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SJC-12230

                       IN THE MATTER OF E.C.



       Plymouth.      November 9, 2017. - March 15, 2018.

       Present:    Gants, C.J., Gaziano, Lowy, & Budd, JJ.


Incompetent Person, Commitment.   Practice, Civil, Civil
     commitment.



     Petition for civil commitment filed in the Brockton
Division of the District Court Department on March 4, 2013.

     The case was heard by Beverly J. Cannone, J., and a motion
for reconsideration was also heard by her.

     After review by the Appeals Court, the Supreme Judicial
Court granted leave to obtain further appellate review.


     Beth L. Eisenberg for E.C.
     Edward J. O'Donnell for Bridgewater State Hospital.
     Lester D. Blumberg, for Department of Mental Health, amicus
curiae, submitted a brief.


    GAZIANO, J.    In this appeal, we consider whether the

dismissal of the criminal charge pending against the respondent,

E.C., required his release from commitment to Bridgewater State

Hospital (Bridgewater), where the charge was dismissed after the
                                                                   2


period of commitment had expired, and a petition to extend the

commitment had yet to be decided.

     E.C. was charged in the Boston Municipal Court Department

with malicious destruction of property.    Following a hearing

pursuant to G. L. c. 123, § 16 (b), a judge of that court found

E.C. not competent to stand trial and ordered him committed to

Bridgewater for a period of six months.    After that period had

expired, Bridgewater filed a petition in the District Court

Department to extend the commitment for an additional period of

one year, pursuant to G. L. c. 123, § 16 (c).    While the

petition for an extension was pending, the criminal charge

against E.C. was dismissed.   Bridgewater moved to file an

amended petition to modify its pending G. L. c. 123, § 16 (c),

petition to a petition for civil commitment pursuant to G. L.

c. 123, §§ 7 and 8.   E.C. opposed the motion and argued that

Bridgewater was required to release him because the criminal

charge had been dismissed.    A District Court judge concluded

that Bridgewater had no authority to hold E.C. pursuant to G. L.

c. 123, § 16 (c), after the criminal charge had been dismissed

and his original commitment had expired; denied Bridgewater's

petition to amend; and ordered E.C. discharged.1   The Appellate


     1 Although the issues in this case are moot as to E.C., who
was released before this case was argued, we consider the matter
because the case involves an important question of statutory
                                                                    3


Division of the District Court affirmed that judgment, and the

Appeals Court reversed.   See Matter of E.C., 89 Mass. App. Ct.

813 (2016).   We allowed E.C.'s application for further appellate

review.

    We conclude that the dismissal of criminal charges does not

require the immediate release from commitment of an incompetent

defendant, and that Bridgewater retained the statutory authority

to hold E.C. while the G. L. c. 123, § 16 (c), petition was

pending.   See G. L. c. 123, § 6.2   We conclude also that the

District Court judge abused her discretion in denying

Bridgewater's request to amend its pending petition for an

extension under G. L. c. 123, § 16 (c), to a petition for civil

commitment under G. L. c. 123, §§ 7 and 8.




interpretation and is "capable of repetition, yet evading
review." See Guardianship of Doe, 391 Mass. 614, 618 (1984)
("issues which involve the rights of the mentally ill are
classic examples of issues that are capable of repetition, yet
evading review" [quotations omitted]); Hashimi v. Kalil, 388
Mass. 607, 609 (1983).

    2  "No person shall be retained at a facility or at the
Bridgewater [S]tate [H]ospital except under the provisions of
[G. L. c. 123, §§ 10 (a), 12 (a), (b), and (c), 13, 16 (e), and
35,] or except under a court order or except during the pendency
of a petition for commitment or to the pendency of a request
under section fourteen. A court order of commitment to a
facility or to the Bridgewater [S]tate [H]ospital shall be valid
for the period stipulated in this chapter or, if no such period
is so stipulated, for one year. A petition for the commitment
of a person may not be issued except as authorized under the
provisions of this chapter." G. L. c. 123, § 6 (a).
                                                                      4


     1.   Background.   The following facts are not disputed.    In

May, 2012, E.C. was arraigned in the Boston Municipal Court on

one count of malicious destruction of property over $250.00.      In

July, 2012, a psychologist testified that E.C. was not competent

to stand trial.   A Boston Municipal Court judge ordered E.C.

transferred to Bridgewater for further evaluation of his

competency, pursuant to G. L. c. 123, § 15 (b).    In August,

2012, Bridgewater reported that E.C. was not competent to stand

trial; the Commonwealth stipulated to his incompetency.    The

judge ordered E.C. returned to Bridgewater for a thirty-five day

hospitalization, pursuant to G. L. c. 123, § 16 (a).

