Earl Warren: No. 65, Timothy F. Leary, petitioner versus United States. Mr. Martin, you may proceed with your argument.
John S. Martin, Jr.: Mr. Chief Justice and it may please the Court. I would like this morning to turn and address myself to petitioner's contention that his conviction on charge for transporting and concealing marijuana on which the tax hadn't been paid in violation of Section 4744 (a)(2) of Title XXVI is unconstitutional because the conviction on that count violated his privilege against self-incrimination. To a certain extent, the claim raised here is identical to that presented in the case to follow this, United States v. Covington. There is a significant difference, however, because in this case, we do have a factual record against which petitioner's assertion of this claim can be judged. I'd like to turn to that record, if I right, for a moment. Prior to trial, petitioner's counsel moved for a continuance to allow him to prepare his defenses. In the motion for continuance, petitioner's counsel stated, this appears at page 34 of the record, “Defenses will be raised which would show that this defendant is an authority on psychedelics drugs which this defendant maintains, includes marijuana and that he should be have the right of experimentation with such drug, including marijuana and that, although there are provisions in the law, which would seem to allow a person to experiment with marijuana, such provisions are in actuality non-existent because it is not possible to obtain an order form and legally pay the tax on marijuana and any use without such order forms are held to be illegal”. Similarly, at the close of the case, in arguing –
Potter Stewart: That's not in the -- (Voice overlap)
John S. Martin, Jr.: That's not in the printed appendix -
Potter Stewart: It's in the original record?
John S. Martin, Jr.: It is in the record which is in the Court.
Potter Stewart: Alright.
John S. Martin, Jr.: And that unfortunately is true of the other point that I intend to refer to at this time. At the close of the case, petitioner moved for judgment of acquittal. That time, his counsel stated, this is at page 493 of the record, under the tax count, doctors or scientists working in a laboratory can obtain marijuana, but not those who are using it for religious beliefs. And again at the close, after the verdict had come in -and the motion for new trial which was filed, -counsel argued, -this is the written motion for new trial submitted after the judgment, it appears at page 649 of the record. The Court erred in denying defendant's motion for judgment of acquittal as to count two and three of the indictment for the reason that the evidence demonstrated, the defendant transported and possessed marijuana in pursuit of his free exercise of his religion, in pursuit of scientific experimentation out of the laboratory and in pursuit of his right to bring up his family according to his own honest belief. And since the $100 an ounce tax is a prohibitive tax, conviction on the count three as well as count two would violate the First, Fifth and Ninth Amendments of the Constitution of the United States of America. It is the government's position in this case that petitioner from the outset recognized that his failure to comply with the Marijuana Tax Act was not the result of any fear that he would tend to incriminate himself, but rather on his recognition that the Act acted as to him as a total bar on his right to possess marijuana. We submit that the petitioner correctly construed the Act. That it's our contention that the Marijuana Tax Act as construed and applied, does not compel self-incrimination because it prohibits those who could not legally deal in marijuana from handling marijuana.
Earl Warren: Do we test the right of a man's Fifth Amendment rights by what happens at preliminaries in the proceeding or by what happens at the trial?
John S. Martin, Jr.: Well, I think, Mr. Chief Justice, what we have to do is examine the validity of the claim and I think it has to be examined against the factual basis of what he believed, his counsel mentioned yesterday. Petitioner testified at the trial that he knew he could not obtain marijuana under the Act. So, you have that also. It is position that here the tax Act in question was designed by Congress to prohibit, and that is clearly stated in each of the reports accompanying the legislation that the Bill was designed to prohibit those who could not legally handle marijuana from doing so. Congress did this by imposing a prohibitive tax.
Abe Fortas: Perhaps, unfortunately, Congress didn't set the statute up that way. Congress set this up as if it were serious and as if a person who wanted the product for certain uses could get a permit upon -- and pay a $100 tax and you're asking us to say that Congress was just fooling in what it really -- and what this really is, is a statute that prohibits the use of marijuana except of the dollar an ounce purposes?
John S. Martin, Jr.: Well, I think, Mr. Justice, what we are asking the Court to do is to look at the statute in terms of the realities. And I think if you look at the record before Congress which included testimony from Mr. Hester who has been referred to previously and others that at the time this tax was enacted, marijuana was selling in the illicit market at $1 an ounce. Congress imposed the $100 an ounce tax, clearly prohibited. I think the fact --
Abe Fortas: And you use this – do you use this as a distinction between Marchetti and Grosso?
John S. Martin, Jr.: Yes, we do, I think that --
Abe Fortas: In other words, you say that because the tax here is such a great amount on the $100 users that we are to look at it as if Congress, instead of going through the ritual of the taxing machinery and prohibited the- transfer, possession or transportation of marijuana except for the dollar an ounce purposes?
John S. Martin, Jr.: That is correct. That is the way the Act is --
Abe Fortas: And that so construed, you say that this is different from Marchetti and the Grosso because in Marchetti and Grosso anybody could apply and there was no distinction in the amount of the tax.
John S. Martin, Jr.: That's correct. I think that it's important to note also, Mr. Justice Fortas that what you had here, which you didn't have in Grosso and Marchetti is that an industry in which marijuana had legitimate and illegal uses and Congress was attempting to distinguish those. That's why I think all of the reporting requirements contains --
Abe Fortas: Doesn't that cut against your point?
John S. Martin, Jr.: No, it doesn't because Congress says --
Abe Fortas: Because in Marchetti and Grosso, the entire industry so called was an illegitimate one?
John S. Martin, Jr.: That is correct. But there, that showed --
Abe Fortas: So that that would have been prohibitive. What they wanted to do in Marchetti and Grosso was to prohibit everybody from using, possessing or transferring or whatever it was that kind of firearm and here they wanted to prohibit only some.
John S. Martin, Jr.: In Marchetti and Grosso particularly, however --
Abe Fortas: I beg your pardon. I was talking about Haynes.
John S. Martin, Jr.: Well, in Haynes, there was, again there was a $200 tax. In Haynes, we're dealing only with one particular requirement of the Act which clearly required people to register if they had a firearm of the type described in that statute. Here, however, I think that it's important to note that all of the disclosure requirements are directed basically at the legal industry, the legal marijuana industry so that legal use of marijuana would be made public and that the law enforcement officials could see that the legal marijuana was not diverted -into illegal channels.
Abe Fortas: Apart from -- is there any reason -why Congress did not enact a prohibitory statute other than tradition and bureaucratic claims on this particular activity?
John S. Martin, Jr.: Well, I think there was -- the only reason they didn't enact a totally prohibitive statute insofar as illegal transactions were concerned, there was a legal market for this so they couldn't totally prohibit it. But insofar as the illegal market was concerned, the reason they chose to use the prohibitive tax form was I think because at the time Congress was concerned with the five, four decision of this case and the 63 decision in Nigro and Doremus and they were afraid, unless the prohibitive section was not put in terms of that prohibitive tax, there might be some constitutional problems with that.
Potter Stewart: Also, they were acting they thought under their power to tax, under their taxing power.
John S. Martin, Jr.: That is correct.
Potter Stewart: And that's the power under which the earlier Narcotics Federal Legislation had been upheld. So they were not purporting to prohibit anything. They were purporting to simply be exercising their power to tax as --
John S. Martin, Jr.: What they had, Mr. Justice, in the Harrison Act made all of the -- prohibited all the legitimate forms in dealing in the Narcotics involved there. I think there was some concern because the close decision of this Court in those cases, the fact that there was a general probation not formed in terms of the tax created some problems.
Abe Fortas: Well, and you are asking us to construe this as a -- look at this as if it were something that Congress avoided, and you say Congress avoided it because of constitutional doubts as well as because treasury's claim as of that time for this highly priced jurisdiction I suppose depended upon its exercising the taxing power?
John S. Martin, Jr.: Well, I think, Mr. Justice, that what we are asking the Court to do is to look at the reality of the situation, to look at the fact that since this Act was enacted, providing this $100 tax on one ounce of marijuana that was selling in the illicit market for dollar, no person has ever applied to pay for this tax. That the effect of it was to make it a prohibitive tax. Therefore, this Court talked in Grosso and Marchetti of the fact that the claim of the Fifth Amendment has to be real and appreciable. So we submit here that the Court has to look at the whole statutory scheme in this framework. I think, from that examination, it appears here that the claim of the Fifth Amendment privilege is not real and substantial, but rather a fanciful and imaginary claim which petitioner came up with after the fact in an attempt to excuse his clear violation of federal law. And, so for that reason we feel that the contention of Fifth Amendment privilege here should be rejected by this Court.
Earl Warren: Mr. Martin, if this man had not taken the stand, would your argument be the same concerning those excerpts from the records you just read us?
