VITEK v. JONES

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Argument of Melvin Kent Kammerlohr

Chief Justice Warren E. Burger: We will hear arguments next in Vitek v. Jones.

Mr. Kammerlohr I think you may proceed when you are ready.

Mr. Melvin Kent Kammerlohr: Thank you Your Honor.

Mr. Chief Justice and may it please the Court.

As the Court knows this case involves the broad question of the transfer of a penal complex inmate to a state mental hospital we are now and encompassed probably within that question is the constitutionality of Nebraska statute, which provides generally that upon a finding by physician or psychologist appointed by the Director of Corrections that an inmate has a mental defect or suffering from mental defect that he may and it also the opinion of this physician or psychologist that he cannot be properly treated in a penal institution which is in there, the director may transfer him to a state mental hospital.

It also provides and I think one of the things the lower court overlooked was that the transfer is for examination, study and treatment and the state mental hospital has the duty to send the inmate back when treatment is no longer necessary.

Unknown Speaker: May he be detained in the mental hospital beyond what would be the expiration of this term of imprisonment?

Mr. Melvin Kent Kammerlohr: No Your Honor.

Number one he may not be detained beyond what is necessary for treatment and number two, if two psychiatrists, when his prison term expires, if two psychiatrists find that he should be retained then they must file and see that he gets the same mental health commitment that the person is on the outside.

Chief Justice Warren E. Burger: A civil commitment?

Mr. Melvin Kent Kammerlohr: Civil commitment, yes Your Honor, the same one.

Unknown Speaker: I suppose though you can transfer a prisoner and keep him in the mental facility during his prison term for reasons and under the circumstances that you could not get him committed after the present term is over?

Mr. Melvin Kent Kammerlohr: No, Your Honor

Unknown Speaker: Do you mean if you could not commit a person out on the street you could not transfer one of these prisoners to the mental facility?

Mr. Melvin Kent Kammerlohr: I see what you mean.

I thought you meant after the term had expired Your Honor.

Unknown Speaker: During the prison term you can transfer him to the mental facility for reasons that would never justify putting him there after his term is over?

Mr. Melvin Kent Kammerlohr: Possibly.

It is strictly according to the statute on the opinion of the physician or a psychologist.

Unknown Speaker: Well, putting it the same way.

If he is in prison you may transfer him for reasons which perhaps if you never had gone to prison you could not initially commit him?

Mr. Melvin Kent Kammerlohr: Yes Your Honor.

Unknown Speaker: Is that right?

Mr. Melvin Kent Kammerlohr: For examination, study and treatment, but on the other hand the receivers at the same mental hospital must then are mere bound by statute to transfer him back if he should not have treatment.

Unknown Speaker: Yes, but that is just a question of treatment, is it not?

Mr. Melvin Kent Kammerlohr: Yes Your Honor.

Unknown Speaker: But he cannot go back if he wants too.

He can be detained there against his will if they think he needs treatment?

Mr. Melvin Kent Kammerlohr: That is correct Your Honor.

Unknown Speaker: That he is going to be detained somewhere against his will as long as he is serving a sentence?

Mr. Melvin Kent Kammerlohr: Yes, he going to be detained some place.

Chief Justice Warren E. Burger: Suppose he develops symptoms of acute appendicitis, what will they do with him?

Mr. Melvin Kent Kammerlohr: Any kind of physical Your Honor, they do the same thing, they either transfer --

Chief Justice Warren E. Burger: Any illness, they transfer him to a hospital?

Mr. Melvin Kent Kammerlohr: Any illness, they treat him if they can at the penal institution, if they cannot, they take them in the city of Lincoln in a private hospital usually and in this projected case for example the appellee Jones burned himself, lit a mattress while he is in solitary confinement, burned himself very badly and was taken in emergency to a private hospital, Saint Elizabeth Hospital in Lincoln and remained there in their burn unit, they have a special burning unit for five months with his condition of very bad burns.

Justice Byron R. White: Suppose a prisoner says I know this mental facility and you propose to give me shock treatments or something like that, well, I do not want those treatments and I do want to go back, I know you got to keep me somewhere, but I do not want to be over here and submit to the treatments.

I take it you say that although if you were not in prison, the state could not keep them.

Do you think you are entitled to keep him because he has been sentenced to a prison term?

Mr. Melvin Kent Kammerlohr: My argument runs this way that Your Honor those things should be properly attacked on a question of the conditions of confinement, the constitutionality of the conditions and that having a commitment procedure such as the lower court tried to design here is not even going to come closer reaching the problem because of the variety and availability and quality of the facilities all over the United States and they try to make one blanket gruel of commitment does not reach the problem, that those things ought to be looked into which they are all the time in 42 USA 1983 Civil Rights Cases.

Chief Justice Warren E. Burger: Now take the specific example.

What Mr. Justice White suggested to you, he does not want an insulin shock treatment which is prescribe by the psychiatrist.

What relief do you think you could have, habeas corpus?

Mr. Melvin Kent Kammerlohr: Yes Your Honor.

They could bring habeas corpus or civil right action on the conditions and test out whether that decision is proper.

These are medical decisions and I think one place people get, maybe we get off a little bit is presuming that the healthcare professionals are not going to act properly or that the penal officials are not going to act properly.

I do not think we can presume that in this type of case.

Unknown Speaker: You do not mean it could have habeas corpus, the purpose of that is to get release and you cannot be released?

Mr. Melvin Kent Kammerlohr: He can be released from the type of confinement that he was under confinement.

Unknown Speaker: Do you state habeas?

He can be released from a mental hospital and sent back to the prison, can he?

Mr. Melvin Kent Kammerlohr: I believe there would be an action maybe it would be mandamus or --

Chief Justice Warren E. Burger: Suppose he filed habeas and the court said, “Well, I am not going to release you, but on this showing I will restrain the particular condition of your treatment, namely the administration of insulin shock treatment until there is more evidence presented.”

Could you do that under your state procedure?

Mr. Melvin Kent Kammerlohr: I do not believe so Your Honor.

Chief Justice Warren E. Burger: How about federal habeas?

Mr. Melvin Kent Kammerlohr: I think in federal habeas or federal civil rights action that anything could be done.

