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SJC-11911

IN THE MATTER OF G.P.

Suffolk. September 10, 2015. - November 5, 2015.

Present: Gants, C.J., Spina, Cordy, Botsford, Duffly, Lenk, & 

Hines, JJ.

Practice, Civil, Civil commitment, Standard of proof, Hearsay, 

Appeal, Moot case. Uniform Trial Court Rules for Civil 

Commitment Proceedings. Moot Question. Words, "Likelihood 

of serious harm," "Very substantial risk."

Civil action commenced in the Supreme Judicial Court for 

the county of Suffolk on June 1, 2015.

The case was reported by Lenk, J.

Ann Grant (Robert H. Weber with her) for the petitioner.

Julia Kobick, Assistant Attorney General, for the 

respondent.

Sandra J. Staub & Robert D. Fleischner, for Mental Health 

Legal Advisors & others, amici curiae, submitted a brief.

BOTSFORD, J. We consider here questions concerning 

proceedings under G. L. c. 123, § 35 (§ 35), a statute that 

authorizes the involuntary civil commitment of a person, for 

care and treatment, where there is a likelihood of serious harm
2

as a result of the person's alcoholism or substance abuse, or 

both. In May, 2015, a District Court judge ordered G.P., the 

petitioner, committed pursuant to § 35 to the Women's Addiction 

Treatment Center (WATC), a facility operated by the Department 

of Public Health. After an unsuccessful appeal of the 

commitment order to the Appellate Division of the District 

Court, G.P. filed a petition for relief in the county court 

pursuant to G. L. c. 211, § 3, to challenge and vacate the 

order. A single justice reserved and reported the case.

G.P. is no longer committed to the facility, rendering moot 

her challenge to the order of commitment. See Acting Supt. of 

Bournewood Hosp. v. Baker, 431 Mass. 101, 103 (2000) (Baker). 

Nevertheless, we decide the case because it raises important 

issues concerning the operation of § 35 as well as the Uniform 

Trial Court Rules for Civil Commitment Proceedings for Alcohol 

and Substance Abuse (uniform § 35 rules) scheduled to go into 

effect on February 1, 2016, and these issues are likely to evade 

review on account of the relatively short duration of a 

commitment under § 35. See, e.g., Baker, supra; Superintendent 

of Worcester State Hosp. v. Hagberg, 374 Mass. 271, 274 (1978)

(Hagberg).

1 See also Guardianship of V.V., 470 Mass. 590, 591-

592 (2015).

 

1 Furthermore, "[w]here . . . the single justice has, in 

[her] discretion, reserved and reported the case to the full 
3

Background. On May 4, 2015, G.P's mother petitioned the 

New Bedford Division of the District Court Department (New 

Bedford District Court) to have her daughter committed pursuant 

to § 35. The petition alleged in relevant part that G.P.'s 

mother had observed G.P. abusing heroin and that G.P. was using 

about two grams per day; that G.P. had stated that she would 

kill herself with heroin if she could obtain enough to do so; 

that G.P. was refusing to eat because she stated she wanted to 

die; that G.P. had hit her mother "before" and "pushed" and 

"shoved" her many times; that G.P. had been abusing drugs for 

two years; and that she had had two "detox hospitalizations" in 

the past, the most recent having taken place eight to nine 

months previously.

A District Court judge held a hearing on the petition the 

day it was filed. Prior to the hearing, Dr. Ruth Saemann, a 

designated forensic psychologist, had examined G.P. and also had

met with G.P.'s sister. Dr. Saemann testified at the hearing 

that the family believed G.P. had been using heroin for the past 

two years; that G.P. was feeling "very despondent" and had 

stated she would kill herself if she could get enough heroin; 

that G.P. had threatened the family that they would never see 

 

court, we grant full appellate review of the issues reported." 

Matter of a Grand Jury Investigation, 470 Mass. 399, 402 n.4 

(2015), quoting Martin v. Commonwealth, 451 Mass. 113, 119

(2008).
4

G.P.'s child again if they did not give her enough money, and 

she had stolen items from the family in order to obtain money; 

that G.P. had tried detoxification on her own the previous week 

and had become very sick, followed by daily use of heroin since 

then; and that the family was concerned about G.P.'s three year

old child, who had brought a syringe to the child's grandfather 

(G.P.'s father), although Dr. Saemann did not know when this 

incident had occurred. According to Dr. Saemann, G.P.'s mother 

had stated that the previous week G.P. had pushed her, "[a]nd,

that's not the first time that she's pushed her mother when she 

doesn't get her way." Dr. Saemann also testified to what G.P. 

had told her, including that G.P. admitted having a heroin 

problem for the past two years; that she, G.P., recently had 

relapsed but had only used heroin twice in the previous week; 

that she denied her son had given a syringe to his grandfather; 

that she suffered from anxiety and depression but was not 

presently taking medication for those conditions, and also had 

hepatitis C; and that she was neither homicidal nor suicidal. 

Dr. Saemann examined G.P.'s arms and neck for needle marks and 

observed puncture marks that looked recent. Dr. Saemann 

concluded her testimony by giving her opinion that G.P. met the 

requirements of § 35 for commitment, explaining,

"I don't believe, given [G.P.'s] record and her 

history, that she is capable of stopping this on her own. 

I think she does need to, . . . that she has lost control 
5

of the use of heroin and will need . . . a commitment. I 

do find that she is a danger to herself by use of her 

heroin. . . . I also think that . . . if indeed the child 

is finding syringes . . . and [G.P.]'s Hep[atitis] C 

positive, that is putting the child in serious harm's way."