John S. Martin, Jr.: Well, I think it would be the same except that we would not have his testimony relied on. I think we do have a lawyer's construction of the Act. The counsel yesterday said that the Government's construction here was an imaginative one and suggested it was something novel. Here is a lawyer looking at the Act and construes it in the same way we did before the issue was ever raised. I think it's somewhat persuasive in that standpoint. I think two, it goes to the reality of the situation of the fact that this act, everybody recognized, prohibits people who could not handle marijuana legally from doing so. The practical effect of it is the total bar. And for that reason, the claim of Fifth Amendment privilege is really a fanciful one which we submit was constructed after the fact and not the true motivating reason that the petitioner did not attempt to comply with the Act.
Earl Warren: Mr. Haft?
Robert Haft: Mr. Chief Justice, may it please the Court. I think that persons have not sort to apply for written order form or to pay the tax because the statute is so blatantly self-incriminatory that it would only be a mad man who would come to the Government and seek to fill out this order form. I have read during the course of my argument the testimony of petitioner during the trial, that's at pages 86, 87 and 89 where he specifically said that he feared incrimination. The part of the motion which the Government has read, I think that they have left out the very point, it was raised on page 651 of the transcript. The Court erred in not dismissing or granting a judgment of acquittal as to the tax count because such tax requirement violates the Fifth Amendment privilege against self-incrimination. It was raised at the District Court level. The petitioner specifically testified as to his very real fear of the incrimination in the portions that I read yesterday.
Abe Fortas: I beg your pardon. How many cigarettes or whatever they call a marijuana would be made out of an ounce?
Robert Haft: I don't know, Mr. Justice Fortas. I think the figure that I used yesterday was one pound yielded 1700 cigarettes; so that's roughly a 100 cigarettes an ounce.
Abe Fortas: Well, would that mean that tax is just a cent on a cigarette?
Robert Haft: Yes. That's the -- proper legal tax would be a dollar on the $100 an ounce. I think what the Government is in essence asking here is that because Congress perhaps, having doubts about the constitutionality of an outright prohibition and because they wrote on a expressly tax measure rather than a prohibitory measure, if this Court feels that a prohibitory measure is constitutional, this Court ought to go ahead and rewrite the legislation. That is -is completely the wrong position. Going back to the presumption point of yesterday, in answer to Mr. Justice Stewart's question as to other adequate evidence of guilt which there clearly was, I pointed out that under the Court's decision in the United States against Romano, it would be sustained; that my position would be sustained. In addition, I'd like to point out to the Court that on pages 102 to 104 of the record, in the charge to the jury, the district judge in practical effect limited the entire case to the trip from New York to Texas on the admission of acquisition by the defendant plus the statutory presumption and that's little of the case on the return back. I think the charge is very clear. It points almost exclusively to that one theory. In the -last minute, I would like to make an application, Mr. Chief Justice and may it please the Court. The next case, the Covington case raises just the tax issue. We do feel and counsel for Covington does and the Government does not object, if the Court pleases, we do feel that the bulk of the argument on the taxing statute will come during the Covington argument and counsel for Covington is agreeable for permitting counsel for Leary to have some part of his time in arguing the further parts of the Marijuana Tax Act. It would please the Court, we would like to split the argument to some extent on the Covington case.
Earl Warren: You may share his time if he is willing.
Robert Haft: Thank you.


Warren E. Burger: We'll hear arguments first his morning in Number 1690, Parham against several minors. Mr. Lackey, you may proceed whenever you are ready.
R. Douglas Lackey: Mr. Chief Justice, may it please the Court. The cause of this case is here for reargument and I realized that the court is familiar with this case. With the court's permission I would like to begin by simply setting the issues before the court and proceeding directly to my argument. At issue in this litigation of course is the constitutionality of the Georgia's statute which recognizes the rights of parents of mentally ill children to make application for admission for those children to state mental health facilities. The statute was attacked on essentially two grounds. The appellees argued that children have a constitutionally protected liberty interest and that this statute which authorizes their hospitalization without prior notice in hearing deprives them of that liberty interest for that due process of law. Second, the appellees argued and the District Court found that children who are mentally ill and who receive treatment from the state have a constitutional right to receive treatment for their mental illness and only that treatment setting which is most appropriate to their condition. Turning to the first issue, the foremost and threshold question which should have been addressed in the District Court and wasn't was an examination of the interest sought to be protected to see whether in fact it has a constitutional dimension. That is, do children have a constitutional right to challenge the medically indicated decisions of their parents? What the District Court did was simply look and see that parent's makes decisions or their children and as a result of this decision-making process, that often times the child is subjected to potentially grievous injury. Here, hospitalization as the District Court characterized it. And what he said was -- what the District Court said was, is that because of the injury here this children or this parental decision making process can only be done in a constitutionally permissible fashion. We submit that this is the point where the District Court made the error upon which its entire opinion was predicated. It is our position that a proper analysis of this case should have begun with the parent-guardian and child relationship. It's our position that based on this Court's previous decision as well as the history of our western civilization that we have decided and by we, I mean society and not the state, that we have decided that there are certain decisions that children cannot make for themselves, that there are certain decisions that an adult has to make for a child. And among these decisions are medically indicated decisions with very few exceptions. That is, it's our position that in our society parents with the advice of a physician routinely make decisions which range from whether a child is to have a tonsillectomy to decisions which have life and death consequences for the child. One example which I'd like to use is the situation where the parents faced with the child who has a heart defect, the young child. And a doctor says of course the child can live without an operation. The child will be an invalid for his or her entire life. I can operate. If the operation is successful, the child will live a normal life. If the operation is not successful, the child would die. That kind of decision, that kind of life and death decision-making process occurs in the family routinely and yet no one has ever suggested that that kind of a decision which clearly could have the consequences which are much more adverse that what we have here. No one has ever suggested successfully except in a few recent District Court decisions that that kind of a decision-making process is required to be subjected to an advisory proceeding such as what was mandated here by this District Court decision.
Potter Stewart: I want to be sure I understand you Mr. Lackey. Are you suggesting that the constitution and the United States would prohibit the intervention by the state and that sort of situation?
R. Douglas Lackey: I believe, sir, that it would prohibit it to the extent that the state did not have a compelling state interest to interfere with the --
Potter Stewart: That the constitution would absolutely prohibit the intervention by the state in that sort of a situation.
R. Douglas Lackey: Yes, sir, absolute showing of the compelling state interest --
Potter Stewart: Or are you suggesting that it's constitutionally permissible for a state to leave that decision to their parents. Those are two quite different --
R. Douglas Lackey: Yes, sir -- I -- Yes, sir. Our analysis --
Potter Stewart: -- propositions, aren't they?
R. Douglas Lackey: Excuse me.
Potter Stewart: They're two quite different propositions.
R. Douglas Lackey: Yes, sir, I agree with you.
Potter Stewart: Oh, now which are you suggesting?
R. Douglas Lackey: It would be our position that it would be not -- it would not be constitutionally permissible for the state to interfere with the family and that situation have some demonstration of a compelling state constitution.
Potter Stewart: You don't need to go merely that far in arguing this case, do you?
Warren E. Burger: You need to stand on only the second leg, don't you?
R. Douglas Lackey: I certainly could. There's a -- I believe I could, perhaps I don't understand your question.
Potter Stewart: Well, I think it's rather important because those are two quite different propositions. First, their claim based upon the cases like Meyer against Nebraska and Pierce against Society of Sisters and to an extent Yoder perhaps, that it would be -- that a state would be constitutionally prohibited from intervening in a parent-child relationship. That's one proposition --
R. Douglas Lackey: That's one, yes, Your Honor, I understand that.
Potter Stewart: The other is that a state may constitutionally leave such a decision up to the parent but need not constitutionally do so.
R. Douglas Lackey: I see that the second point would be easier and I --
Potter Stewart: Well, that's all you need in this case --
R. Douglas Lackey: That's all, yes sir. That would resolve this case from that standpoint, yes sir.
Byron R. White: But if you rely on the first point, I suppose that it'd unconstitutionally for a state to say an operation has to be performed by a doctor.
Speaker: Yes.
Potter Stewart: It might be.
Byron R. White: Parents could use self-help on heart operations.
R. Douglas Lackey: No sir, I -- well, I don't --
Byron R. White: You don't really maintain that.
R. Douglas Lackey: I don't really -- I wouldn't maintain that. I think that what my difficulty here is that it was our original position that the issue here was not constitutionally based that it was -- that we were tying everything here to a parent acting on medical advice and assuming and stating that that was something which should have been reserved to the family which we could not constitutionally interfere.
Warren E. Burger: But I certainly agree that we don't -- it's not necessary to get to that to resolve it. Your position here is that the constitution of the amended states doesn't require anymore than what Georgia has provided.
R. Douglas Lackey: That's absolutely correct, sir. Either for the reason that the child does not have a liberty interest or if the child does have a liberty interest in this particular situation because the process which we provide them meets all the basic requirements that the constitution would mandate.
William J. Brennan, Jr.: Mr. Lackey, if the child -- of course the whole procedure has its -- and the result is confinement. You suggest that doesn't involve a liberty interest.
