               Case: 12-14212       Date Filed: 08/20/2013       Page: 1 of 29


                                                                                 [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
                            ________________________

                                     (August 20, 2013)

Before MARTIN and FAY, Circuit Judges, and EDENFIELD, ∗ District Judge.

MARTIN, Circuit Judge:



∗
 Honorable B. Avant Edenfield, United States District Judge for the Southern District of
Georgia, sitting by designation.
                Case: 12-14212       Date Filed: 08/20/2013        Page: 2 of 29


       J.R. is a man who was involuntarily admitted to “non-secure” residential

services administered by the Florida Department of Children and Family Services

in 2004. Under that same 2004 admission order, he continues to be committed in a

non-secure residential facility. He filed suit against Michael Hansen, in his official

capacity as the Director of the Agency for Persons with Disabilities (the successor

to the Department of Children and Family Services), bringing a facial challenge to

the constitutionality of Florida’s statutory scheme for involuntarily admitting

intellectually disabled persons to residential services, Florida Statutes § 393.11.

The Agency for Persons with Disabilities (APD) is responsible for administering

these residential services in Florida. 1 The District Court granted summary

judgment to the APD, and it is that ruling that J.R. appeals to this Court.

       J.R. says that § 393.11 violates the Due Process Clause of the 14th

Amendment on its face because it creates an impermissibly high risk of wrongful

deprivations of liberty. This is so, he says, because it does not provide people who

have been involuntarily admitted to non-secure residential services with periodic

review of their continued involuntary confinement by a decision maker who has




1
  After the filing of the Notice of Appeal in this case, Michael Hansen resigned and Barbara
Palmer became the new Director of the Agency for Persons with Disabilities. At all times
relevant to this appeal, the state statute has been defended by the APD. Therefore, for simplicity,
we have referred to the Defendant-Appellee’s arguments as being made by the APD, rather than
by Mr. Hansen or Ms. Palmer.


                                                2
                Case: 12-14212       Date Filed: 08/20/2013       Page: 3 of 29


authority to release them. 2 Specifically, no one disputes that the circuit court that

issues the initial involuntary admission order retains jurisdiction over the order of

commitment, and that a person may only be released by further circuit court order.

See Fla. Stat. § 393.11(11). Neither is it disputed that the court that committed J.R.

has not held a single hearing regarding his admission order since June of 2005. It

is not statutorily required to do so. See id.

       The District Court, however, employed the doctrine of constitutional

avoidance to find that the statutory scheme provided constitutionally sufficient

process largely on the basis of its finding that § 393.11 “places an implicit burden

on APD, rather than the client, to petition the [admitting] court for release from an

order of involuntary admission when the conditions for release are indicated.” The

District Court certainly recognized that “section 393.11 contains no provision

expressly describing APD’s responsibilities should the time come when a

developmentally disabled client no longer satisfies the involuntary admission

requirements.” However, the court explained that the statute passed constitutional

muster because it “can and should be read to imply an obligation on the part of

APD to petition the circuit court to end the ‘hold’ on a client who is no longer

deemed to be a danger to himself or others.” At oral argument before our Court,

the APD repeatedly asserted that though the statute does not explicitly say so, it

2
 Notably, J.R. does not argue that the initial admission process under § 393.11 is constitutionally
deficient.
                                                3
                Case: 12-14212         Date Filed: 08/20/2013        Page: 4 of 29


has an obligation to periodically review the propriety of continued involuntary

admission and petition the court if necessary. Recognizing, as the District Court

did, that the scope of the APD’s obligations under the statute is critical to the

constitutional inquiry, and also that this scope is a question of Florida statutory

law, we conclude that in order for this court to decide this case we must certify

certain questions to the Supreme Court of Florida.3

                                          I.      The Statute

       Chapter 393 of the Florida Statutes provides for people with

“Developmental Disabilities.” See Fla. Stat. § 393.062 et seq. The legislative

declaration of intent explains that the state legislature decided to privatize care for

these people, prioritizing “community-based programs and services . . . in lieu of

operation of programs directly by state agencies.” Id. § 393.062. Florida’s

Medicaid Home and Community Based Services (HCBS) waivers combine state

and federal funds to pay for these community-based living arrangements. A

limited number of spots are available to people with disabilities, and currently

there are about 20,000 voluntary applicants on the waiting list to receive HCBS

Medicaid waiver services, including the services that J.R. receives.




3
  “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).
                                                  4
              Case: 12-14212     Date Filed: 08/20/2013   Page: 5 of 29


      Florida Statutes § 393.11 governs Florida’s “[i]nvoluntary admission to

residential services” scheme for intellectually disabled persons and explains that:

      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.