We have, as this Court well knows, we have been involved in civil rights action on the constitutionality of the care and treatment in mental health facilities and mentally retarded facilities and the prisons.

Unfortunately, none of these cases have reached this Court yet, but the federal district courts are setting up all kinds of guidelines and rules that these facilities must follow and it seems to be that that would be if the Court said you can, you may or may not give insulin shock treatment unless you do those and so I think that could all be done under a proper ruling of the civil rights action.

If I backed up as the posture of this case, I filed a motion for summary judgment, this action was brought that the Nebraska statute for transfer was unconstitutional on this face and I filed a motion for summary judgment and which was overruled.

I think under of the court should have, there was no allegation that the state had not followed that statute and it seems to me that under Meachum v. Fano and Montanye v. Haymes, the question is does the transfer to a mental hospital comes within those two cases?

Does he have some right or some liberty interest which had not been extinguished at the trial?

The lower court did not directly face that issue.

The lower court said that the Nebraska statute gave him an expectation within the exception to Meachum and Montanye, but they did not say, they did not then refer to the method of the transfer.

They merely said this is an exception to Montanye and Meachum, and therefore, he is entitled to due process hearing.

We say the whole statute is what was conferred.

If you have to rely on state law what was conferred was that he maybe transferred or may not if you want to take the negative unless a physician finds that he should be and this law happened.

There is no allegation that this had not happen, so therefore, it is no longer exception to Meachum and we have to go back to Meachum and do we want extend Meachum that far.

Unknown Speaker: Do you think the state law means that his transfer is just conditional on the fact of a finding by a doctor rather on the truth of the fact?

Mr. Melvin Kent Kammerlohr: Yes, Your Honor.

Unknown Speaker: That does not follow an adversary proceeding of any kind, it is just a doctor who examined him and --

Mr. Melvin Kent Kammerlohr: That is correct Your Honor.

I think that everything that was conferred by statute has been followed so then on that the question is should Meachum include transfer to a mental hospital, the same that includes transfer to other type of penal facilities when this is within the contemplation of the sentence and it is certainly was within the contemplation of the sentence that a person may go to some kind of a hospital, all of our statutes are included of course and they are very broad to the Director of Corrections what he may do with various prison inmates?

Chief Justice Warren E. Burger: If a patient gets violent as some of the incorrigible ones do, they administer tranquilizer sometimes, if you know?

Mr. Melvin Kent Kammerlohr: I am sure they must.

They have prison physician.

This is another thing that is wrong.

It seems to me with attacking that is the problem on the transfer of due process proceeding is that it does not apply to treatment within the penal institutions.

It only applies to transfers to the state hospital.

Chief Justice Warren E. Burger: It does not apply if you are taking him downtown to have his appendicitis removed either you said?

Mr. Melvin Kent Kammerlohr: No, Your Honor nor to maybe some treatment for a venereal disease which also can do that thing.

Justice Thurgood Marshall: Mr. Kammerlohr the difference is that he is very glad to go to get the treatment and that is why they do not come up.

When a man got appendicitis, I cannot conceive of him complaining about being cured of appendicitis?

Mr. Melvin Kent Kammerlohr: I am not sure Your Honor, but if you had --

Justice Thurgood Marshall: If you say some people are crazy and then they get, what is it, they do not agree with you?

Mr. Melvin Kent Kammerlohr: That is true.

Justice Thurgood Marshall: I think that is the difference.

I do not think the other one for just ordinary medical treatment, I do not think the problem comes up?

Mr. Melvin Kent Kammerlohr: But I think that the interest we all have is, suppose it were a heart operation or a tumor operation for brain tumor, we are all interested in seeing and getting the best diagnosis.

I think even the inmate also knows do I really need this.

Justice Thurgood Marshall: That is the one.

He is going cooperative with that, but what would have happened if he did not?

Suppose he says I am probably lay in doubt --

Mr. Melvin Kent Kammerlohr: He is not going to cooperate with just having the operation.

He is going cooperate with having the diagnosis and I say that is what we are trying to do here.

We want to send them over for diagnosis.

If their diagnosis is not meet we will send them back.

It seems to me it is a medical problem and that this due process here is not going to gain anything when you have a prison guard or someone sitting as the hearing officer and we get involved in a adversary proceeding similar to trying to determine whether a criminal defendant knows right from wrong or not and the state gets their psychiatrist and the defendant gets his psychiatrist and they have a knock down drag out on the question of mentally ill or not, we are not going to gain anything and we have to go and plus the Court here said that he is entitled counsel so we have to get involved in that sort of thing and all the place and I say so if you get involved in that so rather than relying upon our doctors I do not think it is going to reach the problem and it does not reach it on in house treatment at all.

Some of these facilities have hospitals even and it does not apply to them.

Some of them have clinics and everything to handle mental patients.

Unknown Speaker: Mr. Attorney General is Jones still in Indiana?

Mr. Melvin Kent Kammerlohr: Pardon me Your Honor

Unknown Speaker: Is Mr. Jones still on Indiana?

Mr. Melvin Kent Kammerlohr: Yes and Mr. Jones is presently in Danville, Illinois Your Honor, Veterans Hospital.

Unknown Speaker: Is he getting involuntary medication there, do you know?

Mr. Melvin Kent Kammerlohr: Well, he agreed to go over there on his limited parole, so I assume that anything he gets there is voluntary.

However, on that particular part he has four or five years to run and I assume that he may violate or be sent back to Nebraska at anytime and we will be back to the same problem again.

Thank you Your Honor.

Unknown Speaker: Mr. Kammerlohr you did not mention the question of mootness.

Are you going to rely on your brief for that?

Mr. Melvin Kent Kammerlohr: Except that I was just referring with Mr. Justice Blackmun on that.

Unknown Speaker: Where he is now at Danville, Illinois?

Mr. Melvin Kent Kammerlohr: That he may come back.

He has four or five years left on his sentence and that this issue, after this particular appellee could arise at any time.

I think its different than the cases this Court has had on the question pre-parole hearing that sort of thing because once the parole is given that settles it for that issue and this parole here was actually very limited for the purpose of mental treatment which probably was instigated by what happened in this case.