R. Douglas Lackey: No, sir, it's our position that the confinement is secondary to in an unnecessary incident with a treatment.
William J. Brennan, Jr.: That wasn't my question.
R. Douglas Lackey: I'm sorry sir.
William J. Brennan, Jr.: My question is, are you suggesting the child does not have a liberty interest at stake?
R. Douglas Lackey: Yes sir, that's our -- that's what my first -- my first position is that in this case where the parent makes the decision and there is confinement, as necessary result that decision that the child does not have a liberty interest. It's our position that constitutional rights arise out of relationship. And the relationship that is here is between parent and child, not between the child and the state as in --
Potter Stewart: But if the child is locked up and not the parent.
R. Douglas Lackey: Yes sir, that's correct.
Potter Stewart: And you're not surely or are you suggesting in that sort of our Brother Brennan's question that there is not a deprivation of liberty?
R. Douglas Lackey: Not in the constitutional sense. There -- certainly the child is restrained in the hospital.
Warren E. Burger: Or are you saying that it's the same kind of deprivation as it involved different in degree only from having an appendix operation or a heart bypass or confinement for smallpox?
R. Douglas Lackey: Yes sir. That was my point exactly in response to Mr. Justice Brennan. I evidently wasn't answering his question that the confinement in the hospital is just a necessary incident to the -- incidental to the treatment itself and it occurs very --
Speaker: Mr. Lackey, as if I understand you correctly, it would be constitutional for a state to say to a parent, if you want to keep your child in the basement for the next three years because you think it'd be healthy to keep them out of the sunlight or something like that, that would be perfectly constitutional because they have to rely on the wisdom of the legislature not to pass that statutes. But you say that if they did, there'd be no constitutional objection to it. But rather a difficult position to maintain --
R. Douglas Lackey: That's a difficult position to maintain, sir.
Speaker: It is indeed.
R. Douglas Lackey: And I don't believe I could maintain --
Potter Stewart: But you don't have a problem there as to whether or not there was a state that was depriving the child his liberty or just -- or a private person, the parent.
R. Douglas Lackey: That's correct. Yes sir. And we --
Thurgood Marshall: Didn't your basic problem of equating -- putting a person in a mental institution indefinitely would go in on a hospital overnight from tonsillectomy, they're two different animals.
R. Douglas Lackey: There is certainly a difference in terms of duration.
Thurgood Marshall: And everything else.
R. Douglas Lackey: I --
Thurgood Marshall: I mean, what -- it would be a more walk out from that tonsillectomy, even if it worked out.
R. Douglas Lackey: Well, from a tonsillectomy, you of course -- could sir that the next day I supposed but from an open heart surgery for instance, you couldn't. It's just a question with degree.
Thurgood Marshall: I didn't say (Voice Overlap) -- I said --
R. Douglas Lackey: Yes sir.
Thurgood Marshall: You'll equate it with a tonsillectomy or an ingrown toe nail.
R. Douglas Lackey: Yes sir, I think the --
Thurgood Marshall: I mean this is liberty. We need to lock somebody up and turn the key, that's liberty. That's a basic denial of liberty in any sense that work. Will you turn the key and then all of the other hospitals, in cases you mentioned, you don't turn the key on to the person being locked.
R. Douglas Lackey: All right. I believe, sir that children who go to other types of hospitals for other kinds of surgery or just as restrain as the children are in these cases who go to mental hospitals. Now, perhaps the duration is different.
Thurgood Marshall: That's what you think?
R. Douglas Lackey: Yes sir. The resolution of the liberty question of course does not end the case except of course if you find a liberty interest. But before we can get to the question of what processes do, we have the court's question of whether this case implicates or has that quantum of state action necessary to implicate the Fourteenth Amendment. Our position on this is simply that due process is an amorphous concept and perhaps the best thing that can be said about it is that it requires a case by case examination. It's our position that in this case, what we have is we have private parties here, parents availing themselves of a resource from the state which is substantially identical to a resource which could be provided and could be obtained in the private sector. And that it is -- perhaps we can best state it by saying illogical to have a decision where the result is simply to create two classes of parents. One class of parents who buy their wealth or buy reason of their wealth and their assets and the finances that they have can go to a private facility and can avoid all of the process which has been mandated by the District Court. And have another class of parents who because of their poverty or their inability to pay and who are therefore forced to rely upon the state for their -- treatment for their children, that these parents have to go through an adversarial proceeding such as that mandated by the District Court in order to simply obtain mental health treatment for their child. Of course this has another aspect too. The essence of state action here if you find it is that the hospitals, the state facility and that the physician who is -- the psychiatrist in this case but the physician who is authorizing the admission is a state employee. If that is sufficient to create state action, then this means that in all of our public hospitals in the state of Georgia as elsewhere that the admission of any child to a state hospital for any reason is state action and the question thereafter always be whether the risk of deprivation that flows from that is sufficient to warrant some sort of hearing. And of course numerous medical treatments as I have indicated previously have potential consequences which are certainly as grievous as this. We simply cite that we've believe -- or we simply state to the court that we believe that as a matter of logic where we simply offer a choice that that is not a sufficient amount of state action to invoke the Fourteenth Amendment. However --
Speaker: Mr. Lackey, it doesn't necessarily follow, does it?
R. Douglas Lackey: Yes sir.
Speaker: That if the Fourteenth Amendment applies even to the heart operation, that there must be a hearing, it may mean that there must be due process but would it not be at least logical to say that the doctor and the parent provide adequate process in that situation with that or perhaps or at least arguments why a different process might apply where there's a possible conflict of interest between the child and his parent.
R. Douglas Lackey: Yes sir. That's absolutely right.
Potter Stewart: So, you don't always have to have a hearing if you just find the Fourteenth Amendment applied?
R. Douglas Lackey: But -- no, sir. If I said that I should not -- you would in those instances have to provide whatever minimum amount of due process this Court or other courts would deem necessary which brings me really to the due process question which is raised when you find that there is a liberty interest when you find there is state action. The analysis which we have used is the analysis set forth by this Court in Mathews v. Eldridge which of course is a three-step process requiring an examination of the interest of the parties as a second step when evaluation of the risk of error under the present procedures as well as an evaluation of the benefits of additional procedures. And thirdly, an examination of the burdens imposed on the state by these additional procedures. I've already spoken about the first issue, the interest involved and I'd like to turn to the second issue. In order to understand the resolution of this, I believe that I have to explain to the court how we perceive that the system works in Georgia now and how it does work indeed at the time of this litigation for we believe that as the Fifth Circuit said in Drummond versus Fulton County Department of Family and Children Services, due process only requires a rational decision making process. In Georgia, under our statutes, the parent first makes a decision that the child is mentally ill either because they've had the advice of a physician or because they notice some aberrant behavior on the part of the child or I suppose for a number of other reasons. Normally, although admittedly not always, the parent takes the child then to the community mental health center where the child is examined and if found to be mentally ill, where the child is treated if that's possible. That is --
Potter Stewart: How does the child get -- what triggers the examination originally, the original examination by the physician?
R. Douglas Lackey: The parent taking the child to the community health center.
Potter Stewart: So it's the parent that triggers it.
R. Douglas Lackey: That it is all parent or guardian initiated.
Potter Stewart: Parent or somebody in loco parentis.
R. Douglas Lackey: Yes sir.
Warren E. Burger: Sometimes it might be the family physician who was involved.
R. Douglas Lackey: That's correct sir, that's correct.
Potter Stewart: But it -- is it the parent's decision?
R. Douglas Lackey: It is the parent's decision to take the child in the first instance. And the only place that the state would become involved other than where the state is a guardian is where it was brought to the attention of our juvenile court system that the child was mentally ill and not receiving proper treatment in which case it could be taken into juvenile court, the state could take it in.
Potter Stewart: And what would initiate those juvenile court proceedings?
R. Douglas Lackey: A petition in the juvenile court which can be filed under our law by any person alleging that the child has been deprived.
Potter Stewart: A neighbor or --
R. Douglas Lackey: A neighbor, a welfare worker if you will, someone from the local mental health agency could do it. Under Georgia law, the specific dictates any person can file that petition in juvenile court.
Thurgood Marshall: Mr. Lackey, I don't want to be capricious at all but mentally ill, can a layman determine that? Isn't it another phrase you want to see appears to be something?
R. Douglas Lackey: Yes sir, I --
Thurgood Marshall: It's going to be some other words if it's mentally ill.
R. Douglas Lackey: What -- the way I prefaced it was --
Thurgood Marshall: Yeah.
R. Douglas Lackey: If the parent believes the child is mentally ill because a doctor has told them so, physicians told them so, or because he notices some aberrant behavior on the part of the child, I've thought I had said that. If I didn't, I should have. But, at any event the child at the first level is treated in the community if that's possible in most circumstances. And then and only then if that fails is the child taken to the community -- to the mental health center, to the hospital if you will and there the child --
Speaker: (Voice Overlap) said, treated in the community by whom?