The judge credited as fact Dr. Saemann's testimony 

recounting what G.P.'s sister and G.P. had told her. The judge 

further noted that G.P. had "pushed her mother the other day,"

and concluded that all he had heard "mitigates in favor . . . of

a commitment. I'm not saying [G.P.] didn't try. . . . She 

failed. She couldn't dry herself out. She tried to detox. 

She's got recent track marks. . . . [S]he can't do it on her

own." The judge ordered G.P. committed to WATC.

2

G.P. appealed the commitment order to the Appellate 

Division of the District Court,

3 which denied relief and 

dismissed the appeal on May 21, 2015. G.P. filed her petition 

for relief under G. L. c. 211, § 3, on June 1, 2015, naming the 

New Bedford District Court as the respondent.4 A single justice 

 

2 The record does not indicate whether the judge specified 

the length of G.P.'s commitment in the order.

3 Recognizing that G.P.'s commitment likely would end before 

her appeal could be heard in the normal course, the Appellate 

Division granted G.P.'s motion to expedite her appeal pursuant 

to rule 2 of the District/Municipal Court Rules for Appellate 

Division Appeals.

4 Under S.J.C. Rule 2:22, 422 Mass. 1302 (1996), the 

District Court shall "be treated as a nominal party which may, 

but need not, appear and be heard" when named as a respondent in 

a petition for relief pursuant to G. L. c. 211, § 3.
6

reserved and reported the case to the full court without 

decision, and directed the parties to address the following 

questions:

"1) The standard of proof required at a commitment 

hearing under G. L. c. 123, § 35;

"2) whether the rules of evidence apply [in] a hearing 

on a petition for commitment pursuant to G. L. c. 123, 

§ 35;

"3) [t]he route of appeal from a decision ordering 

civil commitment under G. L. c. 123, § 35;

"4) the proximity in time of the 'evidence of, threats 

of, or attempts at, suicide or serious bodily harm' to the 

respondent, and the proximity in time of the 'evidence of 

homicidal or other violent behavior or evidence that others 

are placed in reasonable fear of violent behavior and 

serious physical harm to them' necessary to establish a 

'likelihood of serious harm,' G. L. c. 123, § 1,[5] to the 

respondent or others, for an order of commitment to issue; 

and

"5) the quantum of risk necessary to establish 'a very 

substantial risk of physical impairment or injury to the 

person himself as manifested by evidence that such person's 

judgment is so affected that he is unable to protect 

himself in the community.' See G. L. c. 123, §§ 1, 35."

Discussion. We consider each of the reported questions 

infra, but first summarize § 35's provisions and the provisions 

of the trial court's uniform § 35 rules.

1. Commitment proceedings under § 35. A petition for an 

order of commitment under § 35 of a person believed to be an 

 

5 General Laws c. 123, § 1, provides definitions of a number 

of words and terms used in c. 123, and in particular, defines 

the term "[l]ikelihood of serious harm," which is used in G. L. 

c. 123, § 35 (§ 35). We quote this definition in full, infra.
7

"alcoholic"

6 or "substance abuser"7 may be filed by a police 

officer, physician, spouse, blood relative, guardian, or court 

official in any division of the District Court or the Juvenile 

Court. G. L. c. 123, § 35, third par. Once the petition is 

filed, the court must "immediately" schedule a hearing and cause 

a summons to be served on the person (respondent) or, if 

appropriate, issue a warrant of apprehension or of arrest.

8 Id. 

The respondent has the right to counsel, and to have counsel 

appointed if indigent. Id.

 

6 An "alcoholic" is defined as "a person who chronically or 

habitually consumes alcoholic beverages to the extent that (1) 

such use substantially injures his health or substantially 

interferes with his social or economic functioning, or (2) he 

has lost the power of self-control over the use of such 

beverages." G. L. c. 123, § 35, first par.

7 A "substance abuser" is defined as "a person who 

chronically or habitually consumes or ingests controlled 

substances or who intentionally inhales toxic vapors to the 

extent that: (i) such use substantially injures his health or 

substantially interferes with his social or economic 

functioning; or (ii) he has lost the power of self-control over 

the use of such controlled substances or toxic vapors." G. L. 

c. 123, § 35, second par.

8 If the judge determines that there are "reasonable grounds 

to believe that [the respondent] will not appear and that any 

further delay in the proceedings would present an immediate 

danger to the physical well-being of the respondent," the judge 

may issue "a warrant for the apprehension and appearance of such 

person," but no arrest of the person may be made unless he or 

she may be presented immediately before a judge. G. L. c. 123, 

§ 35, third par. The statute also authorizes the judge to issue 

an arrest warrant if the respondent fails to appear when 

summoned. Id.
8

When the respondent appears in court, a qualified 

physician, psychologist, or social worker must examine her. Id.

Counsel may remain present during the examination. See R.B. 

Minehan & R.M. Kantrowitz, Mental Health Law § 13.11 (2007). 

