The Power To Confine: Private Involuntary Civil Commitment As State Action

Transcription

1 The Power To Confine: Private Involuntary Civil Commitment As State Action Terni Keville * Much Madness is divinest Sense- To a discerning Eye- Much Sense-the starkest Madness- 'Tis the Majority In this, as All, prevail- Assent-and you are sane- Demur-you're straightway dangerous- And handled with a Chain. -Emily Dickinson 1 I. INTRODUCTION: THE PROBLEM OF PRIVATE COMMITMENT In 1982 and 1984, [William] Spencer's physician, defendant Bumyong Lee, authorized Spencer to be involuntarily committed to St. Elizabeth Hospital. On the second of these occasions the police were called in to take Spencer to the hospital against his will, and on the fourth day of his five days of hospitalization Dr. Lee directed a nurse to inject Spencer with a drug. Spencer protested that he was allergic to the drug, but he was injected anyway and sustained bodily injury. Spencer seeks damages under 42 U.S.C for the deprivation of his liberty without due process of law... 2 For more than a century, plaintiffs have sought redress under 42 U.S.C for deprivations of federally protected rights. Section 1983 provides that: Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory or District of * Associate, Manatt, Phelps & Phillips, Los Angeles, CA; J.D., University of Southern California Law Center; B.A., University of Pennsylvania. I would like to express my deep appreciation to Professor Erwin Chemerinsky for his friendship, his encouragement, and his invaluable comments on prior drafts of this Article. I would also like to thank Professor Elyn Saks for her support, and Lisa Perrochet of Horvitz & Levy for arousing my interest in this topic. 1. EMILY DICKINSON, THE COMPLETE POEMS OF EMILY DICKINSON (Thomas H. Johnson ed. 1960). 2. Spencer v. Lee, 864 F.2d 1376, 1377 (7th Cir. 1989) U.S.C (1982) (enacted in 1871).

2 62 CRIMINAL AND CIVIL CONFINEMENT [Vol. 19:1 Columbia, subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress. 4 Because liberty is one of our most precious rights, guarded by the Due Process Clauses of the Fifth and Fourteenth Amendments, some people who believe they were wrongfully deprived of liberty when they were involuntarily committed to mental institutions 5 have attempted to avail themselves of section 1983 remedies. Federal remedies under section 1983 may be preferable to state tort remedies for a number of reasons. State law may preclude action against individual officials by means of immunity, 6 or place damage ceilings on such actions. 7 Punitive damages, trial by jury, and-most importantly-attorneys' fees may be unavailable under state law. 8 Plaintiffs may also believe that state court judges will be unsympathetic to suits against the state. 9 Thus, plaintiffs have strong incentives to seek federal remedies in involuntary commitment cases. As its language indicates, however, section 1983 provides redress only for actions taken under color of law. ' When a state-employed doctor commits a person to a state mental hospital, the doctor clearly acts under color of state law, but courts disagree as to whether com U.S.C (1982). 5. Claims of wrongful commitment are relatively rare, because most people with psychiatric problems want to be helped. Patients generally either enter institutions "voluntarily," or offer no resistance to involuntary confinement. In fact, the distinction between voluntary and involuntary may have little practical meaning. "[Tlhe patient... may be confused or indifferent, generally agitated, unable to understand [the] necessity [for commitment], or simply unable to comprehend. The phenomenon of a freely derived, fully conscious, voluntary decision to enter a mental facility... is as rare as knowing, overt resistance to involuntary commitment." SAMUEL JAN BRAKEL ET AL., THE MENTALLY DISABLED AND THE LAW 32 (1985). See Burch v. Apalachee Community Mental Health Services., Inc., infra notes and accompanying text, in which a patient who had signed voluntary commitment papers while in a psychotic state challenged his so-called "voluntary" commitment as improper. The fact that very few patients challenge involuntary commitment strongly suggests that we should pay particular attention to those who do. 6. Immunity, however, may also be available for officials sued under See ERWIN CHEMERINSKY, FEDERAL JURISDICTION (1989). The Supreme Court recently decided that private individuals cannot claim immunity when they are sued under 1983 in Wyatt v. Cole, 112 S. Ct (1992). 7. See Parratt v. Taylor, 451 U.S. 527, 544 (1981); Spencer v. Lee, 864 F.2d 1376, 1382 (7th Cir. 1989). 8. Parratt, 451 U.S. at Spencer, 864 F.2d at See infra notes

3 1993] CIVIL COMMITMENT AS STATE ACTION mitment by a private physician or to a private hospital constitutes state action capable of supporting a section 1983 claim. The split is unsurprising in light of the fact that the Supreme Court has struggled unsuccessfully since the adoption of the reconstruction amendments to define what is meant by state action. Competing theories, discussed below, include (1) the public function or delegated powers test; (2) notions of government entanglement or involvement in the challenged activity-sometimes described as a "nexus" between the government and private actors; and (3) government encouragement or coercion. Part II of this Article will briefly describe and trace the development of the state action theories. Part III will discuss private involuntary civil commitment in relation to the principal state action theories and relevant policy considerations. It will also examine the distinction-from a state action perspective-between actual commitment and the signing of a physician's certificate authorizing evaluation. Part IV will discuss two additional Supreme Court cases and their possible effect on section 1983 suits for wrongful private commitment: DeShaney v. Winnebago County Department of Social Services, IX which held that the government is not responsible for protecting persons from injury by private actors, and Parratt v. Taylor, 2 which held that under some circumstances, even plaintiffs who have been harmed by state actors must be satisfied with state tort remedies. The thesis of this Article is that, under any theory, private civil commitment should qualify as state action. Furthermore, it will be argued that private doctors and hospital personnel have a constitutional duty to protect involuntary patients. Whenever involuntary patients are wrongfully committed or maltreated, all of the remedies for wrongful state action should be available to them. II. THEORIES OF STATE ACTION The controversy over state action arose primarily because the language of the Fourteenth Amendment 3 appears to restrict its reach U.S. 189 (1989) U.S. 527 (1981). 13. Section 1983 was adopted to create a federal cause of action for violation of Fourteenth Amendment rights by state actors. See Monroe v. Pape, 365 U.S. 167, (1961).

4 64 CRIMINAL AND CIVIL CONFINEMENT [Vol. 19:1 solely to conduct of the states. 4 In the Civil Rights Cases" 5 of 1883, the Supreme Court declared that the Fourteenth Amendment applied only to "acts done under state authority."' 6 For a long period thereafter, this requirement was interpreted quite literally, with state action found only in the conduct of government entities or employees.' 7 A. Public Functions and Delegated Powers Beginning in the late 1920s, however, the Court began to broaden the concept of state action in cases regarding primary election voting restrictions imposed by political parties,' 8 and in the famous "com- 14. A number of scholars have argued that the state is implicated in any violation of constitutional rights, either through its action or its inaction, and therefore the state action requirement should be eliminated. See, e.g., Charles L. Black, Jr., Foreword: "State Action, " Equal Protection, and California's Proposition 14, 81 HARV. L. Rnv. 69 (1966); Erwin Chemerinsky, Rethinking State Action, 80 Nw. U. L. REV. 503 (1985); Harold W. Horowitz, The Misleading Search for "State Action" Under the Fourteenth Amendment, 30 S. CAL. L. REv. 208 (1957). While I have a great deal of sympathy for this view, I accept the state action doctrine as a fact of life that is unlikely to disappear in the foreseeable future U.S. 3 (1883) U.S. at Ronna Greff Schneider, State Action-Making Sense Out of Chaos-An Historical Approach, 37 U. FLA. L. REV. 737, 739 & n.7 (1985) (citing Michael J. Phillips, The Inevitable Incoherence of Modern State Action Doctrine, 28 ST. Louis U. L.J. 683, (1984)). 18. The "white primary" cases involved a scheme that prevented African-Americans from voting in Texas elections by excluding them from participation in Democratic Party primaries. In the first two cases, Nixon v. Herndon, 273 U.S. 536 (1927), and Nixon v. Condon, 286 U.S. 73 (1932), the Court struck down state statutes that effectuated this prohibition. A subsequent case, Grovey v. Townsend, 295 U.S. 45 (1935), held that exclusionary policies adopted by the state Democratic Party convention were not state action, but Grovey was overruled in Smith v. Allwright, 321 U.S. 649 (1944). In Smith, the Court declared that "state delegation to a party of the power to fix the qualifications of primary elections is delegation of a state function that may make the party's action the action of the State." Id. at 660. In addition to this "delegation of a state function" rationale, the Court's opinion in Smith was woven from several other theoretical threads. See Schneider, supra note 17, at 750; GEOFFREY R. STONE ET AL., CONSTITUTIONAL LAW (2d ed. 1991). The Court found that the state had "endorse[d], adopt[ed] and enforce[d]" the party's discrimination because it was the state that prescribed the election procedures of which the primaries were an essential part. Smith, 321 U.S. at 664. Further, in following the state's directives, the party was an agent of the state. Id. at 660. Finally, the Court recognized that because the right to vote is such a crucial element of our constitutional democracy, the state could not be permitted to nullify it by allowing private election discrimination. According to the Court, "Constitutional rights would be of little value if they could be thus indirectly denied." Id. at 664 (citing Lane v. Wilson, 307 U.S. 268, 275 (1939)). The last of the white primary cases was Terry v. Adams, 345 U.S. 461 (1953). In Terry, white voters had contrived to circumvent the Constitution by forming a private, whites-only club and conducting "pre-primaries" that were restricted to members. The winners of these pre-primaries then ran unopposed (for the most part) in the

5 1993] CIVIL COMMITMENT AS STATE ACTION pany town" case of Marsh v. Alabama. 19 In those and other subsequent cases, the Court has held that private actors who perform state functions, or who act pursuant to powers delegated to them by the state, will be considered state actors. Such actors are then subject to the same constraints as the state, and may not engage in conduct that would be impermissible for the state. Later cases have retreated from the expansive view of state action expressed in Justice Black's opinion in the white primary case, Terry v. Adams, and in Marsh v. Alabama. The scope of the public function doctrine was narrowed significantly in Jackson v. Metropolitan Edison Co. 2 0 In Jackson the plaintiff claimed that her rights had been violated when her electric service was terminated without a hearing. The utility company was privately owned, but it was a monopoly that was licensed and extensively regulated by the state. Nevertheless, the Court held that no state action was involved. Justice Rehnquist interpreted the white primary cases and Marsh as holding only that state action is "present in the exercise by a private entity of powers traditionally exclusively reserved to the State," 21 and according to the Court, the provision of utility services was "not exclusively the prerogative of the State." '22 Democratic primaries and general elections. Id. at 463. The Court struck down this arrangement also, but no single rationale could garner a majority. In three separate opinions, eight Justices relied on (1) the Smith delegation-of-a-state-function theory; (2) state acquiescence in a private scheme to defeat the Fifteenth Amendment; and (3) impermissible conduct by officials. Id U.S. 501 (1946). In Marsh, the plaintiff was a Jehovah's Witness who had been arrested for trespassing when she attempted to distribute leaflets in Chickasaw, Alabama, which was entirely owned by the Gulf Shipbuilding Corporation. The Court held that because the corporation was acting like a government in its operation of the town, it could not be permitted to violate the plaintiff's constitutional rights. Private corporations which have established company towns must also expect that their conduct will be subject to constitutional limitations. The more the actions of private corporations approximate those of a municipality, the greater will be the public expectation that such conduct will be subject to the strictures of the Fourteenth Amendment. Marsh, 326 U.S. at 506. By extension, Marsh apparently indicates that the government is not relieved of its obligation to uphold constitutional rights merely because it has delegated some of its functions to private parties. See STONE ET AL., supra note 18, at 1648 ("The opinion.., seems to stand for the proposition that there are limits on the extent to which the state may escape constitutional constraint by 'delegating' to private parties functions traditionally performed by the state."). The Court further implied that state action may be determined by a balancing test, that is, a court may find state action whenever the public need so requires. Marsh, 326 U.S. at U.S. 345 (1974). 21. Id. at Id. at 353. Justice Marshall dissented, arguing that "[tjhe whole point of the 'public function' cases is to look behind the State's decision to provide public services through private parties." Id. at 371 (Marshall, J., dissenting).