R. Douglas Lackey: The State of Georgia has approximately 50 minimum community mental health centers where children can be treated as outpatients. To demonstrate the scope of this, in 1974, fiscal year 1974 --
Speaker: May I take one of your hypotheticals.
R. Douglas Lackey: Yes sir.
Speaker: A parent observes what parent regards as aberrant behavior on behalf of -- on the the part of the child.
R. Douglas Lackey: Yes sir.
Speaker: And takes him now, I gather to a local community health centers, is that it?
R. Douglas Lackey: Yes sir. Usually, but as I want to caveat that by saying not always, I wouldn't want to mislead the court on that point. Usually, the parent takes the child to community mental health centers.
Speaker: Now, who are the professionals on duty there?
R. Douglas Lackey: Those are state-paid generally mental health professionals.
Speaker: Not doctors?
R. Douglas Lackey: Yes, sir, they have a -- it's my understanding and I just quite frankly don't believe the makeup of that team is in the record but it's my understanding that they have a full range of mental health services that they provide in the community.
Speaker: And whoever it is, one or more, is it one or more professionals?
R. Douglas Lackey: Generally sir, it's what the record reveals.
Speaker: And one or more professionals make a diagnosis, is that it?
R. Douglas Lackey: Yes sir.
Speaker: And if the diagnosis is the child may be mentally ill, then what happens?
R. Douglas Lackey: Then if the child can be -- the child is treated in the community either at home as an outpatient or through whatever local facilities they have in the community, group homes and that sort of thing.
Speaker: But again, who are the professionals involved if it's a treatment as an outpatient.
R. Douglas Lackey: They're state-paid or county-paid mental health professionals, psychiatrists, psychologists, social workers. It's my understanding again is that it's the full gambit of mental health professionals.
Speaker: And if that doesn't work then what happens?
R. Douglas Lackey: Then the child is referred to the state mental health facility, the hospital.
Speaker: And that is -- is a one, one in the state or more?
R. Douglas Lackey: No sir, there are eight regional hospitals in the State of Georgia, seven of which have been built -- well, have been built within a ten years proceeding, this litigation.
Speaker: And these are nothing but mental hospitals, are they?
R. Douglas Lackey: Those are mental hospitals, yes sir.
Speaker: For confinement as well as for treatment.
R. Douglas Lackey: Yes sir. They do confine the patients there.
Speaker: Now, what happens to the child referred to one of those hospitals?
R. Douglas Lackey: When the child is referred to a hospital, he is again evaluated by a team of mental health professionals which the record indicates, are psychiatrists, psychologists, social workers. One even had a director of education in those evaluations. That's a separate evaluation and it's only at that point when that team makes a separate determination if the child is mentally ill or chose evidence of mental illness and a suitable for treatment in the hospital that the child is admitted to the hospital. So, our position in this respect is that there's --
Speaker: I would say admitted.
R. Douglas Lackey: Yes sir.
Speaker: Or committed which --
R. Douglas Lackey: Admitted. We treat it as a voluntary admission. He is not committed.
Speaker: Because my hypothetical was that the parent initiated this initially.
R. Douglas Lackey: That's correct.
Speaker: So, this might be true, a voluntary admission?
R. Douglas Lackey: Yes sir. Under our statute, if the parent say using a hypothetical decides that the child will not go in the hospital, say that the child has been brought to the hospital and evaluated and the doctors want to admit him. And the parent decides not to admit him, then the child is not admitted unless the state can go through the juvenile court proceeding or to the involuntary commitment proceeding to get the child in. The parent holds the string so to speak, not to get him in because that takes to initiate getting him in of course but not to physically get him in because that of course relies on a medical determination.
Speaker: And of course all along the line, there's no procedure for questioning the judgments which result ultimately on what you've styled in admission, the professional judgments.
R. Douglas Lackey: There -- by questioning, you mean appeal to a judicial body.
Speaker: Well, to any one.
R. Douglas Lackey: Well, we believed that each succeeding step access a check on the previous one of course, that is the parent makes the initial determination. Usually, the community mental health center makes the second stage of the determination, of course if this child is not mentally ill there, they don't get into the system. And thirdly, the hospital checks the community and the parents so we contend that each succeeding level is in fact almost a form of appeal if you will. And of course not only do they have this but there is a provision under our law for access to the courts in Georgia for these children. We have a --
Speaker: What stage is that?
R. Douglas Lackey: At any stage sir.
Speaker: Biggest stage?
R. Douglas Lackey: Yes sir. Let me explain. I want to be very careful again about this. We have a state statute that require the Department of Human Resources to see that all patients have access to counsel for assistance in legal matters in which they are involved. We have statutes that provide three courts that these children can go to. And I hadn't thought of it as being at any stage of their commitment but I know no reason why it could not be. That is the children can go to the superior court on a writ which of course anyone could do in any situation like this.
Speaker: Is that habeas?
R. Douglas Lackey: That's a habeas, yes sir. Second, the mental health code or Georgia Mental Health Code specifically provides that the probate court has jurisdiction to review cases of people in state mental health facilities to make sure the provisions of the mental health code are being complied with. And thirdly, with respect to children, they have access to the juvenile court which of course has jurisdiction over children placed in violation of law over children who have been abandoned and over children who are deprived which is defined as -- you know, not receiving proper --
Speaker: Well, now -- in our hypothetical, what -- how would it occur with the youngster involved--
R. Douglas Lackey: Okay.
Speaker: You go to court?
R. Douglas Lackey: The --
Speaker: At whatever stage?
R. Douglas Lackey: Yes sir. That is perhaps the most difficult question that you could ask and my answer to you is that I can only illuminate it by this case. And that -- in this case, it was our staff that referred these children to their lawyers. It was our Department of Human Resources to furnish office space in our hospital to these lawyers. I would submit that an examination of the District Court order in this case does not reveal that so much as a single child had ever been inappropriately hospitalized --
Speaker: Well, I gather as you've described to them Mr. Lackey. It's rather a happen stance that they were referred to lawyers. There's no champion on it, so-called for the child as the child goes through these procedures.
R. Douglas Lackey: We have two things that I can offer in response to that. I don't know it's satisfactory but we have an advocacy unit within the department itself that advocates for patients.
Speaker: But how does the child get to that advocacy (Voice Overlap)?
R. Douglas Lackey: We have -- at the hospitals, we have two things. We have a pamphlet that every patient receives. It's a handbook on patient's rights which is -- I don't know how to describe it to you. The appellees asked one of our witnesses whether it was written in children's language and I don't know exactly what that is but it's written in (Voice Overlap) --
Potter Stewart: Well, if you have a child, five or six years old, is that, I mean, practical thing?
R. Douglas Lackey: It's written in Section -- I don't know whether it is or not sir but I think in that case an adult is going to have to make the decision for the child in any event. And I think that this case demonstrates that our mental health people there in the hospital when it's appropriate do in fact refer patients who don't need to be in the hospital and their opinion to lawyers. That really is the due process that we see in this case but --
Potter Stewart: Before you get too far away from your description of this procedure with respect to the voluntary commitment of a child, you'd be helpful to me if you could just trace very briefly the comparable procedure for the voluntary commitment of an adult.
R. Douglas Lackey: The voluntary commitment of an adult requires only -- only that the -- no, that's not -- that's how I read the -- the adult normally goes to the community also. We have a community based program --
Potter Stewart: And what triggers that if -- let's assume, he is -- does the Georgia law presumed that even though he is putatively mentally ill, he is capable of making the decision to voluntarily commit himself?
R. Douglas Lackey: Yes sir. No person in Georgia is deemed to be incompetent unless he's been judicially -- has been adjudicated incompetent. We presume that they're all competent to seek admission and (Voice Overlap) --
Potter Stewart: Even though at the same time you admit him to a mental hospital.
R. Douglas Lackey: That's correct sir because being admitted as a voluntary patient requires only that you'd be mentally ill and suitable for treatment in the hospital.
Potter Stewart: Yeah.
R. Douglas Lackey: It requires no dangerousness or a finding of inability to care for yourself which really gets to the incompetency question.
Potter Stewart: So, only if he goes voluntarily to a physician does the process of a voluntary commitment begin with respect to an adult?
R. Douglas Lackey: That is initiated by the adult, yes sir.
Potter Stewart: As -- and then what?
R. Douglas Lackey: He goes to the hospital or he goes to the community mental health center. He goes to the community mental health center, they try to treat him in the community. If they can't treat him there, he goes to the hospital. And if he comes to the hospital and says, ”I'm sick and I want in.” And the doctor examines him and says, “Yes, you're showing evidence of mental illness and we think we can treat you here.” He's admitted to the hospital.
Potter Stewart: And then after he is inside the hospital, does he have available to him those two resources that you mentioned, the advocate and the booklet?
R. Douglas Lackey: Yes sir. Its -- yes, yes sir, he does and also --
Potter Stewart: He has there all the procedures except for the juvenile court.