Unknown Speaker: You would base through on the need of treatment rather than on the need to segregate that the rule did not come about because of any decision by the present administrators that once it has determined that a person is mentally ill that he may be disruptive or that he should be separated from the prison population, you want to transfer him for treatment, is that it?

Mr. Melvin Kent Kammerlohr: For diagnosis and treatment if necessary.

Unknown Speaker: But it is not on the notion that you want to segregate him?

Mr. Melvin Kent Kammerlohr: No Your Honor.

Unknown Speaker: So you are not relying on the fact that a mentally ill patient kept in a Penal Complex might be a burden on the other inmates at all?

Mr. Melvin Kent Kammerlohr: Yes, I am relying on that also Your Honor.

Unknown Speaker: Well, I thought you just (Voice Overlap)

Mr. Melvin Kent Kammerlohr: The penal did not want to segregate him and this is a thing.

If he is segregated in the field institution this lower court does not apply the requirement of a hearing and that is the one thing I am saying is wrong with that --

Unknown Speaker: It would not satisfy the prison authorities just to have him insulated or have him segregated from the other prisoners, you want to transfer him for treatment?

Mr. Melvin Kent Kammerlohr: Yes Your Honor, primarily.

In our particular instance because although at the time of this hearing there was psychiatrist and now there is no longer a psychiatrist even working in the prison.

Justice Thurgood Marshall: Mr. Attorney General, the prison has no jurisdiction over the hospital, but once he goes there, the prison has nothing to do with the prisoner, yes or no?

Chief Justice Warren E. Burger: Is it a state institution?

Mr. Melvin Kent Kammerlohr: It is a state institution.

The directors are appointed by the governor of both departments, the statute authorizes it and the statute also requires and send them back.

Justice Thurgood Marshall: If they are entitled to come back, I mean the prison does not describe what treatment he gets?

Mr. Melvin Kent Kammerlohr: No Your Honor.

Justice Thurgood Marshall: Then how why do they do it --

Unknown Speaker: Once they send him over there, unless the hospitals thinks he is ready to come back the prison authorities cannot demand that he come back?

Mr. Melvin Kent Kammerlohr: No, I do not believe they could Your Honor.

Although, the statute specifically leaves that in the custody of the prison authorities while he is there so possibly they could.

The statute does say that they remain legally in the custody of the prison authorities not the mental hospital.

Unknown Speaker: But the warden of the prison has not any power under the statute.

I understand that to say to the mental hospital, please send this man back even though you think he needs treatment?

I take it that is the decision of the mental hospital?

Mr. Melvin Kent Kammerlohr: Well, I would think so, it should be.

However, I do not how the statute if the prison authority said we are going to send you to a different mental hospital that they could not get him back.

Justice William H. Rehnquist: What do you do with the last sentence of the statute in appendix, page five of your jurisdictional statement.

It says a person who is so transferred shall remain subject to the jurisdiction and custody of the department of correctional services and shall be returned to the department when prior to the to expiration of his sentence, treatment, such facility is no longer necessary.

Do you say that the treatment is no longer necessary, decision is one that is made by the people in the transferee facility and the warden in the transferring facility must respect it?

Mr. Melvin Kent Kammerlohr: Yes, Your Honor.

Justice Thurgood Marshall: The mental institution did turn him lose on the pubic, is it not that true?

Mr. Melvin Kent Kammerlohr: That is right Your Honor.

Justice Thurgood Marshall: If they do not turn him lose, they turned him back to the prison?

Mr. Melvin Kent Kammerlohr: That is right Your Honor.

That is what I understand and also we have another statute section 83-109, which requires, I should have included in here, but it is already in here, but it also required on the last statute that a personnel of public institutions in any case relating to civilians or anybody else when the superintendent of any facility leaves someone as improperly in that facility, he has a duty immediately to notify the director of the department and have him transferred to a proper facility or discharged and so the recipients here do have statutory requirements as far as not holding someone as in these horrible cases used to come up and some of them languishes for years in some places, it should not be, this is not a problem anymore, it should not be.

And if it is it should come under a civil rights case, where that can all be looked into it that these facts were not even brought out particularly in this case.

At least I claim, they should not have been brought out under the most for summary judgment.

Thank you Your Honors.

Unknown Speaker: Mr. Kammerlohr you and your colleague Mr. Wurtz both apparently agree that the case is not moot as I read your non printed briefs.

How did the question of mootness get into this case?

Did the court asked --

Mr. Melvin Kent Kammerlohr: Someone from the court asked us to prepare our type written brief on mootness.

Chief Justice Warren E. Burger: Mr. Wurtz?

Argument of Thomas A. Wurtz

Mr. Thomas A. Wurtz: Mr. Chief Justice, Your Honors and may it please the Court.

I will address my argument first of all to the issue of mootness.

I last spoke with Larry Jones approximately three and half to four weeks ago.

He indicated to me that time that he was still incarcerated at the Danville, Illinois Veterans Hospital.

He is in a locked security ward.

I posed to him the question as to whether or not he is receiving medication, whether or not this is voluntary or involuntary.

He indicated that he was taking the medication that was prescribed for him voluntarily.

Chief Justice Warren E. Burger: Do you suggest that the state of Nebraska has any responsibility for either his custody or his treatment at the present time?

Mr. Thomas A. Wurtz: Yes Your Honor.

I think because of the very limited nature of the parole that was given to Mr. Jones.

He was not given a parole in which he could go out and live in society or he could not seek a job.

He was told to go strictly to the mental hospital and to abide by that.

Chief Justice Warren E. Burger: That was a condition of his parole.

Mr. Thomas A. Wurtz: Condition of his parole, but if he should choose to violate that, he would be back in the state of Nebraska.

Chief Justice Warren E. Burger: If he escaped from the Veterans Hospital in Illinois he would be in violation of the conditions of parole and would be a fugitive, would he not?

Mr. Thomas A. Wurtz: That is correct Your Honor, but also if he were to probably not take his medication, I would suggest that he would probably come back to the state of Nebraska also.

Chief Justice Warren E. Burger: Is there any reason to believe that the Veterans administration has some bias against him or is treating him improperly in any way?

Mr. Thomas A. Wurtz: I have no knowledge of that.

It does not appear on the record.

