JR v. Michael Hansen

Filing

Opinion issued by court as to Appellant JR. Decision: Reversed and Remanded. Opinion type: Published. Opinion method: Signed. The opinion is also available through the Court's Opinions page at this link http://www.ca11.uscourts.gov/opinions.

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[PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________
No. 12-14212
________________________
D.C. Docket No. 4:11-cv-00417-WS-CAS
J.R.,
Plaintiff-Appellant,
versus
MICHAEL HANSEN, in his
Official Capacity as Director of the Agency
for Persons with Disabilities,
Defendant-Appellee.
________________________
Appeal from the United States District Court
for the Northern District of Florida
________________________
(October 15, 2015)
Before MARTIN and FAY, Circuit Judges. *
MARTIN, Circuit Judge:

*

This opinion is issued as a quorum. See 28 U.S.C. § 46(d); 11th Cir. R. 34-2.

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Two years ago we certified questions to the Florida Supreme Court about
that State’s scheme for the involuntary commitment of the intellectually disabled.
J.R. v. Hansen, 736 F.3d 959 (11th Cir. 2013) (J.R. I). Today we revisit this appeal
with the benefit of that court’s answers. See J.R. v. Palmer, ___ So. 3d ___, 2015
WL 2236760 (Fla. May 14, 2015) (J.R. II). We hold that the statutory scheme, as
definitively interpreted by the Florida Supreme Court, is facially unconstitutional
because it violates the Due Process Clause of the Fourteenth Amendment to the
United States Constitution.
I.
A.

Background

The Statutory Framework
J.R. claims that Florida law denies due process because it permits the State

to keep intellectually disabled people like him involuntarily committed indefinitely
without periodic review. Florida’s statutory framework for involuntarily
committing the intellectually disabled is somewhat complicated, involving several
interlocking provisions.
Chapter 393 of the Florida Statutes provides for the treatment of people with
“developmental disabilities.” Fla. Stat. § 393.062; J.R. II, 2015 WL 2236760, at
*4. The chapter gives the Agency for Persons with Disabilities (APD) authority to
provide both voluntary and involuntary treatment. Fla. Stat. §§ 393.063(1), .065,
.11; J.R. II, 2015 WL 2236760, at *4. Section 393.11 governs the involuntary

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admission of people who are intellectually disabled to non-secure residential
facilities.1 It provides:
If a person has an intellectual disability and requires involuntary
admission to residential services provided by the agency, the circuit
court of the county in which the person resides has jurisdiction to
conduct a hearing and enter an order involuntarily admitting the
person in order for the person to receive the care, treatment,
habilitation, and rehabilitation that the person needs. 2
A state circuit court may involuntarily admit a person only if, after a hearing,
see § 393.11(7), it makes three findings relevant here: (1) the person is
intellectually disabled; (2) a residential setting is the least restrictive and most
appropriate way to meet the person’s needs; and (3) the person is likely to injure
himself or others if not admitted, § 393.11(8)(b). 3

1

“Residential facilities” “provid[e] room and board and personal care for persons who
have developmental disabilities.” Fla. Stat. § 393.063(28).
2

Section 393.11 does not specify whether the residential facilities are “secure” or “nonsecure.” But a separate statute not relevant here, Fla. Stat. § 916.303(3), contemplates placement
in secure facilities under different admission standards. Compare id. (referring to “secure”
facilities), with § 393.11 (mentioning neither “secure” nor “non-secure”). The parties and the
District Court have assumed that § 393.11 concerns admission to non-secure facilities, so we do
the same.
3