6 66 CRIMINAL AND CIVIL CONFINEMENT [Vol. 19:1 Since Jackson, the Court has never found state action solely on the basis of public function or delegated powers. The theory has been rejected by the Court in nearly every context in which it has been asserted: forced sale of a debtor's possessions pursuant to statutory creditors' remedies; 23 exercise of First Amendment rights in privately owned shopping centers; 24 education; 25 involuntary transfer of nursing-home Medicaid patients; 26 and operation of the U.S. Olympic Committee. 27 Thus, the exclusivity requirement has virtually eviscerated the public function doctrine. The requirement creates a "Catch- 22"128: if the activity is truly an exclusive state function, then private parties will rarely be engaged in it, and the state action issue is unlikely to arise. However, if private parties are engaged in a challenged activity, the court is likely to hold that it is not an exclusive state function; the court will therefore find no state action and the plaintiff will have no federal remedy. 29 Private elections and company towns are no more; recent cases offer only scant hope that other activities, such as private commitment, will meet this test in the eyes of the court. 30 There are, however, several alternative theories of state action. B. Other State Action Theories: Nexus, Entanglement, Involvement, Encouragement, and Coercion As the title of this section suggests, in its remaining state action 23. Flagg Brothers, Inc. v. Brooks, 436 U.S. 149 (1978). In dissent, Justice Stevens expressed his belief that the majority decision would produce the undesirable result of allowing the state to avoid constitutional restrictions on some of its policies simply by delegating the implementation of those policies to private parties. Id. at (Stevens, J., dissenting). 24. Hudgens v. NLRB, 424 U.S. 507 (1976). 25. Rendell-Baker v. Kohn, 457 U.S. 830 (1982). 26. Blum v. Yaretsky, 457 U.S. 991 (1982). See infra notes and accompanying text for additional discussion. 27. San Francisco Arts & Athletics, Inc. v. United States Olympic Comm., 483 U.S. 522 (1987). Although the Committee is operated as a private corporation, it was created by an act of Congress, and is partially funded by the government. Id. 28. JOSEPH HELLER, CATCH-22 (1961). 29. STONE ET AL., supra note 18, at Two recent Supreme Court decisions, however, do offer some hope. West v. Atkins, 487 U.S. 42 (1988), concerned the provision of medical services to a prisoner by a private physician. The Court found that the physician's conduct was state action, basing its decision on the fact that "[t]he State bore an affirmative obligation to provide medical care to West; the State delegated that function to respondent Atkins; and respondent voluntarily assumed that obligation by contract." Id. at 56. See infra notes and accompanying text for a further discussion of this case. In Edmonson v. Leesville Concrete Co., 111 S. Ct (1991), the Court relied partially on the public function test in its decision holding that private civil litigants were state actors when they used peremptory challenges to eliminate jurors on the basis of their race.

7 1993] CIVIL COMMITMENT AS STATE ACTION cases the Court has offered a variety of explanations for finding or failing to find state action. In a decision that could have had far-reaching consequences, the Vinson Court held in Shelley v. Kraemer 31 that state court enforcement of racially restrictive covenants was state action in violation of the Fourteenth Amendment. 32 The Court based its holding on the fact that "but for the active intervention of the state courts, supported by the full panoply of state power, petitioners would have been free to occupy the properties in question without restraint.1 33 Taken to its logical conclusion, this ruling might have provided precedential support for Professor Horowitz's contention that "whenever, and however, a state gives legal consequences to transactions between private persons there is 'state action... ", This potential has not been realized, however, because Shelley, although technically still good law, has rarely been followed in recent years. The Court has generally required some further involvement by the state to justify a finding of state action. 35 Nevertheless, because involuntary commitment procedures usually involve the signing of judicial orders, 36 this theory cannot be overlooked. The Court has also found state action based on other permutations of state involvement in challenged actions. In Burton v. Wilmington Parking Authority, 37 the Court held that "[t]he State ha[d] so far insinuated itself into a position of interdependence with [the private U.S. 1 (1948). 32. Id. at Id. at Harold W. Horowitz, The Misleading Search for "State Action" Under the Fourteenth Amendment, 30 S. CAL. L. REV. 208, 209 (1957). 35. Michael J. Phillips, The Inevitable Incoherence of Modern State Action Doctrine, 28 ST. LOUIS U. L.J. 683, 696 n.63 (1984). 36. BRAKEL ET AL., supra note 5, at U.S. 715 (1961). Burton was decided by the "activist" Warren Court in 1961, prior to Jackson v. Metropolitan Edison, 419 U.S. 345 (1974). See supra notes and accompanying text. In Burton, the Wilmington Parking Authority, an agency of the State of Delaware, leased space in one of its parking structures to a restaurant that refused to serve blacks. Burton, 365 U.S. at 716. The Court listed a number of factors that contributed to its finding of state action. Id. at The building and the land on which it was situated were publicly owned; both the state and national flags flew from mastheads on the building's roof. Id. at 720. The rental income received from the restaurant was essential to the operation and maintenance of the building because the parking service itself was unprofitable. Id. at 719. The restaurant claimed that providing service to blacks would have a detrimental effect on its business, so the Parking Authority was clearly deriving benefit from the restaurant's discriminatory policy. Id. at 724. In leasing the property to the restaurant, the state could have required that the restaurant's services be offered to the general public without discrimination, but the state failed to do so. Id. at 725.

8 68 CRIMINAL AND CIVIL CONFINEMENT [Vol. 19:1 actor] that it must be recognized as a joint participant in the challenged activity, which, on that account, cannot be considered to have been so 'purely private' as to fall without the scope of the Fourteenth Amendment." 38 In one of the few post-jackson cases to find state action, Lugar v. Edmondson Oil Co.,39 the Supreme Court, in a five-tofour decision, held that the direct involvement of a court clerk and a county sheriff made the challenged conduct state action. 4 0 A final example of the Court's state action jurisprudence illustrates the current narrow interpretation. The plaintiffs in Blum v. Yaretsky 41 were private nursing home residents whose care was paid for by the government under the Medicaid program. They were required to either accept involuntary transfers to facilities that provided a lower level of care or forfeit their Medicaid benefits. Justice Rehnquist's opinion stated that: [O]ur precedents indicate that a State normally can be held responsible for a private decision only when it has exercised coercive power or has provided such significant encouragement, either overt or covert, that the choice must in law be deemed to be that of the State. Mere approval of or acquiescence in the initiatives of a private party is not sufficient to justify holding the State responsible for those initiatives under the terms of the Fourteenth Amendment. 42 The fact that the state approved private transfer decisions and responded by adjusting benefits did not make those decisions state action in the Court's view. 43 The Court did not accept the plaintiffs' argument that the state's extensive support of and regulatory involvement in the nursing homes made it a joint participant in the discharge 38. Burton, 365 U.S. at 725. The Court added, however, that its holding was limited, and that each case must be decided on the basis of its particular facts and circumstances. Id U.S. 922 (1982). Edmondson sued Lugar to recover on a debt, and also filed an ex parte petition for prejudgment attachment of some of Lugar's property. Id. at 924. The state court clerk issued a writ of attachment pursuant to the petition, and a county sheriff executed the writ. Id. The attachment was dismissed after a state court hearing on its validity. Lugar then filed suit claiming that Edmondson and the state had acted together to deprive him of his property without due process-although, in fact, he had remained in possession of it. Id. at Id. at Justice Powell, joined by Justices Rehnquist and O'Connor, dissented, arguing the fact that the sheriff was a state actor did not transform Edmondson into one, and that Edmondson could have had no warning that the filing of the petition would subject him to liability for unconstitutional state action. Id. at 946 (Powell, J., dissenting) U.S. 991 (1982). 42. Id. at (citations omitted). 43. Id. at

9 1993] CIVIL COMMITMENT AS STATE ACTION and transfer decisions made by the homes.' Thus, the Court has made the involvement standard an extremely stringent one, which seems to require that the state's participation be both direct and an immediate cause of the harm, as it was in Lugar. Although numerous cases have sought redress for plaintiffs who were committed to mental hospitals by means of questionable procedures or were allegedly mistreated during their confinement, the Supreme Court has never addressed the specific issue of whether private involuntary commitment is state action. 45 In light of the fact that the major state action cases offer little guidance for adjudicating this question, it is unremarkable that the civil commitment cases decided by the lower federal courts are sharply divided. III. APPLICATION OF STATE ACTION THEORY To PRIVATE INVOLUNTARY CIVIL COMMITMENT When patients are committed to and treated by state hospitals, and by doctors who are state employees, state action seems obvious. 4 6 However, where private doctors and hospitals are involved, the decisions diverge. Some courts consider civil commitment to be essentially a state function which may be delegated to private doctors and hospitals who act on behalf of the state. Other courts have held that civil commitment by private doctors and hospitals is not state action. The following subsections will argue that by any of the major tests that the Supreme Court has propounded-(l) public function; (2) nexus, entanglement, or involvement; or (3) encouragement or coercioninvoluntary commitment is state action. A. Private Commitment as a Public Function Private parties are not empowered to confine their fellow citizens. An individual who detains another person against his or her will may 44. Id. at Compare the Court's reasoning in Smith v. Allwright, discussed supra note The Court denied certiorari to Spencer v. Lee, 864 F.2d 1376 (7th Cir. 1989), cert denied, 110 S. Ct (1990) (discussed infra at notes and accompanying text), although its holding on the private commitment issue conflicted with the holding in Burch v. Apalachee Community Mental Health Servs., 840 F.2d 797 (11th Cir. 1988) (discussed infra notes and accompanying text), and thus the circuits were split. The Eleventh Circuit has since changed its position. See infra notes and accompanying text. 46. See CHEMERINSKY, supra note 6, at ; West v. Atkins, 487 U.S. 42, 49 (1988) ("[S]tate employment is generally sufficient to render the defendant a state actor."). But see Duzynski v. Nosal, 324 F.2d 924 (7th Cir. 1963) (holding that a county court clerk and a physician employed by a county mental health clinic were acting in a private capacity and not as state actors).

10 70 CRIMINAL AND CIVIL CONFINEMENT [Vol. 19:1 be liable for false imprisonment 47 or guilty of kidnapping. 4 The state, however, does possess the power to confine (albeit subject to certain constraints). The mentally disabled may be involuntarily committed for their care, treatment, and protection pursuant to the state's parens patriae powers. 4 9 The dangerous mentally ill may be deprived of their liberty in order to protect others under the state's police powers. 50 It follows then, that because the state has the authority to restrict individual liberty and private persons do not, private actors may only legitimately acquire such power if the state delegates it to them. 5 1 Moreover, as the Supreme Court established in Monroe v. Pape, 52 the fact that some parties who act under color of law go beyond the bounds of their state-granted authority does not take their conduct out 47. W. PAGE KEETON ET AL., PROSSER AND KEETON ON THE LAW OF TORTS 11 (5th ed. 1984); MODEL PENAL CODE (Official Draft 1962) ("A person commits a misdemeanor if he knowingly restrains another unlawfully so as to interfere substantially with his liberty."). 48. MODEL PENAL CODE (Official Draft 1962). A person is guilty of kidnapping if he unlawfully removes another from his place of residence or business, or a substantial distance from the vicinity where he is found, or if he unlawfully confines another for a substantial period in a place of isolation, with any of the following purposes: (a) to hold for ransom or reward, or as a shield or hostage; or (b) to facilitate commission of any felony or flight thereafter; or (c) to inflict bodily injury on or to terrorize the victim or another; or (d) to interfere with the performance of any governmental or political function. Id. 49. Parens patriae is the power of the state to act as "sovereign and guardian of persons under legal disability." BLACK'S LAW DICTIONARY 1114 (6th ed. 1990). 50. Lessard v. Schmidt, 349 F. Supp. 1078, (E.D. Wis. 1972); supra note 5, at 24-25; BRAKEL ET AL., supra note 5, at The police power is the authority of the states, conferred by the Tenth Amendment, to prevent crime, preserve public order, and protect the citizens. See BLACK'S LAW DICTIONARY (6th ed. 1990); Developments in the Law: Civil Commitment of the Mentally 1l, 87 HARV. L. REV. 1190, (1974) [hereinafter Developments]. 51. See Burch v. Apalachee Community Mental Health Services, Inc., 840 F.2d 797, 803 (1 1th Cir. 1988) ("[O]nly by being clothed with the authority of state law did the [private actors] possess the power to commit a person to a mental institution... "); Plain v. Flicker, 645 F. Supp. 898, (D.N.J. 1986) ("If the state is not providing the authority to deny an individual his liberty what is providing the authority?... Only an extension of the state's police power could authorize such deprivation of liberty."). See also Ira P. Robbins, The Legal Dimensions of Private Incarceration, 38 AM. U. L. REV. 531, (1989) (arguing that under any test of state action, conduct of private entities that incarcerate or detain prisoners, illegal aliens, etc., would be considered state action); Susan L. Kay, The Implications of Prison Privatization on the Conduct of Prisoner Litigation Under 42 U.S. C. Section 1983, 40 VAND. L. REV. 867 (1987) (operation of private prisons is likely to be considered state action); Medina v. O'Neill, 589 F. Supp (S.D. Tex. 1984) (holding that private detention facility for illegal aliens was a state actor) U.S. 167 (1961).