Bridgewater then petitioned the court to commit E.C. for a

period of six months, pursuant to G. L. c. 123, § 16 (b).       The

petition was allowed, and E.C.'s commitment to Bridgewater was

authorized until March, 2013.

     Shortly prior to the expiration of the six-month commitment

period, Bridgewater filed a petition in the Brockton Division of

the District Court Department to extend E.C.'s involuntary

commitment for a period of one year, under G. L. c. 123,

§ 16 (c).3   A hearing on that petition was scheduled for March,


     3 The Brockton Division of the District Court Department is
designated to hear all civil commitment proceedings involving a
commitment to Bridgewater State Hospital (Bridgewater). See
G. L. c. 123, § 5; G. L. c. 218, § 43. See also G. L. c. 123,
§§ 8 (f), 13.
                                                                    5


2013.    At a hearing in the Boston Municipal Court one week

before the hearing scheduled on Bridgewater's petition for a

renewed commitment, E.C. filed a motion to dismiss the criminal

charge.    The Boston Municipal Court judge continued the hearing

until the following day, and E.C. waived his right to be

present.   The next day, the judge allowed E.C.'s motion to

dismiss, over the Commonwealth's objection.

     One week later, the scheduled hearing was held in the

District Court on Bridgewater's petition pursuant to G. L.

c. 123, § 16 (c), to continue the commitment.    A judge of that

court allowed E.C.'s motion for funds for an independent medical

examiner and continued the hearing for approximately three

weeks.    The day after the hearing, immediately after learning

that E.C.'s criminal charge had been dismissed, Bridgewater

filed a motion to amend the petition for an extension of

commitment from a G. L. c. 123, § 16 (c), petition to a petition

for civil commitment under G. L. c. 123, §§ 7 and 8.4

Bridgewater told the District Court judge that it had not been

informed that E.C.'s criminal charge had been dismissed until

six days after the dismissal.    Bridgewater argued that the




     4 Bridgewater also filed a new petition for commitment under
G. L. c. 123, §§ 7 and 8, but withdrew that petition after its
motion for amendment was denied.
                                                                    6


amendment was authorized by G. L. c. 123, § 16 (c),5 which allows

for a civil commitment proceeding after criminal charges have

been dismissed.   E.C. opposed Bridgewater's motion, arguing that

the dismissal of the criminal charge terminated his commitment

under G. L. c. 123, § 16 (b).    The judge denied Bridgewater's

motion, finding that G. L. c. 123, § 16, no longer served as a

valid basis for detaining E.C. after the criminal charge had

been dismissed and, therefore, that E.C. was not a "patient" of

Bridgewater for purposes of a commitment petition under G. L.

c. 123, §§ 7 and 8.    A few days later, still in March, 2013,

E.C. was discharged.

     Bridgewater filed a motion for reconsideration of the

denial of its motion to amend; the motion was denied in March,

2013.    The Appellate Division of the District Court affirmed

that decision in November, 2014.    In August, 2016, the Appeals




     5 "After the expiration of a commitment under paragraph (b)
of this section, a person may be committed for additional one
year periods under the provisions of [§§ 7 and 8] of this
chapter, but no untried defendant shall be so committed unless
in addition to the findings required by [§§ 7 and 8] the court
also finds said defendant is incompetent to stand trial. If the
person is not found incompetent, the court shall notify the
court with jurisdiction of the criminal charges, which court
shall thereupon order the defendant returned to its custody for
the resumption of criminal proceedings. All subsequent
proceedings for the further commitment of a person committed
under this section shall be in the court which has jurisdiction
of the facility or hospital." G. L. c. 123, § 16 (c).
                                                                           7


Court reversed the decision of the Appellate Division.          We

allowed E.C.'s petition for further appellate review.