The hearing on the petition follows the examination, and it must 

include competent medical testimony, but the petitioner may 

present additional evidence as well, G. L. c. 123, § 35, fourth 

par.; the respondent also may present evidence, including

independent expert testimony, G. L. c. 123, § 35, third par. If 

the judge finds, based on the evidence presented, that (1) the 

respondent is an "alcoholic" or a "substance abuser" as defined 

in § 35, and (2) there is a "likelihood of serious harm" as a 

result of the respondent's alcoholism or substance abuse (or 

both), the judge may order the respondent committed to a 

suitable facility operated by the Department of Public Health

(department) under G. L. c. 111B for a period not to exceed 

ninety days, but case management services are to be available 

through the department for up to one year; if there is not such 

a suitable facility available, commitment may be ordered to a 

facility operated by the Department of Correction -- Bridgewater 

State Hospital, if the respondent is a man, or the Massachusetts 

Correctional Institution in Framingham, if a woman. G. L. 

c. 123, § 35, fourth par. Likelihood of serious harm may be 

established by a showing of (1) a substantial risk of serious
9

physical harm to the respondent; (2) a substantial risk of

serious physical harm to other persons; or (3) a very 

substantial risk of physical "impairment or injury" to the 

respondent resulting from an inability to protect himself or 

herself in the community. G. L. c. 123, § 1.

Following a respondent's commitment, the superintendent of 

the public or private facility to which the commitment was 

ordered must review the necessity of the commitment on the 

thirtieth day and every fifteen days thereafter for as long as 

the commitment continues, up to the ninety-day limit. G. L. 

c. 123, § 35, fourth par. The superintendent may release the 

respondent before the end of the period of commitment originally 

ordered upon a written determination that release "will not 

result in a likelihood of serious harm." Id.

2. Uniform § 35 rules. In 2014, the Trial Court published 

for public comment a proposed set of uniform rules to govern 

proceedings under § 35. Following a public comment period, a

final version of the proposed uniform § 35 rules was submitted 

to this court for approval on June 1, 2015, and approved on 

July 22, 2015. The rules will take effect February 1, 2016.9

 

9 This court's notice of approval of the Uniform Trial Court 

Rules for Civil Commitment Proceedings for Alcohol and Substance 

Abuse (uniform § 35 rules) referenced the present case and the 

fact that certain matters addressed by the rules were at issue 

in this case, and specifically noted that the court's decision 

might require revisions to the rules.
10

The uniform § 35 rules govern the conduct of commitment 

proceedings under § 35 in the District Court, Boston Municipal 

Court, and Juvenile Court Departments. See rule 1(a) of the 

uniform § 35 rules. The rules address, among other issues, the 

standard of proof that applies to § 35 proceedings, the types of 

evidence that may be considered, findings to be made by a judge, 

and the nature and contents of an order of commitment. See 

rules 6(a), 7(a)-(c), 8(a)-(b). In discussing the reported 

questions, we consider the particular rules that are pertinent

to them.

3. Reported questions. a. Question 1: standard of 

proof. Section 35 does not specify the standard of proof 

applicable to § 35 commitment proceedings. The uniform § 35 

rules mandate use of a "clear and convincing" standard of proof, 

i.e., that the judge must find proved by clear and convincing 

evidence the facts supporting determinations that the respondent 

is an alcoholic or substance abuser and that there is a 

likelihood of serious harm directly resulting from his or her 

alcoholism or substance abuse. See rule 6(a). G.P. argues that 

proof beyond a reasonable doubt is the required standard of 

proof for a commitment under § 35, pointing out that other types 

of civil commitments, see, e.g., G. L. c. 123, §§ 7, 8 (mentally 

ill person dangerous to self or others), have been interpreted 

to require proof beyond a reasonable doubt.
11

Proof beyond a reasonable doubt is a bedrock feature of due 

process in criminal trial proceedings. See In re Winship, 397

U.S. 358, 363 (1970). As G.P. points out, we have recognized 

that a standard of proof beyond a reasonable doubt also may be 

constitutionally required in some types of civil commitment 

proceedings, see, e.g., Commonwealth v. Nassar, 380 Mass. 908,

909, 916 (1980) (civil commitment under G. L. c. 123, § 16 [b]);

Hagberg, 374 Mass. at 272 (civil commitment under G. L. c. 123, 

§§ 7, 8); Andrews, petitioner, 368 Mass. 468, 486 (1975)

(commitment of sexually dangerous person under G. L. c. 123A), 

but that this standard is not constitutionally required for all

civil commitment proceedings. See Department of Youth Servs. v. 

A Juvenile, 384 Mass. 784, 791-792 (1981). As a general matter, 

outside of criminal trial proceedings, the length of time that

an involuntary commitment may last is key among the factors that 

may bear on the determination of what standard applies. See 

Abbott A. v. Commonwealth, 458 Mass. 24, 40-41 (2010); Querubin

v. Commonwealth, 440 Mass. 108, 120 n.9 (2003); Mendonza v. 

Commonwealth, 423 Mass. 771, 783 (1996). Proof beyond a 

reasonable doubt of the likelihood of serious harm to oneself or 

others is required before a person is committed for mental 

illness under G. L. c. 123, §§ 7 and 8, for example, because a 

person can be subject to recommitment petitions and hearings 
12

indefinitely.10 See Abbott A., supra. In contrast, an 

individual committed under § 35 cannot be held for more than 

ninety days, and the statute does not allow for extensions.

11 

Although a § 35 commitment is not a precursor to another type of 

commitment or proceeding, nonetheless, we view such a commitment 

as more akin to temporary commitments of mentally ill persons 

under G. L. c. 123, §§ 12 and 15 (b), or pretrial detentions of 

 

10 The first order of commitment expires after six months,

and all subsequent commitments expire after one year. G. L. 

c. 123, § 8 (d).