This general description in text suffices for our purposes. For the inquisitive, the statute
provides in full:
An order of involuntary admission to residential services may not be entered
unless the court finds that:
1. The person is intellectually disabled or autistic;
2. Placement in a residential setting is the least restrictive and most
appropriate alternative to meet the person’s needs; and
3. Because of the person’s degree of intellectual disability or autism, the
person:
a. Lacks sufficient capacity to give express and informed consent
to a voluntary application for services pursuant to [§] 393.065 and
lacks basic survival and self-care skills to such a degree that close
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Shortly after a person is admitted, the APD must give a “support plan” to the
circuit court that ordered admission. § 393.11(8)(e). Section 393.0651, which
governs support plans, says that “[t]he ultimate goal of each [support] plan,
whenever possible, shall be to enable the client[4] to live a dignified life in the least
restrictive setting, be that in the home or in the community.” A support plan may
call for the APD to place a client in a variety of settings, from very restrictive and
costly to quite permissive and inexpensive (to the State, at least). § 393.0651(5)
(listing six possible placements, ranging from a “[d]evelopmental disabilities
center”5 to the “[c]lient’s own home or the home of a family member or direct
service provider”). The APD must initially develop a support plan in consultation
with the client, his parent or guardian, or his appointed advocate. Id. It must then
review and revise each client’s support plan each year based on his progress in
achieving the objectives of his earlier support plans. § 393.0651(7).

supervision and habilitation in a residential setting is necessary
and, if not provided, would result in a real and present threat of
substantial harm to the person’s well-being; or
b. Is likely to physically injure others if allowed to remain at
liberty.
4

A person who is involuntarily admitted is called a “client.” § 393.063(5); see also J.R.
II, 2015 WL 2236760, at *4.
5

A “[d]evelopmental disabilities center” is a “state-owned and state-operated facility . . .
providing for the care, habilitation, and rehabilitation of clients with developmental disabilities.”
§ 393.063(10)
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Importantly, the circuit court that first orders a person involuntarily admitted
keeps jurisdiction over the admission order, and the admitted person “may not be
released . . . except by order of the court.” § 393.11(11). And the court is never
required to review a continuing involuntary admission. Compare Fla. Stat.
§ 916.303(3) (mandating that admissions to a secure facility, which are not at issue
here, “must be reviewed by the court at least annually at a hearing”), with § 393.11
(containing no similar requirement); see also J.R. II, 2015 WL 2236760, at *9.
A person who is involuntarily admitted under § 393.11 thus has little
recourse to challenge the admission. If he disagrees with his support plan, he may
challenge it in an administrative proceeding, § 393.0651(8), but the administrator
cannot change or vacate the order of involuntary admission or order release. As
we have said, only the circuit court can do that. § 393.11(11); see also J.R. II,
2015 WL 2236760, at *9. The only avenue for relief from the order of admission
is by way of habeas corpus: an involuntarily admitted person may challenge the
admission order by filing a habeas corpus petition with the circuit court that signed
the order in the first instance. § 393.11(13); J.R. II, 2015 WL 2236760, at *8.
B.

J.R.
J.R. is an intellectually disabled man with an IQ of 56. He functions as a

seven-year-old. “Although J.R.’s [intellectual disability] will always exist, his
potential for dangerousness . . . can change.” In 2000 J.R. was charged with sexual

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battery in Lee County, Florida. The Lee County Circuit Court found J.R.
incompetent to stand trial and involuntarily admitted him to the Department of
Children and Family Services (the precursor to the APD, J.R. II, 2015 WL
2236760, at *1 n.1). In 2004 J.R. was involuntarily admitted to non-secure
residential services under § 393.11. The order involuntarily admitting J.R.
contains no end date.
J.R. has lived in several different settings since his admission. While J.R.’s
commitment is characterized by the statutory scheme as “non-secure,” his liberty is
substantially limited.6 As the District Court explained by way of example: “[i]f he
were to ‘elope,’ the police would probably be called to return him” to his group
home. Beyond that, J.R. “is subject to a daily curfew of 10 p.m.”; he cannot drink
alcohol; he had to “earn” the right to leave his group home, and when he does
leave “he must always inform the . . . staff exactly where he is going, the purpose
of his trip, and when he will return.” If he does not comply with these
requirements, “he may lose his right to freedom of movement.” While the precise
6

