Opinion
C.A. No. 92-12025-MLW, C.A. No. 92-12026-MLW.
November 14, 1997
REPORT AND RECOMMENDATION REGARDING DEFENDANTS' MOTION FOR SUMMARY JUDGMENT (DOCKET NO. 86)
Plaintiffs, Patrick Delaney ("Delaney") and John Bruder ("Bruder") (collectively, "Plaintiffs"), were adjudicated as "sexually dangerous persons" ("SDPs") under Massachusetts law in 1982 and 1983, respectively, and have involuntarily resided at the Massachusetts Treatment Center for Sexually Dangerous Persons in Bridgewater (the "Treatment Center") since then. In consolidated, pro se complaints purportedly brought under 42 U.S.C. § 1983 ("Section 1983"), they assert numerous constitutional challenges to the state statute under which they were committed, Mass. Gen. Laws ch. 123A, § 1 ("Chapter 123A"), and they seek an order vacating their commitments and releasing them from confinement. Although at least some of Plaintiffs' arguments are not frivolous, I conclude that the relief Plaintiffs are seeking is not available under Section 1983 and that, if it is available at all, it is available only through the issuance of a writ of habeas corpus. I further conclude that, treating Plaintiffs' complaints as petitions for writs of habeas corpus under 28 U.S.C. § 2254, such complaints/petitions raise certain claims that Plaintiffs have not presented to the Massachusetts Supreme Judicial Court ("SJC") and that the complaints/petitions must therefore be dismissed without prejudice for failure to exhaust available state remedies. I therefore recommend that defendants' Motion for Summary Judgment (Docket No. 86) be ALLOWED, although not on the substantive grounds urged by defendants, and I further recommend that such disposition be without prejudice to Plaintiffs' right to return to federal court, if necessary, after Plaintiffs have exhausted the remedies available to them in state court.
I.
Plaintiffs filed separate, but substantially similar, complaints in September 1992. Delaney named both the Commissioner of the Department of Mental Health ("DMH") and the Commissioner of the Department of Corrections ("DOC") as defendants ("Defendants"), while Bruder named only the Commissioner of the DMH. Both complaints were purportedly brought under Section 1983, the first paragraph of each stating, in identical language:
This is an action pursuant to 28 U.S.C. 1343(3) and (4) to redress the deprivation of plaintiffs constitutional rights by the defendants, acting under color of state law, as more particularly prohibited by 42 U.S.C. 1983.
(See, e.g., Complaint of Patrick Delaney at 1, Docket No. 4.) Each complaint also included a prayer for an order vacating Plaintiffs' civil commitments to the Treatment Center and releasing Plaintiffs from confinement. The complaints were consolidated by agreement of the parties.
The consolidated complaints, as filed, requested additional forms of relief as well, but Plaintiffs have since abandoned such requests. Thus, Plaintiffs are now adamant that "the only relief being sought . . . is an order from the court vacating any and all sentences currently imposed upon the plaintiff's [sic] be they civil or criminal and that they be released from all confinement immediately." (Plaintiff's Opposition to Court Inclusion of Them in Any Class Action Other Than the Above Entitled Actions at 3, Docket No. 67.) In fact, Plaintiffs are so single-minded in their devotion to this particular form of relief, to the exclusion of all others, that they have put all attorneys who might be appointed to represent them on written notice that they will file suit against such attorneys "for extensive monetary damages" if they attempt to involve Plaintiffs in any litigation "dealing with any other . . . relief sought." (Id.)
The complaints were filed against a background of decades of litigation brought by residents of the Treatment Center challenging the conditions of confinement. See Langton v. Johnston, 928 F.2d 1206, 1212 (1st Cir. 1991); Pearson v. Fair, 808 F.2d 163, 164-165 (1st Cir. 1986); King v. Greenblatt, 489 F. Supp. 105, 106 (D. Mass. 1980). It is unnecessary for purposes of the decision in this case to dwell on the substance of those cases, except to note that (1) they were brought as class actions on behalf of all residents of the Treatment Center, including Bruder and Delaney, see Langton, 928 F.2d at 1208, 1212; (2) they resulted in the issuance of consent decrees that imposed on the Commonwealth certain operating requirements that were more favorable to residents of the Treatment Center than the requirements minimally imposed by the Constitution, see id. at 1217; and (3) to this day, Judge Mazzone is continuing to oversee various matters concerning the operation of the Treatment Center and compliance with the consent decrees. See, e.g., King v. Greenblatt, No. 72-788-ADM, 1997 WL 136433 (D. Mass. March 7, 1997); King v. Greenblatt, No. 72-788-ADM (D. Mass. October 31, 1996). Thus, in the unlikely event that Plaintiffs, notwithstanding their explicit disavowal of any interest in participating as parties or as class members in any action which seeks to enforce the prior consent decrees, see note 1, supra, now wish to bring a claim against Defendants for noncompliance with prior decrees, such claim must be asserted in the case over which Judge Mazzone is presiding, C.A. No. 72-788-ADM.