R. Douglas Lackey: That's correct sir.
Potter Stewart: Is that it?
R. Douglas Lackey: And of course he has one more. An adult can walkout. That is, he can say, “I want to leave.” And the state either has to release him or has to begin involuntary commitment proceedings --
Potter Stewart: And that's the same with respect to the child if his parent, does it?
R. Douglas Lackey: Yes sir, with the one difference that you've just noted. If the parents says, ”I want to leave.” Then the dismissal of the child would of course be conditioned on his parent's approval of that discharge.
Potter Stewart: Yes.
R. Douglas Lackey: Now --
Potter Stewart: How about -- the whole Georgia procedures I understand it for it simply substitutes the parent for the individual in a voluntary commitment if the voluntary committee is a non-adult.
R. Douglas Lackey: That's correct sir.
Potter Stewart: Is that it?
R. Douglas Lackey: That's precisely it.
Potter Stewart: And what's the definition of a child for this purpose in Georgia?
R. Douglas Lackey: A person under the age of 18 years.
Potter Stewart: 18 or under?
R. Douglas Lackey: Yes sir.
Potter Stewart: If he's 18, he's still a child.
R. Douglas Lackey: No, if he's 18, he's an adult, he's 18. It's under 18 (Voice Overlap) --
Potter Stewart: His 18th birthday, he isn't -- he's no longer a child.
R. Douglas Lackey: He becomes an adult on his 18th birthday.
Speaker: So, relying on the parent is really critical in the case where you're committing for just for treatment rather than because someone is dangerous.
Potter Stewart: Yes sir, that's correct.
Speaker: And I take it you do and that you regularly commit for -- purely for purposes of treatment.
R. Douglas Lackey: Yes Your Honor.
Speaker: At the -- at -- with -- at the request of the parents.
R. Douglas Lackey: Yes sir. Yes sir, as long as I can caveat that by saying we admit at the request of the parents but only after our doctors have said, “The child is mentally ill and suitable for treatment.” There is another part of that test and that is of course the benefits of the adverse procedures advocated here. I think that we have addressed them on our brief unless the court would like me to discuss them because I would like to turn just briefly to the other issue and that is the question of the District Court's mandating that we provide treatment for these mentally ill children in only the most appropriate treatment setting. The -- what the District Court found because we told the District Court that there are certain children who are in the hospital, who are mentally ill but for whom there -- are conceivable other types of treatment settings, group homes and this sort of thing. Going from this, the District Court mandated that we -- the discharge these children, in particular this 46 but of course it applies to all children similarly situated, either discharge these children from our custody or provide for them the most appropriate treatment setting conceivable. That is the best treatment setting. I bring this to the court because we think this is perhaps as important as the other issue, maybe even more important because what the District Court has said in essence is that if I or anyone takes their child to a state mental health facility and the doctor there says, “You're child is sick. I can treat your child here in the hospital and he'll get benefits from it.” But if I had my preference, I'd like to have him in a group home. And there isn't any group home for that child and under this District Court decision, that child cannot be admitted to a state mental health facility. And of course if we have no group home, we can't go there which means it's going to be under this decision in our opinion and we think it's an escapable conclusion. There are going to be children who are mentally ill who are not going to get treatment for their mental illness in a timely fashion. The record is absolutely clear that we provided these children with the most appropriate treatment setting which we had available at the time, that is there was no finding and no evidence that we have wrongfully kept many child in the hospital when we had another treatment setting which anyone thought or physicians thought were more appropriate for him. This mandate by the District Court is simply going to result in us being unable to serve the children to the limited extent that we already do. And for this reason, we urge the court to overturn that portion of the decision as well. Thank you.
Potter Stewart: Mr. Lackey, does this involve only mentally ill, only the mentally ill or does it also involve the mentally retarded?
R. Douglas Lackey: This law suit only involves the mentally ill.
Potter Stewart: It's what I thought.
Speaker: Mr. Lackey, I take it before us in the Georgia case, they're only state hospitals. Yeah, there are no private ones that -- as I think as the case in the Pennsylvania litigation.
R. Douglas Lackey: Yes sir. Yes sir, that's correct.
Speaker: And secondly, perhaps you answer this in your colloquially with Justice Brennan but in Georgia, may habeas be used to gain release on the ground that a child is no longer ill.
R. Douglas Lackey: I cannot cite you to a case sir but it would be our position that that would be correct for the reason that if the child is no longer ill, the superintendents under a duty to discharge him from the hospital and thus holding him when he is no longer mentally ill which of course is not the facts in this case but holding him when he was no longer mentally ill would be illegally detaining him. So, I cannot cite you to you to a case but we believe that a habeas would lie.
Speaker: But a habeas wouldn't lie if the behest of the child, say a 17-year-old child confined called up a lawyer and asked him to file for habeas and the parents came in and asked for dismissal.
R. Douglas Lackey: Yes sir. If -- I'll have to assume several facts with your question.
Speaker: When the parents -- if the parents want him out, he'll come under the law, they -- he is to be released.
R. Douglas Lackey: Yes sir. But if he is not mentally ill and not suitable for treatment in the hospital, then the superintendent can't hold him. The only way the superintendent can hold him in that instance is when the alternatives that are available would threaten his safety which means in your hypothetical --
Speaker: But they will entertain habeas at the behest of a child who makes to claim that he is no longer mentally ill.
R. Douglas Lackey: Yes sir. I cannot cite you --
Speaker: Even though the parents are dead.
R. Douglas Lackey: Yes sir. I cannot cite you to a case but I believe as I understand habeas that would have to be the case. Thank you.
Warren E. Burger: Very well. Mr. Cromartie.
John L. Cromartie, Jr.: Mr. Chief Justice, may it please the Court. In oral argument, I would like to deal with what I view as the three essential issues in this case. But before getting into those three essential issues, I'd like to deal with two collateral issues that arise out of the last oral argument just very, very briefly. One is a legislative change during the last session of the general assembly. The state legislature passed a new mental health code. The portion dealing with juveniles was accompanied by what we call a sunrise provision. That is if this case is affirmed by this Court then those provisions would take effect. There was a great deal of interest on the part of the District Court about what would happen if we strike down the statute. Would there be practical alternatives available for parents, for hospitals, in terms of placing children in mental hospitals. This new statute seems to comply with all of the mandates of the District Court and thus, it seems to us would be constitutional. So, I bring that --
Speaker: How about to 40? How about the children who were ordered to be differently placed, are they still on (Inaudible)?
John L. Cromartie, Jr.: Your Honor, it is my understanding from my last conversation with the state on that that there are two of those children still within the terms of that order, that is they are still confined within mental hospitals.
Speaker: And to comply we would have to be placed in different context or in different environments.
John L. Cromartie, Jr.: Yes, Your Honor.
Speaker: What does that statute do about them?
John L. Cromartie, Jr.: It just --
Speaker: Does this provide any additional facilities or not?
John L. Cromartie, Jr.: As I understand the new statute, it mandates that children be provided with care in the least restrictive environment. That is, if there were a choice between a foster home and a mental institution, they would be placed in the foster institution but -- the foster home that is. I don't think that the new statute specifically addresses the question that you're asking now. Secondly, there was a --
Speaker: Mr. Cromartie, before you leave it, do I correctly understand that the new statute does not have any effect at all if the decision is reversed.
John L. Cromartie, Jr.: That is correct Your Honor.
Speaker: So that it's fair to say the judgment of the legislature of the state is that the District Court is all wrong.
John L. Cromartie, Jr.: That was on the advice of the Attorney General. We felt like the statute was going be passed by the legislature and in support of the passage of it. But on the advice of the Attorney General, the committee added in the sunrise provision. So, I don't know whether it would be fair to say that it is the judgment of the state legislature, that the court was all wrong. I'm not sure that --
Speaker: Well, but it makes no change in the preexisting statute unless there is an affirmance.
John L. Cromartie, Jr.: Yes, Your Honor, on the advice of the Attorney General.
Speaker: well, I presume that -- if that where they get their advice. That's their judgment in any event, yes.
John L. Cromartie, Jr.: Well, they certainly did not put into effect a new statute. That is correct.
Potter Stewart: Well, he -- the state has appealed the decision in this case.
John L. Cromartie, Jr.: Yes Your Honor.
Potter Stewart: And that's -- all those evidence that the state thinks it's a wrong decision, isn't it?