The APD insists that J.R. is merely “admitted,” not “committed.” It says that the “use
of the term ‘commitment’ implies a more restrictive living setting than the community setting
that J.R. has maintained.” Quoting Black’s Law Dictionary, the APD maintains that
“commitment” necessarily implies confinement to a prison, mental hospital, or other institution.
We are not so sure that involuntary “admission” to a residential group home does not fit within
that definition. But even if it does not, this argument is semantic wrangling. The APD is trying
to make a distinction between “commitment” and “admission,” but even if a distinction exists it
would make no difference to this appeal. Whether we call it “commitment” or “assignment” or
something else altogether (perhaps “free rent”), the substance of the action is the same: the State
exercises its sovereignty to force J.R. to live in a place he does not want to live, and prevents him
from leaving. That is a curtailment of his liberty by any name.
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restrictions on J.R.’s liberty have changed and may continue to change with the
annual revision of his support plan, 7 the circuit court has not held a hearing about
J.R.’s commitment since 2005. Neither has J.R. filed a habeas petition seeking
release.
C.

Procedural History
In 2011 J.R. filed suit under 42 U.S.C. § 1983 against Michael Hansen, the

Director of the APD. 8 He alleged that Florida’s statutory scheme denies due
process because it permits indefinite involuntary commitment without periodic
review by a decision-maker with authority to order release. 9
On cross motions for summary judgment, the District Court held that the
statutory scheme was constitutional. It rested its holding largely on its belief that
§ 393.11, properly interpreted, contains an implicit requirement that if a committed
person no longer meets the admission criteria, the APD must petition the circuit
court to order release. Because the scope of the APD’s responsibilities under the
statute was (and is) critical to the constitutional inquiry, and because making that

7

For example, under J.R.’s most recent support plan, he was able to move to a new
residence closer to his family. But there has been no release recommendation.
8

After J.R. filed his notice of appeal, Mr. Hansen resigned as the Director of the APD; he
was replaced by Barbara Palmer. At all relevant times the APD has defended J.R.’s suit. For
that reason, we refer to the Defendant-Appellee as “the APD.”
9

J.R. does not argue that the initial admission process is unconstitutional. He objects
only to ongoing commitment without periodic review.
7

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determination was (and is) a question requiring interpretation of Florida law, we
certified questions to the Florida Supreme Court. J.R. I, 736 F.3d at 974.10
We now have that court’s answer. It turns out that the District Court was
mistaken. Florida law contains no requirement, explicit or implicit, that the APD
review the continuing commitment of intellectually disabled persons. J.R. II, 2015
WL 2236760, at *1. Neither does Florida law require that the APD petition the
admitting circuit court to release a person who no longer meets the criteria for
commitment. Id. Because the Florida Supreme Court “is unquestionably the
ultimate expositor of [Florida] law,” Riley v. Kennedy, 553 U.S. 406, 425, 128 S.
Ct. 1970, 1985 (2008) (alteration adopted) (quotation omitted), we are bound by its
conclusive interpretation of § 393.11.
II.

Standard of Review

“We review de novo the district court’s rulings on the parties’ cross motions
for summary judgment.” Owen v. I.C. Sys., Inc., 629 F.3d 1263, 1270 (11th Cir.
2011). A plaintiff challenging a law as facially unconstitutional “must establish
that no set of circumstances exists under which the [law] would be valid.” Horton
v. City of St. Augustine, Fla., 272 F.3d 1318, 1329 (11th Cir. 2001) (quotation
omitted).
10

“When substantial doubt exists about the answer to a material state law question upon
which the case turns, a federal court should certify that question to the state supreme court . . . to
offer the state court the opportunity to explicate state law.” Forgione v. Dennis Pirtle Agency,
Inc., 93 F.3d 758, 761 (11th Cir. 1996) (per curiam).
8

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III.