Returning, then, to Plaintiffs' grievances here, the gravamen of the consolidated complaints is that Chapter 123A, on its face and as construed and applied by the SJC and lower state courts, violates the Fifth, Eighth, and Fourteenth Amendments to the United States Constitution, and, therefore, that Plaintiffs' original commitments and present confinements are illegal. Plaintiffs invoke many provisions of these amendments, including the Equal Protection, Ex Post Facto, and Double Jeopardy clauses, but it is particularly significant for present purposes that Plaintiffs contend that Chapter 123A deprives them of substantive due process in at least the following two respects: (1) it permits persons such as themselves to be confined indefinitely based solely on the perception that they are sexually dangerous, notwithstanding that they suffer from no identifiable mental disease or abnormality, and (2) it permits the finding of sexual dangerousness to be based solely on evidence of past acts of sexual violence. Plaintiffs make no claim that they ever presented or attempted to present either claim to the SJC (or the Appeals court), and the court's own research has failed to turn up any appellate decision that suggests that they did. Indeed, as discussed further below, it does not appear that the SJC has ever squarely addressed the first issue; and it certainly has not done so since the Supreme Court's recent decision in Kansas v. Hendricks, 117 S. Ct. 2072 (1997). In Hendricks, the Supreme Court upheld a Kansas sex offender statute that differs from Chapter 123A in at least one respect that Plaintiffs plausibly contend is material to the constitutional analysis. See Kansas v. Hendricks, 117 S. Ct. 2072, 2077, 2081 (1997). Thus, Plaintiffs are asking this court to vacate their commitments and release them from confinement based upon at least one non-frivolous constitutional theory that, for all that appears, has never been presented to the SJC. For reasons set forth in Part III below, this court may not entertain their request at this time.
II.
To place the analysis below in context, I shall review briefly the statutory framework under which Plaintiffs were adjudicated as SDPs, as well as the particular circumstances concerning each plaintiff's adjudication.
Chapter 123A was designed to identify and commit for an indeterminate period those persons found to be sexually dangerous. It was first enacted in 1947, but has been amended numerous times since then. In 1990, the sections of Chapter 123A authorizing new commitments to the Treatment Center were repealed. 1990 Mass. Acts ch. 150, § 304. The 1990 legislation, however, also declared that all persons already committed to the Treatment Center as SDPs would remain subject to Chapter 123A. 1990 Mass. Acts ch. 150, § 104. This included Bruder and Delaney, who were committed in the early 1980s. Thus, even though the commitment sections have been repealed, Chapter 123A continues to provide the justification for Plaintiffs' confinement at the Treatment Center.
As applied to previously-adjudicated SDPs such as Bruder and Delaney, an SDP is:
any person . . . whose misconduct in sexual matters indicates a general lack of power to control his sexual impulses, as evidenced by repetitive or compulsive sexual misconduct by either violence against any victim, or aggression against any victim under the age of sixteen years, and who, as a result, is likely to attack or otherwise inflict injury on such victims because of his uncontrolled or uncontrollable desires.
Mass. Gen. L. Ann. ch. 123A, § 1 (West 1986). Until 1990, Chapter 123A provided a detailed procedure for the commitment of SDPs. Mass. Gen. L. Ann. ch. 123A, §§ 1-7 (West 1986). At the time of both Bruder's and Delaney's commitment, the proceeding to determine whether an individual should be committed as a SDP could be initiated in one of three ways: (1) upon motion of the state trial judge or the Commonwealth (following conviction for certain specific sexual offenses defined in Section 1), id. § 4; (2) at the request of the head of a correctional facility, id. § 6; or (3) upon a voluntary application, id. § 7. The preliminary steps involved in each of these proceedings varied, but once an individual was identified as a possible SDP, the procedure for committing that person followed the same basic steps.
