Within five days after a person is admitted to a designated hospital for emergency examination, he may request the district court to conduct a preliminary hearing to determine whether there is probable cause to believe that he was a person in need of treatment at the time of his admission.
(b) The court shall conduct the hearing within three working days of the filing of the request. The court shall cause timely notice of the preliminary hearing to be given to the patient or his attorney, the hospital and the attorney for the applicant.
(c) The individual has the right to be present and represented by legal counsel at the preliminary hearing.
(d) If probable cause to believe that the individual was a person in need of treatment at the time of his admission is established at the preliminary hearing, the individual shall be ordered held for further proceedings in accordance with the law. If probable cause is not established, the individual shall be ordered discharged from the hospital and the court shall order him returned to the place from which he was transported or to his home.
(e) Upon a showing of need the court may grant a reasonable continuance to either the patient's attorney or the attorney for the state. (Added 1977, No. 252 (Adj. Sess.), § 17.)
(a) Upon receipt of the application, the court shall set a date for the hearing to be held within ten days from the date of the receipt of the application or 20 days from the date of the receipt of the application if a psychiatric examination is ordered under section 7614 unless the hearing is continued by the court.
(b) The court may grant either party an extension of time of up to seven days for good cause.
(c) The hearing shall be conducted according to the rules of evidence applicable in civil actions in the district courts of the state, and to an extent not inconsistent with this Part, the rules of civil procedure of the state shall be applicable.
(d) The applicant and the proposed patient shall have a right to appear at the hearing to testify. The attorney for the state and the proposed patient shall have the right to subpoena, present and cross-examine witnesses, and present oral arguments. The court may, at its discretion, receive the testimony of any other person.
(e) The proposed patient may at his election attend the hearing, subject to reasonable rules of conduct, and the court may exclude all persons not necessary for the conduct of the hearing.
§ 7616. Appearance by state; burden of proof
(a) The state shall appear and be represented by the state's attorney for the county in which the hearing takes place or by the attorney general at his discretion.
(b) The state shall have the burden of proving its case by clear and convincing evidence.
(c) The attorney for the state shall have the authority to dismiss the application at any stage of the proceeding. (Added 1977, No. 252 (Adj. Sess.), § 23.)
§ 7617. Findings; order
(a) If the court finds that the proposed patient was not a person in need of treatment at the time of admission or application or is not a patient in need of further treatment at the time of the hearing, the court shall enter a finding to that effect and shall dismiss the application.
(b) If the proposed patient is found to have been a person in need of treatment at the time of admission or application and a patient in need of further treatment at the time of the hearing, the court may order the person:
(1) hospitalized in a designated hospital;
(2) hospitalized in any other public or private hospital if he and the hospital agree; or
(3) to undergo a program of treatment other than hospitalization. ...
Yet in 1829 in the case of Shumway vs. Shumway, the Supreme Court of the State of Vermont spoke in defense of the right to a jury in lunacy trials:It would be dangerous in the extreme to give courts of probate (which can have no jury) final jurisdiction of causes of such vast importance as it respects the liberty and happiness of our citizens. ... We find in England that when application is made to the chancellor for a commission of lunacy, and that accompanied by affidavit evincing the lunacy of the party, a commission is issued under the great seal, and the commissioners named. Upon notice to them they issue a warrant to the sheriff, directing him to summon a jury and witnesses to attend the trial; and the commissioners explain the business to them: the supposed lunatic to be notified and present if he choses, and if necessary, is examined, and the jury sign the inquisition. ... The right of trial by jury is too well secured to have any one arbitrarily deprived of a privilege so dear to every American citizen. Our independence cost too much to have our liberty and property wrested from us, and we put under guardianship without even the form of a trial. Should we sanction these proceedings, no one in the evening of life could dwell secure, but would tremble at the approach of any one that entered his door, lest he was then to be called to surrender all that would render life desirable. Decree reversed. [Reports Cases Argued and Determined in the Supreme Court of the State of Vermont, Vol. II (St. Albans: J. Spooner...Printer. 1830), pages 339-342, underline added]
Article 12. [Trial by jury to be held sacred]
That when any issue in fact, proper for the cognizance of a jury is joined in a court of law, the parties have a right to trial by jury, which ought to be held sacred.