      2.    Discussion.   a.   Statutory background.   When a criminal

defendant is suspected of being incompetent to stand trial, a

court may order the defendant to be evaluated by a court-

appointed medical professional for an initial determination of

competency.    See G. L. c. 123, § 15 (a).     If the initial

determination is that the defendant appears to be incompetent

and further examination is necessary, a judge may order the

defendant committed to a mental health facility6 for a period of

observation not to exceed twenty days.       See G. L. c. 123,

§ 15 (b).    If he requires strict security, a male defendant may

be hospitalized at Bridgewater for this twenty-day period.           See

id.

      During the period of observation, or within sixty days of a

determination that a defendant is not competent to stand trial,

the district attorney or the medical director of Bridgewater may

petition for the individual to be committed to Bridgewater for

an initial treatment period of six months.       See G. L. c. 123,

§ 16 (b).    The petition will be granted if the judge finds that



      6General Laws c. 123, § 1, defines "[f]acility," for
purposes of G. L. c. 123, §§ 2 to 37, as "a public or private
facility for the care and treatment of mentally ill persons,
except for the Bridgewater State Hospital".
                                                                  8


the standard for involuntary civil commitment under G. L.

c. 123, § 8 (b), has been met:   "(1) such person is mentally

ill; (2) such person is not a proper subject for commitment to

any facility of the department; and (3) the failure to retain

such person in strict custody would create a likelihood of

serious harm."   If the criminal charges are dismissed after

commitment, an untried defendant may continue to be held under

G. L. c. 123, § 16 (b).

    At the end of the six-month period, the medical director of

Bridgewater may file a petition under G. L. c. 123, § 16 (c),

seeking to have the individual committed for an additional

period of one year under the procedures of G. L. c. 123, § 7; as

with the petition for an initial treatment period, the petition

for this additional period may be allowed where there is a

finding under G. L. c. 123, § 8 (b), that "(1) such person is

mentally ill; (2) such person is not a proper subject for

commitment to any facility of the department; and (3) the

failure to retain such person in strict custody would create a

likelihood of serious harm."

    b.   Analysis.   E.C. argues that, upon dismissal of the

criminal charges, a petition for an extension of commitment

under G. L. c. 123, § 16 (c), must be dismissed immediately,

because the predicate for holding a former defendant -- to

determine if the defendant may be returned to competency and
                                                                     9


stand trial -- has evaporated.    Bridgewater contends that the

over-all statutory scheme of G. L. c. 123 supports a conclusion

that the authority to hold an untried former defendant, who has

been found incompetent, does not evaporate when criminal charges

are dismissed, and that it should have been allowed to amend its

G. L. c. 123, § 16 (c), petition to a petition for commitment

under G. L. c. 123, §§ 7 and 8.

    "Our primary duty in interpreting a statute is 'to

effectuate the intent of the Legislature in enacting it.'"

Sheehan v. Weaver, 467 Mass. 734, 737 (2014), quoting Water

Dep't of Fairhaven v. Department of Envtl. Protection, 455 Mass.

740, 744 (2010).    "We construe statutes according to the

Legislature's intent as expressed in the words of the statute

and read in light of the ordinary and approved usage of the

language. . . .    At the same time, a statute should be read as a

whole to produce an internal consistency" (citations and

quotations omitted).     Felix F. v. Commonwealth, 471 Mass. 513,

516 (2015).

    We begin with the statutory language.      "Ordinarily, where

the language of a statute is plain and unambiguous, it is

conclusive as to legislative intent."     Malloch v. Hanover, 472

Mass. 783, 788 (2015), quoting Thurdin v. SEI Boston, LLC, 452

Mass. 436, 444 (2008).    If the words used are not otherwise

defined in the statute, we afford them their plain and ordinary
                                                                   10


meaning.   Commonwealth v. Keefner, 461 Mass. 507, 511 (2012).

"To the extent there is any ambiguity in the statutory language,

we turn to the legislative history" as a guide to legislative

intent.    Ajemian v. Yahoo!, Inc., 478 Mass. 169, 182 (2017).

