STATE v. METZ

14909

230 Conn. 400 (1994) | Cited 79 times | Supreme Court of Connecticut | August 2, 1994

The principal issue in this appeal is the properallocation of the burden of proof to determine thecontinued commitment to a mental hospital of a personpreviously found not guilty of criminal charges byreason of mental disease or defect. The defendant,Thomas Metz, was originally charged with assault inthe second degree of a person over the age of sixty inviolation of General Statutes 53a-60b, a class Dfelony, and with interfering with a police officer in violationof General Statutes 53a-167a, a class A misdemeanor.The trial court, Buzaid, J., found thedefendant not guilty by reason of mental disease ordefect and committed him to the custody of the commissionerof mental health, pursuant to General Statutes17a-582 (e)(1),1 for the maximum allowableperiod of six years.

[230 Conn. 403]

Sixty-eight days prior to the expiration of the maximumperiod of commitment, the state petitioned for its

[230 Conn. 404]

     extension, pursuant to General Statutes 17a-593 (c),2on the ground that the defendant continued to be mentally

[230 Conn. 405]

     ill and a danger to himself or others. The trialcourt, Bingham, J., denied the defendant's motions todismiss the state's petition and accepted the recommendationof the psychiatric security review board for thedefendant's continued commitment at the WhitingForensic Institute. The defendant appealed from thejudgment of the trial court to the Appellate Court, andwe transferred the appeal to this court pursuant toPractice Book 4023 and General Statutes 51-199 (c).We reverse the judgment of the trial court.

The validity of the defendant's initial confinementto a mental hospital is unchallenged. That confinementarose in the following procedural and factual circumstances.Because the defendant was found not guiltyby reason of mental disease or defect pursuant to GeneralStatutes 53a-13 in the underlying criminal proceedings,he is an "acquittee" as that term is definedby General Statutes 17a-580 (1).3 Although the ProbateCourt ordinarily has jurisdiction over the commitment

[230 Conn. 406]

     to a mental hospital of a person with a mentalillness who is dangerous to himself or others; GeneralStatutes 17a-497 and 17a-498; in the case of acquittees,the Superior Court has the authority to decide thepropriety of such a confinement. General Statutes17a-582 (e). In deciding whether to order the commitment,the conditional discharge or the discharge ofan acquittee, the governing statute enjoins the SuperiorCourt "that its primary concern is the protectionof society." General Statutes 17a-582 (e). The SuperiorCourt's order of confinement is, however, limitedto "a maximum term of commitment, not to exceed themaximum sentence that could have been imposed if theacquittee had been convicted of the offense." GeneralStatutes 17a-582 (e)(1)(A). In this case, the defendantwas ordered to be confined in a state mental hospitalfor a maximum term of six years.

To contest the appropriateness of his confinementduring this six year maximum term, the defendant .would have had to establish, "by a preponderance ofthe evidence that he is a person who should be discharged."General Statutes 17a-582 (f).4 Throughouthis six year maximum term, after the periodic reviewsmandated by General Statutes 17a-585,5 the psychiatricsecurity review board has concurred in theprofessional opinion of the defendant's treating psychiatristthat the defendant continues to be mentallyill and a danger to himself and others.

[230 Conn. 407]

As the end of the six year maximum term of thedefendant's commitment approached, the state's attorneypetitioned the Superior Court to extend the defendant'scommitment for a further period of time on theground that "reasonable cause exists to believe thatthe acquittee remains mentally ill . . . to the extentthat his discharge at the expiration of his maximumterm of commitment would constitute a danger to himselfor others . . . ." General Statutes 17a-593 (c).In the opinion of the psychiatric security review board,to which a referral was made pursuant to 17a-593 (d),the defendant continues to suffer from mental illnessand to be a danger to himself and others.