Fla. Stat. § 393.11(1). Upon petition or motion filed in Florida state circuit court

by a petition committee, the APD, the state attorney, or counsel for the person

needing services, see id. §§ 393.11(2), 916.303(2), the court appoints a committee

to examine the person’s intellectual abilities. Id. § 393.11(5). The circuit court

then holds an adversarial hearing, where the person is entitled to representation by

counsel and can examine witnesses. See id. § 393.11(6), (7).

      The circuit court may not involuntarily admit the person unless it 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 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.



                                          5
                Case: 12-14212        Date Filed: 08/20/2013       Page: 6 of 29


Id. § 393.11(8)(b) (emphasis added).4

       Within 45 days of receiving the order, the APD must provide the circuit

court with a copy of a “support plan” for its client, outlining a treatment plan and

showing “that the person has been placed in the most appropriate, least restrictive

and cost-beneficial residential setting.” Id. § 393.11(8)(e).

       “Support plans” are governed by section 393.0651 and apply to all APD

clients in non-secure residential services without reference to voluntary or

involuntary admission. See id. § 393.0651. “The ultimate goal of each [support]

plan, whenever possible, shall be to enable the client to live a dignified life in the

least restrictive setting, be that in the home or in the community.” Id. § 393.0651.5

Initial support plans must be developed in consultation with the client, the client’s

parent or guardian, or the client’s appointed advocate. Id. Support plans must then

be reviewed and revised annually in consultation with the same parties and based

on a client’s progress in achieving support plan objectives. Id. § 393.0651(7).

       As we have said, the Florida circuit court that makes the first involuntary

admission decision retains jurisdiction over the order and it cannot be changed


4
  Section 393.11 does not specify whether the residential services are “secure” or “non-secure.”
However, Florida Statutes § 916.303(3) allows the court to place a person in a secure facility,
rather than a community placement, under a different admission standard and subject to more
robust annual review. Compare Fla. Stat. § 916.303(3) with id. § 393.11. This being the case,
the parties and the District Court below have all described § 393.11 as concerned with
involuntary admission to non-secure residential settings, and we will do the same.
5
  A support plan may call for varying degrees of restrictive settings from a developmental
disabilities center (most restrictive) to even the client’s own home. See Fla. Stat. § 393.0651(5).
                                                 6
              Case: 12-14212     Date Filed: 08/20/2013    Page: 7 of 29


without permission from that court. See id. § 393.11(11). Although the Florida

state circuit court must annually review a client’s placement in a secure setting,

Florida law does not require the court to perform an adversarial, state-initiated,

periodic review of a client who has been involuntarily admitted to services in a

non-secure setting. Compare id. § 916.303(3) (review for secure settings) with id.

§ 393.11 (admission to residential services). A client who disagrees with a support

plan decision may challenge it in an administrative proceeding, id. § 393.0651(8),

but the hearing officer can do nothing to change the original order of involuntary

admission. Rather, upon issuance of the involuntary admission order, the client is

notified in writing that he or she may challenge that order by way of a habeas

petition submitted to the circuit court, the only body with power to ever change the

order. Id. § 393.11(13).

                                       II.       J.R.

      J.R. is an intellectually disabled 48 year-old man with an IQ of 56 who

functions at the level of a 7 year-old. It is not disputed that “although J.R.’s mental

retardation will always exist, his potential for dangerousness . . . can change”

because “J.R. can develop skills that mitigate the effect of his disability and aid

him in his ability to live independently.”

      In 2000, J.R. was charged with sexual battery in Lee County, Florida. In

2001, the Lee County Circuit Court found J.R. incompetent to stand trial and


                                             7
                  Case: 12-14212        Date Filed: 08/20/2013     Page: 8 of 29


involuntarily committed him to the Department of Children and Family Services

(DCF), a precursor to the APD. In 2004, J.R. was involuntarily admitted to “non-

secure” residential services, pursuant to § 393.11. The circuit court explained that

“the purpose to be served by residential care is vocational training and social skills

training.” The order contains no end date.

          J.R. has lived in several different group homes since the original involuntary

admission order. Despite J.R.’s admission order specifying “non-secure”

residential services, his movements and freedom are significantly limited. As the

District Court explained, “[i]f he were to ‘elope,’ the police would probably be

called to return him” to his group home. That being said, the scope of the

limitations on J.R.’s movements has changed and will continue to change with

periodic alterations to his support plan pursuant to § 393.0651. Still, as we have

already observed, the circuit court has not held a hearing on J.R.’s continued

involuntary admission order since 2005.

          Since 2007, J.R. has been assigned a “support coordinator,” Jordan

Goldstein, pursuant to Fla. Stat. § 393.063(37). 6 J.R.’s most recent “support plan”


6
    Under the statute, a “Support coordinator” is

          a person who is designated by the agency to assist individuals and families in
          identifying their capacities, needs, and resources . . . and monitoring and
          evaluating the delivery of supports and services to determine the extent to which
          they meet the needs and expectations identified by the individual, family, and
          others who participated in the development of the support plan.