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Discussion

A state shall not “deprive any person of life, liberty, or property, without due
process of law.” U.S. Const. Amend. XIV, § 1. “The Due Process Clause
provides two different kinds of constitutional protections: procedural due process
and substantive due process.” Maddox v. Stephens, 727 F.3d 1109, 1118 (11th
Cir. 2013). Procedural due process is, as its name suggests, “a guarantee of fair
procedure.” Zinermon v. Burch, 494 U.S. 113, 125, 110 S. Ct. 975, 983 (1990).
J.R. brings a procedural due process claim. See McKinney v. Pate, 20 F.3d 1550,
1555 (11th Cir. 1994) (en banc) (procedural due process claim may form the basis
of a § 1983 suit). “[A] § 1983 claim alleging a denial of procedural due process
requires proof of three elements: (1) a deprivation of a constitutionally-protected
liberty or property interest; (2) state action; and (3) constitutionally[] inadequate
process.” Grayden v. Rhodes, 345 F.3d 1225, 1232 (11th Cir. 2003). The APD
concedes that the first two elements of the procedural due process inquiry are met
here. The question for us is whether § 393.11 provides constitutionally adequate
process.
A.

Constitutionally Adequate Process
A state must release a person who is involuntarily committed if the grounds

for his commitment cease to exist. See O’Connor v. Donaldson, 422 U.S. 563,
574–75, 95 S. Ct. 2486, 2493 (1975); cf. Jackson v. Indiana, 406 U.S. 715, 738, 92

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S. Ct. 1845, 1858 (1972) (“[D]ue process requires that the nature and duration of
commitment bear some reasonable relation to the purpose for which the individual
is committed.”). But that requirement—release the committed when they deserve
to be let out—is toothless if a state does not periodically review whether the
grounds for commitment are met. That is, a state could get around the timelyrelease requirement by simply refusing to ever consider the continued propriety of
commitment. To effectuate that requirement, then, the state must undertake some
form of periodic review. See Parham v. J.R., 442 U.S. 584, 607, 99 S. Ct. 2493,
2506 (1979).11
But what form of review is constitutionally adequate? To answer that
question, courts turn to the balancing test from Mathews v. Eldridge, 424 U.S. 319,
96 S. Ct. 893 (1976), which requires consideration of several factors:
First, the private interest that will be affected by the official action;
second, the risk of an erroneous deprivation of such interest through
the procedures used, and the probative value, if any, of additional or
substitute procedural safeguards; and finally, the Government’s
interest, including the function involved and the fiscal and
administrative burdens that the additional or substitute procedural
requirement would entail.
11

Accord, e.g., Doe v. Austin, 848 F.2d 1386, 1396 (6th Cir. 1988) (explaining that “due
process requires that some periodic review take place during” a continued involuntary
commitment); Clark v. Cohen, 794 F.2d 79, 86 (3d Cir. 1986) (explaining that a plaintiff “was
entitled to periodic review of her commitment”); cf. Williams v. Wallis, 734 F.2d 1434, 1438
(11th Cir. 1984) (upholding a scheme that provided periodic review of continued commitment
and remarking that “[t]he frequency of the evaluations also reduces the risk that the patient will
be confined any longer than necessary”); Hickey v. Morris, 722 F.2d 543, 549 (9th Cir. 1983)
(holding that a statute adequately protected a plaintiff’s liberty because it required “regular
review of his continued confinement”).
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Id. at 335, 96 S. Ct. at 903.
The Mathews test is stated at a high level of generality. It does not provide
much guidance for this (or any) specific context. And constitutionally adequate
process, the Supreme Court has said, is a flexible concept that “cannot be divorced
from the nature of the ultimate decision that is being made.” Parham, 442 U.S. at
608, 99 S. Ct. at 2507.
B.