11 1993] CIVIL COMMITMENT AS STATE ACTION of the realm of state action;1 3 therefore, even wrongful commitment constitutes state action. Furthermore, the origins of the parens patriae power indicate that it is not only a source of authority but also an obligation. Under English law, the sovereign was responsible for the care of all incompetents, and was required to promote their interests and welfare. 54 Thus, the care of the mentally infirm was established centuries ago as a sovereign or public function. This policy was first articulated in American jurisprudence in the 1845 case of In re Oakes, 55 in which the Massachusetts Supreme Judicial Court held that patients might be confined for their own safety and that of others, or restrained if necessary or conducive to the patients' restoration; this holding was based on "the great law of humanity, which makes it necessary to confine those whose going at large would be dangerous to themselves or others." 56 The states have recognized that their role as parens patriae entails both power and duty, as evidenced by the fact that every state has a statute providing for involuntary commitment of the mentally ill."' 53. In explaining the purpose of section 1983, the Court stated that "Congress has the power to enforce provisions of the Fourteenth Amendment against those who carry a badge of authority of a State and represent it in some capacity, whether they act in accordance with their authority or misuse it." Id. at Developments, supra note 50, at Law Rep. 122 (Mass. 1845). 56. Id. at See ALA. CODE to -17 (1975 & Supp. 1991); ALASKA STAT (1990); ARiz. REv. STAT. ANN to (1986 & Supp. 1991); ARK. CODE ANN to -228 (Michie Supp. 1991); CAL. WELF. & INST. CODE , , , , (West 1972 & Supp. 1981); COLO. REv. STAT to -113 (1982 & Supp. 1988); CONN. GEN. STAT. ANN to -183A (West 1988); DEL. CODE ANN. tit. 16, (Supp. 1980); D.C. CODE ANN to (1981 & Supp. 1991); FLA. STAT. ANN (West 1986 & Supp. 1991); GA. CODE ANN to -85 (Michie 1982 & Supp. 1991); HAWAII REv. STAT to -62, -81 (1985 & Supp. 1990); IDAHO CODE to -339 (1989 & Supp. 1991); ILL. ANN. STAT. ch. 91 1/2, to -910 (Smith-Hurd 1987 & Cum. Interim Ann. Serv. No. 2, Feb. 1991); IND. CODE ANN to -17 (Burns 1990 & Supp. 1991); IOWA CODE ANN (West 1985 & Supp. 1991); KAN. STAT. ANN to (1983 & Supp. 1990); Ky. REV. STAT. 202A (Michie/Bobbs Merrill 1991); LA. REv. STAT. ANN. 28:53-:148 (West 1989 & Supp. 1991); ME. REv. STAT. ANN. tit. 34, (West 1988 & Supp. 1991); MD. CODE ANN to -633 (1990 & Supp. 1991); MASS. GEN. LAWS ANN. ch. 123, 5-10, 12-14, 18-19, 21, 24 (West 1982 & Supp. 1991); MICH. COMP. LAWS ANN (West 1980 & Supp. 1991); MINN. STAT. ANN. 253B (West 1982 & Supp. 1992); Miss. CODE ANN to -101 (1981 & Supp. 1991); Mo. ANN. STAT (Vernon 1988 & Supp. 1991); MONT. CODE ANN to -131 (1991); NEB. REv. STAT to (1987); NEV. REv. STAT. ANN. 433A (Michie 1991); N.H. REv. STAT. ANN. 135-C:20- :53 (1990 & Supp. 1991); N.J. STAT. ANN. 30:4-23 to -45 (West 1981 & Supp. 1991); N.M. STAT. ANN to -12 (Michie 1989 & Supp. 1991); N.Y. MENTAL HYG.

12 72 CRIMINAL AND CIVIL CONFINEMENT [Vol. 19:1 This legislation represents an acknowledgement that society, through the state, must ensure that the mentally disabled receive care. Thus, when private actors effect involuntary commitments, their conduct must be considered state action. This is true not merely because such action is taken pursuant to state statutes-that fact alone would clearly be insufficient to establish state action. 5 " (In addition, of course, some commitments occur in violation of state statutory procedures, rather than in accordance with them.) Rather, it is state action because these statutes bestow on both public and private actors the state's power to confine for the purpose of carrying out the state's parens patriae responsibilities. The majority of courts that have considered the question have agreed that commitment is a public function, and therefore state action. 9 For example, the District Court for the District of New Hampshire reached this conclusion in Kay v. Benson; the plaintiff LAW (McKinney 1988 & Supp. 1992); N.C. GEN. STAT. 122C-261 to -277 (1991); N.D. CENT. CODE to -33 (1989 & Supp. 1991); OHIO REV. CODE ANN (Baldwin 1989 & Supp. 1990); OKLA. STAT. ANN. tit. 43A, to -212, to -407 (West 1990); OR. REV. STAT (1991); PA. STAT. ANN. tit. 50, (Supp. 1991); R.I. GEN. LAWS , to -8, (1990); S.C. CODE to -650 (Law. Co-op & Supp. 1990); S.D. CODIFIED LAWS ANN. 27A-10 to -11A-28 (Supp. 1991); TENN. CODE ANN to -623, (1984 & Supp. 1991); TEX. HEALTH & SAFETY CODE ANN , , (West 1992); UTAH CODE ANN. 62A to -252 (1989 & Supp. 1990); VT. STAT. ANN. tit. 18, 7504 to 8205 (1982 & Supp. 1990); VA. CODE ANN to -119 (Michie 1990 & Supp. 1991); WASH. REV. CODE ANN (West 1975 & Supp. 1991); W. VA. CODE to -10 (1986 & Supp. 1991); WIS. STAT. ANN (West & Supp. 1991); Wyo. STAT to -126 (1990). 58. See Edmonson v. Leesville Concrete Co., Inc., 111 S. Ct. 2077, (1991) ("[P]rivate use of state-sanctioned private remedies or procedures does not rise, by itself, to the level of state action... ) (citing Tulsa Professional Collection Services, Inc. v. Pope, 485 U.S. 478, 485 (1988)). 59. See Burch v. Apalachee Community Mental Health Services, Inc., 840 F.2d 797, 803 (1 lth Cir. 1988); Plain v. Flicker, 645 F. Supp. 898, (D.N.J. 1986); Davenport v. St. Mary Hosp., 633 F. Supp. 1228, 1234 (E.D.Pa. 1986); Willacy v. Lewis, 598 F. Supp. 346, 349 (D.D.C. 1984); Brown v. Jensen, 572 F. Supp. 193, 197 (D.Colo. 1983); Watkins v. Roche, 560 F. Supp. 416, 419 (S.D.Ga. 1983); Lombard v. Eunice Kennedy Shriver Center for Mental Retardation, Inc., 556 F. Supp. 677, 680 (D. Mass. 1983); Kay v. Benson, 472 F. Supp. 850, 851 (D.N.H. 1979); Ruffler v. Phelps Memorial Hosp., 453 F. Supp. 1062, 1067 (S.D.N.Y. 1978). In addition, the court in Davenport interpreted the Supreme Court's opinion in Polk County v. Dodson, 454 U.S. 312 (1981), as declaring that physician decisions regarding involuntary commitment cannot be considered private medical judgments (as were the doctors' decisions regarding nursing home transfers in Blum v. Yaretsky, 457 U.S. 991, (1982)), because "physicians performing the state's custodial function 'assume an obligation to the mission that the [s]tate, through the institution, attempts to achieve.'" Davenport, 633 F. Supp. at 1237 (quoting Polk, 454 U.S. at 320).

13 1993] CIVIL COMMITMENT AS STATE ACTION alleged that his fights under the Fifth and Fourteenth Amendments were violated because the defendant-a private physician-failed to comply with statutory requirements. 6 The court held that the physician was a state actor, declaring: [The state commitment statutes] constitute the delegation by the legislature of the State of New Hampshire to a private individual the power of detention of a person against that person's wishes. This power of detention is the type of power normally and historically exercised by sovereign states and other governmental entities. [The state commitment statutes] confer upon a physician the power to do something which he otherwise would not have the right to do as an individual... [W]here a private entity assumes a governmental function there exists state action. 61 The Kay rationale was cited by the Colorado District Court in Brown v. Jensen 62 as support for its statement that "when physicians and hospitals confine persons pursuant to a mental commitment statute, they are exercising the power of detention delegated to them by the state. Because this power is one historically exercised by the government, the acts of the physicians and hospitals in this connection constitute state action." 63 In Plain v. Flicker," the court described civil commitment as "a legitimate extension of the obligations and duties of the state to exercise its police power and parens patriae role," which arise from "the state's moral duty vis a vis the dangerously mentally in." 65 In expressing its mystification at the failure of some courts to find state action in this context, the court wondered: "If the state is not providing the authority to deny an individual his liberty what is providing the authority? '66 In answer to this query, the court replied: "Only an extension of the state's police power could authorize such deprivation of liberty. ' 67 The court concluded that the state had "statutorily delegated to physicians its power to deprive an individual of his liberty where the individual suffers from a dangerous mental illness," and therefore physicians who exercise this power "have assumed a public function. '6 60. Kay, 472 F. Supp. at Id F. Supp. 193, 197 n.l (D.Colo. 1983). 63. Id F. Supp. 898 (D.N.J. 1986). 65. Id. at Id. 67. Id. at Id. at 908. Based on its analysis, the Plain court disagreed with the decision in Watkins v. Roche, 529 F. Supp. 327 (S.D. Ga. 1981) which held that physicians who sign

14 74 CRIMINAL AND CIVIL CONFINEMENT [Vol. 19:1 A number of decisions have emphasized that failure to find state action in cases of private commitment would allow the state to shirk its constitutional and parens patriae obligations to the mentally disabled merely by delegating responsibility for them to private parties. 69 Such an evasion of responsibility "would render meaningless the recently recognized rights of the involuntarily committed." 7 Clearly the state should not be permitted to eviscerate the rights of the mentally disabled in this way. 71 Courts that have diverged from the majority view of commitment as a public function have provided no convincing rationale for their position. In several of the cases that declined to consider civil commitment state action, the courts offered virtually no justification for their holdings. As the court in Plain v. Flicker observed, "[t]he opinions announce conclusorily, without an examination of the underlying police power or parens patriae doctrines, that the physician is acting in his or her private capacity." ' v2 Two early cases provide examples of this dearth of analysis. In the 1963 case of Joyce v. Ferrazzi, 73 the plaintiff's wife and a neighbor summoned the police who arrived to find the plaintiff on the floor struggling with his teen-age son. The police had received complaints about the plaintiff previously, and because they considered him to be behaving irrationally, they took him into custody. The plaintiff refused to walk and the police were forced to carry him to the car. His wife drove to the police station and requested that the police call the certificates authorizing examination only are not state actors. For a discussion of this issue see infra notes and accompanying text. 69. See Davenport v. St. Mary Hosp., 633 F. Supp. 1228, 1234 (E.D.Pa. 1986); Lombard v. Eunice Kennedy Shriver Center for Mental Retardation, Inc., 556 F. Supp. 677, 680 (D. Mass. 1983). See also San Francisco Arts & Athletics, Inc. v. United States Olympic Comm., 483 U.S. 522, 560 (1987) (Brennan, J., dissenting), in which Justice Brennan argued, in a different context, that while "[t]he government is free of course to 'privatize' some functions it would otherwise perform... such privatization ought not automatically release those who perform government functions from constitutional obligations." Id. 70. Davenport, 633 F. Supp. at See also Smith v. Allwright, 321 U.S. 649, 664 (1944) ("[R]ights would be of little value if they could be thus indirectly denied."). 71. See Flagg Brothers, Inc. v. Brooks, 436 U.S. 149, 179 (1978) (Stevens, J., dissenting) ("[T]he Fourteenth Amendment does not countenance such a division of power and responsibility."); Ira P. Robbins, The Legal Dimensions of Private Incarceration, 38 AM. U. L. REV. 531, 588 (1989) ("The state should not be permitted to distance itself from its traditional and statutory duties through privatization."); Ronna Greff Schneider, The 1982 State Action Trilogy: Doctrinal Contraction, Confusion, and a Proposal for Change, 60 NOTRE DAME L. REV. 1150, 1169 (1985) ("[T]he state cannot delegate to a private entity the obligation to perform certain services or tasks without also delegating the responsibility to act within the parameters of the Constitution."). 72. Plain v. Flicker, 645 F. Supp. 898, 906 (D.N.J. 1986) F.2d 931 (1st Cir. 1963).

15 19931 CIVIL COMMITMENT AS STATE ACTION family doctor, which they did. The doctor came to the station and talked with the plaintiff, after which he arranged for the plaintiff to be committed to the state mental hospital. The plaintiff was confined to the institution for about ten days. He subsequently sued the doctor, the police, the hospital superintendent, and the city mayor for alleged conspiracy to deprive him of equal protection of the laws, and for infringement of his rights under section 1983.' 4 The court gave short shrift to the section 1983 claim-the entire opinion is only two pages. Because the doctor acted as a private practitioner in accordance with the state commitment statute, which was not challenged, the court found his action to be that of a private citizen. No further analysis of the matter was offered. The court apparently did not even consider that, in enacting the commitment statute, the state arguably delegated state powers to private parties and thereby transformed them into state actors, although Marsh and the "white primary" 75 cases had already articulated the delegation-ofpowers criterion at the time of this decision. In Duzynski v. Nosal, 76 the plaintiff and her husband were recent immigrants who spoke English poorly. The facts suggest that the couple were having difficulty adjusting to their new surroundings, and were probably the victims of a scheme to deprive them of their meager savings. They were both committed to a state mental hospital, where the husband committed suicide. The defendants in this case included three doctors-two of whom were appointed by the county court to examine the plaintiff prior to her commitment and one who was employed by a county mental health facility-and a clerk of the county court who signed a petition for commitment." The court pronounced, without any explanation whatsoever, that the clerk and the third physician, although they were both county officials, were acting as private citizens. 7 8 The court stated: We think it is hardly open to dispute but that Raines, while a clerk of the court, acted not in his official position, but as a private citizen in signing the petition. Likewise, Skorodin, while an employee of the Cook County Mental Health Clinic, examined plaintiff and certified to her mental illness not as a county official 74. Id. at 933. The court denied the equal protection claim because the plaintiff had made no showing of discriminatory purpose or even that he received treatment different from that which anyone else would have received under the circumstances. Id. 75. See supra note 18 for a discussion of the white primary cases F.2d 924 (7th Cir. 1963). 77. There were a number of other defendants-referred to by the court as "lay" defendants-who were acquaintances of the Duzynskis. Id. at Id. at 930.