                                                    8
                Case: 12-14212     Date Filed: 08/20/2013     Page: 9 of 29


for 2012 was crafted with input from J.R.; Mr. Goldstein; Gregory Jansen, a

certified behavior analyst overseeing J.R.’s case; and Katherine DeBierre, J.R.’s

attorney. As a part of this support plan, J.R. was able to move to a new residence

of his choice closer to his family. But Mr. Jansen did not recommend releasing

J.R. from involuntary admission. Neither has J.R. filed a habeas petition with the

circuit court to be released from the involuntary admission order.

                                 III.    Standard of Review

       “We review de novo the district court’s ruling on the parties’ cross-motions

for summary judgment.” Owen v. I. C. Sys., Inc., 629 F.3d 1263, 1270 (11th Cir.

2011).

       In a facial challenge, “the challenger must establish that no set of

circumstances exist under which the Act would be valid.” Horton v. City of St.

Augustine, Fla., 272 F.3d 1318, 1329 (11th Cir. 2001) (quotation marks omitted).

                                        IV.   Discussion

       The Due Process Clause of the Fourteenth Amendment provides that a state

shall not “deprive any person of life, liberty, or property, without due process of

law.” U.S. Const. amend. XIV, § 1. “[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)


Fla. Stat. § 393.063(37).
                                              9
             Case: 12-14212     Date Filed: 08/20/2013    Page: 10 of 29


constitutionally-inadequate process.” Grayden v. Rhodes, 345 F.3d 1225, 1232

(11th Cir. 2003).

      As the District Court explained, “[b]y its plain language, [§ 393.11] makes

loss of liberty a necessary concomitant to involuntary admission to residential

services.” See also Addington v. Texas, 441 U.S. 418, 425, 99 S. Ct. 1804, 1809

(1979) (recognizing that “civil commitment for any purpose constitutes a

significant deprivation of liberty”); Kinner v. State, 382 So. 2d 756, 760 (Fla. 2d

DCA 1980) (describing § 393.11 as providing for the deprivation of liberty), rev’d

on other grounds, 398 So. 2d 1360 (Fla. 1981). Thus, as the APD concedes, the

first two elements of the test for a claim of the denial of due process are easily

established here. The question left for us to answer is whether § 393.11 provides

constitutionally adequate process.

                                     A. Overview

      Constitutionally adequate process is a flexible concept that “cannot be

divorced from the nature of the ultimate decision that is being made.” Parham v.

J.R., 442 U.S. 584, 608, 99 S. Ct. 2493, 2507 (1979). It is well settled that people

who are lawfully involuntarily committed must be released once the grounds for

the initial commitment no longer exist. See O’Connor v. Donaldson, 422 U.S. 563,

575, 95 S. Ct. 2486, 2493 (1975) (where a plaintiff challenged his continued

confinement in a mental institution and the Court explained that “even if his


                                          10
               Case: 12-14212        Date Filed: 08/20/2013       Page: 11 of 29


involuntary confinement was initially permissible, it could not constitutionally

continue after that basis no longer existed”); Jackson v. Indiana, 406 U.S. 715, 738,

92 S. Ct. 1845, 1858 (1972) (where the Court held that “due process requires that

the nature and duration of commitment bear some reasonable relation to the

purpose for which the individual is committed”). Thus, when someone is civilly

committed, there must be some form of periodic post-commitment review. See

Parham, 442 U.S. at 607, 99 S. Ct. at 2506 (holding that continuing need for

commitment must be reviewed periodically). 7

       To determine what process is due, courts turn to the test from Mathews v.

Eldridge, which requires the balancing of a number of considerations:

       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.




7
  See also, 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),
cert. denied, 488 U.S. 967, 109 S. Ct. 495 (1988); Clark v. Cohen, 794 F.2d 79, 86 (3rd Cir.
1986) (explaining that a plaintiff “was entitled to periodic review of her commitment”), cert.
denied, 479 U.S. 962, 107 S. Ct. 459 (1986); cf. Williams v. Wallis, 734 F.2d 1434, 1438 (11th
Cir. 1984) (upholding a scheme that provided period reviews 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 interest with “regular review of his
continued confinement”).
                                                11
             Case: 12-14212      Date Filed: 08/20/2013   Page: 12 of 29


424 U.S. 319, 335, 96 S. Ct. 893, 903 (1976). The Supreme Court in Mathews

admonished courts employing this test to recognize that “procedural due process

rules are shaped by the risk of error inherent in the truthfinding process as applied

to the generality of cases, not the rare exceptions.” Id. at 344, 96 S. Ct. at 907.

