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In re Apprehension of David Lawaetz


March 2, 1984


Appeal From the United States District Court For the District of the Virgin Islands - St. Croix C.C. Civil No. 82-161

Author: Hunter

Before: HUNTER, WEIS, and ROSENN, Circuit Judges


HUNTER, Circuit Judge:

1. Appellant David Lawaetz ("Lawaetz") was declared mentally ill and committed to the custody of the Commissioner of Health of the Virgin Islands pursuant to an order of the District Court of the Virgin Islands. On appeal he challenges the facial validity and the actual application of the statute under which his status was adjudicated. Lawaetz also asserts an equal protection claim based on the apparent co-existence of two different statutory methods for determining mental illness and ordering commitment. Lawaetz argues that the standards under the statute applied in this case, 19 V.I.C. §§ 1131-1143 (1976) ("the old Act"), are less demanding than the substantive and procedural requirements of a more recent act dealing with the same subject matter. See Act of August 5, 1977, No. 4039, § 1, 1977 V.I. Sess. L. 218 (codified at 19 V.I.C. §§ 710-729 (Supp. 1982)) ("the new Act").

2. Upon reviewing the entire record of proceedings below, we can find no substantive or procedural violation of Lawaetz's constitutional right to due process of law. We need not decide whether the existence of two avenues for adjudicating mental illness violated the equal protection clause, because we hold that sections 710 through 729 of Title 19 repeal the conflicting provisions of the old Act. Accordingly, we will affirm the order of the district court.


3. These proceedings began when a judge of the Territorial Court of the Virgin Islands issued a warrant for the apprehension of Lawaetz. This was done at the request of the Attorney General of the Virgin Islands and Lawaetz's sister. See 19 V.I.C. § 1131(a) (1976). Lawaetz was thereafter certified to the custody of the Commissioner of Health pending commencement of further judicial proceedings. See id. § 1132(a). In accordance with normal practice, the Territorial Court transferred this case to the district court, after appointing an attorney to represent Lawaetz.

4. The district court ordered the temporary commitment of Lawaetz for fifteen days, see id., and subsequently extended that commitment for approximately thirty days. The court, sitting without a jury, held a plenary hearing on August 18, 1982. Lawaetz was not present at those proceedings. After hearing testimony presented by both parties, the court determined that Lawaetz suffered from a specific mental illness, that his mental illness created a danger of physical harm to himself and others, that his propensity for violence was greater when he was not under medication, and that no reasonable alternative to long-term institutional care existed. Accordingly, Lawaetz was adjudicated mentally ill and institutionalized.*fn1

5. Although represented by counsel throughout these proceedings, Lawaetz has not argued that the district court's commitment order should be reversed because the wrong statute was applied. Lawaetz never suggested, either below or on appeal, that the new Act had repealed the old. Thus, although such is our holding in Part II infra, we will not reverse on those grounds. Nor does Lawaetz claim that he was afforded fewer procedural or substantive rights than the old Act requires by its express terms. Rather, he attacks the statute under which the district court proceeded (the old Act), and the procedure by which he was committed, on constitutional grounds alone.

6. We first address Lawaetz's due process arguments. He contends that the old Act was unconstitutional on its face and that we must review his commitment without reference to the due process safeguards, both procedural and substantive, that were engrafted onto the statute by the district court.*fn2 We reject that contention. See Government of the Virgin Islands v. Wallace, 679 F.2d 1066, 1070 (3d Cir. 1982). Lawaetz concedes that the procedural and substantive safeguards recited by the procedural and substantive safeguards recited by the district court would, if actually observed, satisfy the requirements of due process. [Brief for Appellant at 14, 17]. Thus, we need only inquire whether the district court remained true to the course it laid out. See supra note 2. We find that it did.

7. Lawaetz's principal challenge to the commitment proceedings below is the district court's rejection of his motion to be present in the courtroom without medication. The court below correctly observed that the presence of the person alleged to be mentally ill is an important procedural safeguard. See supra note 2; compare 19 V.I.C. § 1133 (1976) (presence not required unless considered advisable by the court), with id. § 723(c) (Supp. 1982) (presence required unless the court believes it will be injurious to him). In this case, we cannot say that the exclusion of Lawaetz was error. The district court judge had observed Lawaetz's demeanor at the earlier guardianship proceedings. The court found on the record that Lawaetz had then been extremely disruptive, even though under medication. [App. at 82]. The court accepted the testimony of medical experts that Lawaetz's behavior would be even more disruptive if his medication were discontinued, as counsel requested in moving to permit Lawaetz's attendance. [App. at 82-83]. In addition, in order to protect Lawaetz's interests, and over the government's objection, the court permitted his guardian, also a witness, to remain present through every stage of the proceedings, [App. at 34-35]. On the facts of this case, we find no reversible error in the decision to deny Lawaetz the opportunity to attend the commitment proceedings without medication.