11 Other sections of G. L. c. 123 authorizing involuntary 

civil commitments on account of mental illness contain specific 

provisions for the extension or renewal of the initial order of 

commitment, or for seeking a new order of commitment. See G. L. 

c. 123, §§ 7 (c), 8 (a), (d) (initial orders and renewal of 

orders of commitment of persons because of risk of serious harm 

by reason of mental illness); G. L. c. 123, § 12 (d)

(authorizing application for commitment under G. L c. 123, §§ 7

and 8, of person initially ordered committed for three-day 

period on emergency basis on account of risk of serious harm by 

reason of mental illness). See also G. L. c. 123, §§ 15 (e), 16 

(b)-(c), 18 (a) (orders of commitment to hospital on account of 

mental illness of persons charged with or convicted of crimes or 

found not guilty by reason of lack of criminal responsibility). 

Section 35 contains no similar provisions. Particularly in 

light of the liberty interests at stake, we interpret the 

absence of any provision for extension or renewal in § 35 to 

mean that an order of commitment under this section may extend 

no longer than provided in the order itself -- i.e., no longer 

than ninety days. G. L. c. 123, § 35, fourth par. See 

Fernandes v. Attleboro Hous. Auth., 470 Mass. 117, 129 (2014)

("The omission of particular language from a statute is deemed 

deliberate where the Legislature included such omitted language 

in related or similar statutes"). A person may be committed 

more than once pursuant to § 35, but only as a result of a 

separate petition for commitment that is independently proved by 

clear and convincing evidence.
13

dangerous persons under G. L. c. 276, § 58A.

12 In each of these 

proceedings, a clear and convincing standard of proof applies. 

See Mendonza, supra at 783 & n.5. Given the limited and 

definite time frame involved in a § 35 commitment, we conclude 

that a clear and convincing standard is appropriate here as 

well. It bears emphasis that the clear and convincing standard 

is not without teeth. To meet it, there must be a showing that 

the facts establishing the "likelihood of serious harm," see 

G. L. c. 123, § 1, are "highly probably true" (citation 

omitted). See Callahan v. Westinghouse Broadcasting Co., 372 

Mass. 582, 588 (1977).13

 

12 Pretrial detentions on the basis of dangerousness may be 

for 120 days, in the absence of good cause for an extension. 

G. L. c. 276, § 58A (3). The pretrial detention under § 58A 

will end no later than the trial, or other disposition of the 

underlying charge. See Mendonza v. Commonwealth, 423 Mass. 771, 

783 (1996).

13 In Callahan v. Westinghouse Broadcasting Co., 372 Mass.

588 (1977), this court explained the standard of proof by clear 

and convincing evidence by quoting with approval Dacey v. 

Connecticut Bar Ass'n, 170 Conn. 520, 537 n.5 (1976):

"The burden of persuasion . . . in those cases 

requiring a showing of clear and convincing proof is 

sustained if evidence induces in the mind of the trier a 

reasonable belief that the facts asserted are highly

probably true, that the probability that they are true or 

exist is substantially greater than the probability that 

they are false or do not exist."

See Callahan, supra at 588 n.3, quoting McBaine, Burden of 

Proof: Degrees of Belief, 32 Cal. L. Rev. 242, 263-264 (1944):
14

b. Question 2: rules of evidence. Section 35 requires 

that a judge base his or her determination to order a respondent 

committed "upon competent testimony, which shall include, but 

not be limited to, medical testimony." G. L. c. 123, § 35, 

fourth par. The statute, however, is silent with respect both

to whether the rules of evidence apply to § 35 commitment 

proceedings and to the issue of the admissibility of hearsay 

evidence. Id. Rule 7(a) of the uniform § 35 rules provides 

that the rules of evidence shall not apply to § 35 commitment 

proceedings, except for privileges14 and statutory 

disqualifications; this rule also states that hearsay evidence 

is admissible and may be relied upon if the judge finds it to be 

"substantially reliable." G.P. asserts that there is no support 

 

"The burden [of persuasion] is not a burden of 

convincing you that the facts which are asserted are 

certainly true or that they are almost certainly true, or 

are true beyond a reasonable doubt. It is, however, 

greater than a burden of convincing you that the facts are 

more probably true than false. The burden imposed is to 

convince you that the facts asserted are highly probably 

true, that the probability that they are true or exist is 

substantially greater than the probability that they are 

false or do not exist. If then you believe upon 

consideration and comparison of all the evidence in the 

case that there is a high degree of probability that the 

facts are true you must find that the fact[s] have been 

proved."

14 The commentary to rule 7 of the uniform § 35 rules 

indicates that the privileges at issue include constitutional, 

statutory, and common-law privileges. Although not

constitutionally required, rule 7(b) prohibits a judge in a § 35 

proceeding from drawing an adverse inference from a respondent's 

refusal to testify. See rule 7(b) & commentary.
15

for "suspending" the rules of evidence; that the rules of 

evidence apply in other civil commitment proceedings such as 

those held under G. L. c. 123, § 8; and that where the 

Legislature has intended the rules of evidence not to apply, it 

has explicitly so provided, citing G. L. c. 276, § 58A (4),

which expressly states that the rules concerning admissibility 

of evidence in criminal trials do not apply to pretrial 

detention hearings for allegedly dangerous persons.