In the trial court, the defendant moved, on twogrounds, to dismiss the state's petition to extend hiscommitment. As a procedural matter, he argued thatthe state was not entitled to invoke 17a-593 (c)because it had not filed its petition at least 135 daysprior to the expiration of his commitment, as specifiedby that subsection. As a constitutional matter, heargued that 17a-593 is unenforceable to the extentthat subsection (f) of that statute6 requires him, evenafter the expiration of his maximum criminal sentence,to prove that he has regained his sanity in accordancewith the rules governing commitment of acquitteesrather than in accordance with the rules governing civilcommitments and commitments of prisoners whoseterm of incarceration has ended.7 After extensive argument

[230 Conn. 408]

     and reargument, the trial court concluded thatthe state's petition should be granted and that thedefendant should continue to be confined at the WhitingForensic Institute.8

On appeal, the defendant renews the procedural andthe constitutional issues that he raised at trial. We disagreewith his contention that the state's failure to filea petition within the time constraints of 17a-593 (c)automatically requires dismissal of the petition. Weagree, however, that he has raised serious constitutionalissues with regard to the burden of proof. To avoid suchconstitutional jeopardy, we construe 17a-593 (c) torequire the state to bear the burden of proving the needfor a period of continued commitment of an acquitteeafter the expiration of the maximum term specified by17a-582 (e)(1)(A).

I

Section 17a-593 (c) authorizes a state's attorney toseek a court order for the continued commitment ofan acquittee "[i]f reasonable cause exists to believe thatthe acquittee remains mentally ill or mentally retardedto the extent that his discharge at the expiration of hismaximum term of commitment would constitute a dangerto himself or others . . . ." Although that statutespecifies that such a petition be filed "at least onehundred thirty-five days prior to such expiration," thestate did not file its petition until sixty-eight days prior

[230 Conn. 409]

     to the expiration of the defendant's six year maximumterm. The defendant maintains that the 135 day timeperiod is mandatory, while the state maintains that itis merely directory. We agree with the trial court thata petition invoking 17a-593 (c) should not be dismissedon the grounds of untimeliness unless the state's delayhas prejudiced the acquittee. In this case, the defendanthas not alleged any prejudice attributable to thestate's delay in filing the petition.

Well established principles of statutory constructiongovern our determination of whether a statutory timeperiod is mandatory or directory. Our fundamentalobjective is to ascertain and give effect to the apparentintent of the legislature. Ambroise v. WilliamRaveis Real Estate, Inc., 226 Conn. 757, 764,628 A.2d 1303 (1993); Iovieno v. Commissioner of Correction,222 Conn. 254, 258, 608 A.2d 1174 (1992); Chairman v.Freedom of Information Commission, 217 Conn. 193,200, 585 A.2d 96 (1991). "In seeking to discern thatintent, we look to the words of the statute itself, to thelegislative history and circumstances surrounding itsenactment, to the legislative policy it was designed toimplement, and to its relationship to existing legislationand common law principles governing the samegeneral subject matter . . . ." (Citations omitted; internalquotation marks omitted.) Ambroise v. WilliamRaveis Real Estate, Inc., supra, 764; see GlastonburyVolunteer Ambulance Assn., Inc. v. Freedom of InformationCommission, 227 Conn. 848, 852-57,633 A.2d 305 (1993).

Applying these rules in the present circumstances,we conclude that the 135 day period specified in17a-593 (c) is directory. The defendant seeks a constructionof this statute that would require automaticdismissal of a late filed state's petition for the continuedcommitment of an acquittee. Thus, noncompliance with17a-593 (c) would effectively deprive the Superior

[230 Conn. 410]

     Court of further jurisdiction over an acquittee's continuingcommitment. As in the case of time limitationson a right to appeal, "the established principle [is] thatevery presumption is to be indulged in favor of jurisdiction. . . [and] we require a strong showing of alegislative intent to create a time limitation that, in theevent of noncompliance, acts as a subject matter jurisdictionalbar." (Citations omitted; internal quotationmarks omitted.) Ambroise v. William Raveis RealEstate, Inc., supra, 226 Conn. 765. We can discern nosuch showing in either the plain language of the statuteor its legislative history.

Significant to our determination is the absence in thestatute of words, such as "must" or "shall," whichordinarily express legislative mandates of a nondirectorynature. See Statewide Grievance Committee v. Rozbicki,211 Conn. 232, 240, 558 A.2d 986 (1989); Lo Saccov. Young, 210 Conn. 503, 507, 555 A.2d 986 (1989);Caulkins v. Petrillo, 200 Conn. 713, 717, 513 A.2d 43(1986); Sullivan v. Liberty Mutual Fire Ins. Co.,174 Conn. 229, 233, 384 A.2d 384 (1978). This stands in contrastto other subsections of 17a-593 that employ suchdefinitive terminology. See, e.g., General Statutes17a-593 (d). The legislature, if intending the 135 daytime limitation to be mandatory, could easily haveexpressed this intent. See State v. Ortiz, 217 Conn. 648,654, 588 A.2d 127 (1991).

