Issue Presented: Is Mental Hygiene Law § 10.11(d)(4), which allows for the confinement of an individual alleged to have violated the conditions of their strict and intensive supervision and treatment (SIST) pending a final SIST revocation hearing based on a “prompt” judicial finding of probable cause to believe that the individual is a “dangerous sex offender requiring confinement,” constitutional?

Held: Yes; because the “current statutory scheme appropriately balances the relevant individual and state interests and provides sufficient process to mitigate the risk of erroneous confinement without a respondent's participation at the probable cause stage,” the provision is constitutional facially and as applied respondent, Ralph S.

Discussion:

In an opinion authored by Judge Singas, and joined by Judges Garcia, Cannataro, Troutman, and Halligan, the Court of Appeals upheld the constitutionality of Mental Hygiene Law § 10.11(d)(4). Judge Rivera authored a dissent, which Chief Judge Wilson joined in full.

Article 10 of the Mental Hygiene Law (“Article 10”) was enacted in 2007 to allow the State to indefinitely “manage,” through confinement and/or intensive supervision, individuals found to be “sex offenders requiring civil management.” According to the statute, a “sex offender requiring civil management” is (1) a “detained sex offender” (meaning someone in State custody, which includes subject to supervision, who was convicted of a qualifying "sex offense”) who (2) suffers from a “mental abnormality” (defined as “a congenital or acquired condition, disease or disorder that affects the emotional, cognitive, or volitional capacity of a person in a manner that predisposes [them] to the commission of conduct constituting a sex offense and that results in that person having serious difficulty in controlling such conduct”). Once a court (or jury) finds that an individual qualifies for management under Article 10, the court must decide whether that management should take the form of indefinite confinement in a secure treatment facility or release into the community subject to indefinite “strict and intensive supervision and treatment” (“SIST”). An individual initially found to require confinement may, following treatment and with the approval of the court, be released into the community under SIST. Likewise, an individual subject to SIST (a “SIST supervisee”) may have their release revoked and be returned to State custody.

In 2016, Ralph S. was released to SIST from a secure treatment facility. Three years later, in December 2019, Ralph S.’s parole officer alleged that he had violated certain of his SIST conditions and Ralph S. was taken into custody. Two days into his confinement, Ralph S. was interviewed by an OMH psychologist with counsel present and the psychologist subsequently prepared a report concluding Ralph S. was, at that time, “a dangerous sex offender requiring confinement.” Three days later (five days after he was initially detained), the Attorney General filed a petition seeking to revoke Ralph S.’s release to SIST and have him recommitted to a secure treatment facility, including as an attachment to its petition the psychologist’s report.

The same day, after reviewing the petition, a court found that there “was probable cause to believe that Ralph S. was a ‘dangerous sex offender requiring confinement’” and, pursuant to Mental Hygiene Law § 10.11(d)(4), Ralph S. was ordered to remain in custody pending his final SIST revocation hearing. A few weeks later, on January 31, 2020, Ralph S.’s counsel filed a habeas petition on his behalf, asserting that Mental Hygiene Law § 10.11(d)(4) violates procedural due process because it does not provide notice and an opportunity to be heard on the issue of probable cause. The Supreme Court rejected his petition (but ruled in his favor as to question of re-confinement) and Ralph S. appealed that decision to the Appellate Division. After converting the matter to a declaratory judgment action and finding an exception to the mootness doctrine, the Appellate Division affirmed the lower court’s ruling. Because of the constitutional question at issue, Ralph S. was entitled to appeal the case further to the Court of Appeals as of right.

The majority agreed with the lower courts that Mental Hygiene Law § 10.11(d)(4) is constitutional. In reaching its determination, the majority applied the three-part balancing test established in Mathews v Eldridge, 424 US 319, 334-335 (1976). First, despite recognizing that the liberty interest ultimately implicated (freedom from physical restraint) is “at the core” of the Due Process Clause, the majority narrowed its focus to the “limited statutory liberty interest” enjoyed by a SIST supervisee given that the individual already received “extensive due process safeguards” before being found to require civil management in the first place. And, since the confinement following a finding of probable cause is not “indefinite,” but instead only pending the final SIST revocation determination (which the statute requires must happen within 30 days of the petition being filed), the interest implicated is only “a diminished and temporary physical liberty interest.”

Next, while Ralph S. argued that due process requires an adversarial probable cause proceeding to protect against erroneous determinations, the majority concluded the additional protection such a proceeding would provide is “minimal.” The required “independent judicial probable cause finding” was already a “significant safeguard.” And, in the majority’s view, the supervisee does have a role in the probable cause determination because he (and, often, his counsel) are involved in the psychological evaluation that supports the petition since its preparation is preceded by an interview of the supervisee. In fact, according to the majority, the lack of an adversary proceeding is better for the supervisee because it keeps things moving more quickly toward a final hearing and determination.

In considering the final Mathews factor, the majority held that the State’s “interest in avoiding additional procedures” weighs “heavily” in its favor given the “serious threat to public safety” posed by a supervisee, particularly one who may actually require confinement rather than SIST. Based on these findings, the majority concluded that Mental Hygiene Law § 10.11(d)(4) satisfies procedural due process and is facially constitutional. Moreover, while the Appellate Division had ruled on Ralph S.’s as applied challenge to the provision, the majority found it was, in part, unpreserved, and, in any event, unavailing.

Judge Rivera, joined by Chief Judge Wilson, dissented. In her dissenting opinion, Judge Rivera applied the same balancing factors, but reached the opposite result as to Ralph S.’s facial challenge (she agreed his as applied challenge was partially unpreserved and otherwise without merit). Unlike the majority, Judge Rivera found that the first Mathews factor, the interest implicated, “weighs heavily in” the supervisee’s favor. She is not persuaded by the majority’s argument that the initial finding that civil management is warranted diminishes the supervisee’s liberty interest in the context of an alleged SIST violation. Instead, she equates the supervisee’s interest with that of a parolee. Judge Rivera also finds, unlike the majority, that the second Mathews factor weighs in the supervisee’s favor. She takes issue with the majority’s dismissal of the risk of an erroneous finding and deprivation of liberty without an adversarial proceeding as minimal and rejects the contention that the lack of such a proceeding is beneficial to the supervisee. Finally, while conceding that public safety requires a determination be made expeditiously, Judge Rivera contends the State’s interest in the existing process is not as grave as the majority suggests because it ignores the fact that the supervisee is already in State custody when the probable cause determination is being made—any delay in it being made would not expose the community to any risk because the supervisee is no longer in the community at that time. Further, focusing solely on public safety in the way the majority does, in Judge Rivera’s view, too narrowly defines the State’s interest.

CAL Observes:

This case represents yet another instance where a majority of the judges currently on the Court of Appeals have demonstrated their willingness to circumscribe the constitutional rights and protections afforded to individuals convicted of sexual misconduct. The Court’s reluctance to introduce any additional procedural or substantive safeguards that might slow down the State’s ability to impose burdensome collateral consequences on “sex offenders” is discouraging but consistent. Less than a year prior to this decision, in February 2024, the Court rejected due process challenges to the timing of SORA registrants’ risk level hearings, preferring to allow courts to proceed with risk level determinations even where the registrant was incompetent (People v. Watts) or unlikely to be released in the near future (People v. Boone; People v. Cotto).

Indeed, if there ever was a case whose facts should incentivize the Court to rule in favor of additional safeguards it was this one. As Judge Rivera recognizes in her dissent (but the majority merely mentions in a footnote), Ralph S. was ultimately subject to confinement in a secure treatment facility for six months, including during the height of the pandemic, based on charges the State could not even prove at his final revocation hearing.