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
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.
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,
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