First, the individual was committed to the Treatment Center for up to sixty days and examined by two qualified examiners. Id. § 4. These experts then submitted a report and recommended a disposition. If the report did not "clearly" indicate sexual dangerousness, no further action was taken. Id. §§ 4-6. If, however, the report "clearly indicate[d]" sexual dangerousness, the matter was referred to the Superior Court. Id. §§ 5, 6. The Superior Court then conducted a full evidentiary hearing, and the accused individual had the right to counsel, discovery, compulsory process and cross examination of witnesses. In re Andrews, 334 N.E.2d 15, 22-24 (Mass. 1975). At this hearing, the Commonwealth had the burden of establishing that the individual was sexually dangerous beyond a reasonable doubt. Id. at 27. If the Commonwealth satisfied its burden, the individual was committed to the Treatment Center for a sentence of one day to life.
An individual adjudicated as an SDP had, and continues to have, a statutory right to file an annual petition for reconsideration of his status. Mass. Gen. L. Ann., ch. 123A, § 9 (West Supp. 1997). Filing a petition triggers the right to a hearing (a "Section 9 Hearing") at which the Commonwealth bears the burden of proving beyond a reasonable doubt that the defendant remains sexually dangerous. In re Hill, 661 N.E.2d 1285, 1291-1292 (Mass.), cert. denied sub nom. Hill v. Massachusetts, 117 S. Ct. 177 (1996); In re Andrews, 334 N.E.2d at 25.
As noted, Plaintiffs were each adjudicated as SDPs in the early 1980s. Delaney, who was then seventeen, was convicted in April 1980 of assault with intent to rape and sentenced to 15 to 20 years in state prison by the Hampden Superior Court. While Delaney was serving his sentence, the Superintendent of the North Central Correctional Institution at Gardner petitioned the Superior Court to commit him as an SDP under Section 6 of Chapter 123A. The petition was granted following a hearing on June 3, 1982, and Delaney has remained at the Treatment Center since that date serving a sentence of one day to life. His original criminal sentence terminates on December 12, 1997. In August 1996, the Community Access Board (the "Board") unanimously concluded that Delaney was still an SDP. In June 1997, Delaney had a Section 9 Hearing in Superior Court, and his petition for release remains under advisement.
The Board consists of two DOC psychologists, one DOC security official and two outside consulting psychiatrists or psychologists who conduct annual reviews of SDPs pursuant to Mass. Gen. L. ch. 123A, § 6A.
The facts concerning Bruder's commitment are similar to those concerning Delaney. On May 10, 1983, Bruder, who was then eighteen, pleaded guilty in Bristol Superior Court to the charge of rape of a child. On that day, the court ordered that he be evaluated as a potential SDP pursuant to Section 4 of Chapter 123A. He was committed to the Treatment Center for an indefinite term on July 11, 1983, and has remained there since that date. Bruder most recently had a Section 9 Hearing on June 9, 1997. On July 1, 1997, the Superior Court concluded that Bruder was still an SDP. The court based its conclusion in part on its finding that Bruder "has not yet come to fully appreciate the sexual assault cycle to which he is subjected" and that he "needs to progress further regarding his understanding of his own motivations, including lack of self-esteem, a lack of assertiveness and coping skills, the relationship of substance abuse with sexual offenses, skills to negate events and emotional states other than by either sexual acts or aggression towards others, and especially to be able to deal with greater stresses to which he will naturally be exposed subsequent to his release from the Treatment Center." (Bruder v. Massachusetts, No. 96-1402, slip op. at 4-5, (Mass.Super.Ct. July 1, 1997), Ex. A, Supplemental Affidavit of Daniel Less in Support of Defendant's Motion for Summary Judgment, Docket No. 99.)
III.