The legislative history of 17a-593 (c) reveals thatthe 135 day time frame was incorporated into that statutein 1987; Public Acts 1987, No. 87-486, 9; in orderto make the psychiatric security review board "moreeffective and efficient." Conn. Joint Standing CommitteeHearings, Judiciary, Pt. 3, 1987 Sess., p. 1051, writtentestimony of Robert Berger, chair of psychiatricsecurity review board; see also 30 S. Proc. Pt. 14, 1987Sess., pp. 4879-80, remarks of Senator Anthony Avallone.9

[230 Conn. 411]

     "[L]egislative provisions designed to secureorder, system and dispatch in proceedings are ordinarilyheld to be directory where, as here, they are statedin affirmative terms or, to express it differently, areunaccompanied by negative words." (Internal quotationmarks omitted.) State v. White, 169 Conn. 223, 238,363 A.2d 143, cert. denied, 423 U.S. 1025, 96 S.Ct.469, 46 L.Ed.2d 399 (1975); Caron v. Inland Wetlands& Watercourses Commission, 222 Conn. 269, 280,610 A.2d 584 (1992). We note that 17a-593 (c) attachesno penalty for the failure of the state to comply withits provisions, nor does it otherwise require that thestate seek an extension of time. See State v. White,supra, 238; Caron v. Inland Wetlands & WatercoursesCommission, supra, 273-74.

Accordingly, we conclude that the 135 day time limitationof 17a-593 (c) is directory, rather than mandatory.The trial court therefore correctly decided notto dismiss the state's petition for the continuation ofthe defendant's commitment.

II

The trial court granted the state's petition for thecontinuation of the defendant's initial commitmentdespite the defendant's claim that the manner of hisfurther commitment violated his federal and state constitutionalrights to due process and equal protection

[230 Conn. 412]

     of the laws. Having been confined for the maximumterm specified in 17a-582 (e)(1)(A), the defendantmaintains that it is unconstitutional for his further commitmentto be ordered without the procedural safeguardsafforded to those whose term of incarcerationhas expired or who, for other reasons, have been civillycommitted. The state contends, to the contrary, thatthe procedural constraints imposed by 17a-593 areconstitutional because the defendant's prior criminalconduct carries with it a continuing presumption thatthe defendant is a danger to society. We agree withthe defendant that he is entitled to greater proceduralsafeguards than he was afforded in this case.

A

Our examination of the specific claims made by thedefendant must be informed by an understanding ofthe nature of the constitutional rights that he is asserting.These constitutional rights have been articulatedin cases decided by the Supreme Court of the UnitedStates and applied in cases decided by this court.

Freedom from unjustified governmental intrusionsinto personal security and bodily freedom are basic,historically recognized liberty interests that are protectedby the federal constitution. Foucha v. Louisiana,504 U.S. 71, 80, 112 S.Ct. 1780, 1785, 118 L.Ed.2d 437(1992); Vitek v. Jones, 445 U.S. 480, 492, 100 S.Ct.1254, 63 L.Ed.2d 552 (1980). As a matter of federallaw, "`[i]t is clear that commitment for any purposeconstitutes a significant deprivation of liberty thatrequires due process protection'"; that is, "the natureof commitment [must] bear some reasonable relationto the purpose for which the individual is committed."Foucha v. Louisiana, supra, 1785. The United StatesSupreme Court has recognized involuntary commitmentto a mental institution, in particular, as involving"more than a loss of freedom from confinement";

[230 Conn. 413]

     Vitek v. Jones, supra, 492; due to its stigmatizing consequences,and the potential exposure to invasive, compulsorymedical and psychiatric treatment. Id.