Of course, he was transferred there after the hearing was concluded, but I have knowledge of that.

That is not one of our contentions.

Justice William H. Rehnquist: You suggested a moment ago that if he did not take his medication, he would soon be back in Nebraska?

Is that on the thought the Veterans Hospitals would refuse to have any more to do with him?

Mr. Thomas A. Wurtz: Somewhat Your Honor.

I think inherent in being treated by a psychiatrist, many psychiatrists feel that you have to agree with their diagnosis and go along with their prescription or they cannot do anything with you.

I think if you would not want to take his medication the psychiatrist there on that wing of Veterans Hospital would probably send him back

Justice William H. Rehnquist: That is true with lots of other complaints besides psychiatric ones as I understand.

If you have a back problem or liver problem and any number of things that happen to people twice your age, you can find out that the doctors says either do this, follow my advice have an operation or do not have an operation or I just cannot go on treating.

It is not limited to psychiatric care?

Mr. Thomas A. Wurtz: I would suggest Your Honor that one has an inherent right to refuse medical treatment whether he would be a civilian walking around the street or whether he would be in prison.

It is different when you are talking about refusing medication because once you give the state the power to transfer someone from a Penal Complex to a mental institution as we see in a record here you give the psychiatrist the power to place that person on medication, which they cannot refuse to take.

Justice William H. Rehnquist: What if it was LSD in the experimental phases that one reads about in the newspapers experimental drugs, are you suggesting that that is permissible, but something other than medication is not?

Mr. Thomas A. Wurtz: Who would be administering this experimental drug?

Justice William H. Rehnquist: The doctors?

Mr. Thomas A. Wurtz: I would say that the patient will have the right not to take it.

Justice Thurgood Marshall: You got appendicitis and they take you to a city hospital you could object to that?

Mr. Thomas A. Wurtz: Most people would not, but I think they would have the right to.

Justice Thurgood Marshall: You said you usually have the right to commit suicide.

Chief Justice Warren E. Burger: You are going to have a hearing to see whether he should have his appendix removed?

Mr. Thomas A. Wurtz: We do not need a hearing for that because I think there is a right --

Chief Justice Warren E. Burger: What if he says he is a Christian scientist and will not submit to any surgery?

Mr. Thomas A. Wurtz: I think he should have that right not to submit to the surgery and his incarceration should not make any difference.

Unknown Speaker: Because that issue is the right to transfer at all in this case?

Are we to judge this case on the assumption that this state had the power to transfer him if they went through the right procedures?

Mr. Thomas A. Wurtz: That is what the state is contending.

Unknown Speaker: How about your position?

Mr. Thomas A. Wurtz: My position is that the court was correct, the lower court in finding that statute 83-180 unconstitutional.

Unknown Speaker: That is not what I asked you.

Let us just suppose the state now gives up all the procedures that the lower court afforded.

Is the procedural due process issue is the only one that is here?

Mr. Thomas A. Wurtz: Yes Your Honor.

Unknown Speaker: So we judge it on the assumption that as long as due process was satisfied the state had the right to transfer him, so that we have not got the issue in the case that you were just talking about, the right to refuse treatment?

Mr. Thomas A. Wurtz: That is correct Your Honor.

I would feel that if Larry Jones would been give any hearing and would been able to a come forward with psychiatric testimony of his own at a hearing to show the state of Nebraska that he does not feel that he was in need of psychiatric care and there was a hearing and he could present evidences to that, he could have attorney and there was a finding by an independent decision maker that he was mentally ill, I think then the state should be able to transfer him to the Lincoln Regional Center for limited duration, for the confinement during the period for which he was incarcerated, in this case three to nine years.

Unknown Speaker: That is just for the purposes of treatment?

Mr. Thomas A. Wurtz: Just for the purposes of treatment.

He is confined though when is treated.

Justice Thurgood Marshall: Suppose he becomes violent, suppose he starts beating up everyone, are you going to have a hearing?

Mr. Thomas A. Wurtz: Beating up everyone where Your Honor?

Justice Thurgood Marshall: Inside the of the prison, the man is just raving insane and he says all of you blank, the blank, need to die and then he starts to banging on them, does he have to have a hearing?

Mr. Thomas A. Wurtz: Yes Your Honor.

It is kind of what happened.

Justice Thurgood Marshall: Then who is going to come in at a hearing, if he is banging on everybody, who is going to volunteer to the hearing, would you?

Mr. Thomas A. Wurtz: Would I represent him?

Justice Thurgood Marshall: Would you volunteer a hearing?

He had beaten up everybody he laid eyes on, would you give him a hearing?

Mr. Thomas A. Wurtz: Yes Your Honor, I would.

As the fact of matter it would probably be a short hearing and maybe (Voice Overlap) may speak itself when he is right there, but I still think that the transfer to the psychiatric hospital is so important.

Chief Justice Warren E. Burger: Let us back up on what brought that on. Here is a man who in fact set fire to himself with burns so severe that he was five months in the hospital being treated for burns.

Is it unreasonable to draw an inference that there is possibly some mental and emotional instability in that man that needs treatment?

Mr. Thomas A. Wurtz: It is not unreasonable Your Honor to draw that inference.

Chief Justice Warren E. Burger: It is not a prima facie case that he needs mental treatment?

Mr. Thomas A. Wurtz: It was a prima facie case because there was no one to make the case too is my point.

Chief Justice Warren E. Burger: Well, how about the fire?

Mr. Thomas A. Wurtz: The testimony of Larry Jones was that he set his mattress on fire so that he may be moved up to the prison hospital, the hospital within the prison itself.

I do not think there was really, although the state contended that he committed suicide, he is till to this day contends that he did not try and commit suicide and I think perhaps that there is a reasonable inference you can draw from what happened.

Perhaps he did try and commit himself, but I as an attorney I am bound to still believe the words of my client.

He tells me he did not commit suicide and his story on the record why he burned up the mattress stands.

Justice William H. Rehnquist: But your case really depends on our assumption that exactly the same treatment could have been given to him in the facility where he was as would be given to him in the facility to which he was transferred, does he not?

Mr. Thomas A. Wurtz: No, it is not based on that assumption.

I think the court below took note of that.