Now, as was the case before the federal habeas statute was amended by the Antiterrorism and Effective Death Penalty Act of 1996, Pub.L. No. 104-132, Title I, § 104, 110 Stat. 1218 (April 24, 1996), (the "AEDPA"), 28 U.S.C. § 2254(a) confers on federal courts jurisdiction to consider applications for writs of habeas corpus by "person[s] in custody pursuant to the judgment of a State court," where such custody is alleged to be "in violation of the Constitution . . . of the United States." For decades, federal courts have assumed that the "in custody" jurisdictional requirement is satisfied when a habeas applicant seeks release from involuntary confinement in a mental institution to which he or she has been civilly committed pursuant to the order of a state court. See, e.g., Sarzen v. Gaughan, 489 F.2d 1076, 1081-1082 (1st Cir. 1973); Bailey v. Gardebring, 940 F.2d 1150, 1153 (8th Cir. 1991), cert. denied sub nom. Bailey v. Noot, 503 U.S. 952, 112 S. Ct. 1516 (1992); Artway v. Pallone, 672 F.2d 1168, 1178 (3d Cir. 1982); United States ex rel. Stachulak v. Coughlin, 520 F.2d 931, 933-34 (7th Cir. 1975), cert. denied sub nom. Coughlin v. Stachulak, 424 U.S. 947, 96 S.Ct. 1419 (1976); Norwood v. Jacobs, 430 F.2d 903, 903-904 (D.C. Cir. 1970); O'Gradv v. Aitken, No. 84-C-9846, 1986 WL 4142, at *1 (N.D. Ill. March 18, 1986); see also 2 LIEBMAN HERTZ, FEDERAL HABEAS CORPUS PRACTICE AND PROCEDURE 202 n. 20, § 8.2(d) (2d ed. 1988) ("incarceration" for purposes of federal habeas corpus petitions encompasses confinement in a mental health facility or mental hospital). The SJC makes the same assumption regarding the applicability of the Massachusetts habeas statute, Mass. Gen. Laws ch. 248, § 1, to civil commitment orders. See Petition of Scott A. Gagnon, 625 N.E.2d 555, 558 (Mass. 1994); In re Andrews, 334 N.E.2d at 16-17. Since a restraint on personal liberty resulting from an order of civil commitment is just as restrictive and debilitating as a restraint resulting from a criminal judgment, and since unconstitutional confinement in a mental institution is no less offensive to our sense of fundamental justice and ordered liberty as unconstitutional confinement in a prison cell, such assumptions are surely warranted. See Peyton v. Rowe, 391 U.S. 55, 66, 88 S.Ct. 1549, 1556 (1988) (stating that "[t]he writ is not now and never has been a static, narrow, formalistic remedy; its scope has grown to achieve its grand purpose — the protection of individuals against erosion of their right to be free from wrongful restraints upon their liberty"), quoting Jones v. Cunningham, 371 U.S. 236, 243, 83 S. Ct. 373, 377 (1963). Thus, assuming the other prerequisites to habeas relief are satisfied, a federal court may undoubtedly order the release of a person unconstitutionally confined in a mental health facility pursuant to a state court's order of civil commitment.
The habeas coin has two sides, however, and it is the other side that dictates the result here. Whenever habeas relief is available, it is available to the exclusion of any other form of relief that would necessarily call into question the validity of the judgment or order that produced the challenged confinement. See Edwards v. Balisok, 117 S. Ct. 1584, 1586 (1997); Heck v. Humphrey, 512 U.S. 477, 481, 114 S. Ct. 2364, 2369 (1994); Preiser v. Rodriguez, 411 U.S. 475, 500, 93 S. Ct. 1827, 1841 (1973). A fortiori, habeas relief is the exclusive remedy where, as here, no relief is sought other than vacation of the order of commitment and immediate release from confinement.
As noted, Plaintiffs do not appear to be claiming money damages, under Section 1983 or otherwise, for unlawful confinement or common law false imprisonment. Even if they were to do so, however, it is clear that such relief would be barred by Balisok and Heck, since an award of damages for unlawful confinement or false imprisonment would necessarily imply the invalidity of the underlying commitment order.
This raises two problems for Plaintiffs — one relatively minor and curable and one insurmountable. The minor problem is that Plaintiffs, though seeking habeas relief, have not filed habeas petitions. This technical defect can and should be overlooked, however, and the complaints that Plaintiffs did file should be deemed to be habeas petitions under the familiar rule that pleadings filed by pro se plaintiffs must be liberally construed, provided no prejudice results to defendant.