Where, as here, the statutory language is ambiguous or "faulty

or lacks precision, it is our duty to give the statute a

reasonable construction."    Keefner, supra, quoting Capone v.

Zoning Bd. of Appeals of Fitchburg, 389 Mass. 617, 622 (1983).

       To determine the Legislature's intent with respect to the

specific provisions of G. L. c. 123, 16 (c), we consider more

generally the legislative history of G. L. c. 123, which was

enacted to protect individuals with mental illness.    "Prior to

[c. 123's] enactment, it was not uncommon for incompetent

defendants charged with minor crimes to be confined in maximum

security facilities, such as Bridgewater . . . , for anywhere

from a decade to a lifetime."    Foss v. Commonwealth, 437 Mass.

584, 587-588 (2002).    See Kirk v. Commonwealth, 459 Mass. 67,

70–71 (2011).   The reform of the Commonwealth's mental health

system addressed the then often-lengthy pretrial commitment of

incompetent defendants.     See Kirk, supra; Foss, supra at 587-

589.   General Laws c. 123, § 16 (b) and (c), "effectively

eliminated the problem of the indefinite commitment of

incompetent defendants, providing that '[a]n order of

commitment . . . shall be valid for six months' and '[a]fter the
                                                                   11


expiration of a commitment under [G. L. c. 123, § 16 (b)], a

person may be committed for additional one year periods . . .

but no untried defendant shall be so committed unless . . . the

court also finds said defendant is incompetent to stand trial.'"

Foss, supra at 589.

    An individual who is committed to Bridgewater as an

incompetent defendant is guaranteed regular review of his

status, "with the presumption favoring competence."   Id.    In the

case of an incompetent defendant, the government has a

compelling interest in determining whether an individual may be

returned to competency and thereafter be tried as competent, and

the individual, too, has a compelling interest in not being

tried if incompetent.   When criminal charges are dismissed, the

government's interest in protecting the individual and the

public remains, but the calculus is different.   The provisions

of G. L. c. 123 balance the rights of and protections for

incompetent persons with the Commonwealth's interest in

"protecting the public from potentially dangerous persons" who

may be unable to control their actions because of their mental

condition.   See Commonwealth v. Calvaire, 476 Mass. 242, 246

(2017).   "[L]aws in derogation of liberty," however, must be

narrowly tailored to further a compelling and legitimate

government interest, and must be strictly construed, in order to

comply with the requirements of substantive due process
                                                                    12


(citation omitted).    Commonwealth v. Libby, 472 Mass. 93, 96

(2015).   "The right of an individual to be free from physical

restraint is a paradigmatic fundamental right."       Commonwealth v.

Knapp, 441 Mass. 157, 164 (2004).     We evaluate E.C.'s claims

against this backdrop, therefore, to ensure that the

Commonwealth's actions are narrowly construed to protect both

the individual and the public interest.

    We turn, first, to the denial of Bridgewater's motion to

amend its petition for an extension of commitment, filed under

G. L. c. 123, § 16 (c), to a petition for civil commitment under

G. L. c. 123, §§ 7 and 8.   The judge's decision to deny

Bridgewater's motion to amend is reviewed under an abuse of

discretion standard.   See Castellucci v. United States Fid. &

Guar. Co., 372 Mass. 288, 291 (1977).     The rules of civil

procedure "eliminated the once broad discretionary authority of

a judge to deny a motion to amend."     Id. at 289.   A judge abuses

his or her discretion in denying a motion to amend where the

denial reveals an error of law.   See Channel Fish Co. v. Boston

Fish Mkt. Corp., 359 Mass. 185, 188 (1971).

    We conclude that, here, the judge abused her discretion in

declining to allow Bridgewater to amend its petition for an

extension of commitment to a petition under G. L. c. 123,

§§ 7 and 8, a motion that Bridgewater filed immediately upon
                                                                   13


learning that E.C.'s criminal charge had been dismissed.7    The

judge denied the motion to amend because she concluded that the

petition for an extension of commitment under G. L. c. 123,

§ 16 (c), was void after the criminal charge had been dismissed,

and thus that no motion to amend a petition that itself was void

could be allowed.    The determination that the dismissal of the

criminal charge against E.C. necessarily ended Bridgewater's

authority to hold him under G. L. c. 123, § 6, and required both

dismissal of a void petition for an extension of that commitment

and E.C.'s immediate release, however, was an error of law.

