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March 10, 1978

Moses N. BENSION, Petitioner,
Dr. Charles MEREDITH, Respondent

The opinion of the court was delivered by: GESELL

While detained involuntarily at St. Elizabeth's Hospital, Moses Bension, of unknown address and citizenship, petitioned this Court for a writ of habeas corpus on the grounds that the so-called Federal Reservation Act, D.C.Code §§ 21-901 to -909 (1973), under which he was originally detained, is unconstitutionally vague and overbroad and that its application had denied him the equal protection of the laws. The Act authorizes in certain instances the temporary commitment of mentally ill persons found on federal reservations within named counties of Maryland and Virginia. The Court allowed filing of the writ in forma pauperis *fn1" and issued an order to show cause, which respondent answered, claiming mootness and a lack of jurisdiction in this Court. A hearing was held.


 The jurisdictional argument stems from the peculiar although not irregular procedures to which the petitioner was subject subsequent to his detention. On January 19, 1978, after causing a commotion at Dulles International Airport, *fn2" petitioner was brought by federal agents to St. Elizabeth's Hospital pursuant to Id. § 21-903(a). On the following day, after a hearing at which he was represented by counsel and at which two psychiatrists testified, petitioner was committed under Id. § 21-902 by a United States Magistrate for the District of Columbia to St. Elizabeth's for "observation and diagnosis" over a period not to exceed 30 days. Twenty-four days later, on February 13, 1978, a representative of the respondent, acting pursuant to the local District of Columbia commitment laws, filed with the District of Columbia Commission on Mental Health a petition for indefinite judicial hospitalization of Mr. Bension. *fn3" On the same day an associate judge of the Superior Court of the District of Columbia considered the petition and authorized continued detention under Id. § 21-523 pending final disposition of the mental health proceedings. *fn4" The instant petition for a writ of habeas corpus was filed 11 days later.

 The hybrid nature of petitioner's detention within the same institution under successive federal and state orders exacerbates the jurisdictional difficulties already inherent in habeas cases within the District of Columbia. Respondent claims first that the Court lacks habeas jurisdiction because at the time of filing petitioner was no longer in custody pursuant to the statute he attacks. The petition challenges the Federal Reservation Act, but was filed five days after the federal magistrate's order under that statute had expired. At that time petitioner was being held by an order of the Superior Court of the District of Columbia entered pursuant to the District of Columbia commitment laws. Id. § 21-524. Thus, says respondent, petitioner cannot ask to be released from the operation of a statute that no longer binds him.

 In the criminal postconviction context the law is clear that one may challenge any earlier conviction that may in some way operate to enhance punishment on a subsequent sentence being served at the time of challenge. See Cappetta v. Wainwright, 406 F.2d 1238, 1239 (5th Cir.), Cert. denied, 396 U.S. 846, 90 S. Ct. 55, 24 L. Ed. 2d 96 (1969); United States ex rel. Durocher v. LaVallee, 330 F.2d 303, 305-06 (2d Cir.), Cert. denied, 377 U.S. 998, 84 S. Ct. 1921, 12 L. Ed. 2d 1048 (1964). In the absence of any similar case involving civil commitment, the Court sees no reason to deny application of this rule to the case at bar. Petitioner's commitment under the Federal Reservation Act did more than simply enhance his detention period under the Superior Court order: had petitioner not been brought to St. Elizabeth's and thus into the District of Columbia in the first place, the Superior Court would never have had the power to authorize custody at all.

 Respondent claims nonetheless, citing both D.C.Code § 23-110(g) (1973) and the exhaustion doctrine, that even if petitioner can challenge his prior commitment, challenge must be made in the Superior Court. The Court does not agree. Section 23-110(g), patterned after 28 U.S.C. § 2255 (1970), relates only to an application for a writ on behalf of a "prisoner in custody under sentence of the Superior Court," and thus has no application in the civil commitment context. *fn5" Cf. O'Beirne v. Overholser, 109 U.S.App.D.C. 279, 282, 287 F.2d 133, 136 (1960); Hill v. United States, 206 F.2d 204, 206 (6th Cir.), Cert. denied, 346 U.S. 859, 74 S. Ct. 75, 98 L. Ed. 372 (1953).

 The exhaustion doctrine, as codified in the federal habeas corpus statute, removes federal jurisdiction prior to exhaustion of state remedies only from an application "in behalf of a person in custody pursuant to the judgment of a State court." 28 U.S.C. § 2254(b) (1970). Petitioner, however, was never held in custody under a Superior Court judgment, but only under an order of temporary detention pending an adjudication of mental illness. Yet, even if an exhaustion requirement applies to prejudgment petitions, it is inapplicable here. The doctrine exists to assure state court systems the right to examine federal constitutional challenges to state laws before resort is allowed to the federal forum. The federal reservation statute, although it appears in the District of Columbia Code, lacks any other attribute of a state statute within the meaning of the exhaustion doctrine. It applies to individuals found not within the territorial boundaries of the District of Columbia, but within federal reservations in Maryland and Virginia. Commitment is contingent upon an order of a federal magistrate. As a practical matter the statute is a federal one. The usual considerations of federalism that support the exhaustion doctrine find no application here, and there is no reason for deference to the local judiciary. In fact, counsel for respondent himself suggests that petitioner's prior counsel should have raised his constitutional claims before the federal magistrate at the time of his original commitment.