The insurmountable problem is that Plaintiffs have not satisfied the exhaustion requirement that appears in 28 U.S.C. § 2254(b) (both before and after its amendment by the AEDPA). See Rose v. Lundy, 455 U.S. 509, 510, 520, 102 S. Ct. 1198, 1199, 1204 (1982) (holding that habeas petition setting forth both exhausted and unexhausted claims is deemed a "mixed petition" and must be dismissed pending exhaustion of all claims, or petitioner can resubmit the habeas petition to present only exhausted claims to the district court). Admittedly, Defendants have not raised this issue in any of their pleadings, but that is understandable in view of Plaintiffs' failure to style their complaints as Petitions for Writs of Habeas Corpus. This, indeed, is one respect in which Defendants might suffer prejudice if the court were to construe Plaintiffs' pro se complaints as habeas petitions. To prevent such prejudice, I will proceed as if Plaintiffs had given Defendants proper notice that they were indeed seeking habeas relief and as if Defendants had responded with a motion to dismiss for failure to exhaust state remedies.
Under the present habeas statute, mere failure by the state to plead exhaustion as a defense is not a waiver in any event. Rather, "[a] State shall not be deemed to have waived the exhaustion requirement or be estopped from reliance upon the requirement unless the State, through counsel, expressly waives the requirement." 28 U.S.C. § 2254(b)(3) (West Supp. 1997); see Gaylor v. Harrelson, 962 F. Supp. 1498, 1499 (N.D. Ga. 1997). Even under the statute as in effect when the complaints were filed, a court, in the interest of "comity and judicial efficiency," had the right, and possibly the duty, "to insist on complete exhaustion," where "an unresolved question of fact or of state law might have an important bearing" on the outcome.Granberry v. Greer, 481 U.S. 129, 134-135, 107 S. Ct. 1671, 1675 (1987). For reasons discussed below, this is just such a case.
There are, of course, exceptions to the exhaustion requirement. On the one hand, a habeas petitioner is not required to exhaust state remedies if none are available or it would be futile in light of prior decisions by the state's highest court to seek state court relief. See 28 U.S.C. § 2254(b) (West 1994) (old statute); 28 U.S.C. § 2254(b)(1)(B) (West Supp. 1997) (new statute); Sarzen, 489 F.2d at 1082 (stating that "[w]hen the highest state court has addressed itself to the issues raised, and there are no intervening Supreme Court decisions on point, nor any indication that the state court intends to depart from its former decisions, the exhaustion doctrine does not require a petitioner to present his claims in state court"). On the other hand, under both the old habeas statute, see Granberry, 481 U.S. at 135, 107 S. Ct. at 1675, and the new habeas statute, 28 U.S.C. § 2254(b)(2), a court may deny an unexhausted petition on the merits if it clearly does not raise a colorable federal claim. See, e.g., Liegakos v. Cooke, 106 F.3d 1381, 1388 (7th Cir. 1997); Gaylor, 962 F.Supp. at 1500-1501; United States ex rel. Walton v. Gilmore, No. 96-C-2375, 1997 WL 51703, at *5 (N.D. Ill. Feb. 4, 1997). Neither exception is applicable here.
First, with respect to a possible argument by Plaintiffs that there is no procedural device by which they may present their constitutional arguments to the appellate courts of the Commonwealth, it is clear, as noted, that they may do so through the filing of a petition for a writ of habeas corpus pursuant to Mass. Gen. Laws ch. 248, § 1. See, e.g., Gagnon, 625 N.E.2d at 557-558; In re Andrews, 334 N.E.2d at 16-17. It may also be possible for them to present their constitutional objections to Chapter 123A in the context of their next Section 9 hearing or any appeal therefrom. E.g., In re Redgate, 633 N.E.2d 380, 382-383 (Mass. 1994). Even if this is not possible, however, state habeas relief is certainly available and affords them a complete remedy.
