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April 28, 1976

ULYSSES S. WATSON, M.D., Superintendent, Farview State Hospital, Waymart, Pennsylvania, Respondent

The opinion of the court was delivered by: HERMAN


 Before the court is a petition by a state prisoner for a writ of habeas corpus which challenges the constitutionality of Section 411 of the Pennsylvania Mental Health and Mental Retardation Act of 1966, 50 P.S. § 4411. *fn1"

  As the parties have stipulated the salient facts, no hearing has been conducted in this case. The facts are as follows.

 Petitioner is a citizen of the United States and of the Commonwealth of Pennsylvania. In 1962 he was sentenced to life imprisonment upon a finding of guilty of murder in the first degree. He was initially imprisoned at Graterford. In 1965 he was transferred to the State Correctional Institution at Pittsburgh. At his request, he was transferred to Farview State Hospital in 1967. In 1971 he was returned to Pittsburgh.

 While at Pittsburgh, the prison's deputy superintendent filed a petition for commitment of Souder. A hearing on the petition was held on April 27, 1972, pursuant to 50 P.S. § 4411 (hereafter "§ 411") in the Luzerne County Court of Common Pleas. COMMONWEALTH v. SOUDER, No. 1813, March Term, 1972. Petitioner received no personal notice regarding this hearing nor was he present at the hearing. His mother received notice of the hearing but she did not attend. Officials of the Western Penitentiary and the county public defender were notified of the hearing. After the hearing began, but before any testimony was presented, the public defender came into the courtroom and entered his appearance on Souder's behalf. No relative, guardian or friend of petitioner was consulted about the action to be taken prior to the filing of the commitment petition. Petitioner was not represented by counsel in any of the proceedings prior to the April 28th hearing.

 The psychiatrists and experts who evaluated petitioner were appointed by the court. They were also employed as consultants by the State Correctional Institution at Pittsburgh. No independent expert was appointed to assist petitioner at the commitment hearing.

 The psychiatrists who examined petitioner for the purpose of reporting to the court did not inform him of the purpose of the examinations or that he had a right not to speak with them or that anything he said could be used against him.

 At the hearing, the Commonwealth presented the testimony of a psychiatrist who was employed as an outside consultant by the prison. A written report of another psychiatrist -- not present at the hearing -- employed as a consultant by the prison was produced as were other written records submitted by the records officer of the prison. The public defender presented no testimony on Souder's behalf.

 At the conclusion of the testimony, which lasted twenty-seven minutes from the time the public defender entered the courtroom, the following ensued:


COUNSEL FOR THE PROSECUTION: "Your Honor, that concludes our case except that Dr. Herbert C. Thomas in accordance with his duties under the Act will file his report, but for some reason he could not be here and, in fact, they were about to ask for a postponement."


BY THE COURT: "We will consider Dr. Thomas' report, but in the meantime, we will sign the order granting the Petition and have the proper authorities arrange for the transfer of Kenneth Souder from the State Correctional Institution at Pittsburgh to the Farview State Hospital for inpatient care and treatment."

  Immediately after the hearing Souder was transferred to Farview and into the custody of Michael McGuire, M.D., Acting Superintendent of that institution.

 Petitioner filed a habeas corpus petition in the Supreme Court of Pennsylvania which was denied. On April 10, 1974, he filed a pro se petition for habeas relief with the District Court for the Middle District of Pennsylvania. The district court denied petitioner leave to proceed in forma pauperis pursuant to 28 U.S.C. § 1915(a). *fn2" On appeal, the order denying leave to proceed in forma pauperis was reversed and the case remanded. SOUDER v. McGUIRE, 516 F.2d 820 (3d Cir. 1975).

 On September 26, 1975, the Luzerne County Court of Common Pleas ordered Souder's release from Farview and he was transferred back to the State Correctional Institution at Pittsburgh. *fn3" At an unspecified time, the former respondent in this case, Michael McGuire, was succeeded by the present respondent, Ulysses Watson, M.D., Acting Superintendent of the Farview institution.