      In facial due process challenges, we have looked to the statute as written to

determine whether the procedure provided comports with due process. We have

declined to simply rely on the defendant’s description of how the statute operates

in practice. See Catron v. City of St. Petersburg, 658 F.3d 1260, 1269 (11th Cir.

2011) (holding a statute unconstitutional facially and as-applied because as written

it failed to provide “constitutionally adequate procedural protections” despite the

City’s arguments about how the statute operates in practice).

                               B. Relevant Precedents

      We are cognizant—and thankful—that in our task of applying the flexible

balancing test of Mathews to the case at hand we do not write on a blank slate.

Two cases, one from the Supreme Court and one from a panel of this Circuit, are

especially instructive in helping us consider what periodic review process is due in

the civil commitment context: Parham v. J.R., 442 U.S. 584, 99 S. Ct. 2493 (1979)

and Williams v. Wallis, 734 F.2d 1434 (11th Cir. 1984).

                                   1. Parham v. J.R.




                                          12
             Case: 12-14212     Date Filed: 08/20/2013    Page: 13 of 29


      In Parham, the Supreme Court examined the process due both before and

after the voluntary commitment of children by their parents to state mental

institutions. 442 U.S. at 587, 99 S. Ct. at 2496. In that case, Georgia state hospital

superintendents were “given the power to admit temporarily any child for

‘observation and diagnosis’” and to, if “find[ing] ‘evidence of mental illness’ and

that the child is ‘suitable for treatment,’” admit the child “‘for such period and

under such conditions as may be authorized by law.’” Id. at 591, 99 S. Ct. at 2498.

After that time, “the superintendent . . . [had] an affirmative duty to release any

child ‘who [had] recovered . . . or who [had] sufficiently improved [such] that the

superintendent determines that hospitalization . . . is no longer desirable.’” Id.

      A class action suit challenged the scheme arguing that the children had a

right to notice and a hearing before commitment. Id. at 596–98, 99 S Ct. at 2501–

02. The Supreme Court ultimately disagreed. In discussing the issue, however, the

Court did

      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
      is necessary that the child’s continuing need for commitment be
      reviewed periodically by a similarly independent procedure.

Id. at 606–607, 99 S. Ct. at 2506 (emphasis added) (citations omitted).



                                          13
              Case: 12-14212     Date Filed: 08/20/2013    Page: 14 of 29


      But, importantly, Parham held that that procedure did not have to include

adversarial judicial review. The Court explained that “[o]ne factor that must be

considered is the utilization of the time of . . . behavioral specialists in preparing

for and participating in hearings rather than performing the task for which their

special training has fitted them.” Id. at 605–06, 99 S. Ct. at 2506. Where, “the

questions are essentially medical in character,” the Court rejected “the notion that

the shortcomings of specialists can always be avoided by shifting the decision from

a trained specialist . . . to an untrained judge or administrative hearing officer after

a judicial-type hearing.” Id. at 609, 99 S. Ct. at 2507–08. “Thus, [review by] a

staff physician will suffice, so long as he or she is free to evaluate independently

the child’s . . . need for treatment.” Id. at 607, 99 S. Ct. at 2507.

      Though the Court focused primarily on the admission procedures, the Court

did note several times that “the superintendent of each hospital is charged 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 (emphasis added); see also id. at 591; 99 S.

Ct. at 2498. The Court explained that “[w]e 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). The Court

remanded for determining exactly “what process is due to justify continuing a




                                           14
             Case: 12-14212     Date Filed: 08/20/2013    Page: 15 of 29


voluntary commitment,” but suggested the admission procedure principles should

be considered. Id. at 619, 99 S. Ct. at 2512.

                                2. Williams v. Wallis

      In Williams v. Wallis, this Court directly considered the process required in

a periodic review. Williams involved a challenge to “Alabama’s procedures for

the release of patients committed to the state’s mental health system after being

found not guilty . . . by reason of insanity.” 734 F.2d at 1436. Alabama’s scheme

provided for “treatment team[s],” of medical professionals who would “devise[] an

individualized treatment plan” with the “goal for acquittees [to] transfer to a less

restrictive environment” and eventually be released. Id. The team would review

the acquittee every 60 to 90 days. Id. The Court further described how

             [t]he 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 [who are considered dangerous to
      themselves and others] must be reviewed by the hospital’s
      superintendant 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.

Id.

      The Court found that “[t]he[se] nonadversary proceedings do not create an

undue risk of erroneous deprivation of liberty, and substituting an adversarial
                                          15
             Case: 12-14212     Date Filed: 08/20/2013   Page: 16 of 29


element would not provide significant increased protection against such risk.” Id.

at 1439. The Court explained its reasoning as follows:

      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). This Court also explained that “[t]o impose an

adversarial atmosphere upon the medical decisionmaking process 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, the Court also reviewed Alabama’s habeas procedures and found this

“secondary or backup procedure” sufficient given that “the release decision is first

addressed in the nonadversary proceedings described above.” Id. at 1440

(emphasis added).