Second, in response to a possible argument that decisions by the SJC have already foreclosed consideration of all the constitutional claims Plaintiffs seek to raise, there is at least one substantive due process argument that Plaintiffs make that the SJC does not appear to have specifically considered. That argument is that Chapter 123A, on its face and as construed and applied by the SJC to persons such as Plaintiffs, violates substantive due process because it permits commitment orders to be based on a finding of sexual dangerousness alone, without any requirement that such finding be coupled with a separate finding of mental abnormality. A similar argument was recently addressed by the Supreme Court in Kansas v. Hendricks, 117 S. Ct. at 2079, 2080, a case which considered the constitutionality of a Kansas statute that authorizes the civil commitment of "sexually violent predators." Under the Kansas statute, "sexually violent predators" is defined as "any person who has been convicted of or charged with a sexually violent offense and who suffers from a mental abnormality or personality disorder which makes the person likely to engage in predatory acts of sexual violence." Hendricks, 117 S. Ct. at 2077, quoting Kans. Stat. Ann. § 59-29a02(a) (1994). Although the Court upheld the constitutionality of the statute over the objection that, in violation of substantive due process, it permits persons to be adjudicated as sexually violent predators without a finding that they suffer from any medically recognized "mental illness," the Court was careful to note that the statute does not permit adjudications to be based on a finding of dangerousness alone. Rather, consistent with Supreme Court precedent, it
requires a finding of future dangerousness and then links that finding to the existence of a "mental abnormality" or "personality disorder" that makes it difficult, if not impossible, for the person to control his dangerous behavior. . . . The precommitment requirement of a "mental abnormality" or "personality disorder" is consistent with the requirements of these other statutes that we have upheld in that it narrows the class of persons eligible for confinement to those who are unable to control their dangerousness.Id. at 2080. The Court went on to hold that the Kansas statute could constitutionally be applied to Hendricks because he was not just dangerous, but he had also been "diagnos[ed] as a pedophile, which qualifies as a 'mental abnormality' under the Act. . . ."Id. at 2081.
Chapter 123A, unlike the Kansas statute under consideration in Hendricks, does not, by its express terms, limit the class of persons who may be adjudicated as SDPs to persons who suffer from a "mental abnormality" or "personality disorder." It does, however, include a requirement that the person evidence by his "sexual misconduct" a "general lack of power to control his sexual impulses." On the one hand, a "general lack of power to control . . . sexual impulses" may satisfy the constitutional prohibition, assuming there is one, against the involuntary commitment of persons based solely on a finding that they are dangerous. On the other hand, however, even if Chapter 123A is construed to require a linkage between the finding of dangerousness and the existence of an abnormal mental condition that the Supreme Court referred to generically as a "volitional impairment," the statute appears expressly to permit the existence of the volitional impairment to be inferred from nothing more than evidence of "repetitive or compulsive sexual misconduct." To that extent, it can be argued that Chapter 123A comes perilously close to permitting what the Supreme Court in Hendricks appeared to foreclose: involuntary civil commitment based upon a finding of dangerousness alone.
The SJC has not considered the constitutionality of Chapter 123A since the Supreme Court's recent decision in Hendricks, and nothing in its prior decisions concerning Chapter 123A suggests that it would be unwilling to take a fresh look at Plaintiffs' arguments in light of the teachings of that case. In the interest of comity, such arguments should be presented to the SJC before they are considered here. Indeed, in this instance, an additional, very practical consideration underscores the wisdom of enforcing the complete exhaustion requirement strictly. To the extent the constitutionality of Chapter 123A may turn upon the construction of arguably ambiguous or incomplete statutory language, only the SJC can authoritatively construe such language and determine whether it should be given any particular gloss under state law. Thus, for reasons of both comity and practicality, this court may not consider Plaintiffs' constitutional arguments until the SJC has been given an opportunity to construe Chapter 123A; to measure it, as construed, against the Hendricks standards; and, finally, assuming the statute survives such scrutiny, to apply it to the record in this case to determine whether Plaintiffs' continued confinement is warranted in fact and law.
Having determined that prior decisions by the SJC do not foreclose the possibility that Plaintiffs' arguments will be given full, fair, and fresh consideration in state court, I must still consider the question whether Plaintiffs' complaints/petitions, though unexhausted, are so clearly devoid of merit as a matter of federal law that they should be summarily dismissed. The strongest argument in favor of this position is that, notwithstanding any possible ambiguity in or concern about constitutional deficiencies in the express language of Chapter 123A, the SJC has already given that statute a judicial gloss that enables it to pass constitutional muster. Such argument receives some support from cases such as In re Hill, 661 N.E.2d 1285, 1292 (Mass. 1996), where the SJC endorsed an earlier analysis of Chapter 123A by the Appeals Court in Page v. Commonwealth, 433 N.E.2d 466 (Mass.App.Ct. 1982). Page in turn had construed the statute as requiring a finding of present sexual dangerousness, and it further held that, as a matter of law, evidence of past sexual misconduct alone could not satisfy such requirement. Page, 433 N.E.2d at 468-469.