The law of federal due process accordingly imposessignificant constitutional constraints on involuntarycommitments. Even for the purpose of psychiatrictreatment, a state may not confine an individual, unlessthe individual is both mentally ill and dangerous. O'Connor v.Donaldson, 422 U.S. 563, 573-76, 95 S.Ct. 2486,45 L.Ed.2d 396 (1975). To prevail in civil commitmentproceedings, "the Government . . . [must] demonstrateby clear and convincing evidence that the individualis mentally ill and dangerous." Jones v. UnitedStates, 463 U.S. 354, 362, 103 S.Ct. 3043, 77 L.Ed.2d694 (1983); Addington v. Texas, 441 U.S. 418,426-27, 433, 99 S.Ct. 1804, 60 L.Ed.2d 323 (1979).Although these procedural protections are directed topersons who are civilly committed, they apply as well,under federal equal protection law, to a state's initiationof involuntary commitment proceedings for certainpersons involved in the criminal justice system,such as prisoners after the expiration of their prisonterm; McNeil v. Director, Patuxent Institution,407 U.S. 245, 92 S.Ct. 2083, 32 L.Ed.2d 719 (1972); Baxstromv. Herold, 383 U.S. 107, 86 S.Ct. 760, 15 L.Ed.2d620 (1966); and criminal defendants found not competentto stand trial. Jackson v. Indiana, 406 U.S. 715,724, 92 S.Ct. 1845, 32 L.Ed.2d 435 (1972).10

[230 Conn. 414]

Federal law has, however, recognized that insanityacquittees are "a special class that should be treateddifferently from other candidates for commitment," soas to warrant a departure from the Addington standard.Jones v. United States, supra, 463 U.S. 370. Thus,"when a criminal defendant establishes by a preponderanceof the evidence that he is not guilty of a crimeby reason of insanity, the Constitution permits theGovernment, on the basis of the insanity judgment, toconfine him to a mental institution until such time ashe has regained his sanity or is no longer a danger tohimself or society." Id. For an insanity acquittee, thestate may adopt procedures that presume the acquittee'scontinued dangerousness and that envisage adiminished risk that a person will be committed whois not mentally ill. Id., 364-67.

Applying the principle that the commitment ofinsanity acquittees may be governed by rules that differfrom those governing those who are civilly committed,the United States Supreme Court held, in Jonesv. United States, supra, 463 U.S. 354, that the Districtof Columbia Code could constitutionally permit aninsanity acquittee to be committed for an initiallyindefinite period of time, as long as his continued commitmentwas subject to periodic reviews that wouldafford him an opportunity to prove that he was nolonger mentally ill or dangerous. Jones expressly didnot decide whether the release provisions contained inthe District of Columbia Code, which place a similarburden of proof on the insanity acquittee whenever heseeks release, comported with the requirements of dueprocess. Id., 363 n. 11.11 Similarly, the court expressly

[230 Conn. 415]

     did not decide whether considerations of equal protectionmight be implicated by the District Code's disparaterelease provisions for insanity acquittees andother committed persons.12 Compare Humphrey v.Cady, 405 U.S. 504, 92 S.Ct. 1048, 31 L.Ed.2d 394(1972) (remand necessary for lower court to review"persuasive" equal protection claim based on disparityof procedural safeguards afforded committee underWisconsin's Sex Crime Act as compared with other civilcommittees), with Heller v. Doe, ___ U.S. ___, 113S.Ct. 2637, 125 L.Ed.2d 257 (1993) (rational basis fordistinguishing between mentally ill and mentallyretarded for purposes of burden of proof at civil commitmentproceedings; applicability of heightenedreview not reached).

Returning to the commitment of insanity acquitteesin Foucha v. Louisiana, supra, 112 S.Ct. 1780, theUnited States Supreme Court declared unconstitutionala Louisiana statute that permitted the indefinite commitmentof an insanity acquittee who was no longermentally ill, unless he could prove that he was no longerdangerous. Id., 1784. Foucha not only reaffirmed thata "`committed acquittee is entitled to release when he

[230 Conn. 416]

     has recovered his sanity or is no longer dangerous'";id.; but also placed a sane acquittee on an equal footingwith a person who has been civilly committed forpurposes of establishing the propriety of continued commitment.In both cases, the court held, the state mustshow, "`by clear and convincing evidence that the individualis mentally ill and dangerous,' Jones [v. UnitedStates, supra, 463 U.S. 362]." Id., 1786.