John L. Cromartie, Jr.: There's no question about that and clearly in my judgment, this -- the statute that was passed would have mooted out those aspects of the case. The second preliminary question I'd like to deal with is a question put to me by Mr. Justice Stevens right at the end of the argument. I believe that you asked me the questions to whether the Georgia procedures are invalid under the District Court's holding even as to those children who were within the American Psychiatric Associations' four criteria. And I'm not sure whether I exchanged that you ended up with the answer that I meant to give to you. What I meant to say to you there was, is that under the APA standards, all of the children under the present Georgia law are in indefinitely. And therefore, the APA's position is that all of those children would be entitled to hearings. And that secondly, the District Court did not deal expressly with the other three criteria that the APA set forth although I see nothing inconsistent in what the District Court's order was from those other criteria. Now, I personally have some problems with the specific four criteria that the APA set forth. But I guess the bottom line is, no, the District Court decision is not inconsistent with the APA position. The three issues that I would like to deal with, is first in the circumstances of this case that is, commitment of a child to a mental institution. Does the doctrine of parental autonomy or family unity or however that doctrine may be characterized, does this preclude additional protections for the child? Secondly, does the process at the institution itself adequately protect the child or is there a need for more procedures. And thirdly, will the procedures ordered by the District Court Act as a reduced to have risk. Will they have a tendency to prevent inappropriate institutionalization? I have no intention of spending time on the substantive due process issue although I would certainly answer any questions. I feel like that I address that issue --
Speaker: What do you think the substance of due process issue is?
John L. Cromartie, Jr.: It is whether the District Court was correct in holding that the two -- well, the 46 children should be taken out of the state mental institutions when they were faced with evidence from the state itself that these children did not to be in a state mental institution and that they were being positively harmed by being in that institution. And in the face of that, it seems to me that the court had little other choice but to order that they'd be taken out of the institution. It is not --
Potter Stewart: Well, the court held that the United States constitution requires that the State of Georgia provide that the mentally ill child must be treated in the setting most considered most appropriate to his condition either that the State of Georgia must do that or else not treat them at all. And your adversary claims it -- at least no room for the second or third or fourth most appropriate. It's either the most appropriate or nothing. And that the court held that the constitution requires that.
John L. Cromartie, Jr.: Your Honor, I believe that the term optimal which used by the court I believe that they picked up that phrase from the 1973 study commission and I think that --
Potter Stewart: Oh, where is the 1973 study commission get into the constitution of the United States?
John L. Cromartie, Jr.: Well, it is a part of the evidence in this case that said a great deal about the conditions within the mental institutions within a state and the District Court was -- felt that that study was consistent with its own observations and with a testimony in this case.
William H. Rehnquist: Well, but how does that bear on the circumstances of confinement to say that the word optimal came out of a study commission report and therefore the constitution requires “optimal” confinement or none at all?
John L. Cromartie, Jr.: I don't think that that's what the District Court ordered in the case. I think if you will look further in the opinion where the court actually ordered relief that you find that what the court said was, was to provide necessary physical resources in personnel for whatever non-hospital facilities are deemed by them to be most appropriate. I think that the District Court was a great deal more flexible than that in terms of what it ordered. I think that what it ordered was is that if these children were going to be harmed by being in the institution and the state admitted this then they had to get them out of there. I'm merely was referring to the optimal as what I think was unfortunate language that does not suggest the true intent of the court and I think --
Speaker: Do you think the District Court's opinion and judgment expressly or implicitly says that anyone who is confined, any child who is confined under this law is entitled to treatment at the hands of the state?
John L. Cromartie, Jr.: I don't understand your question.
Speaker: Well, do you think it's a -- do you think the District Court held that a child who's committed that the request of the parents and checked out what the state doctor is entitled to treatment while he is confined.
John L. Cromartie, Jr.: Yes. I think that's implicit, that at least that the child not be harmed and that was --
Speaker: But certainly is implicit in the second -- with respect to this 40, I take it.
John L. Cromartie, Jr.: I think it is Your Honor.
Speaker: Are there some cases that would support that?
John L. Cromartie, Jr.: That would support the treatment of the children --
Speaker: As well as the treatment in addition to confinement?
John L. Cromartie, Jr.: Well, I think that the case of Jackson versus Indiana and Shelton versus Tucker and others speak to the issue of not harming people, that is whatever restrictions you place on the children have to be appropriate.
Speaker: Let's say there's no harm, say there's no harm. They -- they're just confinement, that state just confines at the request of the parent.
John L. Cromartie, Jr.: That certainly not the evidence in this case. The evidence of the states own doctors is that the children were being positively harmed by being in the institution. That is certainly not the evidence that was before the court.
Thurgood Marshall: And dose the evidence show the existence of institutions in Georgia that would not harm anybody?
John L. Cromartie, Jr.: There were many children in Georgia who were in institutions that were not being harmed. There were many other children, other than the 46 who were actually being treated.
Thurgood Marshall: There were institutions available in Georgia that could treat this 40 odd children satisfactorily and not harmed.
John L. Cromartie, Jr.: Oh, the state's position was that there were no such institutions. It's remarkable to me that of the 46, they have been no new facilities built and yet 44 of those children have been placed in these non-existent facilities. It suggests to me that the facilities are in fact present but the state has not gone to the trouble to locate them. And that was the conclusion of the District Court also.
William H. Rehnquist: How much time has gone by since -- between the entry of the District Court's decree in the present time?
John L. Cromartie, Jr.: Your Honor, I believe that the decree has entered around February of 19 --
William H. Rehnquist: 76.
John L. Cromartie, Jr.: 76, yes.
William H. Rehnquist: So, isn't it conceivable in two and a half years there could be a movement of the institutional population such that vacancies would open up in existing facilities?
John L. Cromartie, Jr.: That is somewhat possible although 44 of the 46 were out at the time this case was last argued almost a year ago.
Speaker: That could be just because the parents requested it.
John L. Cromartie, Jr.: The information that I have is not to that effect. Many of the children were placed in the foster homes and other facilities. It was the District Court's finding that the state had made little or no effort to find alternative facilities. And I see no evidence in the record to rebut that finding by the court.
William H. Rehnquist: Do we have something in the record that indicates that 44 of the 46 are now out?
John L. Cromartie, Jr.: No Your Honor.
William H. Rehnquist: And why?
John L. Cromartie, Jr.: No, that is information that was furnished to me by counsel for the state during the last oral argument of this case. There's nothing in the record to suggest that, no, Your Honor. Dealing first with the issue of parental autonomy, I would point out first that at least a portion of the class. It seems to me that the parental autonomy doctrine has no application too. That is those of the children that were wards of the state and who were actually institutionalized by the state themselves.
Speaker: Well, there are children like that in this case.
Potter Stewart: Well, somebody's -- Yes, Your Honor. Around 20% of the class would be in -- that one of the named plaintiffs, J.R. was a ward of the state since near birth.
Potter Stewart: For what reason? Does the parent or parents had -- whether dead had been declared to be unfit as parents?
John L. Cromartie, Jr.: One of those two, yes Your Honor.
Potter Stewart: Right. May I ask you since I've already interrupted you, is there a provision in Georgia Law for the involuntary commitment which I -- let's assume as parent doesn't take the initiative and indeed if it's suggested to the parent that he do take the initiative. He said, “Absolutely not. I will not. As far as I'm concerned, my child is either perfectly well or if not well, he's going to stay home. I'm not going -- I'm not going to have anything to do about it with his being admitted to a hospital.” Is there a provision for the involuntary commitment of a child in circumstances such as that?
John L. Cromartie, Jr.: Yes sir. Yes Your Honor. In fact one third of the children that are committed in the states are committed through judicial proceedings of some kind.
Potter Stewart: And -- then through an involuntary commitment procedure?
John L. Cromartie, Jr.: Yes, yes.
Speaker: Well, in my Brother Stewart's hypothetical, who initiates the commitment?
John L. Cromartie, Jr.: I think that Mr. Lackey addressed that issue. I think anyone can initiate the involuntary commitment.
Potter Stewart: You said, anyone could initiate a juvenile court proceeding but this is a little different.
John L. Cromartie, Jr.: I believe the same as through under the involuntary commitment that anyone can initiate --
Speaker: You mean the neighbor may?
John L. Cromartie, Jr.: A neighbor may --
Speaker: Social worker?
John L. Cromartie, Jr.: Friend or social worker, whoever, yes. In fact, back in my years as county attorney when I was in private practice, all of the juveniles children, 17 and under were involuntary committed rather than voluntarily committed because the probate judge didn't have a lot of confidence in the voluntary commitment. And it is that experience that convinces me that those hearings that we are suggesting should be held can be held in a way that it's not under some traumatic --
Potter Stewart: Well, there's some -- there are some hearings of -- I suppose the involuntary commitment of a child is no different from the involuntary commitment of an adult basically, isn't that correct?
John L. Cromartie, Jr.: There are --
Potter Stewart: And --
John L. Cromartie, Jr.: That's true, I mean, yes.
Potter Stewart: And there are hearings when there's a voluntary commitment of an adult. There are no hearings when there's -- excuse me, there are hearings when there's an involuntary commitment of an adult and there are no hearings when there's a voluntary commitment. There are simply these same checks on it, is that correct?
John L. Cromartie, Jr.: Yes. And in --
Potter Stewart: Generally, there's -- if you want to analogize there is a jury trial, if you ever write to a jury trial if you've plead not guilty, you don't if you've waived it if you've plead guilty.
