Authority of Special Counsel to Appeal from Commitment Order

Subject:

Requested By: Honorable C. E. Johnson Chief District Court Judge 26th Judicial District

Question: When an indigent respondent is represented by assigned counsel at the initial involuntary commitment hearing in District Court and is ordered to be committed to a regional mental health facility outside the community in which the committing court is located with no appeal having been taken from the commitment order, does the special counsel at that regional mental health facility have the statutory authority to appeal the commitment order?

Conclusion: No.

G.S. 122-58.10 provides as follows:

"Duty of assigned counsel; discharge. — Counsel assigned to represent an indigent respondent at the initial district court hearing is also responsible for perfecting and concluding an appeal, if there is one. Upon completion of an appeal, it any, or upon transfer of the respondent to a regional mental health facility, if there is no appeal, assigned counsel is discharged. If the respondent is committed to a community mental health facility, assigned counsel remains responsible for his representation until discharged by order of district court, or until the respondent is unconditionally discharged from the community facility. (1973, c. 1498. s. 1.)"

The special counsel at each of the regional psychiatric facilities are authorized by G.S. 122.58.12. That section specifies that the special counsel shll have the duty of representing respondents at the periodic rehearing required by G.S. 122-58.11 when respondents are retained in that type of facility past the original terms of commitment. G.S. 122-58.12 specifically requires the special counsel to represent indigent respondents on appeal from the rehearings but makes no mention of representing them on appeal from the original commitment hearings.

The language of G.s. 122-58.10 clearly evidences an intent that assigned counsel for an indigent respondent at his initial commitment hearing shall represent him on appeal. In passing, it might be noted that this is in keeping with the normal practices involving representation of indigents in other types of legal actions. In view of the language of both G.S. 122-58.10 and G.S. 122-58.12, it must be concluded that no statutory authorization exists for special counsel to represent respondents on appeals from their original commitment hearings.

Of course, G.S. 122-58.7A provides for appointment of the special counsel as counsel at the initial commitment hearing in certain situations where the respondent has been held at a regional mental health facility pending the hearing. In those situations, the special counsel has the same responsibilities regarding appeal as any other appointed counsel.

Rufus L. Edmisten Attorney General

William F. O’Connell Special Deputy Attorney General