We disagree that strict adherence to the rules of evidence 

is required. In certain types of proceedings, the court has 

recognized that formal rules of evidence may not apply, even 

where liberty interests are at stake and even where no specific 

statutory authority exists. See Commonwealth v. Durling, 407 

Mass. 108, 117-118 (1990) (rules of evidence need not apply in 

probation revocation proceedings; probation revocation 

determination may be based on substantially reliable hearsay 

evidence). See also Commonwealth v. Bukin, 467 Mass. 516, 519-

520 (2014); Abbott A., 458 Mass. at 34-35. We have explained 

that, where a deprivation of liberty is involved, due process 

protections require "notice and opportunity for a hearing 

appropriate to the nature of the case" (emphasis in original). 

Myers v. Commonwealth, 363 Mass. 843, 854 (1973). The uniform 

§ 35 rules afford the respondent -- who is entitled under § 35 

to be represented by counsel and to have counsel immediately 
16

appointed if indigent -- the right to cross-examine witnesses,

to call witnesses (and therefore to testify), and to present 

independent expert and other types of evidence.15 See rule 6(c). 

As for hearsay evidence, rule 7(a) specifies that it is 

admissible "only if the judge finds that it is substantially 

reliable." See Commonwealth v. Patton, 458 Mass. 119, 132-133 

(2010) (discussing criteria relevant to determination of hearsay 

reliability).

In Durling, 407 Mass. at 114-118, this court discussed in 

some detail the admissibility of hearsay in the context of 

probation revocation hearings. We explained that reliable 

hearsay has always been allowed in probation revocation 

proceedings because of the "flexible" nature of the proceedings, 

 

15 With respect to experts, § 35 states that the respondent 

may present independent expert testimony; rule 6(c) speaks more 

generally of the right to present independent expert evidence. 

The right to present expert testimony is likely to be difficult 

to actualize, given the emergency nature of § 35 proceedings and 

the reality that, in most cases, the hearing on the § 35 

petition is likely to be held on the same day the petition is 

filed. See R.B. Minehan & R.M. Kantrowitz, Mental Health Law

§ 13.12 (2007). Nonetheless, in order to ensure that a 

respondent's right to present independent expert testimony is 

not chimerical, if a respondent seeks a continuance in order to 

present such evidence, a judge should give careful consideration 

to the request in light of the circumstances presented. Even if 

the emergency nature of those circumstances would make a 

continuance inappropriate, it may make sense for the judge to 

deny the continuance request but invite a later motion for 

reconsideration of a commitment order supported by expert 

testimony. Moreover, whether or not a respondent seeks or is 

able to present expert testimony, rule 6(c) entitles the 

respondent to present expert opinion evidence that might be 

contained in a medical or other type of record.
17

coupled with the need to consider "all reliable evidence." Id.

at 114. Commitment hearings under § 35 are similar in that the 

most reliable and important information supporting or opposing 

commitment may only be available as hearsay, given the extremely

short time frame in which the proceeding is to take place. See 

G. L. c. 123, § 35, third par. Moreover, as in this case, the 

petitioner may be a parent or other close family member of the 

respondent, and appearing without counsel. The flexible nature 

of due process permits accommodation of these circumstances by 

not requiring strict adherence to the rules of evidence, so long 

as there is fairness in the proceeding. Cf. Frizado v. Frizado, 

420 Mass. 592, 597-598 (1995) (proceedings under G. L. c. 209A). 

Allowing hearsay if it is credible preserves the "due process 

touchstone of an accurate and reliable determination," Durling,

supra at 117-118, while accounting for practical considerations 

of § 35 hearings. But precisely because hearsay evidence may 

well play an extremely significant role in these hearings, the 

judge's obligation to ensure that any hearsay on which he or she 

relies is "substantially reliable," as required by rule 7(a), is 

critical, particularly in light of the clear and convincing 

evidence standard of proof required by rule 6(a).

c. Question 3: proper route of appeal of a commitment 

order. The route of appeal of a § 35 commitment order is 

defined by applicable statutes and also by the uniform § 35 
18

rules. In the District Court and the Boston Municipal Court, 

the first stage of appeal is to the Appellate Division of the 

respective courts. With respect to the District Court, see 

G. L. c. 123, § 9 (a) ("Matters of law arising in commitment 

hearings . . . in a district court may be reviewed by the 

appellate division of the district courts in the same manner as 

civil cases generally"). As for the Boston Municipal Court (as 

well as the District Court), see G. L. c. 231, § 108 ("Any party 

to a cause brought in the municipal court of the city of Boston, 

or in any other district court, aggrieved by any ruling on a 

matter of law by a trial court justice, may as of right, appeal 

the ruling for determination by the appellate division pursuant 

to the applicable rules of court"). Rule 11(a) of the uniform 

§ 35 rules essentially incorporates these provisions, but 

further specifies that, on request, the Appellate Division is to 

"expedite" consideration of any § 35 appeal."16,17

A party aggrieved by a decision of the Appellate Division 

of the District Court or the Boston Municipal Court has a 

 

16 Rule 11(a) of the uniform § 35 rules provides: "Any 

person aggrieved by a decision of the District Court Department 

or the Boston Municipal Court Department may appeal to the 

Appellate Division of such Department within seven days. Upon 

request, the Appellate Division shall expedite consideration of 

any appeal."

17 The Juvenile Court does not have an appellate division.

An aggrieved party is entitled to appeal a decision of a 

Juvenile Court judge in a § 35 proceeding to the Appeals Court. 