 By way of relief, petitioner asks that § 411 be declared unconstitutional on its face and as applied to him. Expungement from his files of all references to this commitment is also prayed for.

 The parties to this action agree, and the court concurs, that the three-judge court requirements dictated by 28 U.S.C. § 2281 are inapplicable to the present proceeding, as only declaratory relief is sought. REDFEARN v. DELAWARE REPUBLICAN STATE COMMITTEE, 502 F.2d 1123 (3d Cir. 1974); KENNEDY v. MENDOZA-MARTINEZ, 372 U.S. 144, 9 L Ed 2d 644, 83 S. Ct. 554 (1963). Further, § 2281 has no relation to habeas corpus proceedings. UNITED STATES ex rel. SHABAN v. ESSEN, 386 F. Supp. 1042 (E.D.N.Y. 1974), and cases cited therein.

 Before turning to the constitutional issues presented by this case, we first address respondent's assertion that petitioner has failed to exhaust available state remedies.

 It is beyond dispute that a state prisoner seeking federal habeas relief must normally exhaust available state remedies. PITCHESS v. DAVIS, 421 U.S. 482, 44 L. Ed. 2d 317, 95 S. Ct. 1748 (1975); PICARD v. CONNOR, 404 U.S. 270, 275, 30 L Ed 2d 438, 443, 92 S. Ct. 509 (1971). This principle is embodied within the applicable federal habeas corpus statute at 28 U.S.C.A. § 2254. A precise delineation of the exhaustion of state remedies doctrine has not and perhaps should not be drawn. However, in BRADEN v. 30th JUDICIAL CIRCUIT COURT OF KENTUCKY, 410 U.S. 484, 35 L Ed 2d 443, 93 S. Ct. 1123 (1973), the Court observed that:


"The exhaustion doctrine is a judicially crafted instrument which reflects a careful balance between important interests of federalism and the need to preserve the writ of habeas corpus as a 'swift and imperative remedy in all cases of illegal restraint or confinement.' SECRETARY OF STATE FOR HOME AFFAIRS v. O'BRIEN, (1923) A.C. 603, 609 (H.L.). It cannot be used as a blunderbuss to shatter the attempt at litigation of constitutional claims without regard to the purposes that underlie the doctrine and that call it into existence." 410 U.S., at 490, 35 L. Ed. 2d, at 449.

 Respondent asserts that Souder's petition to the Supreme Court of Pennsylvania did not fairly present the federal constitutional claims now raised in this court. Mindful of the liberal construction accorded pro se complaints, HAINES v. KERNER, 404 U.S. 519, 30 L Ed 2d 652, 92 S. Ct. 594 (1972), we have reviewed the petition submitted by Souder to the state courts and we conclude that it fairly presented the constitutional issues now pressed in this court. *fn4"

 Equally applicable to the fact situation before the court is the holding in FAY v. NOIA, 372 U.S. 391, 9 L Ed 2d 837, 83 S. Ct. 822 (1963) that the exhaustion requirement refers only to a failure to exhaust state remedies still open to the applicant at the time he files his habeas corpus application in the federal court. See also, HUMPHREY v. CADY, 405 U.S. 504, 31 L Ed 2d 394, 92 S. Ct. 1048 (1972). Petitioner contends, and respondent does not dispute, that there are presently no avenues of state relief available to petitioner since he is no longer committed at Farview. Nor is there any assertion here that petitioner has deliberately bypassed the orderly procedure of the state courts.

 We now turn to the scope of the dispute before us. Understandably, respondent concedes that petitioner's commitment was violative of § 411 and the United States Constitution in that he was not afforded notice of the hearing resulting in his commitment. Based on that concession, respondent maintains that this court need not and should not pass on the constitutionality of § 411 itself. Two grounds are advanced in support of the respondent's argument that the court should limit its consideration to the admittedly unconstitutional application of § 411 to Souder. One is abstention; the other the well-settled rule that federal courts should avoid constitutional issues not necessary to the decision of the case before them.