8. Lawaetz's remaining due process claims are without merit.*fn3 It may well be that the old Act lacked a clearly defined standard of mental illness or adequate criteria to inform the court's commitment decision. In this particular case, however, the court expressly found that Lawaetz suffered from chronic schizophrenia, a well-defined mental illness. The court further found that Lawaetz's condition had in the past caused Lawaetz to act in a way that posed a serious danger of physical injury to himself and others. It found that his condition would continue to pose a danger in the future and that no satisfactory alternative to institutional care existed for Lawaetz. [App. at 84-86]. The court required the government to prove its case by clear and convincing evidence. Reviewing the record, we find ample medical and first-hand factual testimony to suport the findings of the district court. Accordingly, we hold that the commitment proceedings below were consistent with the dictates of due process.


9.Lawaetz's equal protection argument is based on the assumption that the government was free to choose between the old Act and the more restrictive new Act in two proceedings involving similarly situated individuals. That simply was not the case. We hold that the new Act repeals and replaces the old Act in every instance where inconsistent procedures or substantive requirements are set forth.*fn4 Because the government was not, and is not, free to choose between inconsistent or conflicting statutory provisions in like situations, we hold that the mental health law of the Virgin Islands does not offend equal protection.

10. In 1977 the Virgin Islands legislature adopted the new Act, a comprehensive statute designed to deal with alcoholism, drug dependency and mental health problems. The new Act expressly provides: "Whenever any provision of this chapter conflicts or is inconsistent with any other provision of [the Virgin Islands] Code, the provision of this chapter shall govern to the extent of the conflict or inconsistency." 19 V.I.C. § 728(b) (Supp. 1982). The new Act covers each of the areas in which Lawaetz challenges the adequacy of the old Act. It provides for the temporary emergency commitment of a mentally disturbed individual who, unless so committed, is likely to harm himself or others. Id. § 722; see supra note 3. Section 723 of the new Act sets forth the requirements for the long-term involuntary commitment of the mentally disturbed. The new Act, unlike the old, defines the term "mentally disturbed person." Id. § 711(15).*fn5 It permits commitment only if a mentally disturbed person "has threatened, attempted, or inflicted physical harm on himself or another and . . . unless committed is likely to inflict physical harm on another," id. § 723(a), and the Division of Mental Health, Alcoholism and Drug Dependency Services "is able to provide adequate and appropriate treatment for him and the treatment is likely to be beneficial," id. § 723(d).

11. Section 723 also provides procedural safeguards for the individual. A hearing must be held within two days of the filing of a petition seeking involuntary commitment. The statute requires notice to a number of interested parties. Id. § 723(b). The court is directed to hear "all relevant testimony" at the commitment hearing, including the testimony of medical personnel. Id. § 723(c). The new Act establishes the individual's right to be present at his hearing "unless the court believes tht his presence is likely to be injurious to him," and directs the judge to examine the individual in open court where feasible. Id. The government must establish its case for involuntary commitment by clear and convincing evidence. Id. § 723(d). If a commitment order is entered for an indefinite length of time, "the person's commitment shall be subjected to close periodic judicial scrutiny designed to protect said person from prolonged and unnecessary commitment." Id. § 723(e).

12. This court will endeavor, wherever possible, to construe statutes consistently with each other in order to avoid the implied repeal of earlier legislation. United States v. Boffa, 688 F.2d 919, 932 (3d Cir. 1982), cert. denied, U.S. (1983). This case, however, presents a comprehensive legislative scheme that deals with precisely the same subject matter as the old Act. The new Act adds clarity and due process safeguards in an area where the courts of the Virgin Islands had recognized the deficiencies of the express provisions of the former legislation.*fn6 Section 728(b) states that the new Act shall replace all conflicting or inconsistent provisions of the Virgin Islands Code. We thus conclude that the Virgin Islands legislature intended the repeal of the old Act and its replacement with the new. See Boffa, 688 F.2d at 932 (implied repeal supported where new legislation occupies the entire field); In re Tinsley, 421 F. Supp. 1007, 1010 (M.D. Ga. 1976) (statute with general repealer), aff'd, 554 F.2d 1064 (5th Cir. 1977). Because it was not within the government's discretion to choose between the old and the new statutes, we must reject Lawaetz's equal protection challenge.


13. Accordingly, for the reasons set forth above, the order of the district court committing David Lawaetz to the custody of the Commissioner of Health, and the subsequent order of February 28, 1983 releasing Lawaetz from institutional care subject to a continuing obligation to seek treatment, will be affirmed.

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