16 76 CRIMINAL AND CIVIL CONFINEMENT [Vol. 19:1 but in his capacity as a private physician. 7 9 In declaring that this issue was not open to dispute, the court ignored nearly one hundred years of controversy over precisely such determinations. Furthermore, the court reached the illogical conclusion that these county-employed defendants were not acting as public officials despite its acknowledgement that "[h]ad Raines and Skorodin not been officials of Cook County, they, in all likelihood, would never even have heard of the Duzynskis." 8 The court's determination of this issue appears plainly wrong in light of the fact that, although not all challenged actions of government officials are unconstitutional, any conduct by a public employee is state action if it occurs in the course of the employee's performance of his or her job. 8 The court also ignored the plaintiff's allegation that the clerk had executed the petition and had sworn that the information contained in it was true, although he had never even seen the plaintiff or her husband. 82 According to the court, the clerk and the county physician acted in accordance with statutory procedures. 83 Finally, the court held that none of the defendants had any duty whatsoever to obtain a translator for the plaintiff or to inform her of the reason she was at the clinic, the nature of her commitment hearing, her right to a jury trial, her right to counsel, or her right to call witnesses. 84 Such callous indifference to the rights of the patient would not be permissible today because of subsequent reforms. 8 However, at the time of this decision, concerns about the treatment of the mentally ill were only beginning to be articulated by critics of the mental health system, so it is not surprising that the court was influenced more by reluctance to expand section 1983 liability. Nevertheless, the court's conclusory treatment of the state action issue appears unnecessarily shallow. 86 In cases where the court did engage in some state action analysis, but denied that commitment was a public function, a close examina- 79. Id. 80. Id. 81. See CHEMERINSKY, supra note 6, at Duzynski v. Nosal, 324 F.2d 924, 927 (7th Cir. 1963). 83. Id. at Id. 85. See BRAKEL ET AL., supra note The same cursory approach is found in Byrne v. Kysar, 374 F.2d 734 (7th Cir. 1965), cert. denied, 383 U.S. 913 (1966) which cited Duzynski in reaching the same result. Id. at 376. The two doctors appointed by the court to examine the plaintiff were considered to have judicial immunity. Id. The third doctor, although he was employed by the City of Chicago, was deemed to have acted in a private capacity. Id. The assistant state's attorney who signed the plaintiff's commitment petition with his official title was nevertheless also held to have been acting as a private citizen. Id.

17 1993] CIVIL COMMITMENT AS STATE ACTION tion reveals that the arguments supporting such conclusions are unpersuasive. The 1989 Seventh Circuit case of Spencer v. Lee 7 provides the most powerful demonstration of the weakness of the arguments against characterizing civil commitment as a public function. The plaintiff, William Spencer, was involuntarily committed twice by Dr. Lee, once in 1982 and again in On the second occasion, Spencer had to be forcibly transported to the hospital by the police. Dr. Lee ordered that a particular drug be given to Spencer after his arrival. Although Spencer protested that he was allergic to the medication, it was administered against his will, and as a result he suffered injury. In Spencer, Judge Posner opined that civil commitment is not "the state's business" because confinement of the mentally ill was historically undertaken by private parties. 88 This "historical" argument is entirely specious. 89 As the dissenters eloquently stated, while "[ilt may have been the case that in the time of Bedlam the rights of the mentally ill were not recognized and protected to the same extent they are today... Illinois has altered the course of history by affirmatively recognizing the rights of the mentally ill...,"o Whatever horrors may have been permitted in the dark ages of prior centuries, 91 in contemporary America the mentally ill may only be involuntarily confined pursuant to either the state's parens patriae power to care for the disabled or the state's police power to protect other citizens from dangerously disturbed persons. 2 Private parties perform this task as agents of the state. Thus, even under the "exclusive state function" test, private commitment must be considered state action F.2d 1376 (7th Cir. 1989), cert. denied, 110 S. Ct (1990). 88. Spencer, 864 F.2d at Even in colonial America, detention of the dangerous mentally ill was considered an exercise of the sovereign's police powers. ALBERT DEuTSCH, THE MENTALLY ILL IN AMERICA: A HISTORY OF THEIR CARE AND TREATMENT FROM COLONIAL TIMES (2d ed. 1949). 90. Spencer, 864 F.2d at 1388 (Cummings, Cudahy, J1., dissenting). 91. Until at least the middle of the nineteenth century, commitment at the request of friends, relatives, and sometimes even enemies, was surprisingly easy, and wrongful commitments were fairly common. Crusaders such as Mrs. E.P.W. Packard and Dorothea Dix fought for reforms primarily to prevent wrongful commitment. BRAKEL ET AL., supra note 5, at Spencer, 864 F.2d at (Cummings, Cudahy, JJ., dissenting). 93. Furthermore, it has been argued that the exclusivity requirement is misplaced in the context of public functions. In Jackson v. Metropolitan Edison, the Court stated: If we were dealing with the exercise by Metropolitan of some power delegated to it by the State which is traditionally associated with sovereignty, such as eminent domain, our case would be quite a different one. But while the Pennsylvania statute imposes an obligation to furnish service on regulated utilities, it imposes no such obligation on the State.

18 78 CRIMINAL AND CIVIL CONFINEMENT [Vol. 19:1 In addition to its "historical" theory, the majority in Spencer also relied on the contention that private involuntary commitment is analogous to citizen's arrest, repossession of goods, or ejection of trespassers. 94 This argument rests in part on a supposed parallel between civil commitment and "self-help" remedies; this self-help analogy was previously rejected as inapposite by the U.S. District Court for the District of Columbia in Willacy v. Lewis, 95 and by the U.S. District Court for the Eastern District of Pennsylvania in Davenport v. Saint Mary Hospital. 96 The plaintiff in Willacy was driven by her employer to a hospital emergency room to seek treatment for an undisclosed medical condition. The doctor who examined her there threatened to detain her after she refused the treatment he recommended. He then called the police and had them transport Willacy to a federal mental institution, where she was involuntarily committed. She was later released when the staff determined that she was not mentally ill. 9 7 The court in Willacy explained that taking a person into custody for the purpose of transporting him or her to a hospital was distinguishable from the situations in Flagg Brothers, Inc. v. Brooks 98 and certain shoplifting cases, 99 where private individuals were allowed to exercise "self-help" in protecting their property without becoming state actors. According to the Willacy court, the physician who had Ms. Willacy detained was performing a public function rather than engaging in self-help. The court stated: A physician who detains an individual "likely to injure himself or others"... is not simply availing himself of a "self-help" remedy with the acquiescence of the state; instead, the function he performs is more akin to the state's power and duty to protect against Jackson, 419 U.S. 345, (1974). According to Ronna Schneider's analysis of Rendell-Baker v. Kohn, 457 U.S. 830 (1982), [in a situation involving such a delegation, the exclusivity requirement need not apply. The statutory obligation to provide special education imposed on Massachusetts in Rendell-Baker [and by analogy, the parens patriae obligation to care for the mentally disabled] stands in sharp contrast to the lack of any obligation on the part of Pennsylvania in Jackson to provide utility service. Schneider, supra note 71, at Spencer v. Lee, 864 F.2d 1376, 1380 (7th Cir. 1989), cert. denied, 110 S. Ct (1990) F. Supp. 346 (D.D.C. 1984) F. Supp (E.D.Pa. 1986). 97. Willacy, 598 F. Supp. at U.S. 149 (1978). See supra note White v. Scrivner Corp., 594 F.2d 140 (5th Cir. 1979); Gipson v. Supermarkets Gen. Corp., 564 F. Supp. 50 (D.N.J. 1983); Klimzak v. City of Chicago, 539 F. Supp. 221 (N.D.Ill. 1982).

19 1993] CIVIL COMMITMENT AS STATE ACTION threats to the general public and to care for those unable to care for themselves. " Similarly, the court in Davenport rejected the self-help comparison in favor of characterizing commitment as a public function. In Davenport, the plaintiff alleged that during her three-month involuntary confinement, hospital personnel isolated her, beat her, and injected her with psychotropic and antipsychotic drugs before it had been determined that she was mentally ill. The court distinguished Flagg Brothers on the grounds that it "emphasized that a state's commercial self-help statutes are but one among a number of alternatives available for the resolution of 'purely private dispute[s].' "I" By contrast, "civil commitment statutes do not exist to resolve purely private disputes. Indeed it would undoubtedly be unconstitutional for a state to use civil commitment for such a purpose." 102 The court interpreted the Supreme Court's decisions in Addington v. Texas 103 and O'Connor v. Donaldson 1 04 as suggesting that "it is exclusively the state's prerogative to confine an individual involuntarily to a state mental hospital. "10 ' The reasoning articulated in Willacy and Davenport, however, applies equally to Dr. Lee's commitment of William Spencer, and demonstrates how Dr. Lee's conduct was inaccurately designated by the Spencer court as self-help. The Spencer court also argued that "a citizen who makes a citizen's arrest is not transformed into a state actor by handing over the arrested person to the police." 10 6 The court cited Lugar v. Edmondson Oil for the proposition that "police assistance in the lawful exercise of self-help does not create a conspiracy with the private person exercising that self-help." ' 7 This argument misstates the holding of Lugar and also totally misrepresents the issue in Spencer. Plaintiff Spencer was not alleging conspiracy, he was alleging state action. In Lugar, the fact that the defendant enlisted the aid of public officials did indeed qualify his conduct as state action. Moreover, handing someone over to the police when the individual presumably has committed some crime is radically different from calling in the police so that they may subdue an innocent-albeit disturbed-person and transport that person to a place of confinement at the caller's command. The latter situation appears more closely analo Willacy, 598 F. Supp. at Davenport, 633 F. Supp. at Id U.S. 418 (1979) U.S. 563 (1975) Davenport, 633 F. Supp. at Spenser v. Lee, 864 F.2d 1367, 1383 (7th Cir. 1989) Spencer, 864 F.2d at 1382.

20 80 CRIMINAL AND CIVIL CONFINEMENT [Vol. 19:1 gous to kidnapping than to citizen's arrest. As the dissenters in Spencer recognized, the power of a citizen to make an arrest is not coextensive with that of the state, and a citizen cannot detain a person whom he or she "arrests" for eight days, as a doctor may do with a mental patient under Illinois state law.108 Furthermore, before taking a suspect into custody pursuant to a citizen's arrest, a police officer must independently determine that the suspect has probably committed some offense. 109 A physician, on the other hand, may initially detain a mental patient without any corroboration of his or her decision. Thus, exercising the power to have another person confined to a mental institution is manifestly not equivalent to a citizen's arrest, and also extends far beyond any reasonable conception of "self-help." Therefore, the only legitimate source of the power to commit must be the delegation by the state of its authority and duty to confine and treat the dangerous and the disabled. B. Application of the Nexus/Entanglement/Involvement Test to Private Involuntary Civil Commitment The Supreme Court has occasionally held that significant state involvement in challenged conduct constitutes state action. 10 While state regulation and funding may be important factors in deciding whether state action is present, they are not determinative. 11 ' The Court stated in Jackson: [T]he inquiry must be whether there is a sufficiently close nexus between the State and the challenged action of the regulated entity so that the action of the latter may be fairly treated as that of the State itself... The true nature of the State's involvement may not be immediately obvious, and detailed inquiry may be required in order to determine whether the test is met In the case of civil commitment, careful scrutiny reveals that there is indeed a sufficient connection between the government and private actors engaged in this activity. Every state extensively regulates the procedures for involuntary commitment. 13 State commitment schemes must specify the condi Id. at (Cummings, Cudahy, JJ., dissenting) Id. at Lugar v. Edmondson Oil Co., Inc., 457 U.S. 922 (1982); Reitman v. Mulkey, 387 U.S. 369 (1967); Burton v. Wilmington Parking Authority, 365 U.S. 715 (1961). Ill. Blum v. Yaretsky, 457 U.S. 991 (1982); Rendell-Baker v. Kohn, 457 U.S. 830 (1982); Jackson v. Metropolitan Edison, 419 U.S. 345 (1974); Moose Lodge No. 107 v. Irvis, 407 U.S. 163 (1972) Jackson, 419 U.S. at See supra note 57.