See rule 11(b) of the uniform § 35 rules.
19

statutory right of appeal to the Appeals Court. See G. L. 

c. 231, § 109 ("An appeal to the appeals court shall lie from 

the final decision of the appellate division of any division of 

the district court department including appeals taken hereunder 

from the appellate division of the Boston municipal court 

department"). G.P. argues that the appellate remedy purportedly 

available under this statute is illusory, because the generally 

applicable procedural rules do not provide an avenue for relief 

in a timely manner, and, she claims, the statutory authority of 

the Appeals Court to provide relief under § 109 does not include 

the power to vacate an order of commitment. As a result, G.P. 

asserts that the only appropriate avenue of appeal is a petition 

for extraordinary relief filed in this court pursuant to G. L. 

c. 211, § 3.

G.P.'s argument fails. Relief under c. 211, § 3, is a 

"truly extraordinary" remedy. McMenimen v. Passatempo, 452

Mass. 178, 184 (2008). "Parties seeking review must demonstrate 

that they have no other legal remedy to pursue and, therefore, a 

petition under c. 211, § 3, is the only alternative." 

McGuinness v. Commonwealth, 420 Mass. 495, 497 (1995). Here, 

there is another alternative under G. L. c. 231, § 109. Under

that statute, the Appeals Court is authorized to vacate an order 

of commitment. Cf. Vrusho v. Vrusho, 258 Mass. 185, 188 (1927)

(discussing power of Supreme Judicial Court, as sole appellate 
20

court before creation of Appeals Court, to "enter any order 

which the Appellate Division ought to have made"). Cf. also 

Baker, 431 Mass. at 102, 107 (direct appellate review of 

commitment order entered in District Court, upheld by that 

court's Appellate Division; order of commitment vacated).

With respect to expedition of the appeals, as this case 

demonstrates -- and as the uniform § 35 rules provide, see rule 

11(a) -- an appeal to the appropriate Appellate Division may be 

expedited on request. Similarly, the Appeals Court has the 

authority to handle appeals on an expedited basis when 

expedition is called for, and there is no reason to believe that 

court will not do so. See Kordis v. Appeals Court, 434 Mass. 

662, 669 n.13 (2001).

d. Question 4: proximity in time of evidence necessary to 

establish a "likelihood of serious harm" to the respondent or 

others for an order of commitment to issue. Section 35 provides 

that an order of commitment only may be entered if the judge 

finds, based on the evidence presented, both that the respondent 

is an "alcoholic" or "substance abuser" (as defined in § 35) and

that there is "a likelihood of serious harm" as a result of that 

condition. G. L. c. 123, § 35, fourth par. This reported 

question concerns § 35's second required finding, and the 

specifics of the question are taken from the definition of 

"[l]ikelihood of serious harm" in G. L. c. 123, § 1:
21

"'Likelihood of serious harm', (1) a substantial risk 

of physical harm to the person himself as manifested by 

evidence of, threats of, or attempts at, suicide or serious 

bodily harm; (2) a substantial risk of physical harm to 

other persons as manifested by evidence of homicidal or 

other violent behavior or evidence that others are placed 

in reasonable fear of violent behavior and serious physical 

harm to them; or (3) a very substantial risk of physical 

impairment or injury to the person himself as manifested by 

evidence that such person's judgment is so affected that he 

is unable to protect himself in the community and that 

reasonable provision for his protection is not available in 

the community."

As its words and structure reflect, this definition has 

three prongs -- that is, it defines "likelihood of serious harm" 

in terms of three separate types of risk, any one of which, if 

found, independently qualifies as presenting a likelihood of 

serious harm. The reported question addresses the definition's

first two prongs, and focuses on the evidence of the 

respondent's past conduct that can be used as the basis for 

finding the requisite "substantial risk" that the respondent 

hereafter will inflict serious physical harm on himself or 

herself (first prong), or another person (second prong), as a 

result of the respondent's alcoholism or substance abuse. More 

particularly, the question asks, in substance, how recent in 

time must the evidence of the respondent's past conduct have 

occurred for it to serve as a basis on which to find a 

substantial risk of physical harm to herself or to others. In 

responding to the question, however, G.P. does not directly 

discuss past conduct, but focuses more on whether the 
22

"substantial risk" of physical harm must be shown to be a risk 

of "imminent" harm. We address the issue of imminence infra, 

but first consider the question's direct concern, namely, the 

proximity in time of the past conduct relied on to demonstrate a 

substantial risk of harm.

i. Evidence of past conduct. The first prong of the

definition of "likelihood of serious harm" requires "evidence 

of, threats of, or attempts at, suicide or serious bodily harm" 

to the respondent.18 G. L. c. 123, § 1. This evidence is 

essential because it forms the basis on which the assessment of 

whether there is a "substantial risk" of harm to the respondent 

is to be made. Id. It is neither possible nor appropriate to 

try to establish a set of definite temporal boundaries for such 

evidence; the assessment of risk is a probabilistic one, and 

necessarily must be made on the basis of the specific facts and 

circumstances presented. Cf. Commonwealth v. Boucher, 438 Mass. 