Supreme Court and Eleventh Circuit Precedent
So we are grateful to have two cases, one from the Supreme Court and one

from a panel of this Court, which are especially instructive in helping us consider
what process is constitutionally adequate after involuntary civil commitment:
Parham v. J.R. (no relation) and Williams v. Wallis.
In Parham, the Supreme Court considered constitutionally adequate process
before and after the voluntary commitment of children to state hospitals by their
parents. 442 U.S. at 587, 99 S. Ct. at 2496. A plaintiff class of committed children
challenged Georgia’s scheme, arguing that they had a right to notice and a hearing
before commitment. Id. at 587–88 & n.2, 99 S. Ct. at 2496–97 & n.2. Though the
Supreme Court upheld Georgia’s practice, it wrote this:
We conclude that the risk of error inherent in the parental decision to
have a child institutionalized . . . is sufficiently great that some kind of
inquiry should be made by a “neutral factfinder” to determine [if] the
statutory requirements for admission are satisfied. . . . It is necessary
that the decisionmaker have the authority to refuse to admit any child
who does not satisfy the medical standards for admission. Finally, it
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is necessary that the child’s continuing need for commitment be
reviewed periodically by a similarly independent procedure.
Id. at 606–07, 99 S. Ct. at 2506 (emphasis added). Two things made the state
scheme constitutionally adequate: review of an initial admission by a decisionmaker with authority to refuse admission, and, after admission, periodic review of
the continuing need for commitment. 12
It is true that the plaintiffs in Parham focused on the initial deprivation of
liberty caused by admitting children, rather than by keeping them committed, as
here. But in its opinion the Supreme Court spoke several times about the
requirements for continuing commitment. It explained that Georgia’s law
“charged [hospital superintendents] with an affirmative statutory duty to discharge
any child who is no longer . . . in need of therapy,” id. at 615, 99 S. Ct. at 2510,
“[e]ven without a request for discharge,” id. at 591, 99 S. Ct. at 2498. And the
Court linked that ongoing affirmative duty to its conclusion that the initial
deprivation of liberty was constitutional: “We have held that the periodic reviews
described in the record reduce the risk of error in the initial admission and thus
they are necessary.” Id. at 617, 99 S. Ct. at 2511 (emphasis added); see also id. at
12

Parham did not require a judicial or even administrative hearing. Because the
question—whether the child meets the commitment criteria—was a medical one, the Court held
that review by a “physician will suffice, so long as he or she is free to evaluate independently the
child’s mental and emotional condition and need for treatment.” Id. at 607, 99 S. Ct. at 2507.
The Court explained that the State had an interest in ensuring that its doctors spent their time
treating patients, not preparing for court. Id. at 605–06, 99 S. Ct. at 2506; see also id. at 606, 99
S. Ct. at 2506 (“Behavioral experts in courtrooms and hearings are of little help to patients.”).
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607, 99 S. Ct. at 2506 (“It is necessary that the child’s continuing need for
commitment be reviewed periodically . . . .” (emphasis added)).
After Parham, in Williams v. Wallis, this Court addressed what process a
state must give to people who have been involuntarily committed on a continuing
basis. The plaintiffs in Williams challenged “Alabama’s procedures for the release
of patients committed to the State’s mental health system after being found not
guilty of a criminal offense by reason of insanity.” 734 F.2d at 1436. Alabama
assigned to each committed person a “treatment team” of medical professionals
that would “devise[] an individualized treatment plan” with the stated goal of
“transfer[ring] [the person] to a less restrictive environment and [securing his or
her] eventual release.” Id. The treatment team reviewed the person’s progress
every 60 to 90 days. Id. We described the process by which a committed person
(an “acquittee”) would be released:
The decision to release an acquittee is usually initiated by the
treatment team. . . . After the team recommends release, an acquittee
not classified as special can be released with the approval of the
forensic unit director of the hospital to which he is committed. The
proposed release of special patients[13] must be reviewed by the
hospital’s superintendent or his designee. The reviewing authority
may communicate the proposed release to the committing court, the
district attorney, the acquittee’s family, and others, or may order
further treatment for, or evaluation of, the acquittee. The hospital
superintendent then makes the final decision whether to release the
special patient.
13