                               C. Guiding Principles

      Parham and Williams—and persuasive precedents from other circuits—yield

at least four guiding principles for our Court in analyzing Florida’s involuntary

admission to residential services scheme which we consider here. First, with

respect to deprivations of liberty in the form of civil commitments, some form of

                                         16
             Case: 12-14212     Date Filed: 08/20/2013    Page: 17 of 29


periodic review is required to protect against the erroneous deprivation of liberty.

But adversarial review—arguably the gold standard of due process protections, see

Goldberg v. Kelly, 397 U.S. 254, 266–69, 90 S. Ct. 1011, 1020–21 (1970)

(requiring a hearing before ending welfare benefits)—is not necessarily required.

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 that the Sixth Circuit “cannot say that due

process requires a periodic judicial review”); Hickey, 722 F.2d at 549 (“Due

process does not always require an adversarial hearing.”).

      Second, adversarial judicial review is not necessary to protect against the

erroneous deprivation of liberty where medical professionals are well positioned

and mandated to consider the propriety of ongoing commitment. In other words,

where medical professionals’ periodic reviews must consider release, courts are

generally satisfied that the patient’s liberty rights are protected. 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 (explaining that periodic

reviews occur with “the beneficial institutional 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


                                          17
             Case: 12-14212     Date Filed: 08/20/2013    Page: 18 of 29


plaintiff’s] continued confinement” (emphasis added)); cf. Austin, 848 F.2d at

1395–96 (explaining that periodic review must be of whether confinement should

continue); Clark, 794 F.2d at 86 (describing the periodic reviews as having

questioned whether the plaintiff should be afforded release).

      Third, adversarial judicial review is not necessary to protect against the

erroneous deprivation of liberty where medical professionals are well positioned

and mandated to act when an ongoing commitment is no longer proper. See

Parham, 442 U.S. at 607, 99 S. Ct. at 2506 (suggesting that reviewer of “the child’s

continuing need for commitment” should have authority to release); Williams, 734

F.2d at 1436 (where the treatment team reports directly to the superintendent who

has the power and duty to release). This principle present in Parham and Williams

was captured well in Clark v. Cohen, where a plaintiff was given periodic medical

and psychological reviews that “consistently recommended that [the plaintiff] be

released . . . but the reviewers lacked the authority to implement their

recommendations.” 794 F.2d at 86. The Third Circuit found the scheme to violate

due process because the review “required by the due process clause is not a moot

court exercise. The [reviewers] must have the authority to afford relief.” Id.

      Fourth, the availability of adversarial judicial review in the form of habeas

proceedings serves as a backup plan to protect against erroneous deprivations of

liberty. See Williams, 734 F.2d at 1440; see also Hickey, 722 F.2d at 549


                                          18
             Case: 12-14212     Date Filed: 08/20/2013    Page: 19 of 29


(describing how the statute’s nonadversarial review is backstopped by the “court’s

discretionary power” and the potential for “habeas relief”).

                                   V.     Application

      Our task is to determine whether the Florida Statute really does provide

procedures that protect J.R. from the risk of erroneous deprivations. Given the

arguments made by the APD and the District Court’s finding of “implicit”

obligations upon the APD in this case, we believe that the answer to that question

would be aided by the statutory interpretation of the Supreme Court of Florida, the

ultimate arbiter of Florida law. See Forgione 93 F.3d at 761.

                                    A. Arguments

      J.R. argues that § 393.11 does not pass constitutional muster because it does

not entitle involuntarily admitted persons to periodic review of the propriety of

continued commitment “by a decision maker that has authority to release them

from commitment.” Thus, J.R. argues the involuntary admission scheme

impermissibly risks an erroneous deprivation of liberty in violation of Mathews,

Parham, and Williams and is unconstitutional on its face. Based on this, J.R. says

that “[h]is liberty is presently infringed pursuant to an unconstitutional statutory




                                          19
                Case: 12-14212        Date Filed: 08/20/2013        Page: 20 of 29


scheme that contains no adequate procedure for the review and termination of the

admission order and restoration of his liberty.” 8

       The APD responds that “taken alone, this Court’s ruling in Williams v.