 We need not abstain in this case as there are no pending state actions questioning the constitutionality of § 411, see, DIXON v. ATTORNEY GENERAL OF THE COMMONWEALTH OF PENNSYLVANIA, 325 F. Supp. 966 (M.D. Pa.) (3-judge court), nor does it appear that petitioner could now institute a state court action challenging his commitment pursuant to § 411. A second consideration in deciding the propriety of abstention involves examination of the state statute under attack. "Though never interpreted by a state court, if a state statute is not fairly subject to an interpretation which will avoid or modify the federal constitutional question, it is the duty of a federal court to decide the federal question when presented with it." UNITED STATES v. LIVINGSTON, 179 F. Supp. 9, 12, 13 (E.D.S.C. 1959), aff'd, 364 U.S. 281, 4 L Ed 2d 1719, 80 S. Ct. 1611 (1960), quoted with approval in ZWICKER v. KOOTA, 389 U.S. 241, 250, 19 L Ed 2d 444, 451, 88 S. Ct. 391 (1967). Respondent urges that in construing § 411, which by its terms provides a kind of permissive due process, the court could construe the due process alternatives as mandatory rather than discretionary, thereby curing the facial unconstitutional infirmities of the statute. Although we recognize that statutes should be construed so as to uphold their constitutionality, we conclude that without substantially rewriting § 411, a constitutional construction of it is impossible. *fn5"

  As to the second ground advanced by respondent, we do not agree that the concession that § 411 as applied to petitioner was unconstitutional limits this court's inquiry to that issue alone. Surely the fact that Souder did not receive notice of his commitment hearing renders his commitment unconstitutional. But, acknowledgment of one infirmity in a proceeding where others might also be extant does not, in our view, necessarily restrict this court's examination to the issue selected and conceded by respondent.

 We do not view respondent's concession as rendering avoidable a decision on the integral constitutional issues pressed by the petitioner.

 We now proceed to the merits of petitioner's two-pronged challenge to the constitutionality of § 411. Having reached this juncture, there is no need for an extended discussion as we find that petitioner's commitment pursuant to § 411 was a denial of equal protection. Our conclusion is primarily premised on the holdings of BAXSTROM v. HEROLD, 383 U.S. 107, 15 L Ed 2d 620, 86 S. Ct. 760 (1966), and DIXON v. ATTORNEY GENERAL OF THE COMMONWEALTH OF PENNSYLVANIA, supra.

 In BAXSTROM, the Supreme Court struck down § 384 of New York's Correctional Law which set forth commitment procedures for prisoners whom the state desired to keep institutionalized upon the expiration of their prison sentences. Utilizing an equal protection analysis, the Court held § 384 unconstitutional in three respects: 1) because all persons other than those, like Baxstrom, nearing the expiration of a penal sentence are afforded a jury trial on the question of sanity, 2) because all persons other than those situated like Baxstrom are entitled to a judicial determination that they are dangerously mentally ill before being committed to a Department of Corrections institution, and 3) because the decision to commit persons like Baxstrom to a Department of Corrections hospital rather than a civil hospital was vested solely in the hands of administrative officials, whereas, all other civil commitments required a judicial determination of the propriety of commitment to a civil hospital rather than a Department of Corrections institution. In our judgment, BAXSTROM holds that a distinction in the procedures to be followed in determining an individual's mental health should not be predicated on whether the person is a prisoner or a civilian. As the Court stated, "There is no conceivable basis for distinguishing the commitment of a person who is nearing the end of a penal term from all other civil commitments." BAXSTROM, supra, at 111-12. An individual's criminal record could conceivably be relevant to the determination that he is mentally ill, but in making the determination itself procedural disparities denying safeguards to prisoners are not justified. See, HUMPHREY v. CADY, supra; UNITED STATES ex rel. SCHUSTER W. HEROLD, 410 F.2d 1071, 1081 (2d Cir. 1969), cert. denied, 396 U.S. 847, 24 L Ed 2d 96, 90 S. Ct. 81 (1969).