21 19931 CIVIL COMMITMENT AS STATE ACTION tions justifying commitment, the identity of decision makers, and the procedures for gathering evidence and reaching fair decisions.'" 4 These factors are analogous to criteria that the Supreme Court articulated in its most recent decision finding state action, Edmonson v. Leesville Concrete Co., Inc. "s In holding that peremptory strikes of prospective jurors constituted state action, the Court relied in part upon the fact that the government "established the qualifications for jury service... and... outlined the procedures by which jurors are selected... Statutes also prescribe[d] many of the details of the jury plan... A statute also authorize[d] the establishment of procedures for assignment to grand and petit juries.., and for lawful excuse from jury service." 11 6 Thus, Edmonson indicates that extensive statutory control over an activity may help to convince the Court that the conduct is state action. In addition to copious statutory prescriptions, state 1 7 and federal 1 18 case law also delineate the rights of the mentally disabled and the circumstances of their confinement. Commitments are generally implemented pursuant to judicial orders, 19 and some states require jury trials.' 20 The government provides funding for public and private psychiatric hospitalization through Medicare, 12 1 Medicaid, 122 and other programs. 12 The pervasive involvement of the states in involuntary commitment is strong evidence that these situations involve state action Developments, supra note 50, at S. Ct (1991) Id. at See, eg., In re Raner, 381 P.2d 638 (Cal. 1963); In re Borgogna, 175 Cal. Rptr. 588 (Cal. St. App. 1981); In re Moyer, 263 So. 2d 286 (Fla. Dist. Ct. App. 1972); In re Sealy, 218 So. 2d 765 (Fla. Dist. Ct. App. 1969); In re Stephenson, 367 N.E.2d 1273 (Ill. 1977); In re Perry, 43 A.2d 885 (N.J. 1945); Fhagen v. Miller, 278 N.E.2d 615 (N.Y. 1972); Schutte v. Schutte, 104 S.E. 108 (W.Va. 1920); State ex rel. Hawks v. Lazaro, 202 S.E.2d 109 (W. Va. Sup. Ct. of App. 1974); Maniaci v. Marquette Univ., 184 N.W.2d 169 (Wis. 1971); N.J. Civ. PRAc. R. 4:74-7 (requiring a physician to state with particularity that a patient would be a probable danger to himself and others, plus facts the physician relied on in reaching this conclusion) See, eg., Youngberg v. Romeo, 457 U.S. 307 (1982) (holding that institutionalized patients have a right to safe conditions of confinement, freedom from unreasonable bodily restraints, and minimally adequate training); Addington v. Texas, 441 U.S. 418 (1979) (holding that civil commitment triggers due process rights); O'Connor v. Donaldson, 422 U.S. 563 (1975) (holding that a finding of dangerousness is required for involuntary commitment) BRAKEL ET AL., supra note 5, at 50, Id. at U.S.C. 1395(d), (0,(n), (x), (cc), (ww) (1988 & Supp. 1989) U.S.C. 1396(a), (d) (1988) BRAKEL ET AL., supra note 5, at 48-49; Jeffrey Rubin, Financing Mental Health Care, 28 Hous. L. REv. 143, (1991).

22 82 CRIMINAL AND CIVIL CONFINEMENT [Vol. 19:1 Although the Supreme Court has interpreted its "close nexus" test very narrowly in recent years, involuntary civil commitment cases are distinguishable from Blum v. Yaretsky' 4 and Rendell-Baker v. Kohn,' z5 two 1982 cases in which the Court did not find state action despite substantial involvement of the state in the challenged activities. To begin with, civil commitment is distinguishable from the provision of nursing home services at issue in Blum by virtue of its nature as a public function. '26 Furthermore, although the challenged patient transfers in Blum were involuntary, they do not rise to the same level of deprivation of liberty as involuntary commitment to a mental institution.' 7 This distinction is relevant for two reasons. First, all state action decisions inevitably involve a balancing of the interests involved to determine which party's rights will be protected by the court.1 28 Second, the weight of the interest in avoiding wrongful confinement is so great that the state should not be permitted to sidestep its duty to protect that interest by delegating care of the mentally ill to private parties. Civil commitment cases may be distinguished from the Rendell- Baker case on the grounds that, first, involuntary confinement is arguably an exclusive state function,' 29 while education--even special education-is not. Second, the Court's decision in Rendell-Baker was based upon the fact that personnel decisions were not among the activities of the school that were regulated and funded by the state. If the school had been sued for mistreating its charges, the Court might well have reached a different conclusion. 3 ' Where doctors or hospitals violate their state-delegated duty to provide proper process and treatment to the mentally disabled, they should be considered state actors. According to one commentator, it is inappropriate even to apply the U.S. 991 (1982). See supra notes and accompanying text. While I believe that Blum was wrongly decided, it is nevertheless good law, and therefore it is necessary to demonstrate that civil commitment has stronger claims to the state action designation U.S. 830 (1982). A school providing special education for students sent to it and paid for by the state was not a state actor when it discharged teachers. Id. at See supra notes and accompanying text. "The 'sovereign-function' doctrine adds the 'something more' that is needed to find state action where a private individual is acting pursuant to [a] state statute." Plain v. Flicker, 645 F. Supp. 898, 907 (D.N.J. 1986) See Humphrey v. Cady, 405 U.S. 504, 509 (1972) (describing involuntary commitment as a "massive curtailment of liberty"); Karen Matteson, Comment, Involuntary Civil Commitment. The Inadequacy of Existing Procedural and Substantive Protections, 28 UCLA L. REv. 906, 914 n.44 (1981) (describing the impairment of civil rights suffered by mental patients even after they are released) Chemerinsky, supra note 14, at See supra notes and accompanying text See Schneider, supra note 71, at

23 1993] CML COMMITMENT AS STATE ACTION nexus test in situations "where the state has delegated a task or service to the private party which the state itself is statutorily required to provide." 3 ' The test is inapposite and counterproductive in this context because: Using the nexus test in this delegation context leads to an illogical result: the more effectively the state distances itself from the performance of its statutory obligations, the less likely that the intended beneficiary of that obligation will receive the constitutional protections the state would have been required to give if the state itself had provided the service directly This argument clearly applies to the state's parens patriae obligation to care for the mentally ill, regardless of whether that obligation is specifically articulated by the legislature as the rationale for involuntary commitment in a particular jurisdiction. Private commitment should not be a vehicle by which the state escapes its duties to the mentally disabled. Several civil commitment cases have relied upon the state's extensive involvement as a rationale for finding state action. In Ruffler v. Phelps Memorial Hospital, 133 decided in 1978, the plaintiff was convinced to enter a private hospital voluntarily when a psychiatrist on the hospital staff told him that he would otherwise be involuntarily committed. Later, the plaintiff's wife was told by another psychiatrist that if she did not sign a petition for her husband's involuntary commitment, he would be committed anyway. The plaintiff also alleged that one of the three hospitals (two private and one county) in which he was confined interfered with his right to a judicial review of his involuntary status by delaying a court appearance until after his release. Finally, the plaintiff charged that he was physically restrained and mistreated during his confinement, in violation of his rights. The court began by stating that under O'Connor v. Donaldson 134 it is unquestionably a violation of constitutional rights to subject a person to involuntary civil commitment without due process. Therefore, the violations alleged by Ruffler would clearly be actionable under section 1983 if committed under color of state law. 135 The Ruffler court was persuaded to find state action based in part upon "[t]he pervasiveness of the state's control" 136 over the private facilities. To begin with, the New York Legislature had declared that 131. Id. at Id F. Supp (S.D.N.Y. 1978) O'Connor v. Donaldson, 422 U.S. 563 (1975) Ruffler, 453 F. Supp. at Id. at 1069.

24 84 CRIMINAL AND CIVIL CONFINEMENT [Vol. 19:1 state and local governments shared responsibility for the care and treatment of the mentally ill. Furthermore, "the State expressly depend[ed] on the use of private facilities to effectuate its public policy of providing treatment for those who need it."' 37 The State Commissioner of Mental Hygiene had supervisory authority over the private hospitals, which were also regulated by the state in numerous other ways. In the court's opinion, the State was providing care through the private hospital, and was responsible for the well-being of the plaintiff. " '38 Therefore, the court found that the private hospitals and doctors acted under color of state law, and the requisite state action was present to support the plaintiff's claim under section A state-involvement rationale was also offered by the District Court for the Southern District of Georgia in Watkins v. Roach. 1 4 In performing their duties, the doctors in that case were required to comply with numerous state regulations designed to safeguard the rights of mental patients. The rights enumerated by the legislature included the right to participate in the planning of treatment, the right to safe, skillful treatment, the right to refuse treatment, the right to communicate freely with persons outside the institution, and the right to legal counsel. 1' Watkins alleged that many of these rights had been denied him during his confinement, and that he had been involuntarily injected with inappropriate medication. The court found that although the doctors were not employed directly by the state hospital, "[c]learly, the State has immersed itself so deeply into the affairs of a patient that a doctor, obligated to comply with these rights,... can be said to be working for the state." ' 4 1 As "physician[s] in a state institution [they are] the conduit through which the State's authority and power flows. [Their] failure to abide by these rights, in effect, could constitute the state's deprivation of these rights.', 143 The court therefore held that the physicians might be found to be state actors, and refused the defendants' motion to dismiss the suit. The civil commitment cases have not devoted any attention to the type of state involvement that the Supreme Court considered in Shel Id. at Id. at Ruffler, 453 F. Supp. at In what appears to be a giant step backward for the rights of mental patients, a Georgia District Court declined to follow Ruffler in the case of Harvey v. Harvey, 749 F. Supp (M.D.Ga. 1990), aff'd, 949 F.2d 1127 (11th Cir. 1992), discussed infra notes and accompanying text F. Supp. 416 (S.D. Ga. 1983) Watkins, 560 F. Supp. at Id Id.

25 19931 CIVIL COMITMENT AS STATE ACTION ley v. Kraemer 1 -- a case of state court action. In Shelley, the Supreme Court found state action based on the involvement of state courts in upholding challenged activities. Because of state court involvement in private commitment, it should also be considered state action by this measure. The vast majority of involuntary commitments occur pursuant to mandatory judicial orders. 145 Patients generally cannot be locked away without a court's permission. If Shelley continues to have any vitality at all, 14 its ruling surely should apply in this context. This principle was recognized in a recent analogous case, Grant v. Johnson. 147 There the plaintiff's husband filed a petition to have the plaintiff's mother appointed as her guardian. A judge granted the petition without any notice to the plaintiff and without a hearing. Immediately after the petition was granted, the plaintiff's mother had her involuntarily committed to a psychiatric hospital. Virginia Grant challenged the guardianship appointment along with the state statute that allowed it to be effectuated without notice or hearing. The court held that the judge who granted the guardianship petition was a state actor. Quoting Shelley, the court stated: "The action of state courts in imposing penalties or depriving parties of other substantive rights without providing adequate notice and opportunity to defend, has, of course, long been regarded as a denial of the due process of law guaranteed by the Fourteenth Amendment." Virginia Grant was deprived of her liberty and personal freedom by operation of the laws of the State of Oregon through the action of Judge Johnson. 148 It seems likely then that if Kevin Grant had sought to have his wife involuntarily committed by a judicial order, rather than through the appointment of his mother-in-law as guardian, the court would still have found the judge's action in implementing this deprivation of Virginia Grant's liberty to be state action. There is considerable evidence that involuntary commitment is U.S. 1 (1948) Although state statutes vary widely, and some allow temporary evaluative confinement based only on a doctor's certificate or affidavits of citizens, patients cannot be committed for extended periods without due process; in all but three states, some type of judicial hearing is required. BRAKEL ET AL., supra note 5, at And apparently it does; it was cited by the Supreme Court in Edmonson v. Leesville Concrete, 111 S. Ct. 2077, 2083 (1991). Where a judge's order is required for commitment, it is probably not difficult to obtain. One study found judicial acquiescence in psychiatrists's recommendations ninety-eight percent of the time. Albers & Pasewark, Involuntary Hospitalization: Surrender at the Courthouse, 2 AM. J. COMMUNrrY PSYCHOLOGY (1974) F. Supp (D. Or. 1991) Id. at 1131 (citation omitted).

