                  Case: 12-14212        Date Filed: 10/15/2015      Page: 1 of 22


                                                                                     [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.     Background

A.    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 “non-
secure.” 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.

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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).

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                                  III.   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


                                               9
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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 timely-

release 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 decision-

maker 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 cost-

beneficial 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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