There are at least three reasons why Plaintiffs' substantive due process arguments might survive the Hill/Page gloss on Chapter 123A. First, although the SJC in Hill clearly endorses the conclusion in Page that proof of past sexual dangerousness is not a sufficient basis upon which to adjudicate a person as an SDP, the SJC does not state in Hill, perhaps because there was no need for it to do so, that Chapter 123A requires anything more than proof of present sexual dangerousness. As noted, however,Hendricks casts doubt on the proposition that involuntary civil commitment may be based solely on proof of sexual dangerousness, past or present. Rather, proof of present sexual dangerousness must be coupled with proof of a present mental condition variously described as a "mental abnormality," a "personality disorder," or some other "volitional impairment." Second, aside from agreeing with the Appeals Court that evidence of past sexual misconduct will not, alone, support a finding of present sexual dangerousness, the SJC does not say what kind of evidence is necessary to satisfy Chapter 123 A. Without further clarification on this point, it is impossible to say whether Chapter 123A, as construed by the SJC, requires that the Commonwealth present evidence sufficient to overcome the constitutional prohibition against committing persons who, though dangerous, do not suffer from such mental condition. Finally,Hill holds that the evidence that the Commonwealth presented against petitioner in Superior Court was sufficient as a matter of law to support an adjudication under Chapter 123A, notwithstanding that the Commonwealth did little more than "extrapolate from earlier incidents which . . . show dangerousness" and "carr[y] the extrapolation to the present by considering whether as a general matter this type of dangerous disposition has a tendency to persist." Hill, 661 N.E.2d at 1292. Assuming the SJC would still deem such evidence to be sufficient as a matter of state law to support an adjudication under Chapter 123A, it is not clear after Hendricks that such sparse evidence would be constitutionally sufficient. In any event, the constitutional sufficiency of such evidence is certainly not so clear that it can be said that Plaintiffs have not presented a colorable claim that Chapter 123A, as construed and applied by the SJC in Hill, is unconstitutional. Therefore, Plaintiffs' complaint/petition may not be summarily dismissed on the merits.
To summarize, a procedural device exists by which Plaintiffs may bring before the courts of the Commonwealth their claims that their commitments and confinements are unconstitutional; prior state court decisions do not render futile any effort by Plaintiffs to obtain relief in state court; and Plaintiffs' substantive due process claims are not so clearly frivolous that they should be summarily dismissed on the merits. Therefore, Plaintiffs' complaints/petitions should be dismissed without prejudice, so that Plaintiffs may exhaust their claims in state court before proceeding here.
IV.
For all the foregoing reasons, I recommend that Defendant's Motion for Summary Judgment be ALLOWED, without prejudice to Plaintiffs' right to return to federal court, if necessary, after they have exhausted the remedies available to them in the courts of the Commonwealth of Massachusetts.
IMPORTANT NOTICE OF RIGHT TO OBJECT AND WAIVER OF RIGHT TO APPEAL FOR FAILURE TO DO SO WITHIN TEN DAYS
The parties are hereby advised that under the provisions of Rule 3(b) of the Rules for United States Magistrates in the United States District Court for the District of Massachusetts, any party who objects to these proposed findings and recommendations must file a written objection thereto with the Clerk of this Court WITHIN 10 DAYS of the party's receipt of this Report and Recommendation. The written objections must specifically identify the portion of the proposed findings, recommendations, or report to which objection is made and the basis for such objections. The parties are further advised that the United States Court of Appeals for this Circuit has indicated that failure to comply with this rule shall preclude further appellate review by the Court of Appeals of the District Court's order entered pursuant to this Report and Recommendation. See United States v. Valencia-Copete, 792 F.2d 4, 5-6 (1st Cir. 1986); Scott v. Schweiker, 702 F.2d 13, 14 (1st Cir. 1983); United States v. Vega, 678 F.2d 376, 379 (1st Cir. 1982); Park Motor Mart. Inc. v. Ford Motor Co., 616 F.2d 603, 605 (1st Cir. 1980); see also Thomas v. Am, 474 U.S. 140, 148-149, 106 S. Ct. 466, 471-472 (1985), reh'g denied, 474 U.S. 1111, 106 S. Ct. 899 (1986).