Wallis rebuts each of J.R.’s argument[s].” First, the APD argues that J.R.’s

procedural due process rights are protected because § 393.0651(5) allows periodic

review of support plans designed to find the “most appropriate, least restrictive,

and most cost-beneficial environment for accomplishment of the objectives for


8
  The APD argues that “the facts of J.R.’s case undermine his challenge to section 393.11”
because “[he] does not allege that it would even be appropriate to release him from his
involuntary admission to services.” In other words, the APD suggests that because “J.R.’s
counsel has never asserted that J.R. actually should be released from his order of involuntary
admission to residential services” that “J.R. alleges that he risks a violation of his constitutional
rights, but fails to allege that any actual violation has occurred.”

       But the question of whether or not J.R. has a right to be released today does not preempt
the constitutional question presented here. It is clear that a state can deprive J.R. of his liberty
“with due process of law.” U.S. Const. amend. XIV, § 1. “Due process of law,” however,
requires that some procedural protection must be given to decrease the risk that a permissible
deprivation is arrived at erroneously. The question therefore is simply whether the process
afforded to J.R. comports with the Constitution because it does not impermissibly risk an
erroneous deprivation. See Mathews, 424 U.S. at 344, 96 S. Ct. at 907; Catron, 658 F.3d at
1269.

        The APD repeatedly suggests that J.R. is, essentially, the wrong plaintiff to bring this
case. In fact, J.R. is the right plaintiff, even if less than sympathetic, to challenge the facial
validity of the statute because for the past nine years he has been subjected to an involuntary
admission order. He has been deemed as lacking the ability to live on his own because doing so
would either risk the threat of physical harm to himself or to others. See Fla. Stat.
§ 393.11(8)(b). If or when those conditions cease to exist, J.R. is entitled to be released from
that involuntary admission order. See Jackson, 406 U.S. at 732, 92 S. Ct. at 1855. Thus, if the
process provided to him under the statute is not ensuring that there is only a constitutionally
acceptable risk, as defined by Mathews, that he will be kept involuntarily admitted past the time
that those conditions cease to exist, then J.R. is being subjected to an ongoing Constitutional
violation. See id. at 738, 92 S. Ct. at 1858; cf. Parham, 442 U.S. at 606–07, 99 S. Ct. at 2506.



                                                  20
             Case: 12-14212      Date Filed: 08/20/2013    Page: 21 of 29


client progress.” See Fla. Stat. § 393.0651. The APD explains, without pointing to

anything explicit in the Florida statute, that “[s]imilar to the ‘treatment teams’

described in Williams, 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). Second, the APD argues that the availability of habeas corpus

and the fact that upon an order of involuntary admission a person is notified in

writing of the availability of habeas, see Fla. Stat. § 393.11(13), is sufficient to

protect against an erroneous deprivation of liberty. We have noted with interest

that the APD did not in its brief endorse any of the “implied obligations” discussed

in the District Court order.

      During oral argument before this Court, however, the APD insisted

repeatedly that though there are no explicit procedures or requirements provided in

the Florida statute for either examining the propriety of continued involuntary

admission or seeking the release of a client from an improper involuntary

admission order, that such considerations were “part of the analysis” involved in

support plan review. The APD argued as well that the Medicaid Developmental

Disabilities Waiver Services Coverage and Limitations Handbook, which was not

in the record, specifies that such residential services are provided based on

“medical necessity.” Also newly relying on this handbook, the APD says, “the

intent of waiver services as noted in our brief is to help individuals live safely in


                                           21
               Case: 12-14212        Date Filed: 08/20/2013        Page: 22 of 29


the community as opposed to an institutional setting. That is the entire point of

these services.” Thus the APD argued it was clear that the statute calls for periodic

review of J.R.’s continued involuntary admission to residential services. 9

       In summary, the APD argues that finding that the process laid out in

§ 393.11 does not provide constitutionally sufficient procedures amounts to this




9
  The APD also alludes to the argument that J.R. is deserving of less process than the plaintiffs in
Williams or Parham—and potentially not even periodic review—because the involuntary
admission to residential services is less intrusive than confinement to a mental institution. And
at oral argument, the APD closed by arguing that the involuntary admission order was more or
less meaningless because there is no difference between “involuntary” and “voluntary”
admission to residential services. We reject these arguments as legally and factually incorrect,
and defeated by the APD’s own concessions.

        First, the District Court was right to reject the APD’s argument that it was of great
relevance that “J.R. was not ‘committed’ to a state institution but was, instead, ‘assigned’ to
community-based residential services.” As the District Court pointed out, “[b]y its plain
language, the statute makes loss of liberty a necessary concomitant to involuntary admission to
residential services,” and Florida courts have interpreted §393.11 as doing so. See Kinner, 382
So. 2d at 760. In its brief, the APD conceded as much when it explained that the first element of
a claim alleging the denial of procedural due process—a deprivation of a constitutionally
protected liberty interest—is easily met here.