“Special patients” were those who were “considered dangerous to themselves or
others.” See Williams, 734 F.2d at 1436.
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Id.
The plaintiffs claimed that this release process was unconstitutional because
it did not require an adversary proceeding in which the State bore the burden of
proof. Id. at 1437. But, looking to Parham, we held that due process does not
demand an adversary proceeding. See id. at 1438–39. We explained:
Hospitals and their medical professionals certainly have no bias
against the patient or against release. Therefore, we can safely
assume they are disinterested decision-makers. In fact, the mental
health system’s institutional goal—i.e., transfer to a less restrictive
environment and eventual release—favors release. Other factors also
favor release, including a perennial lack of space and financial
resources, which militates against any motivation to unnecessarily
prolong hospitalization, and including the medical professional’s pride
in his own treatment. The frequency of the evaluations also reduces
the risk that the patient will be confined any longer than necessary.
Id. at 1438 (emphasis added).
We went on to explain that requiring an adversary proceeding “would have a
natural tendency to undermine the beneficial institutional goal of finding the least
restrictive environment including eventual release.” Id. at 1439 (emphasis added).
Finally, we observed that Alabama provided a habeas corpus remedy as a
“secondary or backup procedure, a safeguard” that existed to “rectify any error that
might have occurred during the initial nonadversary review.” Id. at 1440.
From this precedent we have synthesized several guiding principles. At the
outset, as we have explained, it is clear that the State must conduct some form of
periodic review of continuing involuntary commitments. See Parham, 442 U.S. at
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607, 99 S. Ct. at 2506 (“[I]t is necessary that the child’s continuing need for
commitment be reviewed periodically by a[n] . . . independent procedure.”).
Yet this still leaves the question we posed above: what type of periodic
review is constitutionally adequate? It is clear that the review need not consist of
an adversarial proceeding involving a judge or even an administrator. See Parham,
442 U.S. at 607–08, 99 S. Ct. at 2506–07; Williams, 734 F.2d at 1439; see also
Austin, 848 F.2d at 1396 (holding that “due process requires that some periodic
review take place” but not necessarily “a periodic judicial review”); Hickey, 722
F.2d at 549 (“Due process does not always require an adversarial hearing.”).
But the cases impose two related restrictions on the form of review, at least
where it is nonadversarial. First, the reviewer must be required to consider the
propriety of ongoing commitment. See Parham, 442 U.S. at 615, 99 S. Ct. at 2510
(noting that the hospital superintendent “is charged with an affirmative statutory
duty to discharge any child who is no longer mentally ill or in need of therapy”);
Williams, 734 F.2d at 1439 (observing that periodic reviews seek to meet the “goal
of finding the least restrictive environment including eventual release” (emphasis
added)); see also Hickey, 722 F.2d at 549 (holding that adequate procedures
included “regular review of [the plaintiff’s] continued confinement”); cf. Austin,
848 F.2d at 1395–96 (explaining that periodic review must include whether

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commitment should continue); Clark, 794 F.2d at 86 (describing that the periodic
reviews considered whether to release the plaintiff).
Second, the reviewer must be authorized to order release if the criteria for
commitment are no longer met. See Parham, 442 U.S. at 607, 99 S. Ct. at 2506
(“It is necessary that the decisionmaker have the authority to refuse to admit any
child who does not satisfy the medical standards for admission.”); Williams, 734
F.2d at 1440 (“[T]he release decision is first addressed in the nonadversary
proceedings described above, and the final release decision can be, and most often
is, made at this level by the hospital professionals.” (emphasis added)). 14
For instance, in Clark the Third Circuit considered a review scheme that
violated this second restriction. There, medical professionals periodically
reviewed the plaintiff’s continued confinement and had “consistently
recommended that [she] be released” for something like eight years. Clark, 794
14