26 86 CRIMINAL AND CIVL CONFINEMENT [Vol. 19:1 sometimes-perhaps all too often-used as a means of "dumping" the unwanted.149 Clearly the state should not lend its power to the imposition of confinement for such an illicit purpose. 150 The recent Georgia case of Harvey v. Harvey'i' provides a compelling illustration of this point. The plaintiff, Betty Harvey, was involuntarily committed to a private mental hospital (to which she was transported by the police) at the behest of her husband. According to Mrs. Harvey's complaint, Mr. Harvey was appointed by a probate judge to be her emergency guardian based on false statements submitted to the judge by Mr. Harvey and his attorney. Mrs. Harvey further alleged that Mr. Harvey then persuaded two physicians to execute the necessary certificates after only cursory and inadequate examinations. Mrs. Harvey claimed that upon confinement, she was given medication against her will. 152 The district court concluded, relying primarily on the specious reasoning of Spencer v. Lee, 1 53 that none of the defendants could be considered a state actor No mention whatsoever was made of either the Lugar rule, that a private person may be a state actor if he or she enlists the aid of public officials to achieve private ends, or the holding of Shelley, that state court involvement in challenged conduct can cre See SEYMOUR L. HALLECK, LAW IN THE PRACTICE OF PSYCHIATRY, (1980); Cathrael Kazin, "Nowhere to Go and Chose to Stay" Using the Tort of False Imprisonment to Redress Involuntary Confinement of the Elderly in Nursing Homes and Hospitals, 137 U. PA. L. REV. 903, (1989) ("Psychiatric hospitals clearly have been abused as a means of dealing with old people who are unwanted by their families or who do not have familial resources."); Karen Matteson, Comment, Involuntary Civil Commitment: The Inadequacy of Existing Procedural and Substantive Protections, 28 UCLA L. REv. 906, (1981); Rob Waters, When Love is Tough, CALIFORNIA MAGAZINE, March 1991, at 52 (describing a 250% increase in teen admissions to psychiatric hospitals in the last decade, many of which are accomplished by "escort services" that essentially "kidnap teenagers on behalf of their parents and transport them to hospitals where they are to be admitted."). The hospital programs are geared to families with health insurance coverage and problematic teens, many of whom do not need to be hospitalized. One expert has called private psychiatric hospitals "the new jails for kids." Rob Waters, When Love is Tough, CALIFORNIA MAGAZINE, March 1991, at 54 (quoting Professor Ira Schwartz of the University of Michigan) Barbara Rook Snyder, Private Motivation, State Action and the Allocation of Responsibility for Fourteenth Amendment Violations, 75 CORNELL L. REV (1990). "The state should not be permitted to defer to the wishes of private parties to avoid constitutional limitations on state action. State action that violates the Constitution is no more justifiable when the motivation for the action comes from private parties than it is when the motivation for the action comes from state actors." Id. at F. Supp (M.D. Ga. 1990), aff'd, 949 F.2d 1127 (1lth Cir. 1992) Harvey, 749 F. Supp. at In some states, including Georgia, patients have the right to refuse medication. BRAKEL ET AL., supra note 5, at , F.2d 1376 (7th Cir. 1989); see supra notes and accompanying text Harvey, 749 F. Supp. at

27 19931 CIVIL COMMITMENT AS STATE ACTION ate state action. The Court of Appeals opinion is equally conclusory, adding little to the district court's analysis apart from a dubious attempt to explain away the contrary conclusion reached by the Eleventh Circuit in Burch v. Apalachee Community Mental Health Services The factual scenario of Harvey is somewhat reminiscent of a lurid movie plot, and perhaps it was a product of Mrs. Harvey's paranoid imagination. But what if it was not? What if Mr. Harvey was able to secure the cooperation of a judge who was his crony, or amenable to bribery, to banish Mrs. Harvey by shutting her away in a mental hospital, where she would be subdued with psychotropic drugs? This nightmarish possibility should have been sufficient to entitle Betty Harvey to her day in federal court. Whenever private parties have effectuated their private interests with the assistance of state courts, state action should be found. C. State Encouragement or Coercion of Private Civil Commitment In some of its state action decisions, the Supreme Court has ruled that private conduct will not be attributed to the state unless the state has either encouraged or coerced the action. 156 This formulation of the doctrine is directly contradictory to the Court's statement in Moose Lodge No. 107 v. Irvis, 15 7 that "the impetus for the forbidden [private action] need not originate with the State." 15 It is, however, entirely consistent with the Court's manifest intention to contract the state action doctrine. Arguably, encouragement or coercion cannot constitute the only test for state action, because such an interpretation would not square with the Supreme Court's decisions in Shelley, Marsh, or Burton, all of which remain good law. Nevertheless, even if this stringent standard were the sole measure of state action, private involuntary commitment should still qualify as state action. The only reason for the existence of private mental institutions is that the state has endowed them with the power-subject to compliance with state commitment statutes-to confine the mentally disabled within their walls. By granting this authority, the state has sufficiently encouraged the exercise of that F.2d 797 (1lth Cir. 1988) (en bane). The Harvey appeals court characterized the en bane majority's finding of state action in Burch as unnecessary to the opinion because Apalachee did not dispute its state-actor status. Harvey, 149 F.2d at Blum v. Yaretsky, 457 U.S. 991, (1982). See supra notes and accompanying text; Adickes v. S.H. Kress & Co., 398 U.S. 144 (1970) U.S. 163 (1972) Id. at 172.

28 88 CRIMINAL AND CIVIL CONFINEMENT [Vol. 19:1 power to satisfy the state action test. As Barbara Rook Snyder explains: [W]hen [the state] guarantees, through a statute, a constitutional provision, or the common law, the right to engage in the private action[,] [t]he message sent to private parties then is not, "do what you want, the state will not interfere," but rather, "go ahead, the state is behind you, and if anyone challenges your action, the state will support and protect your right to engage in that action." ' 159 Thus, employing Snyder's interpretation of the encouragement test, private involuntary commitment should qualify as state action, because the states have guaranteed to private individuals the right to effect involuntary commitment of mental patients, thus indicating state support of that activity. 16 Furthermore, in recent years the federal and state governments have encouraged the proliferation of private mental institutions by drastically curtailing the provision of mental health services at state and county hospitals, and by failing to create promised community mental health facilities as a substitute Private hospitals have become the alternative for anyone with money or health insurance who has a family member in need of psychiatric care. 162 Although these circumstances concededly are not directly responsible for any particular decision to commit, government encouragement of private commitment in general should be enough to fulfill the state action requirement. In the words of Susan Bandes, "the question ought to be whether the government's conduct, whether immediate or ongoing, was a substantial factor in causing the harm. If so, the government ought not to escape liability simply because other factors also contrib Snyder, supra note 150, at See id. at See M. Gregg Bloche & Francine Cournos, Mental Health Policy for the 1990s: Tinkering in the Interstices, 15 J. HEALTH POL. POL'Y & L. 387 (1990); Mary L. Durham, The Impact of Deinstitutionalization on the Current Treatment of the Mentally 11, 12 INT'L J.L. & PSYCHIATRY 117 (1989) (describing the causes and effects of "deinstitutionalization" from state mental hospitals); Lucie White, Representing "The Real Deal", 45 U. MIAMI L. REV. 271, 280 n.29 ( )(citing H. Richard Lamb, Deinstitutionalization and the Homeless Mentally Ill, 35 HosP. & COMMUNITY PSYCHIATRY 899, 902 (1984)); Janny Scott, Mental Health Officials Say System is Disintegrating, L.A. TIMES, Oct. 23, 1991, at A-1 (discussing the decline of the public mental health system in California and the nation). Cuts in funding for psychiatric facilities may be distinguished from cuts in public school funding by the fact that the government justified its drastic reduction of mental health services at large state and county hospitals by pledging to establish community mental health centers instead; this promise remains unfulfilled Peter Kerr, Psychiatry for Profit: Private Hospitals Under Fire-Chain of Hospitals Faces Inquiry in 4 States, N.Y. TIMES, Oct. 22, 1991, at Al.

29 19931 CIVIL COMMITMENT AS STATE ACTION uted." 16 3 Here the government has caused private entities to assume the task of confining the mentally ill-by empowering them to do so and by failing to provide adequate care itself. The state should not evade responsibility merely because other factors-the wrongful actions of doctors or hospital personnel-also contribute in harming individual patients. D. The Distinction Between Actual Commitment and the Signing of a Physician's Certificate Recommending Evaluation In making state action determinations, several civil commitment cases have drawn a distinction between the signing of a physician's certificate that authorizes examination only, and actions that result in actual commitment. In Watkins v. Roche," 6 for example, the plaintiff was taken into custody after Dr. Roche signed a physician's certificate stating that he had personally examined Watkins and found him to be in need of involuntary treatment for alcoholism, drug dependency, or drug abuse. Watkins alleged that the signing of the certificate was negligent, was performed under color of state law, and deprived him of his civil rights. The court found that the signing of the initial certificate, which only authorized examination 16 of the plaintiff, was not state action The court based its analysis on factors that had been enumerated by the Supreme Court in Flagg Brothers, Inc. v. Brooks. 167 The court found that, unlike actual commitment, initiating the evaluation process was not an exclusive state function because physicians were not alone in their ability to refer individuals for examination Under the state statute, other private individuals also had the power to obtain, through the court, a certificate calling for a patient's examination In addition, the court in Watkins 1170 believed that the need for physician assistance in evaluating potential patients required that phy Susan Bandes, The Negative Constitution: A Critique, 88 MICH. L. REv. 2271, 2293 (1990) (citing Thomas A. Eaton, Causation in Constitutional Torts, 67 IowA L. REv. 443, 444 (1982)) F. Supp. 327 (S.D. Ga. 1981) [hereinafter Watkins 1]; 560 F. Supp. 416 (S.D. Ga. 1983) [hereinafter Watkins I1] The Georgia statute, GA. CODE ANN (2) (Michie 1990), required that a person who is confined pursuant to a physician's certificate must be examined within twenty-four hours. Watkins I, 529 F. Supp. at F. Supp. at U.S. 149 (1978) Watkins I, 529 F. Supp. at Watkins I, 529 F. Supp. at F. Supp. 327 (S.D. Ga. 1981).

30 90 CRIMINAL AND CIVIL CONFINEMENT [Vol. 19:1 sicians who merely sign certificates not be considered state actors. The court stated: By allowing a physician to bypass the necessity of obtaining a court order, the legislature implicitly recognized that a physician's training, expertise, and professionalism qualify him to make a judgment in the best interests of a person to which a court could add but little, if anything... To open physicians to federal suit by decreeing that they act for the state in making purely medical decisions would effectively chill the use, and accompanying benefit, of a private physician's judgment in an emergency situation simply because the physician may not be willing to give it for fear of being exposed to a lawsuit. 171 However, the court explicitly stated that its holding applied only to the issuance of a certificate authorizing examination. "The decision to refer a person for further evaluation and, perhaps, for treatment rests with the state and the state alone. A private physician cannot commit someone... solely by a certificate. Basically, the certificate simply initiates the state's involvement and is not... the point of origin of state action." 172 Consistent with the rationale of Watkins I, in Watkins 11,173 the court found that the physicians who recommended that Watkins be retained and who treated him were indeed state actors. 174 The court stated that the doctors' task of determining whether to retain a person brought for evaluation was "an activity reserved to the State,"' 17 ' and that performance of state-mandated examinations was "a state function."' 176 It is true that society has a legitimate interest in seeing that those who exhibit symptoms of mental disorder are evaluated; society also has an interest in ensuring that doctors will not be made unduly fearful of exercising their professional judgment in this regard. However, there are several flaws in the Watkins I court's argument, which were pointed out by the court in Plain v. Flicker.' 77 First, "fear of liability is not one of the factors the Supreme Court has set forth in determining whether there is state action."' 178 Furthermore, even if they are regarded as state actors, [p]hysicians need not feel threatened that every signature on a cer Id. at Id. at F. Supp. 416 (S.D. Ga. 1983) Id. at Id. at Id F. Supp. 898, (D.N.J. 1986) Id. at 907.

31 19931 CIVIL COMMITMENT AS STATE ACTION tificate of commitment will lead to a civil rights lawsuit. Officers of the state, exercising discretionary powers in performing their duties are entitled to qualified immunity insofar as their conduct does not violate clearly established statutory or constitutional rights which a reasonable person would have known Nevertheless, it might be reasonable to establish a policy that a doctor who merely recommends that a patient be evaluated should not be subject to suit under section One justification for such a policy is that family members and, in some states, members of the general public, may also make such recommendations without being considered state actors. 180 A number of courts have adopted this approach Another reason to exempt evaluation from state action status is that the extensive procedural protections now afforded mental patients are, to a certain extent, a double-edged sword. While they serve to guard against improper commitments, there is a danger that they may also prevent some people who are in dire need of treatment from receiving that care. Some commentators have expressed concern that patients 179. Id. at 908. The Supreme Court recently considered the question of whether private actors can claim such immunity in Wyatt v. Cole, 112 S. Ct (1992), and determined that private actors are not immune. However, it appears that in fact doctors generally are far more concerned about incurring liability either for failing to commit or for releasing a patient who later causes harm or commits suicide. Thus, doctors are much more likely to err on the side of unnecessary commitment. SEYMOUR L. HALLECK, LAW IN THE PRACTICE OF PSYCHIATRY 63, 130, 134 (1980); see also PAUL S. APPELBAUM & THOMAS G. GUTHEIL, CLINICAL HANDBOOK OF PSYCHIATRY AND THE LAW, 42, 165, 168 (1991) (assuring physicians that those who act in good faith are unlikely to be found liable for wrongful commitment). Courts have imposed liability for negligent release or failure to warn potential victims in numerous cases. See, ag., Lipari v. Sears, Roebuck & Co., 497 F. Supp. 185 (D. Neb. 1980); Tarasoff v. Regents of the Univ. of Calif., 551 P.2d 334 (Cal. 1976); Perreira v. Colorado, 768 P.2d 1198 (Colo. 1989); Bradley Center, Inc. v. Wessner, 296 S.E.2d 693 (Ga. 1982); Pangburn v. Saad, 326 S.E.2d 365 (N.C. App. 1985); Petersen v. State, 671 P.2d 230 (Wash. 1983). But see Leonard v. Iowa, No. 247/ (Iowa Sept. 23, 1992) Willacy v. Lewis, 598 F. Supp. 346, 348 (D.D.C. 1984) See Watkins v. Roche, 529 F. Supp. 327, 330 (S.D. Ga. 1981); Green v. Truman, 459 F. Supp. 342, 344 (D. Mass. 1978); Orlando v. Weisel, 443 F. Supp. 744, 751 (W.D.Ark. 1978); Byrne v. Kysar, 347 F.2d 734, 736 (7th Cir. 1965). But cf Landry v. Odom, 559 F. Supp. 514, (E.D. La. 1983), in which the court's decision seems rather inconsistent. In Landry, the defendant physician signed a second certificate that resulted in the plaintiff's retention for treatment. The court cited the Watkins I court's statement that physicians' exercise of medical judgment should not be chilled by potential exposure to lawsuits. However, the court then implied that if the physician involved had initiated the process leading to the plaintiff's confinement (it was the plaintiff's sister who requested that she be hospitalized), rather than consigning her to further confinement, he might have been considered a state actor. This suggestion is totally contrary to the court's reasoning in Watkins, and seems to indicate that the Landry court misunderstood the precedent it was citing.