§ 38. [Jury trials]
Trials of issues, proper for the cognizance of a Jury as established by law or by judicial rules adopted by the Supreme Court not inconsistent with law, in the Supreme Court, the Superior Court and other subordinate courts, shall be by Jury, except where parties otherwise agree; and great care ought to be taken to prevent corruption or partiality in the choice and return, or appointment of Juries.
VIRGINIA - yes
Sec. 37.1-67.3 Same; involuntary admission and treatment
The commitment hearing shall be held within forty-eight hours of the execution of the temporary detention order as provided for in Sec. 37.1-67.1; however, if the forty-eight-hour period herein specified terminates on a Saturday, Sunday, or legal holiday, such person may be detained, as herein provided, until the next day which is not a Saturday, Sunday, or legal holiday, but in no event may the person be detained for a period longer than seventy-two hours or ninety-six hours when such legal holiday occurs on a Monday or Friday. A Saturday, Sunday, or legal holiday shall be deemed to include the time period up to 8:00 a.m. of the next day which is not a Saturday, Sunday, or legal holiday. The judge, in commencing the commitment hearing, shall inform the person whose involuntary admission is being sought of his right to apply for voluntary admission and treatment as provided for in Sec. 37.1-65 and shall afford such person an opportunity for voluntary admission. The judge shall ascertain if such person is then willing and capable of seeking voluntary admission and treatment. If the person is capable and willingly accepts voluntary admission and treatment, the judge shall require him to accept voluntary admission for a minimum period of treatment and after such minimum period, not to exceed seventy-two hours, to give the hospital forty-eight hours' notice prior to leaving the hospital, during which notice period he shall not be discharged, unless sooner discharged pursuant to Sec. 37.1-98 or Sec. 37.1-99. Such person shall be subject to the transportation provisions as provided in Sec. 37.1-71 and the requirement for prescreening by a community services board or community mental health clinic as provided in Sec. 37.1-65. If a person is incapable of accepting or unwilling to accept voluntary admission and treatment, the judge shall inform such person of his right to a commitment hearing and right to counsel. The judge shall ascertain if a person whose admission is sought is represented by counsel, and if he is not represented by counsel, the judge shall appoint an attorney-at-law to represent him. However, if such person requests an opportunity to employ counsel, the court shall give him a reasonable opportunity to employ counsel at his own expense. A written explanation of the involuntary commitment process and the statutory protections associated with the process shall be given to the person and its contents explained by an attorney prior to the commitment hearing. The written explanation shall include, at a minimum, an explanation of the person's right to retain private counsel or be represented by a court-appointed attorney, to present any defenses including independent evaluation and expert testimony or the testimony of other witnesses, to be present during the hearing and testify, to appeal any certification for involuntary admission to the circuit court, and to have a jury trial on appeal. The judge shall ascertain whether the person whose admission is sought has been given the written explanation required herein. To the extent possible, during or before the commitment hearing, the attorney for the person whose admission is sought shall interview his client, the petitioner, the examiner described below, the community services board staff, and any other material witnesses. He shall also examine all relevant diagnostic and other reports, present evidence and witnesses, if any, on his client's behalf, and otherwise actively represent his client in the proceedings. The role of the attorney shall be to represent the wishes of his client, to the extent possible. The petitioner shall be given adequate notice of the place, date, and time of the commitment hearing. The petitioner shall be entitled to retain counsel at his own expense, to be present during the hearing, and to testify and present evidence. The petitioner shall be encouraged but shall not be required to testify at the hearing and the person whose admission is sought shall not be released solely on the basis of the petitioner's failure to attend or testify during the hearing. Notwithstanding the above, the judge shall require an examination of such person by a psychiatrist or a psychologist who is licensed in Virginia by either the Board of Medicine or the Board of Psychology who is qualified in the diagnosis of mental illness or, if such a psychiatrist or psychologist is not available, any mental health professional who is (i) licensed in Virginia through the Department of Health Professions and (ii) qualified in the diagnosis of mental illness.