Neither Jones nor Foucha squarely addressed theconstitutionality of placing on an insanity acquittee theburden of proving sanity in order to obtain release frominvoluntary commitment.13 The court's holding inFoucha, nonetheless, reiterates that, once thelegitimacy of an original confinement has lapsed, thestate cannot impose on an acquittee a burden of proofthat would "defeat [his] liberty interest under the Constitutionin being freed from indefinite confinement ina mental facility." Id., 82.

Like the state laws reviewed in these federal cases,our statutes distinguish between those who are civillycommitted and those who are insanity acquittees. Wehave upheld the validity of such disparities in a numberof cases. State v. Miller, 192 Conn. 532, 538,472 A.2d 1272 (1984); State v. Reed, 192 Conn. 520, 529,532, 473 A.2d 775 (1984). "The use of a less demandingmeasure of the quantum of evidence" for the initialconfinement of acquittees than that afforded civilcommittees, at least to the extent of permitting thestate to bear the burden of proof by a mere preponderanceof the evidence, "has been constitutionally

[230 Conn. 417]

     justified because of the unique status of persons acquittedby reason of insanity." State v. Miller, supra, 538;Warren v. Harvey, 632 F.2d 925, 931 (2d Cir. 1980);State v. Warren, 169 Conn. 207, 215, 363 A.2d 91(1975). We have acknowledged that "[t]he obviousdifference between insanity acquittees and other personsfacing commitment is the fact that the former havebeen found, beyond a reasonable doubt, to have committeda criminal act." Warren v. Harvey, supra, 931;State v. Warren, supra, 215. "While the acquitteetherefore may be deprived erroneously of his libertyin the commitment process, the liberty he loses is likelyto be liberty which society mistakenly had permittedhim to retain in the criminal process." Warren v. Harvey,supra, 931; see also Lynch v. Overholser, 369 U.S. 705,715, 82 S.Ct. 1063, 8 L.Ed.2d 211 (1962); UnitedStates v. Brown, 478 F.2d 606, 610 (D.C. Cir. 1973).

In contrast to an acquittee's differentiated status atan initial commitment hearing, our state law has, forcertain purposes, likened acquittees to prisoners whohave been transferred to a mental hospital during thependency of their jail sentence. We have noted that"both classes of hospital inmates are being deprivedof their liberty primarily for the protection of society;both have the same financial resources; and both havethe same need for treatment." State v. Reed, supra,192 Conn. 530. Thus, this court has held that equal protectionof the laws mandates that an acquittee, like aprisoner under our statutes, should not bear the costsof his commitment. Id., 529-30, 532 (striking downGeneral Statutes 17-317 and 53a-47 [h], in relationto 17-318, on equal protection grounds for disparatetreatment of acquittees and prisoners in relation to burdenof hospital costs).

With respect to release from confinement, this courthas adopted the principle enunciated in Jones andreiterated in Foucha that, as a matter of due process,

[230 Conn. 418]

     an acquittee is entitled to release when he has recoveredhis sanity or is no longer dangerous. Payne v.Fairfield Hills Hospital, 215 Conn. 675, 684,578 A.2d 1025 (1990); see also Franklin v. Berger, 211 Conn. 591,560 A.2d 444 (1989). In dictum, we have construed17a-593 (f), as currently codified, as placing on anacquittee the burden of proving his entitlement to arelease even after the maximum term of commitmentspecified in 17a-582 (e)(1)(A) has expired. Franklinv. Berger, supra, 603. Until this case, we have not, however,considered the constitutionality of such a constructionof 17a-593 (f), either as a matter of federalconstitutional law or by undertaking an independentanalysis of the applicable provisions of our state constitution.14

In sum, neither federal nor state case law containsdispositive precedents defining the constitutional libertyinterest or the rights to equal protection of insanityacquittees who seek release after they have been committedfor a period of time measured by their maximumpossible criminal confinement. Specifically, thereare no guiding precedents about whether it is constitutionallypermissible to require an insanity acquittee tocontinue to be burdened by a presumption of dangerousnessand insanity after expiration of a statutorilydefined maximum term of commitment.