32 92 CRIMINAL AND CIVIL CONFINEMENT [Vol. 19:1 may "die[ ] with their legal rights on," 182 or be granted "the freedom to suffer outside an institution." '83 Such results are just as undesirable as improper commitment. It has been estimated that approximately one third of the homeless are mentally disabled persons, 184 many of whom should be institutionalized. Their suffering is manifest to anyone who has seen them. Therefore, it seems the best interests of both patients and society may be served by allowing short evaluations to be conducted without fear of section 1983 liability. However, these arguments apply only in cases where the state commitment statute requires release or a hearing within a short period. In a situation where a patient may be confined without a hearing for a week or more, there is no real distinction between signing a certificate authorizing evaluation and actually committing the patient. The American Psychiatric Association recommended in 1982 that doctors be permitted to retain patients for no more than seven days without a hearing. 185 Some commentators have urged that even a week without a hearing is too long. As one observer remarked, the Supreme Court "requires more due process than this... to repossess a refrigerator." 86 Actual commitment--or any confinement longer than two or three days-is an entirely different matter from a brief evaluation. Once a doctor has ordered that a patient be involuntarily confined to an institution for extended evaluation or treatment-as contrasted with a short fixed period of evaluation-the doctor is subjecting that patient to a substantial deprivation of liberty, and the state's countervailing interest in evaluation no longer outweighs the patient's rights. 187 The 182. BRAKEL ET AL., supra note 5, at 26 (citing Darold Treffert, The Practical Limits of Patients' Rights, in DIAGNOSIS AND DEBATE 227 (R.J. Bonnie ed. 1977)) Id. (citing A.A. STONE, MENTAL HEALTH AND THE LAW: A SYSTEM IN TRANSITION 43 (1975)) WILLIAM TUCKER, THE EXCLUDED AMERICANS: HOMELESSNESS AND HOUSING POLICIES 27 (1990); Michael Diehl, Screening Out Worthy Social Security Disability Claimants and Its Effect on Homelessness, 45 U. MIAMI L. REV. 617, 618 n.6, n.7, 639 ( ); Lucie White, Representing "The Real Deal", 45 U. MIAMI L. REV. 271 ( ) AMERICAN PSYCHIATRIC ASSOCIATION, GUIDELINES FOR LEGISLATION ON THE PSYCHIATRIC HOSPITALIZATION OF ADULTS (1982) Leonard S. Rubenstein, The American Psychiatric Association's Proposals on Civil Commitment, 17 CLEARINGHOUSE REV. 558 (1983) In addition to the loss of freedom that results from extended confinement, the patient also suffers diminished chances of returning to life outside the institution. "The institutional environment not only reduces a patient's sense of autonomy but also labels him as mentally ill, causing others to interpret even normal behavior as aberrant." Rxfor the Elderly: Legal Rights (And Wrongs) Within the Health Care System, 20 HARV. C.R.- C.L. L. REV (1985); see also Rosenhan, On Being Sane in Insane Places, 179 SCIENCE 250 (1973).

33 19931 CIVIL COMMITMENT AS STATE ACTION power to effect this deprivation can only be said to come from the state, and all the consequences of state action must follow. IV. OTHER ISSUES REGARDING SECTION 1983 SUITS BY INVOLUNTARILY COMMITTED PLAINTIFFS Even if the foregoing arguments are accepted as establishing that private involuntary commitment of the mentally ill constitutes state action, plaintiffs may still encounter legal impediments to suits against private parties under section The Supreme Court has held that government inaction cannot be an actionable deprivation of constitutional rights. 88 The Court has also established the precedent that under some circumstances, federal remedies under section 1983 will be unavailable, and plaintiffs must settle for state tort remedies even though they were harmed by state actors The following subsections will argue that, based on policy considerations as well as the criteria promulgated by the Court, these restrictions should not apply to suits by involuntarily committed mental patients. A. The Negative Liberties Problem: DeShaney v. Winnebago County Department of Social Services 190 In recent years the Supreme Court has been implementing a contraction of government responsibility According to the Court, the government is not responsible for redressing generalized past discrimination, 192 paying for indigent women to exercise their constitutional right to abortion, 193 or in fact for providing any service whatsoever It follows, then, that the Court is averse to finding that private individuals are state actors, because such findings expand the scope of government obligations In addition, the Court is reluctant to acknowledge that government inaction often constitutes a denial of 188. DeShaney v. Winnebago County Dep't of Social Services, 489 U.S. 189 (1989) Parratt v. Taylor, 451 U.S. 527 (1981) U.S. 189 (1989) See Alan R. Madry, State Action and the Obligation of the States to Prevent Private Harm: Blum v. Yaretsky and the Rehnquist Transformation, 65 S. CAL. L. Rlv. 781 (1991). "Any critical examination of the [state action] doctrine must now address directly the Court's decision that the Fourteenth Amendment imposes no responsibility upon the states to protect private parties nor any standards for laws that do." Id. at City of Richmond v. J.A. Croson Co., 488 U.S. 469 (1989) Harris v. McCrae, 448 U.S. 297 (1980) Youngberg v. Romeo, 457 U.S. 307, 317 (1982). "As a general matter, a state is under no constitutional duty to provide substantive services for those within its border." Id. (quoting Deshaney, 489 U.S. at 196) Ironically, it has been pointed out that, prior to Blum v. Yaretsky, 457 U.S. 991 (1982), "the very purpose of the state action doctrine, as used by the Court, was to expand the responsibility of the states...." Madry, supra note 191, at 818.

34 94 CRIMINAL AND CIVIL CONFINEMENT [Vol. 19:1 protected rights.' 96 The Court's ungenerous judicial philosophy is embodied in the 1989 decision, DeShaney v. Winnebago County Department of Social Services In 1980, an infant Joshua DeShaney was placed in the custody of his father when his parents divorced. His father then moved from Wyoming to Winnebago County, Wisconsin. County authorities were repeatedly alerted to the fact that Joshua was being abused, but they allowed him to remain in his father's custody. Eventually Joshua's father beat him so severely that Joshua was rendered profoundly retarded, and he will have to spend the rest of his life in an institution. Joshua's mother sued County authorities on behalf of Joshua and herself, alleging that the officials and social workers had violated Joshua's Fourteenth Amendment rights to liberty and bodily integrity without due process of law. The opinion by Chief Justice Rehnquist distinguished the case from Youngberg v. Romeo 198 and Estelle v. Gamble 199 on the grounds that plaintiffs in those cases had been in state custody, whereas Joshua DeShaney was not. 2 " While the county workers might be liable to Joshua and his mother under state tort law, '01 no federal remedy was available because there was no due process violation. 2 Although Justices Brennan (joined by Justices Marshall and Blackmun) and Blackmun wrote eloquent and impassioned dissents in this case, the majority opinion is now the law. The implication for patients who are involuntarily committed is that, under DeShaney, the state may have no duty to protect them from the actions of private doctors and hospitals To paraphrase Edmund Burke, the only thing necessary for injustice to triumph may be for the government to do nothing. See Bandes, supra note 163, at ; Charles L. Black, Jr., Foreword: "State Action," Equal Protection, and California's Proposition 14, 81 HARV. L. REV. 69, 73 (1967); Erwin Chemerinsky, Rethinking State Action, 80 Nw. U. L. REV. 503, (1985); Deshaney, 489 U.S. at 212 (Brennan, J., dissenting) ("[I]naction can be every bit as abusive of power as action,... oppression can result when a State undertakes a vital duty and then ignores it.") U.S. 189 (1989). One commentator has lamented that DeShaney expresses the Court's belief that we are "a nation of strangers" that "in principle leaves the helpless to their own devices." MARY ANN GLENDON, RIGHTS TALK: THE IMPOVERISHMENT OF POLITICAL DISCOURSE 95 (1991); see also David G. Savage, The Rehnquist Court, L.A. TIMES MAGAZINE, Sept. 29, 1991, at 14 ("Under Rehnquist, the Supreme Court no longer sees itself as the defender of civil rights and civil liberties, the champion of the individual." Rehnquist himself "dismisse[s] any claims that [the government] has special responsibilities toward the poor" or minorities.) U.S. 307 (1982) U.S. 97 (1976) DeShaney, 489 U.S. at Id. at Id. at 202.

35 1993] CIVIL COMMITMENT AS STATE ACTION However, the arguments in the foregoing sections of this paper establish that the act of private involuntary commitment is state action, first because private individuals have no independent authority to confine their fellow citizens apart from that which is delegated to them by the state. As the courts in Willacy v. Lewis and Plain v. Flicker-and the dissent in Spencer v. Lee-explained, private citizens may be permitted to exercise "self-help" remedies in relation to property, but only the state can deprive a person of liberty. When private doctors and hospitals effect involuntary commitments, it must be true that they do so as agents of the state who exercise the state's parens patriae powers. 2 3 Furthermore, private commitment is state action because the government is so extensively involved in civil commitment, 2 4 and because the government has encouraged, even necessitated, the existence and multiplication of private psychiatric facilities. 2 " 5 Once affirmative state action-as opposed to inactionthat leads to harm has been established, the holding of DeShaney does not apply. Such affirmative conduct is present in the involuntary commitment context, and this removes it from the purview of DeShaney. Randy DeShaney, the person who actually harmed Joshua, was not a state actor. The county social workers who worked on Joshua's case contributed to the harm by their failure to take timely action By contrast, doctors who wrongfully confine involuntary mental patients are definitely acting, and they are doing so as agents of the state. Nevertheless, some ambiguity might still remain as to the stateaction status of the ongoing task of caring for the mentally disabled. A distinction between commitment and caretaking could be an important one, because in some private commitment cases the plaintiff alleges that it was not the circumstances of the commitment proceedings (or not only those circumstances) that violated the plaintiff's rights, but the circumstances of the plaintiff's confinement. Many plaintiffs allege mistreatment at the hands of their purported caretakers If care and treatment of the mentally ill were not subject to the 203. See supra notes and accompanying text See supra notes and accompanying text See supra notes and accompanying text Of course, I believe this merely indicates that they were doing their jobs badly, and should not have absolved them of liability See, e.g., Lombard v. Eunice Kennedy Shriver Ctr. for Mental Retardation, 556 F. Supp. 677 (D. Mass. 1983). The plaintiff was a retarded man who had been involuntarily confined in a state home and school for the mentally retarded since he was eight years old. Id. at 678. Some time before this action was instituted, another suit had been brought against the state on behalf of the residents of the school. Id. As a result of that earlier suit, the school had contracted with the Shriver Center to provide medical and rehabilitative care to the residents. Id. The plaintiff alleged that he was improperly medicated by employees of the Shriver Center without regard to the adverse effects that the medications,

36 96 CRIMINAL AND CIVIL CONFINEMENT [Vol. 19:1 constraints of Youngberg and Estelle, then under DeShaney, the state would have no duty to protect patients from maltreatment by private doctors and hospitals, and private parties could not be sued for such conduct under section However, DeShaney is clearly distinguishable from the private involuntary commitment situation. The Court in DeShaney did not challenge the continued vitality of Youngberg and Estelle; on the contrary, it took great pains to explain why those decisions were inapplicable to the instant case. Involuntary confinement in a private mental institution is much more closely analogous to the situations of Youngberg and Estelle than to DeShaney. The salient feature of Youngberg and Estelle, according to the majority-the thing that made them different from DeShaney-was confinement. 2 " 8 [W]hen the State takes a person into its custody and holds him there against his will, the Constitution imposes upon it a corresponding duty to assume some responsibility for his safety and general well-being.... [I]t is the State's affirmative act of restraining the individual's freedom to act on his own behalfthrough incarceration, institutionalization, or other similar restraint of personal liberty-which is the "deprivation of liberty" triggering the protections of the Due Process Clause... '09 Privately committed mental patients are equally deprived of their ability to act for themselves. The Court recognized a similar principle in West v. Atkins, 210 where it held that a private physician who treated prisoners was a state actor. In his concurrence, Justice Scalia stated: A physician who acts on behalf of the State to provide needed as well as sudden changes in their administration, might have upon him. Id. The court held that the actions of the defendant undeniably constituted state action. Id. at 680. Relying on Youngberg v. Romeo and Estelle v. Gamble, the court declared that "the Fourteenth Amendment imposes an affirmative obligation on the state to provide adequate medical care for involuntarily committed residents of state mental institutions." Id. at 679. There was no question that the state had delegated this duty to the Shriver Center: Under the circumstances of this case, it would be empty formalism to treat the Shriver Center as anything but the equivalent of a governmental agency.... Because the state bore an affirmative obligation to provide adequate medical care to the plaintiff, because the state delegated that function to the Shriver Center, and because Shriver voluntarily assumed that obligation by contract, Shriver must be considered to have acted under color of law, and its acts and omissions must be considered actions of the state. Id. at 680. The court then voiced the concern expressed in numerous other cases: -[i]f Shriver were not held so responsible, the state could avoid its constitutional obligations simply by delegating governmental functions to private entities." Id See Bandes, supra note 163, at U.S. at U.S. 42 (1988).