Article I - Bill of Rights
Section 11. Due process of law; obligation of contracts; taking of private property; prohibited discrimination; jury trial in civil cases.
That no person shall be deprived of his life, liberty, or property without due process of law; that the General Assembly shall not pass any law impairing the obligation of contracts, nor any law whereby private property shall be taken or damaged for public uses, without just compensation, the term "public uses" to be defined by the General Assembly; and that the right to be free from any governmental discrimination upon the basis of religious conviction, race, color, sex, or national origin shall not be abridged, except that the mere separation of the sexes shall not be considered discrimination.
That in controversies respecting property, and in suits between man and man, trial by jury is preferable to any other, and ought to be held sacred. The General Assembly may limit the number of jurors for civil cases in courts of record to not less than five.
WASHINGTON - yes
71.05.240. Petition for involuntary treatment or alternative treatment - Probable cause hearing
The court shall specifically state to such person and give such person notice in writing that if involuntary treatment beyond the fourteen day period or beyond the ninety days of less restrictive treatment is to be sought, such person will have the right to a full hearing or jury trial as required by RCW 71.05.310.
WASHINGTON STATE CONSTITUTION
ARTICLE I, DECLARATION OF RIGHTS
SECTION 21 TRIAL BY JURY.
The right of trial by jury shall remain inviolate, but the legislature may provide for a jury of any number less than twelve in courts not of record, and for a verdict by nine or more jurors in civil cases in any court of record, and for waiving of the jury in civil cases where the consent of the parties interested is given thereto.
In 1945 in the case of In re Ellern, 160 P.2d 639, the Supreme Court of Washington said that a right to jury trial in civil commitment for mental illness is preserved by Section 21's provision that "The right of trial by jury shall remain inviolate..."
And in 1973 in Quesnell v. State, 517 Pacific Reporter, 2d Series, page 568, the Supreme Court of Washington, en banc, said the right to jury trial in civil commitment for mental illness is required by due process:
"With the advance of psychiatry... [there was] a growing awareness that such patients were often wrongfully incarcerated, [and] the 'railroading' techniques characteristic of earlier commitment proceedings came under legislative scrutiny and judicial review. ... The Washington statutory scheme for commitment of the mentally ill embraces certain basic elements of procedural due process of law. The defendant must be provided notice of the hearing, and advised of his rights to representation by counsel and trial by jury. ... First, the right to trial by jury in Washington mental illness proceedings is guaranteed by constitution (Wash.Const. art. 1 § 21) and statute (RCW 71.02.210). ... the jury plays an essential role in guarding against wrongful commitment. ... the right to trial by jury in civil commitment proceedings is clearly fundamental." (underline added)
WEST VIRGINIA - There is no mention of jury trial in the commitment statutes.
27-5-2. Institution of proceedings for involuntary custody for examination; custody; probable cause hearing; examination of individual.
(5) A probable cause hearing shall be held before a magistrate designated by the chief judge of the judicial circuit, the mental hygiene commissioner or circuit judge of the county of which the individual is a resident or where he or she was found. If requested by the individual or his or her counsel, the hearing may be postponed for a period not to exceed forty-eight hours. The individual must be present at the hearing and shall have the right to present evidence, confront all witnesses and other evidence against him or her and to examine testimony offered, including testimony by representatives of the community mental health center serving the area. The individual shall have the right to remain silent and to be proceeded against in accordance with the rules of evidence of the supreme court of appeals. At the conclusion of the hearing, the magistrate, mental hygiene commissioner or circuit court judge shall find and enter an order stating whether or not there is probable cause to believe that such individual, as a result of mental illness, mental retardation or addiction, is likely to cause serious harm to himself or herself or to others.
WEST VIRGINIA CONSTITUTION
3-10. Safeguards for life, liberty and property.
No person shall be deprived of life, liberty, or property, without due process of law, and the judgment of his peers.