B

We consider first the defendant's challenge to theconstitutionality of the governing statutes that ispremised on the fact that the evidence supporting hisrecommitment came only from his treating physician

[230 Conn. 419]

     at Whiting. The defendant claims that by not requiringsworn certificates of at least two impartial physiciansnot affiliated with the hospital to whichapplication for commitment is being made, as isrequired for civil committees; General Statutes17a-498 (c); that the procedures to continue his commitmentunder General Statutes 17a-596 and17a-593 violated his rights to equal protection of thelaws.

We note, however, that the defendant did not availhimself of the statutory provision permitting him toobtain a separate examination "by a psychiatrist or psychologistof the acquittee's own choice"; General Statutes17a-593 (e); in order to challenge the proprietyof his continued commitment. "`We have held that thefailure to raise a procedural claim or the failure to utilizea remedy available to cure a procedural defect canconstitute a waiver of the right to object to the allegeddefect.'" Dragan v. Connecticut Medical ExaminingBoard, 223 Conn. 618, 633, 613 A.2d 739 (1992); Jutkowitzv. Department of Health Services, 220 Conn. 86,95-96, 596 A.2d 374 (1991); see also Levinson v. Boardof Chiropractic Examiners, 211 Conn. 508, 536,560 A.2d 403 (1989); Henderson v. Department of MotorVehicles, 202 Conn. 453, 461-63, 521 A.2d 1040 (1987).Accordingly, we deem this issue waived and decline toreach its merits.

C

The defendant's alternate basis for challenging theconstitutionality of 17a-593 concerns the proprietyof assigning him the burden of proving that he is nolonger insane or dangerous in proceedings brought torenew his commitment after expiration of the maximumterm of his initial commitment. The defendantproperly raised this issue at trial. We conclude that the

[230 Conn. 420]

     statute must be construed to avoid the constitutionaljeopardy that the defendant has brought to ourattention.

We start our analysis of 17a-593 with the premisethat "a validly enacted statute carries with it a strongpresumption of constitutionality, [and that] those whochallenge its constitutionality must sustain the heavyburden of proving its unconstitutionality beyond a reasonabledoubt. State v. Breton, 212 Conn. 258, 269,562 A.2d 1060 (1989); University of Connecticut Chapter,AAUP v. Governor, 200 Conn. 386, 391, 512 A.2d 152(1986); Eielson v. Parker, 179 Conn. 552, 560,427 A.2d 814 (1980); State v. Darden, 171 Conn. 677, 678,372 A.2d 99 (1976). In construing a statute, moreover, wewill search for an effective and constitutional constructionthat reasonably accords with the legislature'sunderlying intent. State v. Floyd, 217 Conn. 73, 79,584 A.2d 1157 (1991); McConnell v. Beverly Enterprises-Connecticut,Inc., 209 Conn. 692, 705-706,553 A.2d 596 (1989)." Bartholomew v. Schweizer, 217 Conn. 671,675-76, 587 A.2d 1014 (1991).

In this case, although 17a-593 (c) permits a state'sattorney to petition the Superior Court to continuethe commitment of an acquittee after the expirationof the maximum term of confinement specified in17a-582 (e)(1)(A), the statute contains limited directionsabout the manner in which such further commitmentshould be adjudicated. Pursuant to 17a-593 (d)and (e), the court must seek the recommendation of thepsychiatric security review board, and the acquitteemust be permitted to challenge the validity of thatrecommendation. Furthermore, under 17a-593 (f), acourt hearing must proceed on any "recommendationor application for discharge or petition for continuedcommitment." Although subsection (f) expresslyrequires the acquittee to bear the burden of establishinghis right to a discharge by a preponderance of the

[230 Conn. 421]

     evidence before expiration of the maximum period ofcommitment, it is unclear whether this subsection wasintended to allocate the same burden when the statepetitions for a period of additional commitment beyondthat maximum term.15 A statutory burden to show thatan "acquittee is a person who should be discharged"assumes the propriety of his commitment. That is thevery question at issue in a hearing on a state's petitionfor an additional period of commitment.

The latent ambiguity inherent in 17a-593 (c) is onlyheightened when the subsection is viewed in context.By authorizing the state to petition for an acquittee'scontinued commitment if reasonable cause exists tosupport such confinement, 17a-593 (c) impliedly placesa burden on the state to establish the need for continuedcommitment. Furthermore, the maximum period ofcommitment authorized by 17a-582 (e)(1)(A) wouldbe rendered a nullity if an indefinite commitment couldbe ordered at the state's behest.