The APD argues that Williams does not stand for the proposition that the reviewer
must be authorized to order release. It is true that in that case the “treatment team” was
responsible for periodically reviewing continued involuntary commitment, but the treatment
team could only “recommend[] release.” Williams, 734 F.2d at 1436; see also id. (“The decision
to release an acquittee is usually initiated by the treatment team.” (emphasis added)). A hospital
supervisor had to approve the treatment team’s release recommendation before the person could
actually be released. See id. (explaining that the treatment team’s release recommendation for
“special patients” was reviewed by “the hospital’s superintendent or his designee,” while the
release recommendation for non-special patients was approved by “the forensic unit director of
the hospital to which [the acquittee] [wa]s committed”). But it was the same group of medical
professionals that reviewed the propriety of commitment and that, as a whole, had authority to
order release. There was no requirement that the medical professionals petition a court to order
release, or that some other entity without any say in the medical-review process approve release.
The distance between the reviewer and the person with authority to release was vanishingly
small in Williams: from medical professionals to their supervisors. Here the distance is vast:
medical professionals must petition a state court to order release.
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F.2d at 86. But she was not released because “the reviewers lacked the authority to
implement their recommendations.” Id. The Third Circuit found a violation of due
process. Id. It explained that the review “required by the due process clause is not
a moot court exercise. The [reviewers] must have the authority to afford relief.”
Id.; see also id. (finding a violation of procedural due process because “[o]ver the
course of more than twenty-eight years [the plaintiff] was never afforded a hearing
before any decisionmaker with authority to resolve her dispute”).
Finally, the cases suggest that habeas corpus may serve as a backup to
periodic, nonadversarial review. See Williams, 734 F.2d at 1440; see also Hickey,
722 F.2d at 549 (explaining that periodic, nonadversarial review is constitutional
because a committed person can “receive judicial review under the court’s
discretionary power or may [petition for] habeas relief”). But no case has
permitted habeas to be the primary review procedure. We assume this is because
habeas is by its very nature not a periodic, state-initiated review, which, as we have
just explained, is required. See Parham, 442 U.S. at 607, 99 S. Ct. at 2506.
C.

Application
With these guiding principles in mind, our task is to determine whether

Florida’s scheme provides constitutionally adequate process. We conclude that it
does not. Section 393.11 is constitutionally infirm because it does not require
periodic review of continued involuntary commitment by a decision-maker with