Nevertheless, the Supreme Court of Appeals of West Virginia ruled that the West Virginia Constitution does not protect the right to a jury trial for people being involuntarily committed to mental hospitals: Markey v. Wachtel, 264 S.E.2d 437 (1979). In a dissenting opinion, Justice Harshbarger, with whom Justice McGraw joined, said:If our constitution's phrase, that no one shall be deprived of life, liberty, or property without due process of law and the judgment of his peers, has always been held not to mean what it says, I can think of no better time than now to overrule such precedents. To say, as we have in the first syllabus, that the phrase "cannot be interpreted to require a constitutional right to jury trial..." is really preposterous.
The majority opinion is a poignant example of courts sometimes resorting to not merely strained or twisted reasoning but being dishonest when necessary to avoid respecting the rights of people accused of so-called mental illness.
WISCONSIN - yes
51.20 Involuntary commitment for treatment.
(2) ... If the subject individual is to be detained, a law enforcement officer shall present the subject individual with a notice of hearing, a copy of the petition and detention order and a written statement of the individual's right to an attorney, a jury trial if requested more than 48 hours prior to the final hearing...
Article I, §5
Trial by jury; verdict in civil cases. Section 5. [As amended Nov. 1922] The right of trial by jury shall remain inviolate, and shall extend to all cases at law without regard to the amount in controversy; but a jury trial may be waived by the parties in all cases in the manner prescribed by law. Provided, however, that the legislature may, from time to time, by statute provide that a valid verdict, in civil cases, may be based on the votes of a specified number of the jury, not less than five-sixths thereof. [1919 J.R. 58; 1921 J.R. 17 A; 1921 c. 504; vote Nov. 1922]
WYOMING - yes
25-10-110. Involuntary hospitalization proceedings
(g) Within five (5) days of receipt of the notice of hearing, the proposed patient or his counsel may request a hearing before a jury.
Article I - Declaration of Rights
97-1-009. Trial by jury inviolate. The right of trial by jury shall remain inviolate in criminal cases. A jury in civil cases and in criminal cases where the charge is a misdemeanor may consist of less than twelve (12) persons but not less than six (6), as may be prescribed by law. A grand jury may consist of twelve (12) persons, any nine (9) of whom concurring may find an indictment. The legislature may change, regulate or abolish the grand jury system. Source: As amended by Laws 1980, Senate Joint Resolution No. 1, p.528
The Mental Health Act referrs to hearings by a Board established by the Health Care Consent Act and a right to appeal to the Ontario Court (General Division) from a decision of this Board, but it does not say whether there is a right to jury trial on appeal from a finding of this Board:
Ontario Mental Health Act
1. 1.(1) In this Act,
..."Board" means the Consent and Capacity Board continued under the Health Care Consent Act, 1996; ("Commission")
48.(1) Appeal to court
48. 48.(1) A party to a proceeding under this Act before the Board may appeal the Board's decision to the Ontario Court (General Division) on a question of law or fact or both. 1996, c. 2, s. 72 (28).
49. 49.(1) Psychosurgery shall not be administered to an involuntary patient, to a person who is incapable of giving or refusing consent to psychosurgery on his or her own behalf for the purposes of the Health Care Consent Act, 1996, or to a person who is remanded or detained in a psychiatric facility pursuant to the Criminal Code (Canada). 1992, c. 32, s. 20 (39); 1996, c. 2, s. 72 (30).
49.(2) Psychosurgery is any procedure that, by direct or indirect access to the brain, removes, destroys or interrupts the continuity of histologically normal brain tissue, or that inserts indwelling electrodes for pulsed electrical stimulation for the purpose of altering behaviour or treating psychiatric illness, but does not include neurological procedures used to diagnose or treat organic brain conditions, intractable physical pain or epilepsy, if these conditions are clearly demonstrable. 1992, c. 32, s. 20 (39).
53.(1) Documentation of use of restraint
53. 53.(1) The use of restraint on a patient shall be clearly documented in the patient's clinical record by the entry of a statement that the patient was restrained, a description of the means of restraint and a description of the behaviour of the patient that required that the patient be restrained or continue to be restrained.
53.(2) Where a chemical restraint is used, the entry shall include a statement of the chemical employed, the method of administration and the dosage. R.S.O. 1990, c. M.7, s. 53.