John L. Cromartie, Jr.: Well, because we --
Potter Stewart: Analogizing it as you do to a criminal proceeding.
John L. Cromartie, Jr.: Of course we're not suggesting that a jury trial should be made available in this case.
Potter Stewart: No, I know you're not. I know you're not.
John L. Cromartie, Jr.: That the court has precluded that in the juvenile delinquency --
Potter Stewart: I know you're not. But you do analogize these three, your reliance on cases such as In re Gault and others to a criminal proceeding.
John L. Cromartie, Jr.: Yes. We've relied very heavily in this case on the magnitude of the child's interest. The magnitude is simply enormous. We are talking about children being locked in the sterile walls of institutions where the process --
Potter Stewart: It's also true in the volun -- when you -- when an adult voluntarily admits himself to a hospital, isn't it?
John L. Cromartie, Jr.: But an -- But adult can turn around and say, “I want out.” And they must be let out or involuntarily committed. And a child does not have that option.
Potter Stewart: Its -- to the same option that put him in can take him out. I.e, though -- the desire of his parent, isn't that correct?
John L. Cromartie, Jr.: That is a disagreement that I think that we had in the last oral argument about whether the placement of a child in an institution is truly voluntarily because if you --
Potter Stewart: Well, Georgia has said that it's voluntary and the question is whether or not Georgia cons -- can agreeably to the constitution adhere to the centuries old common law rule that a parent speaks for his child. And the common law presumption that there's a community of interest between child and parent. That's the basic question in this case, isn't it?
John L. Cromartie, Jr.: Well, I find absolutely no authority for the proposition that a parent has ever been able to institutionalized a child in a state mental institution. I find no authority to support that proposition. I would --
Warren E. Burger: How about for tubercolosis?
John L. Cromartie, Jr.: I would --
Warren E. Burger: I was referring to tuberculosis or smallpox?
John L. Cromartie, Jr.: The child would be cared to a doctor, to a hospital and treated there and we --
Warren E. Burger: Will -- confined.
John L. Cromartie, Jr.: Confined.
Warren E. Burger: Confined.
John L. Cromartie, Jr.: It's not my understanding that tuberculosis treatment is confined in the same sense that you confine in a mental institution.
John L. Cromartie, Jr.: What's the difference in the sense if he is --
John L. Cromartie, Jr.: Well, I may --
Warren E. Burger: Placed there by his parents and the parents say to the doctors, “If you keep him here until he is well or she is well and I go to see him twice a week.”
John L. Cromartie, Jr.: Well, for centuries, the courts have treated physical care and physical treatment different from mental commitment because --
Speaker: Who has treated -- who has treated it different?
John L. Cromartie, Jr.: The court's have. The Georgia Court's have, Morton versus Sims and other cases have said, “Mental commitment is by its very nature coercive. It -- it's coercive by its nature. Plus, it is not -- they are not commonly accepted medical norms.
William H. Rehnquist: Oh, on your first -- on your first point that medical -- that mental care is coercive by its nature. It surely no more coercive than to put a child in the hospital and have his leg amputated because he has a kind of cancer that might spread, would you agree with that?
John L. Cromartie, Jr.: I would agree with that. Yes, Your Honor. I'd think --
William H. Rehnquist: So that doesn't distinguish physical care from mental care at all.
John L. Cromartie, Jr.: I think it distinguishes the vast majority of cases. I am sure that there are cases at the far extreme which in the extreme might --
William H. Rehnquist: Would you say that the parents have to have a hearing and the child must have a lawyer before a child -- the parent of an eight-year old child can decide whether or not to have its leg amputated because of a possibility of spreading cancer?
John L. Cromartie, Jr.: There are cases that have held that that is subject to judicial scrutiny under certain circumstances.
Potter Stewart: Well, there are -- there are cases that hold that a -- that the state is not prohibited by the constitution from interfering in such a situation.
John L. Cromartie, Jr.: Yes.
Potter Stewart: And that's quite a different holding.
John L. Cromartie, Jr.: Yes.
William H. Rehnquist: Would you say the constitution requires that, of Georgia, if Georgia chooses to come down otherwise?
Speaker: Exactly.
John L. Cromartie, Jr.: That requires which (Voice Overlap)?
William H. Rehnquist: Would you say that the United States constitution requires that in Georgia before a parent can have a child put in the hospital for an operation to amputate a leg, the sort of hearings that you're contending for here in mental cases be had?
John L. Cromartie, Jr.: No, no Your Honor. We feel like that there is enough protection in the hypothetical that you have given to me so that that is not required, I mean there are --
William H. Rehnquist: Protection from where?
John L. Cromartie, Jr.: Protection from erroneous decision making. In the case of the cancer, there are medical tests that can be run that can tell you one way or the other whether there is cancer there or not.
William H. Rehnquist: Well -- But then your first argument that the -- about the coercive nature of mental care as opposed to physical care is -- breaks down and you have to rely on that.
John L. Cromartie, Jr.: Oh, no. It's a combination of those two arguments plus our stigma argument. And --
William H. Rehnquist: But your coercive argument had -- doesn't wash in the cancer occasion.
John L. Cromartie, Jr.: There are circumstances where it does not wash. It washes, I would contend in the vast majority of cases but we look on as a combination of all three of those elements in terms of deciding whether the two are in fact distinct or not.
Potter Stewart: Now, once an adult voluntarily gets himself admitted to a mental hospital, he is locked up there, isn't he?
John L. Cromartie, Jr.: He can get out by requesting.
Potter Stewart: He can get out. The child can get out of -- on the wish of his parents.
John L. Cromartie, Jr.: Yes. In the case of J.L. and J.R., they wanted out right after they got in. They didn't want to go in. If they had been an adult, they could have requested of the superintendent that they'd be let out and the superintendent would have either had to let them out.
Potter Stewart: Well, say he'd been adult and didn't want in and they would not voluntarily --
John L. Cromartie, Jr.: No --
Potter Stewart: -- gotten themselves admitted to a hospital, would they? It's true. That's true.
Warren E. Burger: State statutes with -- in most states requires the children to attend school for certain period of time.
John L. Cromartie, Jr.: Yes. Anything in the constitution of the United States to forbid that confinement, the connotation on liberty?
John L. Cromartie, Jr.: No Your Honor. We look on that in terms of its magnitude of any deprivation as just far different from the magnitude of the deprivation we're talking about right here. The courts have always looked suspiciously on physical confinement and that's what we're talking about right here. That's the essence of mental health's treatment. It is what distinguishes commitment in the mental hospital from, say, a group home. It is the physical confinement feature that distinguishes --
Warren E. Burger: Well, what if the parent decide that a military academy is the best place as many parents have for border lining courageable children? And they placed him in a private military academy where they must keep rigid hours, they can't live the grounds, a whole series of restraints, what about that?
John L. Cromartie, Jr.: I can't imagine this Court holding that that was -- there was a need for a due process protections there. For one thing, I would not find the presence of state action there. And secondly, it's readily distinguishable from our case. Here, we are talking about a situation where the parents have gone to the state and said, “We cannot handle the child. State, you take the child and lock the child up in effect.” That would not happen in the military school situation.
Thurgood Marshall: What's the difference between that and this -- your institution had a tuberculosis sanitarium where the state commits people everyday. They used to when it was agreed.
John L. Cromartie, Jr.: If it was a situation involving a --
Thurgood Marshall: You didn't walk out either.
John L. Cromartie, Jr.: I would then argue there that any person was entitled to a hearing before they were placed there because we are talking about long term deprivation.
Thurgood Marshall: You mean in the mean time, you walked around spreading your germs.
John L. Cromartie, Jr.: Well, we have always --
Thurgood Marshall: Do you think a state is powerless to stop that?
John L. Cromartie, Jr.: We have always conceded the emergencies --
Thurgood Marshall: Do you -- Oh, I see.
John L. Cromartie, Jr.: That emergencies, that the hearing can occur afterwards, that the state's hand is not tied in the tuberculosis situation, certainly there could be a hearing afterwards.
Potter Stewart: I had thought that a good deal of your case depended upon evidence, the record of which contains a good deal, that because of the relative unreliability of psychiatry as contrasted with the more conventional forms of medical practice, a hearing was appropriate because of the consequent risk of incorrect decisions. And that therefore, you would distinguish the tuberculosis situation on that basis.
John L. Cromartie, Jr.: Your Honor, that is a part of our argument.
Potter Stewart: Well, I thought it was.
John L. Cromartie, Jr.: I think that the more basic argument that we have is that when there is a deprivation of liberty as extreme as right here, that in traditionally, our courts have provided at least notice in a hearing to the person involved and that --
Potter Stewart: Well then that would require I would suppose logically for you to contend that the constitution requires notice and hearing with respect to a leg amputation or admission to a tuberculosis sanitarium.