37 1993] CIVIL COMITMENT AS STATE ACTION medical attention to a person involuntarily in state custody (in prison or elsewhere) and prevented from otherwise obtaining it, and who causes physical harm to such a person by deliberate indifference, violates the Fourteenth Amendment's protection against the deprivation of liberty without due process. 2 1 The same argument should apply to physicians and other care providers who harm involuntarily committed mental patients, because involuntary patients, like prisoners, cannot obtain help and are otherwise at the mercy of their "keepers." Finally, the DeShaney Court speculated in a footnote that if Joshua had been injured in a foster home, the judicial result might well have been different. Had the State by the affirmative exercise of its power removed Joshua from free society and placed him in a foster home operated by its agents, we might have a situation sufficiently analogous to incarceration or institutionalization to give rise to an affirmative duty to protect. Indeed several Courts of Appeals have held, by analogy to Estelle and Youngberg, that the State may be held liable under the Due Process Clause for failing to protect children in foster homes from mistreatment at the hands of their foster parents. 21 Again, the same argument should apply to involuntarily committed mental patients, who have been placed under the control of others under the aegis of the state, and who, like foster children, are extremely vulnerable to abuse. 213 In the context of involuntary commitment, the law should draw no distinction between those who act as the state's indirect agents and doctors, hospital officials, and other personnel who are directly under the control of the state. Whether an actor is directly or indirectly controlled by the state, the power to confine comes only from the state. Those who assume the task of caring for the mentally ill, and who are cloaked with the power of the state to confine and to impose other, more intrusive restrictions of liberty (such as physical restraints and 211. Id. at 58 (Scalia, J., concurring in part and concurring in the judgment) DeShaney v. Winnebago County Dep't of Social Services, 489 U.S. 189, 201 n.9 (1989). One of the cases cited by the Court was denied certiorari less than a month after the DeShaney decision. Taylor ex rel. Walker v. Ledbetter, 818 F.2d 791 (1 1th Cir. 1989), cert. denied, 489 U.S (1989) See Developments, supra note 50, at 1197; Karen Matteson, Comment, Involuntary Civil Commitment: The Inadequacy of Existing Procedural and Substantive Protections, 28 UCLA L. REv. 906, 913 n.43 (1981) (recounting loss of property through conservatorship, involuntary administration of medication, and subjection to medical experiments); Peter Kerr, Chain of Mental Hospitals Faces Inquiry in 4 States, N.Y. TIMES, Oct. 22, 1991, at Al (describing patient abuse and insurance fraud allegedly perpetrated by for-profit private mental institutions).

38 98 CRIMINAL AND CIVIL CONFINEMENT [Vol. 19:1 tranquilizing, psychotropic, or antipsychotic drugs) should under no circumstances be permitted to shirk their constitutional duty to protect their patients. Given that those who effect involuntary commitment must be considered state actors, there can be no question that they have a duty to protect the persons whom they commit. Doctors and hospitals have a legal and moral responsibility as health care providers to see that patients receive fair process and humane treatment. 214 Because involuntarily committed patients are confined without their consent, and because they are powerless to control their own circumstances, the Supreme Court's decision in DeShaney cannot apply to them. On the contrary, involuntary mental patients are indubitably owed the obligations described by the Court in Youngberg and Estelle. B. The Effect of Parratt v. Taylor on Suits by Involuntarily Committed Mental Patients Over ten percent of federal court cases are section 1983 suits. 215 The Supreme Court has attempted in recent years to stem this tide of litigation by creating limitations on section 1983 actions that could also be brought as state tort suits. 216 The Court has thus denied a federal remedy to some claimants even though the defendants were state actors. In Parratt v. Taylor, 2 " 7 prison guards negligently lost a prisoner's $23.50 mail-order hobby kit. The prisoner sued under section 1983 alleging that he was deprived of his property without due process of law. The Supreme Court held that due process is not violated if the plaintiff's loss was the result of random and unauthorized conduct, and post-deprivation state damage remedies are adequate. 218 After Parratt, courts hearing civil commitment cases had to consider whether this doctrine applied in the context of involuntary commitment to mental institutions. In Hicks v. Feeney, 21 9 the Third Circuit Court of Appeals decided that Parratt did not apply. The 214. The Massachusetts District Court in Lombard v. Eunice Kennedy Shriver Ctr. for Mental Retardation, stated that "the Fourteenth Amendment imposes an affirmative obligation on the state to provide adequate medical care for involuntarily committed residents of state mental institutions." Lombard v. Eunice Kennedy Shriver Ctr. for Mental Retardation, 556 F. Supp. 677, 679 (D. Mass. 1988). According to the court this obligation applies equally to private institutions that assume the state's duty to treat the mentally disabled. Id. at CHEMERINSKY, supra note 6, at Id. at U.S. 527 (1981) Id. at The Court added that the fact that state remedies did not provide for punitive damages or trial by jury did not render them inadequate to satisfy the demands of due process. Id F.2d 375 (3d Cir. 1985).

39 1993] CIVIL COMMITMENT AS STATE ACTION plaintiff in Hicks was ordered by a court to undergo a psychiatric evaluation at the Delaware State Hospital as a condition of probation. (Hicks had been convicted of contempt for contacting his ex-wife in violation of a court order.) The hospital failed to follow mandatory state procedures, and Hicks was confined for fifty-four days before hospital personnel determined that he suffered merely from an "adjustment disorder," rather than the previously diagnosed "major mental illness."" 22 The court held that the hospital's commitment procedure "constituted an established state procedure that required a pre-deprivation hearing," and therefore Parratt's post-deprivation remedy exception was not applicable. 221 A similar conclusion was reached in Burch v. Apalachee Community Mental Health Services, Inc. 222 In Burch, the plaintiff was found wandering on the side of a highway and was taken to Apalachee, a private facility designated by the state to receive mentally ill patients. When he arrived, Burch was confused, disoriented, and hallucinating. Nevertheless, while in this condition Burch was given a voluntary admission form and a treatment authorization form to sign. Burch was soon transferred to the Florida State Hospital (FSH) because Apalachee could not provide the treatment he needed. Prior to the transfer, Apalachee had him sign admission and treatment forms for FSH. After his arrival there he signed another set of voluntary admission and treatment forms, although he obviously remained in a psychotic state. Burch was confined for almost five months without a hearing. Burch sued Apalachee and the FSH employees connected with his admission and treatment there. The Court of Appeals in Burch distinguished Parratt v. Taylor 22 3 by citing Fetner v. City of Roanoke 224 for the proposition that "[p]ost-deprivation remedies do not provide due process if pre-deprivation remedies are practicable. ' 225 The Florida commitment statute required that within forty-eight hours a patient either be released, voluntarily give "express and informed" consent, or have court evaluation proceedings initiated. Because Burch was incompetent to sign the forms, his consent was defective. 226 In addition, while the defendants in Parratt did not have the authority to deprive the plaintiff therein of his property, the defendants in Burch were authorized by state law to deprive "Burch of his liberty in a way 220. Id. at Id. at F.2d 797 (11th Cir. 1988) (en banc) Id. at 801 (distinguishing 451 U.S. 527 (1981)) Id. (citing Fetner v. City of Roanoke, 813 F.2d 1183 (11th Cir. 1987)) Burch, 840 F.2d 797, 801 (quoting Fetner, 813 F.2d at 1185) Id.

40 CRIMINAL AND CIVIL CONFINEMENT [Vol. 19:1 not available to a private citizen." 2' 27 The dissenters in Burch, however, agreed with the district court decision which held that Parratt was controlling. The dissenters believed Parratt applied because the hospitals' actions were justified by the circumstances at the time of Burch's confinement. One dissenter likened Burch's action to a patient "throwing his crutches at his doctor." 22 ' 8 This judge virtually ridiculed the notion that American mental institutions-unlike those "in other, totalitarian, nations"- might abuse their authority. 229 Burch v. Apalachee was granted certiorari by the Supreme Court because of the division among the judges of the Eleventh Circuit as to the scope of the Parratt rule. 23 The Court stated that contrary to the rulings of some courts, the Parratt rule could be applied to deprivations of liberty as well as deprivations of property. "[W]here a predeprivation hearing is unduly burdensome in proportion to the liberty interest at stake,... or where the State is truly unable to anticipate and prevent a random deprivation of a liberty interest, postdeprivation remedies might satisfy due process." ' 23 1 In this case, however, the Court found that a pre-deprivation process was possible and should have been provided. Because of the nature of mental illness, it should have been possible to anticipate that some patients would not be competent to sign voluntary admission forms Finally, the Court stated that the defendants' conduct could not be described as unauthorized, because they were exercising their statedelegated authority. 233 In light of the weight of the interests involved in the involuntary commitment context, Parratt should not apply. It defies credulity that jurists entrusted with the momentous task of vindicating trampled rights could even consider deciding a case involving a five-month confinement in a state hospital 234 on the basis of a previous decision 227. Id. at Id. at 817 (Hill, J., concurring with Tjoflat, J., dissenting) Id. at Burch v. Apalachee Community Mental Health Services, Inc., 840 F.2d 797 (1 1th Cir. 1988) (en banc), cert. granted sub nom. Zinermon v. Burch, 494 U.S. 113, 116 (1990) Zinermon, 494 U.S. at 132 (1990) Id. at 136. Justice O'Connor, with whom Justices Scalia and Kennedy and Chief Justice Rehnquist joined, dissented, stating that Parratt should indeed have controlled the case. Id. at 139. They did not agree with the majority that pre-deprivation process was practical, or that post-deprivation remedies were inadequate. Id. at (O'Connor, J., dissenting) Id. at (O'Connor, J., dissenting) Burch v. Apalachee, 840 F.2d 797 (11 th Cir.198), cert. granted sub nom. Zinermon v. Burch, 494 U.S. 113 (1990).

41 1993] CIVIL COMMITMENT AS STATE ACTION regarding a lost hobby kit As the majority in Zinennon observed, where involuntary commitment is concerned, a pre-deprivation process is always practicable Moreover, a pre-deprivation process is not merely practicable, it is legally mandatory and a moral imperative. V. CONCLUSION Involuntary commitment to a mental institution has been rightly called a drastic curtailment of liberty. 237 Private individuals have no authority to effect such deprivations. In order for private actors to attain such power, it must be delegated to them by the state, which in turn derives its authority to confine from its parens patriae and police powers. 238 Because these state powers are the only legitimate source of the authority to confine, involuntary commitment of the mentally disabled must be considered a public function. Once there is confinement, there must also be care, 23 9 and therefore this task also becomes the responsibility of the state. The nature of civil commitment as state action is also demonstrated by the extensive state regulation and funding of inpatient psychiatric care in both public and private facilities. 2 ' Both by permitting private parties to fulfill its parens patriae obligations, and by failing to adequately discharge those duties itself, the government has encouraged the proliferation of private psychiatric facilities, and made it inevitable that people will turn to them. 241 Looking beyond the specific tests of state action promulgated by the Supreme Court, from a policy perspective, persons unjustly subjected to wrongful involuntary confinement, or confined under inhumane conditions, should have access to any and all possible legal remedies. The existence of section 1983 is a recognition that certain moral obligations deserve primacy over the rights of the states. The plight of mental patients creates such a moral obligation. Improper civil commitment is precisely the sort of abuse of authority for which section 1983 ought to offer redress, 242 regardless of whether the parties effect Parratt v. Taylor, 451 U.S. 527 (1981) U.S. at Addington v. Texas, 441 U.S. 418 (1979) (holding that civil commitment is a significant deprivation of liberty which calls for due process protection); Humphrey v. Cady, 405 U.S. 504, 509 (1972) (stating that involuntary confinement was a "massive curtailment of liberty") See supra notes and accompanying text Youngberg v. Romeo, 457 U.S. 307 (1982); Estelle v. Gamble, 429 U.S. 97, 103 (1976) See supra notes and accompanying text See supra notes and accompanying text This is especially true because, as commentators have observed with regard to other