 Furthermore, the District of Columbia habeas corpus statute itself mandates that the petition be filed in this Court. "Petitions for writs directed to Federal officers and employees," the statute reads, "shall be filed in the United States District Court for the District of Columbia." D.C.Code § 16-1901(b) (1973). Respondent, while acting pursuant to the magistrate's order, served as a federal officer. See McCall v. Swain, 166 U.S.App.D.C. 214, 510 F.2d 167 (1975). Habeas corpus is a proper means for testing the constitutionality of detention under the civil commitment laws, See, e.g., Lake v. Cameron, 124 U.S.App.D.C. 264, 364 F.2d 657 (1966), and this Court is the only forum able to hear petitioner's habeas claim. Respondent's jurisdictional objections are denied.

 Four days after this petition was filed, the Mental Health Commission of the District of Columbia held a hearing at which petitioner and his counsel were present. The Commission unanimously reported to the Superior Court that it found petitioner to be "mentally ill but not likely to injure himself or others if allowed to remain at liberty." On the same day, based on this finding, the Superior Court ordered the petition for judicial hospitalization dismissed and the petitioner herein released.

 Petitioner's release does not moot his case. So long as his record reflects the findings both of the magistrate and the Mental Health Commission that he is "mentally ill," it cannot be said that "there is no possibility that any collateral legal consequence will be imposed" as a result of his detention. Sibron v. New York, 392 U.S. 40, 57, 88 S. Ct. 1889, 1900, 20 L. Ed. 2d 917 (1968). Indeed the United States Court of Appeals for the District of Columbia Circuit has explicitly outlined many such possible collateral consequences, including restrictions on voting rights and jury service, the ability to obtain licenses, and most significantly use of the determination in subsequent proceedings for civil commitment. See In re Ballay, 157 U.S.App.D.C. 59, 62-63, 482 F.2d 648, 651-52 (1973); Cf. Justin v. Jacobs, 145 U.S.App.D.C. 355, 358-359, 449 F.2d 1017, 1018-20 (1971). Respondent seeks to minimize the impact of the findings of mental illness on the grounds, first, that no formal judgment to that effect was ordered, and, second, that petitioner already has a long record of mental illness and civil commitment. As to the first, the fine distinction between a judicial "finding" and a judgment was apparently not found persuasive in either of the closely analogous cases of In re Curry, 152 U.S.App.D.C. 220, 222, 470 F.2d 368, 370-71 (1972), and Medynski v. Margolis, 389 F. Supp. 743, 745 (D.D.C.1975) (three-judge court), neither of which involved a judgment in the formal sense ascribed to the term by respondent. And as to the second, the Supreme Court has explicitly held that neither the number nor the nature of one's prior commitments can properly be used to suggest that untoward collateral consequences will not result from the most recent adverse determination. Sibron v. New York, 392 U.S. at 56-57, 88 S. Ct. 1889, 20 L. Ed. 2d 917.

 Beyond the collateral consequences that prevent the case from being considered moot, the representations of petitioner's counsel indicate that a reoccurrence of petitioner's detention under the Federal Reservation Act is not unlikely. The short commitment period authorized by the Act makes review of the Act's constitutionality difficult. Yet, as the Supreme Court advised in Southern Pacific Terminal Co. v. ICC, 219 U.S. 498, 515, 31 S. Ct. 279, 283, 55 L. Ed. 310 (1911), consideration of an issue of such public importance "ought not to be, as they might be, defeated, by short term orders, capable of repetition, yet evading review." For these reasons as well, the case is not moot.


 The petition raises serious constitutional questions which the Court is prepared to address but for one shortcoming: the apparent lack of a true complaining party. Since the outset the Court has received no indication of any consent by petitioner to his representation in this matter. Counsel was appointed by the Court, and because of counsel's representations of exigency the petition was allowed to be filed in forma pauperis without a supporting affidavit. Now free, petitioner's whereabouts and desires are utterly unknown to his lawyer. He may have no wish to pursue his petition, and indeed he may not even realize that it is still pending, if he ever knew that it had been filed. Contrary to the requirement of 28 U.S.C. § 2242 (1970), the petition is not verified, and although the Court does not view this defect as warranting dismissal, Compare Morris v. United States, 399 F. Supp. 720, 723 (D.Va.1975), With Dorsey v. Gill, 80 U.S.App.D.C. 9, 21, 148 F.2d 857, 869, Cert. denied, 325 U.S. 890, 65 S. Ct. 1580, 89 L. Ed. 2003 (1945), Overruled on other grounds, Overholser v. Boddie, 87 U.S.App.D.C. 186, 184 F.2d 240 (1950) (en banc), it does reinforce the Court's doubt that petitioner wishes to proceed.

 An Article III court is bound to act only when satisfied that it confronts a true case or controversy. As a purely intellectual matter the issues presented are sufficiently adverse to be judicially resolved, but absent a true petitioner, cognizant of and willing to pursue the claims, the dispute retains an abstract, hypothetical cast, which is anathema to judicial review. See Sibron v. New York, 392 U.S. at 57, 88 S. Ct. 1889, 20 L. Ed. 2d 917; See also United States v. Johnson, 319 U.S. 302, 304-05, 63 S. ...

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