I think the statue 83-180 states that we really want to transfer someone to Lincoln Regional Center unless conditioned upon a finding that we cannot treat them here at the Penal Complex.

And one of the big differences I think between the Penal Complex Hospital itself and the Lincoln Regional Center, the state mental hospital is that in Penal Complex Hospitals itself a prisoner can walk down there voluntarily but he does not have to take medication, the doctor can prescribe him, but he can refuse to take it.

Someone that have serious cases like for example Justice Marshall mentioned a man that is banging on everyone, a person like that he would have to be transferred to the Regional Center because they would not forcibly give him medication in the Penal Complex.

Justice William H. Rehnquist: Do you think the statue was intended to confer a right on the prisoner that certain findings be made or that certain fact situations exist before he was transferred?

Mr. Thomas A. Wurtz: Yes, Your Honor I think the lower court noted that.

I think that that is what is included in state law that he is not going to be transferred absent that finding that he cannot be treated at the Penal Complex adequately.

Justice William H. Rehnquist: You think that was intended to confer a right on him?

Mr. Thomas A. Wurtz: There did not seem to be that I found there was no legislative history that I could infer one way or the other from that, but I would argue that.

Chief Justice Warren E. Burger: What if they had a wing at the hospital or let us say the top three floors of the hospital of the penal institution was a hospital for a emotionally and mentally disturbed prisoners, now they move in from the second floor to the top floor, you say they are going to have a hearing to that.

On the top floor I assuming the psychiatrists are in charge and the function and activity there is the same as in the state mental institution, you have to have a hearing to move him from the second floor to the sixth floor?

Mr. Thomas A. Wurtz: It would depend upon what they are doing to those people on sixth floor.

Chief Justice Warren E. Burger: They are doing the same thing they are doing here.

Mr. Thomas A. Wurtz: I would argue that if they forcing someone to take medication against his will, placing him on a behavior modification program, giving him a chemotherapy in which he has no say on it whatsoever I think that he ought to be afforded a hearing.

It really does not make any difference whether you put hospital eight floors up or you put it two miles away as it is in the state of Nebraska.

It is the nature of what they do to people, the prisoner when he is transferred.

Justice Thurgood Marshall: When he went to that burn hospital did he not get some treatment?

Mr. Thomas A. Wurtz: He did not receive any psychiatric treatment.

Justice Thurgood Marshall: He did not receive the treatment?

Mr. Thomas A. Wurtz: He received treatment just for as burns.

Justice Thurgood Marshall: He sort of enjoyed it did he not?

He did not complain, did he?

Mr. Thomas A. Wurtz: Of his burns?

Justice Thurgood Marshall: About the treatment?

Mr. Thomas A. Wurtz: No, sir.

Justice Thurgood Marshall: He did not have any hearing either, did he?

Mr. Thomas A. Wurtz: He did not have any hearing.

He requested the medical treatment.

He had no problem with the medical treatment.

He wanted the medical treatment.

Justice Thurgood Marshall: So it is up to him as whether he wants a hearing for a medical treatment?

Mr. Thomas A. Wurtz: Well, he did not request one so we might say that.

Justice Thurgood Marshall: So this is where we end up.

I understand with attorney general that they just wanted him to go to the hospital to be examined and if he was found not in need of treatment he would be returned to where he wanted to be, is that correct?

Mr. Thomas A. Wurtz: That is not pause as I understand and I do not think there is much evidence on the record.

Unknown Speaker: Is that what the statute provides?

Mr. Thomas A. Wurtz: The statue provides that.

They say we send you their evaluation treatment, but in essence all psychiatric care is evaluation of treatment.

If someone is sent to the regional center and the record is clear on this point what happened to Larry Jones, he was sent over there and the minute he was there he was placed on thorazine and he refused Thorazine so what they did they strapped him down and they injected the Thorazine into his body.

He was in a different place at that time for sure.

He did not really have any choice what was going to happen to him.

Justice William H. Rehnquist: Then that has nothing to do with his having been transferred, it looks, does it not, as you have said they could have done it eight floors up in the same building?

Mr. Thomas A. Wurtz: It has everything to do with why he was transferred that is why I think we need a hearing when you transfer someone.

Unknown Speaker: There is a lot of confusion here I think as to what the issue is what and perhaps that we would be clarified if you could say what would be the issues at the hearing?

Mr. Thomas A. Wurtz: The issues at the hearing would be whether or not the patient or the inmate was mentally ill and a danger to himself or others.

Chief Justice Warren E. Burger: You can hold that hearing before you have had a diagnosis?

Mr. Thomas A. Wurtz: It is contemplated Your Honor that there will be other diagnosis given at the hearing.

Chief Justice Warren E. Burger: That is what he is being sent for to the hospital and they cannot give a diagnosis in one day or two days?

Mr. Thomas A. Wurtz: What I am saying is that the record shows that the state says we sent Larry Jones over there for evaluation, but what happened the first day he had got there they strapped him down and injected him with thorazine.

Now, that is not --

Unknown Speaker: The issue is then you say would be whether or not he is not mentally and if so if he is a danger to himself and others.

Then if the finding after a full due process hearing with counsel is that yes he is mentally ill and yes he is a danger to himself and others, upon that finding do you then concede that he could be transferred against his will to a mental hospital for involuntary treatment?

Mr. Thomas A. Wurtz: Yes Your Honor just the same if he was to be civilly committed.

Unknown Speaker: You do, well I think that clarifies.

This is why I thought it was.

Unknown Speaker: The statute does not require any finding that is a danger to himself and others?

Mr. Thomas A. Wurtz: It certainly does not.

Unknown Speaker: I know, but why do you put that in.

I thought you had said a moment ago that this issue was, we really were not dealing with that issue that we just assume that if the procedure is right he could be transferred regardless of what the subsequent findings are?

Mr. Thomas A. Wurtz: Well, Your Honor if we have a hearing I think we have to establish some type of burden of proof.

The lower court found that the statute unconstitutional and said it mandated a hearing and it said it would leave it up to the legislature.

Unknown Speaker: The Court of Appeals did not say you had to find that he was a danger to himself or other?

Mr. Thomas A. Wurtz: That is correct.