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the duty to consider and the authority to order release. Such a scheme runs afoul of
Mathews, Parham, and Williams, and is unconstitutional on its face.
The APD offers several responses that it says undermine this conclusion, but
none persuades us. First, at oral argument it insisted that § 393.11 contains
“implied” review obligations. But as we now know, with the benefit of the Florida
Supreme Court’s answers to our certified questions, the APD is mistaken in this
understanding. The supreme arbiter of Florida law has told us in no uncertain
terms that the statutory scheme contains no such implied obligations. J.R. II, 2015
WL 2236760, at *8 (holding that the APD “is not required under either section
393.0651 or section 393.11 . . . to petition the circuit court for a person’s release
from an involuntary admission order in cases where the [APD] determines that the
circumstances that led to the initial admission order have changed”).
Nevertheless, the APD argues that the support-plan review process provides
the required periodic review. “Similar to the ‘treatment teams’ described in
Williams,” the APD says, “the client and the client’s providers may use the support
plan to recommend further review of a client’s order of involuntary admission.”
(Emphasis added.) This may be true. But the fact that the State “may use” the
annual support-plan review to “recommend” that the circuit court consider the
propriety of continuing involuntary commitment is not enough. The Constitution
demands that when a state exercises its power to involuntarily commit its citizens
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on an ongoing basis, it must require, not merely permit, review of the propriety of
their commitment.
Slightly differently, the APD says that the annual support-plan review does
consider the propriety of ongoing commitment, because in making the support plan
the APD must evaluate the “most appropriate, least restrictive, and most costbeneficial environment for accomplishment of the objectives for client progress.”
§ 393.0651. And, the APD insists, the “most appropriate, least restrictive”
environment may be no commitment at all. For that reason, it says, support-plan
review necessarily considers whether to release a committed person.
We cannot agree, because the support-plan review process does not consider
both admission criteria. To initially admit a person under § 393.11, a circuit court
must find both (1) that “[p]lacement in a residential setting is the least restrictive
and most appropriate alternative to meet the person’s needs” and (2) that the
person “lacks basic survival and self-care skills to such a degree that close
supervision and habilitation in a residential setting is necessary and, if not
provided, would result in a real and present threat of substantial harm to the
person’s well-being” or would leave the person “likely to physically injure others
if allowed to remain at liberty.” § 393.11(8)(b). But the support-plan review
considers only the first half of that two-part equation. See § 303.0651 (“Each
[support] plan must include the most appropriate, least restrictive, and most
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cost-beneficial environment for accomplishment of the objectives for client
progress . . . .”).
There is no requirement that the support-plan review consider the second
criterion: whether a person is dangerous to himself or others. So a committed
person may cease to meet this second criterion but languish under continued
commitment because the support plan does not address it. Take J.R. himself. We
have no occasion to question whether he was dangerous at the time of his
admission under § 393.11. The circuit court specifically found as much and that
finding is not challenged here. But as we have already noted, J.R.’s “potential for
dangerousness . . . can change.” What happens if J.R. stops being dangerous? The
APD is under no obligation to consider whether he is no longer dangerous and, if
he is not, release him or even recommend release to the circuit court. In this way,
Florida’s scheme differs from those in Parham and Williams, where the stated
purpose of the periodic reviews was to consider release. See Parham, 442 U.S. at
615, 99 S. Ct. at 2510 (noting “an affirmative statutory duty to discharge” when
warranted); Williams, 734 F.2d at 1438 (describing “eventual release” as a central
goal of periodic medical reviews).
In any event, we think Florida’s scheme would be constitutionally suspect
even if it did require the APD to periodically review whether a person is properly
committed, for a simple reason: the APD does not have the authority to order
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release. Only the admitting circuit court has that power. Nothing authorizes the
APD to order release if it deigned to review the propriety of a person’s continued
commitment (which it need not), even if that review indicated that the person no
longer meets the commitment criteria. Neither, in such a circumstance, would the
APD be required to ask the circuit court to consider release.
The APD finally argues that the availability of habeas corpus provides
constitutionally adequate process. But Williams makes clear that habeas corpus is
not adequate in and of itself. Habeas can be at most a backstop—a failsafe
mechanism, not the sole process available. As we have already mentioned, this
makes good sense because habeas review occurs only if a petitioner asks for it; it is
in no way the type of periodic review that due process requires. See Williams, 734
F.2d at 1439; see also Austin, 848 F.2d at 1396 (holding that “due process requires
that some periodic review take place”). And on a practical level, it seems fanciful
to expect intellectually disabled persons to bring petitions for habeas corpus. We
agree with one of our sister Circuits that
[n]o matter how elaborate and accurate the habeas corpus proceedings
available under [state law] may be once undertaken, their protection is
illusory when a large segment of the protected class [i.e., “gravely
disabled” persons committed to mental institutions] cannot
realistically be expected to set the proceedings into motion in the first
place.

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Doe v. Gallinot, 657 F.2d 1017, 1023 (9th Cir. 1981); see also id. at 1022–23
(rejecting the State’s argument that “habeas corpus review on demand adequately
protects against erroneous” commitment).
IV.

Conclusion

We are sympathetic to the State of Florida’s interest in involuntarily
admitting the intellectually disabled to residential services in order to “prevent or
reduce the severity of developmental disabilities” and to “enable individuals with
developmental disabilities to achieve their greatest potential for independent and
productive living.” § 393.062. Those are honorable goals, and we commend the
State for striving to reach them. But we cannot sanction the State’s methods. The
Constitution demands periodic review of the propriety of ongoing commitment by
someone with the duty to consider and the authority to order release when
appropriate. Florida’s statutory scheme does not meet those demands.
REVERSED AND REMANDED.

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