        Second, pointed out by the District Court, and demonstrated by the record established
below, an involuntarily committed individual cannot simply walk away from a group home and
will be hauled into court should he choose to do so. The District Court found that “J.R.’s liberty
has been infringed by his involuntary assignment to a group home in a community where he does
not choose to live.”

        Finally, Parham made clear that voluntary commitments carry less stigma than
involuntary commitments. See Parham, 442 U.S. at 600, 99 S. Ct. at 2503 (describing how the
community’s reaction to a child voluntarily committed “need not be equated with the community
response resulting from being labeled by the state as delinquent, criminal, or mentally ill and
possibly dangerous”). Thus, neither legal precedent nor the facts of his case support a finding
that J.R. deserves less protection than the plaintiffs in either Parham or Williams. Therefore, the
principles espoused in those cases apply here.

                                                22
                Case: 12-14212        Date Filed: 08/20/2013        Page: 23 of 29


Court deciding that it is “going to assume that the [APD] is not going to do what

they’re obligated to do.”

                                           B. Analysis

       The problem for this Court is that it is not clear to us that the APD is

“obligated to do” what the APD suggested at oral argument it is obligated to do:

periodically review the involuntary admission orders of J.R. and people like him.

The APD has pointed to nothing explicit in the statute indicating that an obligation

exists and has offered no evidence of procedures in place to require periodic

review of the involuntary commitment status of these people.

       We cannot wholly disagree with J.R.’s argument that the face of the statute

does not provide process that comports with the requirements of the relevant

precedent. First, the APD admits that the statute does not explicitly require the

APD to periodically review the propriety of J.R.’s continued involuntary admission

order. 10 The statute requires only that periodic support plan reviews ask whether

the client has been placed in “the most appropriate, least restrictive, and most cost-

beneficial environment for accomplishment of the objectives for client progress.”

Fla. Stat. § 393.0651. This contrasts with the requirements for an order

involuntarily admitting a person to residential services, where a circuit court must


10
  Indeed, as APD puts it, citing no specific provision of the statute, “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).
                                                 23
               Case: 12-14212       Date Filed: 08/20/2013       Page: 24 of 29


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.”

Id. § 393.11(8)(b). In other words, periodic support plan reviews consider only

half of the ultimate question of whether it is necessary for someone to be

involuntarily admitted to residential services.

       As the APD pointed out in its brief, there are currently 20,000 people on the

waiting list to voluntarily receive HCBS Medicaid services, including the

residential services that J.R. receives. Thus the benefits provided to APD clients

clearly continue beyond when one reaches the point of no longer being a danger to

himself or others. As J.R.’s involuntary commitment order itself explains, in

residential services he receives “vocational training and social skills training.”

Conceivably, J.R. could continue to make progress with respect to his vocational

and social skills by remaining in some form of residential services long after he is

no longer a danger to himself or others.11 Thus the regime established in § 393.11


11
  Also, we do not read the statute to equate “medical necessity” with the client of APD being a
danger to himself or others. It is not hard to see that HCBS Medicaid waiver services are
provided out of medical necessity to individuals who are not at a great risk of harm to self or
                                               24
               Case: 12-14212       Date Filed: 08/20/2013       Page: 25 of 29


contrasts to those in Parham and Williams, where the statutorily mandated goal 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).

       Second, the statute does not provide procedures for the APD if it were to

decide someone should be released from an involuntary admission order. Nothing

on the face of § 393.0651 mandates that the APD, having found a client to no

longer be a danger to himself or to others, should petition the circuit court, the only

body with the power to alter the order. See Fla. Stat. § 393.0651; id. § 393.11(11).

       In contrast, there are a few specific instances in which the statute does call

for an involuntary admission order to non-secure residential services to be

reviewed by the court. Section 393.115, “Discharge,” specifies that where a minor

is involuntarily admitted to residential services, upon the client reaching the age of

majority, “the [APD] shall file a petition to determine the appropriateness of

continued residential placement on an involuntary basis. . . . in the court having

continuing jurisdiction over the case.” Id. § 393.115(1)(b). And § 393.11(9)(b)



others. If every person eligible for HCBS Medicaid waiver services were at a great risk of harm
to self or others, one would have to ask why the state of Florida has allowed 20,000 individuals
to stay on the HCBS Medicaid waiver services waitlist. The record contains no evidence to
support a finding that any person admitted to residential services, voluntarily or involuntarily,
must pose a threat to self or others.
                                               25
             Case: 12-14212     Date Filed: 08/20/2013    Page: 26 of 29


explains that “[a]ny minor involuntarily admitted to residential services shall, upon

reaching majority, be given a hearing to determine the continued appropriateness

of his or her involuntary admission.” Id. § 393.11(9)(b). That the statute provides

for instances in which the APD must approach the admitting court calls into

question the idea that it has an “obligation” to do so in other circumstances.