     Once Bridgewater had filed its petition for an extension of

commitment under G. L. c. 123, § 16 (c), Bridgewater had the

statutory authority to hold E.C. under G. L. c. 123, § 6, which

provides:    "No person shall be retained at a facility or at

[Bridgewater] . . . except under a court order or except during

the pendency of a petition for commitment . . ." (emphasis

supplied).   In light of the entirety of the statutory scheme for

commitment of untried defendants, we conclude that the dismissal

of criminal charges does not require immediate release from

commitment under G. L. c. 123, § 16 (c).    Therefore, Bridgewater




     7 Had Bridgewater delayed in filing its motion to amend, due
process might require a different result; we leave that question
for another day, when the situation is before us.
                                                                    14


retained authority to hold E.C. under G. L. c. 123, § 6, while

its G. L. c. 123, § 16 (c), petition was pending.

    General Laws c. 123, § 7 (b), grants the medical director

of Bridgewater the authority to "petition the [D]istrict

[C]ourt . . . for the commitment to [Bridgewater] of any male

patient at said . . . hospital when it is determined that the

failure to hospitalize in strict security would create a

likelihood of serious harm by reason of mental illness."

Therefore, following the dismissal of the criminal charge

against him, Bridgewater had the authority to hold E.C. under

G. L. c. 123, § 6, while the G. L. c. 123, § 16 (c), petition

was pending.   The medical director's authority to petition for

E.C.'s commitment under G. L. c. 123, § 7, remained intact

following the dismissal of the criminal charge.

    Another provision of G. L. c. 123, § 16, supports our

reading that Bridgewater had authority to hold E.C. pending a

hearing on its petition under G. L. c. 123, §§ 7 and 8.     General

Laws c. 123, § 16 (f), requires that criminal charges against a

committed person who is incompetent to stand trial be dismissed

after the date when a competent defendant would have been

eligible for parole; it does not state, however, that the person

immediately must be released from commitment.    Similarly, G. L.

c. 123, § 16 (e), envisions continuing commitment at a facility

following the dismissal of criminal charges.    See id. ("Any
                                                                   15


person committed to a facility under the provisions of this

section may be restricted in his movements to the buildings and

grounds of the facility at which he is committed by the court

which ordered the commitment . . . .    This paragraph shall not

apply to persons originally committed after a finding of

incompetence to stand trial whose criminal charges have been

dismissed").

    This continuing authority of Bridgewater to hold E.C.

briefly pending a hearing on its motion to amend did not, as

E.C. contends, constitute a violation of due process.

Significantly, the procedures that Bridgewater would be required

to follow in pursuing a petition under G. L. c. 123, § 16 (c),

to extend an incompetent defendant's commitment are the same as

those that must be followed in pursuing a petition under G. L.

c. 123, §§ 7 and 8.   Due process and the statutory provisions

would require Bridgewater to provide an incompetent individual

with notice and a hearing on a G. L. c. 123, § 16 (c), petition,

just as it would for a petition under G. L. c. 123, §§ 7 and 8,

and all of the same rights, such as the rights to an attorney,

to cross-examine witnesses, and to introduce evidence, are

applicable at each of those hearings.    Cf. Coffin v.

Superintendent, Mass. Treatment Ctr., 458 Mass. 186, 189 (2010).

    E.C. is correct that, in contrast to a petition for an

extension of commitment under G. L. c. 123, § 16 (c),
                                                                   16


incompetency to stand trial would no longer be an issue, or a

necessary preliminary finding, in a petition pursuant to G. L.

c. 123, §§ 7 and 8.   While the statutory protections of G. L.

c. 123, § 16 (c), are not applicable where no criminal charges

are pending, an individual's due process rights also are

protected at a hearing under G. L. c. 123, §§ 7 and 8.     The

Commonwealth is required to prove, beyond a reasonable doubt,

that (1) the individual has a mental disorder that grossly

impairs the individual's "ability to meet the ordinary demands

of life"; (2) failure to retain the individual in strict

security at Bridgewater would create a likelihood of serious

harm to the person or others; and (3) no less restrictive

alternative than confinement at Bridgewater would be sufficient

to protect the individual and others.    Commonwealth v. Nassar,

380 Mass. 908, 912-913 & n.6, 916 (1980).   See, e.g., Hashimi v.

Kalil, 388 Mass. 609, 609-610 (1983).    Cf. Coffin, 458 Mass. at

189.

