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12/27/93 ERIC BARLOW

December 27, 1993


Appeals from the Superior Court of the District of Columbia; (Hon. Margaret A. Haywood, Hearing Judge), (Hon. Frederick D. Dorsey, Hearing Judge)

Before Terry and Wagner, Associate Judges, and Pryor, Senior Judge.

The opinion of the court was delivered by: Pryor

PRYOR, Senior Judge: This case is before us as a consolidated appeal of two separate decisions by two Superior Court Judges which prevented the ongoing emergency hospitalization of Eric Barlow under the Hospitalization of the Mentally Ill Act, D.C. Code §§ 21-501 to -592 (1973) (the Ervin Act). In both instances the trial court proceedings concluded when the presiding Judge found that the procedural requirements of the Ervin Act had been violated. Thus, no evidence or argument was heard regarding the merits of appellant-hospital's contention that Mr. Barlow posed a threat to the safety of himself or others and should remain hospitalized. The appeals will be considered in chronological order.


Eric Barlow was detained by agents of the United States Secret Service on February 11, 1992. On that date he appeared at the White House carrying live ammunition and seeking a meeting with the President. He claimed to be an undercover operative with the United States government. Pursuant to D.C. Code § 21-521, which allows the detention of persons believed to be mentally ill and imminently in danger of injuring themselves or others, he was involuntarily transported to St. Elizabeths Hospital. *fn1 He was admitted to the hospital on the basis of an examination by a staff psychiatrist in compliance with § 21-522. Under this section a person may be detained for only forty-eight hours unless the hospital files a petition for further involuntary detention. The hospital timely filed such a petition pursuant to § 21-523, which allows the court to order continued involuntary hospitalization for a period not to exceed seven days to facilitate further observation and diagnosis. The hospital's petition was heard and granted on February 12, 1992.

Two days later, on Friday, February 14, 1992, Mr. Barlow requested a hearing pursuant to § 21-525, which states: "The court shall grant a hearing to a person whose continued hospitalization is ordered under section 21-524, if he requests the hearing. The hearing shall be held within 24 hours after receipt of the request." (Emphasis added.) Under § 21-526, which provides for the extension of this maximum time period where weekends and/or holidays intervene, Mr. Barlow's hearing was required to be held by noon on Tuesday, February 18, the day following the President's Day holiday.

Mr. Barlow's hearing was to begin at 10:00 a.m. on Tuesday, but due to the scheduling of another patient's probable cause hearing on that same day, Judge Dorsey did not call Barlow's case until several minutes before noon. Mr. Barlow's counsel immediately made a motion to dismiss, alleging that the hearing had not been timely provided, citing In re DeLoatch, 532 A.2d 1343 (D.C. 1987). *fn2 Judge Dorsey denied the motion, noting that the calling of the case constituted the beginning of the hearing. Then, with the dual purposes of continuing the unrelated probable cause hearing which he had not yet concluded and affording Mr. Barlow the opportunity to move forward with his own hearing immediately, Judge Dorsey certified the case to Judge Haywood at 11:57 a.m.

The parties relocated to Judge Haywood's courtroom and were called before her a few minutes after noon. Mr. Barlow's counsel again moved to dismiss the case on the same grounds presented to Judge Dorsey. Judge Haywood, noting the time, granted the motion. *fn3 She found that the hospital had failed to establish probable cause within the twenty-four hour maximum time period and ordered Mr. Barlow's immediate release. The hospital appeals Judge Haywood's order.


Mr. Barlow cites this court's en banc decision in In re Lomax, 386 A.2d 1185 (D.C. 1978), to support his contention that the District may not appeal Judge Haywood's ruling. The Lomax court held that "the petitioner in an involuntary commitment proceeding brought under the Act has no right of appeal after a verdict is rendered in favor of the patient." Id. at 1186. *fn4

The appeal in Lomax arose in a context clearly distinguishable from that presented here. In Lomax the hospital's civil commitment petition was considered by a jury that found the appellee "not committable." Id. at 1187. The jury's verdict followed a full adjudication on the merits, which we find central to the Lomax court's ruling. Highlighting the purposes underlying the passage of the Ervin Act, the Lomax court wrote, "one of the concerns was that no one be hospitalized involuntarily for a prolonged period unless a Judge or jury found the patient to be both mentally ill and likely to injure himself or others." Id. at 1188. (Emphasis added.) The Lomax court's Conclusion that a petitioner (hospital) has no right to appeal a Judge or jury's determination that the subject of a petition is not committable is, thus, consistent with the purpose of the Act.

As regards Mr. Barlow, however, no evidence was presented before Judge Haywood concerning the merits of the hospital's claim that Barlow was mentally ill and posed a danger to himself or others. The case was dismissed prior to the presentation of evidence, solely on the basis of Judge Haywood's interpretation of the time requirement in § 21-525. Were the hospital to be denied the right of appeal in this instance, there would be no avenue for this court to review and resolve the inconsistent interpretations of § 21-525 presented in this case. Lomax notwithstanding, we find that the government retains a narrow channel of appeal in Ervin Act cases that implicate fundamental questions as to the procedure by which the statutorily prescribed hospitalization or commitment process is completed. *fn5


Barlow asserts that even if the hospital is found to have a right of appeal regarding Judge Haywood's order, the hospital's claim is moot. The Supreme Court, however, has identified an exception to the mootness doctrine for issues that are "capable of repetition, yet evading review." See Southern Pacific Terminal Co. v. ICC, 219 U.S. 498, 515, 55 L. Ed. 310, 31 S. Ct. 279 (1911). The Court further defined this category of cases in Weinstein v. Bradford, 423 U.S. 147, 46 L. Ed. 2d 350, 96 S. Ct. 347 (1975), stating that, absent a class action, the following two-pronged test must be met: "(1) the challenged action was in its duration too short to be fully litigated prior to its cessation or expiration, and (2) there was a ...

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