      We are also aware that the Florida legislature has required periodic judicial

review in other contexts. For example, the District Court recognized that an

admitting court may choose to admit an intellectually disabled person into secure

residential services under Fla. Stat. § 916.303(3). In that context, the secure

placement is reviewed annually at a hearing. Id. § 916.303(3). Florida’s mental

illness statute contains similar provisions, by which people involuntarily

committed to either inpatient or outpatient services receive periodic review from

either the committing court or a hearing officer with the authority to afford release.

See id. § 394.467(7); id. § 394.4655(7). And even people committed under

Florida’s Sexually Violent Predators Act receive periodic judicial review by the

committing court. Id. § 394.918(1), (3). It is clear, therefore, that where the

Florida legislature wishes to provide periodic review of continued commitments, it

has often said so explicitly.

      In contrast, in Parham, the Court emphasized the statutory mandate to afford

release to a child no longer needing commitment and that the decisionmaker in


                                          26
             Case: 12-14212     Date Filed: 08/20/2013   Page: 27 of 29


charge of a child’s periodic review should have the authority to afford release. See

442 U.S. at 607, 615, 99 S. Ct. at 2506, 2510. In Williams, a procedure existed by

which a treatment team finding commitment no longer necessary was to report

their recommendation to the hospital superintendent with the power and duty to

afford release. See 734 F.2d at 1436.

      Despite the distinguishing characteristics of the statutes reviewed in Parham

and Williams, the District Court, employing the doctrine of constitutional

avoidance, did find that the statute contained plausible implied obligations. The

District Court explained, in pertinent part:

             While section 393.11 contains no provision expressly
      describing APD’s responsibilities should the time come when a
      developmentally disabled client no longer satisfies the involuntary
      admission requirements, the statute can and should be read to imply
      an obligation on the part of APD to petition the circuit court to end the
      “hold” on a[] client who is no longer deemed to be a danger to himself
      or others. The circuit court’s order, after all, binds not only the client
      who is admitted to residential services but also the agency that is
      required to provide the ordered services. If APD were to determine
      that a client had reached the point of no longer meeting the
      involuntary admission requirements, the agency could not on its own
      authority cease to provide those services. Instead, acting in its own
      best interests as well as those of the individual the agency was ordered
      to serve, APD would have to petition the appropriate circuit court for
      an order releasing the agency from its responsibility to provide those
      services and, at the same time, releasing the client from the order of
      involuntary admission. If, for whatever reason, APD failed to seek a
      client’s release from an involuntary admission no longer deemed
      necessary, or if the client were to disagree with an agency assessment
      that release would not be appropriate, then—as a safeguard—a
      petition for writ of habeas corpus may be filed “[a]t any time and
      without notice” by or on behalf of the client.
                                          27
             Case: 12-14212     Date Filed: 08/20/2013    Page: 28 of 29




If the District Court is right about the APD’s obligations under the statute, it may

be constitutional. We still have some concerns that the statute does not, even

under this formulation, require that the APD consider the propriety of the

continued involuntary admission order. However, we also recognize that if the

APD were held to this implied obligation, it would also, arguably, be required to

periodically consider whether the “hold” should be lifted.

      Although we certainly share the District Court’s desire to avoid the

constitutional question, we are not comfortable merely affirming its ruling based

on implied obligations not explicit on the face of the statute. See Catron, 658 F.3d

at 1269. Federal Courts are not the arbiters of Florida law; that responsibility rests

squarely with the Supreme Court of Florida. In other words, our assertion that the

statute “can and should be” read a certain way in order to provide constitutionally

sufficient process does not make it such that the statute must be read that way. For

that reason, we certify the following questions to the Supreme Court of Florida.

                                 Questions Certified

   1) Does “support plan” review under Fla. Stat. § 393.0651 require the Agency

      for Persons with Disabilities to consider the propriety of a continued

      involuntary admission to residential services order entered under Fla. Stat.

      § 393.11?



                                          28
            Case: 12-14212     Date Filed: 08/20/2013    Page: 29 of 29


  2) Is the Agency for Persons with Disabilities required, pursuant to Fla. Stat.

     § 393.0651 and/or Fla. Stat. § 393.11, to petition the circuit court for the

     release from an involuntary admission order in cases where the APD

     determines that the circumstances that led to the initial admission order have

     changed?

  3) Does Fla. Stat. § 393.062 et. seq. provide a statutory mandate to

     meaningfully periodically review involuntary admissions to non-secure

     residential services consistent with the commitment schemes discussed in

     Parham v. J.R., 442 U.S. 584, 99 S. Ct. 2493 (1979) and Williams v. Wallis,

     734 F.2d 1434 (11th Cir. 1984)?

QUESTIONS CERTIFIED.




                                         29