John L. Cromartie, Jr.: I -- I think I would concede the tuberculosis sanitarium but --
Potter Stewart: Concede?
John L. Cromartie, Jr.: That --
Potter Stewart: What do you mean?
John L. Cromartie, Jr.: That it would probably require a hearing there. We don't feel like in the leg amputation, that the elements involved that we have in this case, distinguishing it in terms of the family autonomy and breaking into the family autonomy, it would be present in the leg amputation situation whereas they are here. The potential for conflict of interest, the request by the family itself that the child be taken out of the home. We feel like that those are different for those reasons.
Speaker: Mr. Cromartie, aren't you -- don't you have a lot of difficulty trying to distinguish on the basis of the magnitude of the deprivation. I thought your case rested on the point Mr. Justice Stewart made earlier, that the common law presumption rest on the notion that there's a community of interest between the parent and the child where there would be in the tuberculosis case and the leg amputation, all the rest. But your point as I understood here in your brief was in part that you can't be so sure there's a community of interest in the mental institution context when the parent is asking that the child be placed in the home because it may will be a family conflict that -- is the source of the problem. So, isn't the scope of your argument limited to the case in which the basis for the common law presumption is no longer applicable?
John L. Cromartie, Jr.: Your Honor, there were several points that we made. That was one of them. The other one was that this situation was different because the parent had gone to the state and asked the state to intervene. And in the Wyman versus James sense, had ceded some of its authority that it traditionally would have to the state. But also our argument was because of the manifest potential for conflicts of interest. Just by nature, this is a stressful situation, emotional situation.
Speaker: And that point really doesn't apply to any of these other hypothetical examples as I understand it.
John L. Cromartie, Jr.: It might will not Your Honor. It might will not. I was more troubled by the tuberculosis situation because of the stigma and that sort of thing involved in that situation than I was with the amputation situation.
Warren E. Burger: Would you think it possible Mr. Cromartie that a child that is someone under 18 might be so emotionally disordered, disturbed, that they couldn't participate, they couldn't contribute anything in the same sense that some defendants in criminal cases are determined to be not competent to assist in their own defense. Now, is that possible that that kind of a situation could arise with a seriously disturbed child, age 16 or 15?
John L. Cromartie, Jr.: I think it would be very rare. The evidence shows that most of the children are mildly diagnosed here. They are not the severely mentally ill.
Warren E. Burger: Well, there can be psychotics at age of 16, can't there?
John L. Cromartie, Jr.: There can be. The evidence is --
Warren E. Burger: Psychopaths?
John L. Cromartie, Jr.: That it's not as frequent with children in adolescence is (Voice Overlap).
Warren E. Burger: Well, let's assume for a minute that you have the very seriously disturbed psychotic psychopathic person, you're going to have to have first a preliminary hearing to determine whether they are competent to assist and take part in a hearing?
John L. Cromartie, Jr.: Well, Your Honor in Jackson versus Indiana, you had a person who by all evidence was incapable of participating in that proceeding. And yet the court felt it was important to provide procedural protections to that person. The code of professional responsibility speaks to that also. Canon 7 says that an attorney's responsibility is to do everything that he or she can to adequately get input from the client, into the client's wishes. But there may be circumstances where the client is not able to participate. And in that case, the attorney still has the obligation to fully represent that person. Getting on toward the end of my argument, we feel that the cases of J.L. and J.R. very dramatically illustrate how some sort of hearing process, informal though it may be could have prevented both of them from spending over five years of their lives in a mental institution. In the case of J.L., his primary outpatient therapist had recommended only a month or so before that he not be institutionalized. And yet Janet Scott's recommendation was not even considered when J.L. was placed into that mental institution. Of course also the evident shows that J.L. was placed in the institution, the decision was made three days before he ever showed up at the institution.
Thurgood Marshall: I -- I assume that I agree with what you say. What's going to happen if we end up with the hearing with three psychiatrists on one side and three on the other, then what does the court do?
John L. Cromartie, Jr.: Somebody is going to have to make a decision. I mean that -- that is -- that is typical --
Thurgood Marshall: Have you ever tried to make one with three psychiatrists on one side and three on the other?
John L. Cromartie, Jr.: Yes, Your Honor --
Thurgood Marshall: If you haven't tried it, you'd be committed?
John L. Cromartie, Jr.: I made a many a time to this county attorney when I sat in and was one of the three members of an interdisciplinary team that sat and listened to evidence such as that. I mean it's the same role that any judge performs in any trial where you have to weigh the different evidences presented to you and make a decision based on that.
Speaker: Mr. Cromartie -- excuse me go ahead.
William H. Rehnquist: Oh, -- what are -- what is the issue of fact that would be determined in the hearing that the District Court is ordered be had?
John L. Cromartie, Jr.: Mental illness is grounded basically in behavior and there are lost of issues of fact as to what the person has done that allegedly gives rise to the conclusion of mental illness.
Potter Stewart: That's the ultimate issue in fact.
William H. Rehnquist: Is the --
John L. Cromartie, Jr.: Yes.
William H. Rehnquist: The ultimate issue that the finder of fact would have to pass on is whether or not the child is or is not mentally ill?
John L. Cromartie, Jr.: With expert testimony, yes. And secondly, there is the important. And this may well be the most important issue in these cases. And that is, should the child be here or should the child be somewhere else. And right now, when you have a physician or someone else at an institution making that decision, they have really only two choices. They can either say, “Child, go home. We can't treat you at all.” Or we're going to put you in this institution.”
William H. Rehnquist: Oh, what type of person makes this decision? Is it a psychiatrist?
John L. Cromartie, Jr.: I conceded in the last oral argument that the question of who was not so important as the question of how.
William H. Rehnquist: It could be a layperson.
John L. Cromartie, Jr.: It could be, I mean I would not recommend that but I think it could be.
William H. Rehnquist: What would you recommend?
John L. Cromartie, Jr.: I would -- I think that the best and what is done in the new act is that the juvenile court judge would make the decision. But now --
Speaker: But if --
John L. Cromartie, Jr.: That's a matter for the legislature, it seems to me. And it is not an issue that we have addressed nor that we have taken a position on.
Speaker: Could I just make sure in Georgia now, if the state doctor determines that the child is mentally ill, does he also have to determine that he would benefit from the treatment?
John L. Cromartie, Jr.: Yes Your Honor.
Speaker: And does he also --
John L. Cromartie, Jr.: That frequently is not done. And the record is very clear on that.
Speaker: Well, would that be -- will that be an issue on remand under the District Court's remand?
John L. Cromartie, Jr.: Yes Your Honor.
Speaker: And does the doctor also have to find that there are some advantages to treating in the state institution rather than at home?
John L. Cromartie, Jr.: I think that that's implicit in that standard, yes. That the treatment is appropriate in an institution as opposed to being in the home or in the foster home.
Speaker: So you think under the present Georgia law, if the parent says, “Well, I know a lot but I just am -- I just can't handle them at home. I agree with you that he could be treated at home but we just can't get along with them at home.” Under the present Georgia law, the state must reject them?
John L. Cromartie, Jr.: Well, they may not but it's my position that they should. But they frequently don't and the record is clear on that, that they frequently don't.
Speaker: So, that the law permits them to take that kind of a child just because -- although he could be treated at home, the parents just don't want to treat him at home.
John L. Cromartie, Jr.: Well, I mean that's my construction of the law that it does not allow that. Now, obviously, that is not shared by the psychiatrist.
Warren E. Burger: Could -- could they not put him in a foster home?
John L. Cromartie, Jr.: Could the parents not placed them in the foster home?
Warren E. Burger: No, no, the state. If they thought something less than institutional care was indicated.
John L. Cromartie, Jr.: Yes, yes, they could.
Speaker: Mr. Cromartie, would a new statute require a finding that the two now would benefit from treatment?
John L. Cromartie, Jr.: Yes.
Speaker: An affirmant of finding.
John L. Cromartie, Jr.: Yes.
William H. Rehnquist: You said an answer to Justice White's question that the present Georgia law does not allow an institution to receive a patient if -- it finds, if the psychiatrist finds that he could be treated at home, is that right?
John L. Cromartie, Jr.: That's my construction, that if a child could be treated in the home and could -- would not be appropriately treated in the institution then they cannot accept that child.
Speaker: Yeah, but suppose he could be appropriately treated in the institution in the sense that you can now administer the treatment there.
John L. Cromartie, Jr.: Oh, okay. If that's the question, then no, I don't think that the law requires that he'd be in the home rather than in the institution. I'm sorry. That --
Speaker: So, if the parent comes to the state and say, “Well, I know we could treat them at home but I know I think and my doctors says, he could be treated in the institution also. That the state may take him.”
John L. Cromartie, Jr.: The -- under the present law, yes they could. If they can be approved --
Speaker: How about under the new law?
John L. Cromartie, Jr.: It's my construction of the new law that it would not be appropriate there. Thank you.
Warren E. Burger: Thank you gentleman. The case is submitted.