 The order entered in DIXON v. ATTORNEY GENERAL, supra, represents a consent agreement between the parties to that action. There the court found § 404 of the Pennsylvania Mental Health and Mental Retardation Act, 50 P.S. § 4404, violative of the plaintiff's due process rights. The plaintiff in DIXON had been committed pursuant to § 404 which sets forth a procedure to be used in involuntary civil commitments. The court had little trouble in finding § 404 to be almost devoid of the due process of law required by the fourteenth amendment. In the consent decree, the defendants in DIXON agreed to cease and desist from obtaining commitments under § 404. More significantly however, they also agreed to provide due process of law to persons facing involuntary civil commitments, to include, inter alia, a right to appointed counsel if the individual is unable to afford retained counsel; an independent expert examination, through court appointment if necessary; and a full hearing, including the right to present evidence on his behalf, subpoena witnesses and documents, and confront and cross-examine witnesses against him.

 The evident disparities between the existing procedures used to involuntarily commit civilians *fn6" vis a vis prisoners, considered in conjunction with the holding of BAXSTROM compels our conclusion that Souder was denied equal protection of the law.

 Equal protection does not require that all persons be dealt with identically. In this regard, we adopt the following language found in CHESNEY v. ADAMS, 377 F. Supp. 887, 893 (D. Conn. 1974), aff'd, 508 F.2d 836 (2d Cir. Conn. 1975):


"While prisoners and non-prisoners need not be treated identically, the procedural distinctions must have some relevance to the purpose for which the classification is made . . . . (citations omitted)" (Emphasis in original)

 We find no justification for the disparate procedures applicable to prisoners pursuant to § 411 as compared to those applicable to nonprisoners under 50 P.S. § 4406 and DIXON, supra.

 The question of whether § 411 is constitutionally deficient on due process grounds need not be reached in this case as our conclusion on the equal protection issue necessarily encompasses substantially the same due process procedural safeguards dictated by § 4406 and DIXON, supra.

 As discussed above, we find that Souder's commitment pursuant to § 411 violated his right to equal protection of the law. An appropriate judgment declaring § 411 unconstitutional will be entered.

 Another aspect of the relief sought by Souder is the expungement of all hospital and other records compiled during the period of his commitment at Farview. Petitioner's demand has been tempered somewhat by his recognition that portions of those records may be relevant to a pending civil rights action filed by Souder. *fn7"

  The respondent vigorously opposes expungement because 1) the hospital records accumulated during Souder's three-year stay at Farview may be necessary for future treatment of petitioner should he be legally committed or voluntarily seek treatment, and 2) there is no injury to Souder by the continued maintenance of his hospital records, especially in light of 50 P.S. § 4602, *fn8" which limits the availability of such records. The propriety of expungement is further complicated by the recent decision in WOLFE v. BEAL, 353 A.2d 481 (1976), holding that the destruction of statutorily mandated state mental hospital records of a citizen unconstitutionally committed is not within the court's authority.

 We hesitate to reach this question without availing counsel of the opportunity to more fully express their thoughts on the matter. Furthermore, assuming expungement is warranted, we are unaware of the contents of Souder's hospital records, and therefore we are in no position to frame an expungement order which would assure the availability of those records relevant to the pending civil suit. Accordingly, a decision on Souder's request for expungement will be held in abeyance pending further briefing and the arguments of counsel.

 R. Dixon Herman, United States District Judge

 Dated: April 28th, 1976. [EDITOR'S NOTE: The following court-provided text does not appear at this cite in 413 F. Supp.]


 AND NOW, this 28th day of April 1976, IT IS DECLARED that 50 P.S. § 4411 is unconstitutional both on its face and as applied to petitioner in that it deprived him of the equal protection of the law by not requiring adequate notice and a full judicial hearing on the petition for commitment as is required for non-prisoners.

 IT IS FURTHER ORDERED that a decision on petitioner's request for expungement will be held in abeyance pending further briefing and the arguments of counsel. A conference on this matter between counsel and the court will be scheduled.

 R. Dixon Herman, United States District Judge

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