       None of the due process protections that G. L. c. 123 was

adopted to protect is offended by Bridgewater's authority to

pursue a petition for commitment under G. L. c. 123, §§ 7 and 8,

of an individual who formerly had been committed under G. L.

c. 123, §§ 15 and 16.    Here, E.C. was committed properly under

G. L. c. 123, §§ 15 and 16 (a), his hospitalization was extended

properly under G. L. c. 123, § 16 (b), and he was held
                                                                    17


appropriately under G. L. c. 123, § 6 (a), after the criminal

charge had been dismissed.     He could not have been held

indefinitely; G. L. c. 123, § 7 (c), requires a hearing to be

conducted within fourteen days of a petition being filed,8 and,

as noted, the procedural protections of G. L. c. 123, §§ 7 and

8, would apply at that hearing.

     E.C.'s argument that the dismissal of the criminal charge

terminated Bridgewater's authority to hold him under G. L.

c. 123, § 16, is unavailing.    Because G. L. c. 123, § 16 (c),

does not address the procedure to follow if criminal charges are

dismissed while a petition for recommitment is pending, we look

to other provisions in the statute for guidance.     See Phillips

v. Pembroke Real Estate, Inc., 443 Mass. 110, 116-117 (2004).

General Laws c. 123, § 16 (b), which governs the initial

commitment to Bridgewater that a G. L. c. 123, § 16 (c),

petition seeks to extend, provides that "the petition for the

commitment of an untried defendant shall be heard only if the

     8 We note that both G. L. c. 123, § 16, and G. L. c. 123,
§ 7, impose strict limits on the time during which a petition
may be pending before a hearing must be conducted, and any
violation of those limits would risk running afoul of due
process protections. Here, Bridgewater timely filed its motion
to amend within one day of receiving notice of dismissal of the
charge. Any delay in filing a motion to amend, regardless
whether due to a delay of "notification" of the dismissal, would
risk due process violations; Bridgewater, as custodian of an
incompetent individual, bears the burden of prompt filing of a
motion to amend a G. L. c. 123, § 16 (c), petition, or a motion
for civil commitment.
                                                                  18


defendant is found incompetent to stand trial, or if the

criminal charges are dismissed after commitment" (emphasis

added).

    Given this, E.C.'s suggestion that immediate release from

commitment is mandated if criminal charges are dismissed during

the pendency of a G. L. c. 123, § 16 (c), petition would be

inconsistent with the Legislature's stated understanding, as

evidenced in G. L. c. 123, § 16 (b), that untried criminal

defendants whose charges are dismissed may require further

treatment because they present a danger to the community.

Moreover, E.C.'s proposed reading of the statute would create an

absurd and inconsistent result; reading the statute under his

view, if charges against a defendant are dismissed while the

defendant is committed on a G. L. c. 123, § 16 (b), petition,

Bridgewater could petition for an extended commitment under

G. L. c. 123, §§ 7 and 8, while, if the charges were dismissed

during a commitment pursuant to a G. L. c. 123, § 16 (c),

petition, a defendant would have to be released immediately.

Nothing in the structure or purposes of G. L. c. 123, § 16 (b)

and (c), supports this conclusion; to the contrary, both

provisions allow for commitment of incompetent defendants, under

specific circumstances.

    Allowing amendment of a pending G. L. c. 123, § 16 (c),

petition to a petition under G. L. c. 123, §§ 7 and 8, does not
                                                                  19


offend an individual's fundamental right to due process.    Where

a petition under G. L. c. 123, § 16 (c), is pending, that

individual necessarily has been found incompetent to stand trial

at a proceeding under G. L. c. 123, § 16 (a), where due process

protections were provided.

    3.   Conclusion.   The judgment of the District Court judge

is reversed, and the matter is remanded for entry of an order

consistent with this opinion.

                                   So ordered.