I am inferring that would the burden of proof to civilly commit one in the state of Nebraska as established by Drimus (ph) v. Ferrell and the scheme of the mental health commitment statutes.

Justice William H. Rehnquist: But the District Court went I thought on quite a different theory than you answer to the question of my brother Stewart.

It did not talk about the right to refuse involuntary treatment.

It went on Meachum v. Fano, Montanye analysis of a right of someone who already committed to have some sort of hearing before he was transferred to another kind of institution.

Mr. Thomas A. Wurtz: I think the lower court made it clear though to state in its findings that this was in essence a transfer from a prison to a mental hospital and did say that it was therefore different, but it went ahead to find exception noted to Meachum.

Justice William H. Rehnquist: But it rested its judgment I thought on the fact that state law conferred this right on it and my brother Stewart’s question was surely even though a state law did not confer right upon you to be free from involuntary brain surgery, you might well have a due process right, but it would not be a Meachum v. Fano type analysis.

Unknown Speaker: That makes it a different issue, a different case if that is what the issue is, but as I understand it now that is not your contention.

As I understand it now it would have been a irrelevant plain in this due process hearing or is represented by counsel for him to say I am Christian Scientist and I do not believe in any kind of administration of drugs into my body, correct?

Do I understand that correctly?

Mr. Thomas A. Wurtz: I am not sure of answer that question.

Unknown Speaker: because that is what the issue is here?

You answered the question a while ago and said the issue was not here.

That issue was not here at all.

Mr. Thomas A. Wurtz: Perhaps I will stick with that.

Justice Thurgood Marshall: What would you do with the institution in the State not too far from here in New York that has one prison that is in two parts.

One part is criminally insane and the other part is criminal and they move across the same building, you are supposed to have a hearing for that?

Mr. Thomas A. Wurtz: Again Your Honor, it would depend upon the difference in the scope of the treatment that would be given to the individuals.

Justice Thurgood Marshall: It would be different treatment, one is medical and one is not.

Mr. Thomas A. Wurtz: I would argue that we would have to have a hearing to send someone to institution for the criminally insane.

Justice Thurgood Marshall: Supposedly, criminal hospital and there are many institutions that very good hospitals, many criminal institutions and the man goes there and he said with this type of disease you have I might give you this drug and you say I will not take it then you have a hearing?

Mr. Thomas A. Wurtz: Is this a psychiatric drug?

Justice Thurgood Marshall: No sir it is a drug and I do not need anything to be added to it.

It is a drug that I do not want.

The prisoner does not want, aspirin, anything, does he have to have a hearing?

Mr. Thomas A. Wurtz: Aspirin, I would say no Thorazine I would say yes.

Justice Thurgood Marshall: Why?

What is the difference between the two, it is the mans individual right your talking about?

Mr. Thomas A. Wurtz: Because a man that is on aspirin for two years will not have anything wrong with them after two years and we do not know the state of psychiatry is in infant stage.

Justice Thurgood Marshall: Well then the man does not have an absolute right to decide whether he will take a certain treatment or not, you shift him again?

Mr. Thomas A. Wurtz: Perhaps shifting for aspirin, but not shifting for an operation.

Justice Thurgood Marshall: I thought you said certain kind of drug.

I just want to know what does right that this man has that he has to have a hearing for?

Mr. Thomas A. Wurtz: It is not right to have to keep --

Justice Thurgood Marshall: I do not know, I am not a physician, but I would take any drug in the world if you can find two doctors one will say is right and the other one says wrong.

Who decides that?

Mr. Thomas A. Wurtz: I think we should have a hearing first of all for psychiatric people, if there is psychiatric problem to determine whether or not this person is medically competent to make that decision?

Justice Thurgood Marshall: Well do you not agree that before the hearing he should be examined?

Mr. Thomas A. Wurtz: Yes, I think that is done.

Justice Thurgood Marshall: That is what we have done here.

Mr. Thomas A. Wurtz: And it is not pursuant to 80-179.

Justice Thurgood Marshall: Was he not to go for examination and he said that they gave him a drug?

Mr. Thomas A. Wurtz: He was given a 30 day initial examination in pursuant 80-179 when he initially went into the Nebraska Penal Correctional Complex and then he was transferred with no due process guarantees to the Regional Center and then administered the drug.

Justice Thurgood Marshall: How could he be examined except to be transferred?

Mr. Thomas A. Wurtz: Well, the statute 80-179 --

Justice Thurgood Marshall: Are there any facilities in the prison involved for getting the psychiatric examination?

Mr. Thomas A. Wurtz: Yes, Your Honor.

There is a psychiatrist.

Justice Thurgood Marshall: My question was to make a thorough psychiatric examination?

Mr. Thomas A. Wurtz: The statutes contend that if they want to do that --

Justice Thurgood Marshall: If you find a prison with one of those you will let me know will you, none of them have that.

That is why they are sent to these institutions, is it not that right?

Mr. Thomas A. Wurtz: I do not why they send them to an institution?

Justice Thurgood Marshall: Why are you objecting if you do not know what you are objecting to?

Mr. Thomas A. Wurtz: I am objecting to the fact that he was not given a hearing before he was sent over there.

Justice Thurgood Marshall: That is all.

Chief Justice Warren E. Burger: What are they going to hear at this hearing, if no psychiatrist has been able to give him a 30 or 60 day examination?

Do you think any psychiatrist is going to make an evaluation on just walking him into a hearing room and giving a judgment or is he going to say he wants at least a 30 day or perhaps more?

Mr. Thomas A. Wurtz: I would hope Your Honor he would have a 30 day and perhaps more.

Chief Justice Warren E. Burger: But was not that what the state of Nebraska did to him here, send him to a place where he could get an adequate examination?

Mr. Thomas A. Wurtz: No, they did not Your Honor.

They send him over there and they did not give him any examination at all.

They strapped them down and gave him medication.

I think when the lower court indicated that they wanted a hearing, I think that the hearing they were indicating that in that hearing there will be separate testimony from different psychiatrists and it would be hope that the patient involved would be able to have independent psychiatric testimony of his own, that he could offer at that hearing.