274, 276 (2002) (determination whether sex offender is "likely"

 

18 Contrary to the suggestion by the New Bedford Division of 

the District Court Department that "a finding of 'substantial 

risk' [of causing bodily injury] . . . may be based on any

activity that evinces a genuine possibility of future harm"

(emphasis in original), citing Commonwealth v. Rosenberg, 410 

Mass. 347, 362 (1991), quoting United States v. Sahhar, 917 F.2d 

1197, 1207 (9th Cir. 1990), the Legislature's use of the terms 

"threats" and "attempts," G. L. c. 123, § 1 -- terms often used 

in our criminal law and denoting actual conduct, see, e.g., 

Commonwealth v. Hamilton, 459 Mass. 422, 426-427 (2011)

(threat); Commonwealth v. Marzilli, 457 Mass. 64, 66 (2010)

(attempt) -- suggests that evidence of specific threats or 

attempts at serious self-harm is required.
23

to reoffend must be made "in the context of the particular facts 

and circumstances at hand"). But as a matter of experience and 

logic, the more recent the evidence of threats or attempts of 

suicide or infliction of serious bodily harm, the more weight 

that evidence should carry in supporting a determination that 

there is a significant risk of self-harm. It would also seem to 

be the case that the more serious or the more numerous that 

previous attempts or threats of suicide or self-harm are shown 

by the evidence to be, the more significance they would carry in 

making a positive risk assessment about likelihood of harm. It 

is important to keep in mind the context in which this risk 

assessment is being made. An order of commitment under § 35

results in a substantial curtailment of liberty for a period of 

time that, although limited, is hardly momentary. The context 

underscores the need of the judge to weigh carefully the 

substantiality of the specific evidence of threats or attempts 

that is offered.19

Our observations about the temporal relationship between 

the evidence of prior conduct and the necessary assessment of 

the risk of harm equally apply to the second prong of the 

 

19 In the present case, there was no evidence of attempts at 

suicide by the respondent, and the evidence presented concerning 

the respondent's previous threats to harm herself did not 

include any indication as to when those threats were made. The 

absence of a specific time reference significantly weakened the 

weight of this evidence.
24

definition of the "likelihood of serious harm," which requires 

evidence of past conduct to establish a substantial risk of 

serious physical harm to others going forward. G. L. c. 123, 

§ 1. To prove this prong, there must be "evidence of homicidal 

or other violent behavior or evidence that others are placed in 

reasonable fear of violent behavior and serious physical harm to 

them." Id. In terms of the character of the evidence 

presented, the Legislature's use of the word "homicidal," and 

phrases such as "violent behavior" and "serious physical harm"

signifies an intent that evidence of conduct reflecting a 

substantial level of force and intensity be presented.20

ii. Risk of harm. We consider the point on which G.P. has 

focused, namely, whether, in order to meet the definition of 

"likelihood of serious harm" under the definition's first or 

second prong, it is necessary to show a substantial risk of 

imminent harm to self or others. In Nassar, 380 Mass. at 908-

909, 912-917, this court considered the statutory definition of 

"likelihood of serious harm" in the context of determining

whether the respondents, who had been found not guilty by reason 

of lack of criminal responsibility on charges of abandonment and 

manslaughter in connection with the death of their child, should 

 

20 Again, in this case, evidence indicating that the 

respondent had pushed her mother on more than one occasion, with 

no further description of what the "push" entailed and no 

specific time frames, appears inadequate to satisfy the second 

definitional prong of "likelihood of serious harm."
25

be committed involuntarily pursuant to G. L. c. 123, § 16 (b). 

We concluded that proof of "likelihood of serious harm" 

necessary for a commitment order demanded proof that the danger 

or risk of harm at issue was "imminent." Nassar, supra at 912-

913, 915-917. G.P. argues that the Nassar decision controls 

here, and that the imminence of the anticipated harm is a 

required element of proof. The District Court contends that 

imminence is a relevant and important factor to weigh in 

assessing the risk of harm, but only one of several, and that 

proof of imminent harm or imminent risk of harm is not required.

It is true that the Legislature did not include the word 

"imminent" or specify any "immediacy" requirement in the 

definition of "likelihood of serious harm." G. L. c. 123, § 1. 

But the general point in Nassar applies with equal force here: 

the reliability of an assessment of a substantial risk of harm

diminishes the farther out one projects as to when the harm is 

likely to materialize. See Nassar, 380 Mass. at 917 (proof of 

imminence of likely harm is required and "is linked to the 

requirement of an enhanced standard of proof in the sense that 

the forecast of events tends to diminish in reliability as the 

events are projected ahead in time").

21 Accordingly, we conclude 

 

21 Commonwealth v. Nassar, 380 Mass. 908, 909, 916 (1980), 

concerned a potentially indefinite commitment under G. L. 

c. 123, § 16 (b), and consequently proof beyond a reasonable 

doubt was the required standard. See Commonwealth v. Querubin, 
26

that to establish a likelihood of serious harm under the first 

or second definitional prong, a showing of imminence is required

-- that is, the petitioner must demonstrate a substantial and

imminent risk of serious injury to the respondent or to others 

on account of the respondent's alcohol or substance abuse, or 

both.

The question remains as to what "imminent" means in this 

context. In our view, "imminent" here does not mean "immediate"

-- the petitioner need not establish a substantial risk that the 

anticipated harm will occur immediately. Rather, what must be 

shown is a substantial risk that the harm will materialize in 

the reasonably short term -- in days or weeks rather than in 

months. But again, the court's discussion of "imminence" in 

Nassar is pertinent. See 380 Mass. at 917 ("We may accept, 

further, that in the degree that the anticipated physical harm 

is serious -- approaches death -- some lessening of a 

requirement of 'imminence' seems justified").

e. Question 5: quantum of risk necessary to satisfy "a 

very substantial risk." The final reported question concerns 

 

440 Mass. 108, 120 n.9 (2003). Here, although we have concluded 

that proof by clear and convincing evidence is the appropriate 

standard of proof in a § 35 proceeding, it is itself a 

heightened one in relation to the usual preponderance of the 

evidence standard applicable in civil cases. See Addington v. 

Texas, 441 U.S. 418, 423-424 (1979). The heightened burden 

increases the need for greater reliability of the evidence. See 

generally id. at 425-427.
27

the third prong of "likelihood of serious harm," which defines 

the term as "a very substantial risk of physical impairment or 

injury to the person himself as manifested by evidence that such 

person's judgment is so affected that he is unable to protect 

himself in the community." G. L. c. 123, § 1. The fifth 

question asks how much risk must be shown to make it "very 

substantial."

Both parties agree that proof that the respondent is a 

chronic alcoholic or substance abuser, by itself, is 

insufficient to establish a "very substantial risk" of harm 

under the third prong. G.P. argues that proof of the third 

prong is particularly stringent and more demanding than that of

the first two prongs. Citing Nassar, 380 Mass. at 913, she 

contends that there must be proof that an individual is unable 

to sustain himself or herself even marginally in society.

22 We

take a different view. Clearly the degree of risk that the 

third prong requires to be proved is greater than that required 

by the first or second prong: by definition, a "very

substantial" risk is not the same as a "substantial" risk, and 

requires more certainty that the threatened harm will occur. 

 

22 In Nassar, 380 Mass. at 913, the court agreed with the 

trial judge that no evidence had been presented establishing the 

third prong, stating that "it was enough to say evidence was 

lacking that the respondents were unable to protect themselves 

in the community; they had, after all, managed to sustain 

themselves, however marginally, over a period of years."
28

But under the third prong, the threatened harm is not, as G.P. 

contends, an inability to sustain oneself in the community. The 

harm is, rather, "physical impairment or injury" to the 

respondent, and the "very substantial risk" of such harm is to 

be shown by evidence that (1) the respondent's judgment is so 

adversely affected by the abuse of alcohol or drugs that the 

respondent cannot protect himself or herself from physical harm, 

and (2) the respondent's community does not include any 

reasonably available external source of adequate protection. 

G. L. c. 123, § 1. The focus of the evidence, then, must be on 

the respondent's degree of impaired judgment due to alcohol or 

drug abuse (or both); the degree of likelihood that, as a direct

consequence, the respondent will sustain or inflict injury (for 

example, by failing to take care of an existing medical 

condition that is exacerbated by continued abuse of alcohol or 

drugs, or by lengthy exposure to extreme weather conditions); 

and the inability of any other person or persons in the 

respondent's community to provide protection against such risks. 

Finally, because a "very substantial" risk of harm must be shown 

in connection with this third prong, G. L. c. 123, § 1, the 

imminence of the risk becomes a factor that is even more 

important to consider than it is with respect to the other two 

prongs.23,24

 

23 A very substantial risk of overdosing, in and of itself, 
29

4. Order of commitment in this case. G.P. is no longer 

committed to WATC pursuant to the order that was the subject of 

her petition for relief from the single justice, and therefore 

it is no longer necessary to review the validity of that order. 

We have discussed briefly some of the evidence presented in 

connection with our responses to the reported questions, see 

notes 19 and 20, supra, and add the following with the goal of 

offering some guidance for future cases. As indicated at the 

outset of this opinion, the judge accepted as fact the testimony 

of the forensic psychologist who was a witness at the § 35 

commitment hearing and, based on those facts, issued the order 

of commitment, finding, at least implicitly, that G.P. was a 

substance abuser and that a likelihood of serious harm resulting 

from her substance abuse had been established. It appears from 

his brief comments that the judge concluded that G.P. at least 

presented a substantial risk of serious harm to others, 

including specifically G.P.'s mother. The evidence of such a 

 

may qualify under this prong, but presumably any person who 

meets § 35's definition of an alcoholic or substance abuser 

presents a significant risk of overdosing. Accordingly, there 

must be strong and specific evidence presented that the risk of 

the respondent's overdosing is indeed imminent, and that the 

degree of probability that he or she will do so is high.

24 G.P. adds an argument that, as a matter of 

constitutionally required due process, before a judge may enter 

an order of commitment under § 35, the judge must find that 

there is no less restrictive alternative available. The single 

justice did not report a question concerning this issue, and we 

decline to address it.
30

risk, however, was very weak. There was no specific evidence of 

when G.P. allegedly "pushed" or "shoved" her mother or how often 

this had occurred, no evidence concerning the actual nature of 

the contact, and certainly no evidence that it was violent.25 

The essential basis of the judge's order appears to have been 

that G.P. was addicted to heroin and had not been able 

successfully to control the addiction. As unfortunate as G.P.'s 

condition was, the evidence presented did not appear to satisfy 

the requirements of § 35 for an order of commitment.

5. Conclusion. The petition for relief is dismissed as 

moot.

So ordered.

 

25 It is not clear whether the judge also found that G.P. 

presented a likelihood of serious harm because she presented a 

substantial risk of physical harm to herself. If the judge did 

make such a finding, again, the evidence presented was likely 

insufficient. There was no time frame presented as to G.P.'s 

statements about wanting to die, and no evidence of actual 

attempts at suicide or self-harm.

There is no suggestion in the record -- and the parties do 

not suggest -- that the judge found the third prong of 

likelihood of serious harm to have been established.