I think the important thing to realize and why this case is different from Meachum v. Fano is the fact that it is a transfer from a prison to a mental hospital and I think lower courts and other courts have taken note to the fact that there is a stigma that does attach to people when they are transferred and placed in psychiatric care which is not the same type of stigma or the one we would receive if he were to be given just a medical care.

Justice William H. Rehnquist: What if you are transferred for treatment for alcoholism?

Mr. Thomas A. Wurtz: That is a very difficult question Your Honor because it is kind of right in between on that line.

I am sure many psychiatrist would feel that that is a psychiatric problem in it of itself why that person is an alcoholic, but on the other hand because of the dangerous things and the bad things that it does to your liver is a physical problem.

I would think that alcoholism, probably it would depend upon the type of medication that psychiatrist or doctor would want to prescribe for the person that is an alcoholic.

Chief Justice Warren E. Burger: Do you think that is worst stigma than being in prison than having gone through the process of setting himself on fire?

Do you think there is some stigma that is gong to be worse than that?

Mr. Thomas A. Wurtz: I think that sigma at the present time, it probably is not there.

I think the scars that he may have, the physical scars are probably worse than any stigma that he will see later on in his life.

Unknown Speaker: You do not feel that we are getting away in maturing in our concepts of psychiatric treatment as contrasted to 20 years ago?

Mr. Thomas A. Wurtz: I think we are getting away, Your Honor?

Unknown Speaker: Getting away from the old stigmatizing approach, do you still think there is a stigma to be subjected to psychiatric treatment?

Mr. Thomas A. Wurtz: I believe so Your Honor and one of the first cases I ever took as an attorney involved, it was a question of custody and a divorce as to whether or not who will have the custody of the children.

The husband or the wife and the husband was one time an ex-felon and he had a little girl and it was brought up at the time of the hearing that the other attorney that in effect this was a very sick person and that this sort of thing might reoccur again because while he was sick once and that seemed to give judge at the time kind of any rebuttable presumption that he might be sick again.

Unknown Speaker: Do you think that if someone undergoes psychoanalysis that he is stigmatized?

Mr. Thomas A. Wurtz: It would probably less though if he went to have that done voluntarily.

Unknown Speaker: Be careful how you answer that?

Mr. Thomas A. Wurtz: I think if one goes voluntarily.

I think you waive any stigma that might attach you so, but if you are sent over there and told you will be confined over there with sick people, psychiatric people, I think that might stay with you particularly if you did not want to go.

Certainly, Larry Jones is going to remember being strapped down and injected with thorazine.

In re Bailey case cited in my brief detailed the number of restrictions or stigmatizing things will follow.

Unknown Speaker: Those are not ordinary hospital, you can be strapped down and injected the things that you do not like to remember?

Mr. Thomas A. Wurtz: That is true, but Your Honor in this case the state of Nebraska did not involuntarily treat people for psychiatric problems in the Penal Complex itself.

This was something that was to be done at the Lincoln Regional Center.

In re Bailey does talk about a number of state constitutional statutory restrictions on boarding rights, restrictions on ones right to serve on a Federal jury.

Some states to get a drivers license.

Right now if you want to purchase a gun there is a question on the questionnaire as to whether or not you have ever have been incarcerated in a mental hospital and again I think the mere fact that one is in a psychiatric institution that sometimes gives a rebuttable presumption that he may again suffer from that occurrence.

It can be used perhaps in some instances to impeach his credibility of trial if his credibility trials ever put an issue and again 83-180, the third part of the statute says that at the end of term if the state wishes to commit this person civilly, they can keep the person their in the hospital and then proceed with civil commitment procedures very hastily.

I think if I was sitting in a mental health board and I saw the state come forward with an inmate who had actually been there in a mental hospital for two years I think there would be a rebuttable presumption.

I think it is in my mind if as I see someone walking in I do not know if he maybe over medicated, I do not know what his condition is I think I might want to put a lot of weight into the credibility of the state at that time.

Justice Thurgood Marshall: Well, you are going to way pass this case because this man is going to examine or not, is he not?

Mr. Thomas A. Wurtz: He is in a psychiatric wing at the Veterans Hospital?

Justice Thurgood Marshall: All this you argue is way over this case is it not?

Mr. Thomas A. Wurtz: I believe Your Honor and it just gets into the mootness in this issue.

It is not on the record, Larry Jones took the parole voluntarily because it was the only parole they offered him.

He was so afraid of what they were going to do to him in Nebraska and he said I am going and I do not want to come back.

That is why, he is taking his medication voluntarily in Illinois because he is afraid that he is going to be sent back to the state of Nebraska and that is what he tells me.

I think the case is not moot though because there are a number of cases the court has looked at and found that there are collateral consequences to criminal convictions and I think we can analogize here on the case also because of the stigmatizing consequences that happen to someone when he sent to a psychiatric hospital are very similar to the what they call farther than the stigma which follows one who is put in prison.

Justice Thurgood Marshall: Well, there is a lot of difference between being in AA Hospital that is run by the government and an average insane asylum run by the state.

People do not have the same feeling about them, do they?

Mr. Thomas A. Wurtz: I do not think this is bad.

Justice Thurgood Marshall: This is a Veterans Administration Hospital, where is my father, he is in the state insane asylum for felony insane people, there is a difference?

Mr. Thomas A. Wurtz: The record also does indicate although I do forget the page, it was in the testimony of Dr. Coats that I said what is the Lincoln Regional Center?

He says it is a state mental hospital.

At one time it was called the State Hospital for the Insane, but I think what they did was just change name keeping with current psychiatric thought so it would not sound as bad.

Unknown Speaker: Does the record show that his treatment at Danville is any different from what he would have had at the Lincoln Regional Center?

Mr. Thomas A. Wurtz: No Your Honor, it does not.

The transfer was effectuated after the hearing in this case.

Unknown Speaker: But you are taking the position of medication he received in Danville was somehow different from medication he would receive in Lincoln?

Mr. Thomas A. Wurtz: That is correct Your Honor because he is taking it voluntarily.

Justice John Paul Stevens: And that makes the case moot?

Mr. Thomas A. Wurtz: I do not think the case is moot.

I think maybe if the court --

Unknown Speaker: Neither one of you want it moot, but we have to struggle with this and I do not think you can stick the case out on the grounds of this ruling.

Mr. Thomas A. Wurtz: I think that the court would find that there is no continuing injury.

I think that you could find that there are a collateral consequences to this conviction, not a conviction, but to this transfer that the state effectuated upon him by sending him to the Lincoln Regional Center.

Chief Justice Warren E. Burger: Do you want to hold Nebraska responsible for the collateral consequences of his being in Illinois in a mental institution?

Mr. Thomas A. Wurtz: He in some sense is responsible because he went their voluntarily himself Your Honor.

Chief Justice Warren E. Burger: Your time is expired Mr. Wurtz.

Unknown Speaker: One more question, if you prevail in this litigation, your Client will stay right there in the Veterans Hospital in Illinois, will he not?

Mr. Thomas A. Wurtz: I understand there is some proceeding to while he is paroled.

They are doing an investigation right now, but that is correct.

Unknown Speaker: If he does not violate his parole?

Mr. Thomas A. Wurtz: He will stay in the Danville psychiatric way in the hospital.

Unknown Speaker: So it does not have any effect on you.

I still have not understood this mootness business, but it is too bad because there is not adversary in our relationship?

Mr. Thomas A. Wurtz: I think there is still a spirit of controversy here because I think --

Unknown Speaker: As well as your opponent, you both want to get it decided even if it is moot?

Mr. Thomas A. Wurtz: Your Honor, I do not think the case is moot.

Chief Justice Warren E. Burger: Yes you have said that before and your time is expired.

Do you have anything further Mr. Kammerlohr?

Rebuttal of Melvin Kent Kammerlohr

Mr. Melvin Kent Kammerlohr: I would just like to get on track and summarize Your Honor.

I think the issue here is the interest involved whether or not after a person has been convicted and sentenced such as in Meachum and others --

Justice John Paul Stevens: General Kammerlohr, can I ask you a question on that?

Mr. Melvin Kent Kammerlohr: Yes Your Honor.

Justice John Paul Stevens: Supposing during a criminal trial the trial judge knew quite a bit about psychiatry and at the end or maybe even a medical psychiatrist and at the end of the trial the trial judge said well I have heard all the evidence and instead of sentencing you to the prison I talked to my law clerk and we have decided it would be better for you to go the mental hospital, could he do that?

Mr. Melvin Kent Kammerlohr: No Your Honor.

Justice John Paul Stevens: Why not?

Constitutionally, could he do it assume the statute authorized that.

The trial judge can have discretion without any hearing on mental competence to send either to a prison or a mental hospital, will the constitution tolerate that?

Mr. Melvin Kent Kammerlohr: Yes Your Honor, I think so.

Chief Justice Warren E. Burger: They might want more than a law clerk’s opinion however, might they not Mr. Kammerlohr?

Mr. Melvin Kent Kammerlohr: They might, but assuming I know what Mr. Justice Stevens is getting at his dissent as whether or not there is a residual after the conviction, any residual rights such as right to religious study and right to regional medical treatment and those things and as to that Your Honor, I am saying even if there is a residual that the method in this statute satisfies rather than this hearing that lower court tried to outline.

Justice John Paul Stevens: We do not have to be concerned about the method in this statute.

We must first decide whether the convicted person has any protected constitutional interest in not being sent to a mental institution.

We do not reach the statute till we first decide that and as I understand your position, the state can have the trial judge without any hearing whatsoever decide I think I will send you to a mental hospital instead of the prison because I think it would be better for you.

I have watched you during the trial.

I think you would be probably be better off over there where they give you these very special treatment.

That is your position, I take it?

Mr. Melvin Kent Kammerlohr: It is not my position that --

Justice John Paul Stevens: We do not have to worry about the adequacy of the hearing at all because there is no constitutionally protected interest in not being sent to a mental institution as opposed to another prison?

Mr. Melvin Kent Kammerlohr: It is my position that the way to attack that then comes later and it is the same --

Justice John Paul Stevens: It is matter of grace by the state.

It gives whatever protection it wants to but the constitution does not afford any protection, that is your position?

Mr. Melvin Kent Kammerlohr: I do not believe he could be sentenced for a death in a term or term in the mental hospital if you were then found after you arrived there that he was not mentally ill, I think he could be sent there the same as these prison for examination study and treatment if necessary.

Justice John Paul Stevens: But does the constitution guarantee him a hearing after he gets to the mental institution or is that just a matter grace given by the state?

Mr. Melvin Kent Kammerlohr: In constitution, the only thing that we have gotten so far as far as this Court is concerned that I can recall is reasonable medical treatment.

Unknown Speaker: Maybe the constitution guarantees that a state cannot lock anybody up involuntarily in a hospital who is neither ill nor in need of treatment or diagnosis?

Mr. Melvin Kent Kammerlohr: So that when we do this --

Unknown Speaker: It would determine as whether he needs a hearing before that the termination is made or could I say have my law clerk make that determination if I were a trial judge?

Mr. Melvin Kent Kammerlohr: You do not need a hearing before (Inaudible) made to send a person even before he is convicted to the mental hospital to see if he is able to stand trial or one example and while he is there he is usually involuntary confined for a period of time until the doctors can examine and determine and make recommendation back to court and I assume that constitution says as this Court has said that had to be done.

Justice John Paul Stevens: The question is what does the constitution require?

As I understand your position that he has been convictive of crime, constitution does not require anything, he can go wherever the trial judge sends him?

Mr. Melvin Kent Kammerlohr: That is not my position Your Honor, 100%.

I am saying if this court finds there is a residual that the Nebraska’s method of doing it is constitutional and that the Court should not have looked into whether any process was due in the first place, but if they did that they should have found that our method was a more reasonable method than having this hearing, that is my total position.

Justice John Paul Stevens: Your real position is that even if there is a liberty interest you do give adequate procedures?

Mr. Melvin Kent Kammerlohr: Yes Your Honor.

Justice John Paul Stevens: That is your secondary.

Your first position you really do not have a lot of confidence?

Mr. Melvin Kent Kammerlohr: My first position, I do not think is a strong case as Meachum v. Fano and Montanye, but I do believe that this Court could put it within the framework of those cases.

Thank you Your Honors.

Chief Justice Warren E. Burger: Thank you gentlemen.

The case is submitted.