Important considerations of policy suggest that thelegislature would not have intended to impose, even

[230 Conn. 422]

     on an insanity acquittee, a never-ending burden ofrebutting an indefinite presumption of continuinginsanity and dangerousness. The considered view ofprofessional commentators who have promulgatedmodel rules for the commitment of insanity acquitteesis that, after expiration of a stated term of commitment,fairness, convenience and symmetry require an insanityacquittee to be treated like others committed for mentalillness. See ABA Criminal Justice Mental HealthStandards (1989) pt. 7, pp. 435-36.16

In our view, these principles of fairness are notmerely guides for statutory policymakers, but implicateimportant constitutional principles as well. In ourinterpretation of 17a-593, we are guided by the principlethat we should seek to construe the statute so as

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     not to place it in constitutional jeopardy. Bartholomewv. Schweizer, supra, 217 Conn. 675-76; State v. Floyd,supra, 217 Conn. 79; see also McConnell v. BeverlyEnterprises-Connecticut, Inc., supra, 209 Conn. 705-706.Specifically, we must inquire into whether anindefinite allocation of the burden of proof on aninsanity acquittee raises significant questions of equalprotection.

"`[T]he concept of equal protection [under both thestate and federal constitutions] has been traditionallyviewed as requiring the uniform treatment of personsstanding in the same relation to the governmentalaction questioned or challenged.' Reynolds v. Sims,377 U.S. 533, [565] 84 S.Ct. 1362, 12 L.Ed.2d 506 (1964);Cleburne v. Cleburne Living Center, Inc., 473 U.S. 432,[440] 105 S.Ct. 3249, 87 L.Ed.2d 313 (1985); Dailyv. New Britain Machine Co., 200 Conn. 562, 578,512 A.2d 893 (1986). The `equal protection clause does notrequire absolute equality or precisely equal advantages.'Ross v. Moffitt, 417 U.S. 600, [612] 94 S.Ct. 2437, 41L.Ed.2d 341 (1974); Daily v. New Britain MachineCo., supra, 577-78. Rather, a state may make classificationswhen enacting or carrying out legislation, butin order to satisfy the equal protection clause theclassifications made must be based on some reasonableground. Ross v. Moffitt, supra [612]; Magoun v. IllinoisTrust & Savings Bank, 170 U.S. 283, [293] 18 S.Ct.594, 42 L.Ed. 1037 (1898); Daily v. New BritainMachine Co., supra [577-78]; State v. Reed, supra,[192 Conn. 531]. To determine whether a particular classificationviolates the guarantees of equal protection, thecourt must consider `the character of the classification;the individual interests affected by the classification;and the governmental interests asserted in support ofthe classification.' Dunn v. Blumstein, 405 U.S. 330,335, 92 S.Ct. 995, 31 L.Ed.2d 274 (1972)." Franklinv. Berger, supra, 211 Conn. 594-95. "[T]he legislature

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     has . . . broad discretion in the exercise of its powerto enact legislation and . . . its judgment in establishingstatutory classifications will [ordinarily] be setaside only where no grounds can be conceived to justifythem. McDonald v. Board of Election, 394 U.S. 802,809, 89 S.Ct. 1404, 22 L.Ed.2d 739 (1969)."17 Statev. Reed, supra, 531.

Despite the substantial degree of legislative discretionrecognized by these precedents, we are of the viewthat the defendant has raised a serious constitutionalconcern in this case. After the expiration of a maximumterm of confinement, it is difficult to find a constitutionaljustification for a categorical distinctionbetween an insanity acquittee and an incarcerated prisonerwho was transferred to a mental hospital whilehe was serving his criminal sentence. In each instance,the purpose of commitment "is to treat the individual'smental illness and protect him and society from hispotential dangerousness"; Jones v. United States,supra, 463 U.S. 368; Payne v. Fairfield Hills Hospital,supra, 215 Conn. 684; see also Franklin v. Berger,supra, 211 Conn. 612 (Healey, J., concurring). In each

[230 Conn. 425]

     instance, furthermore, the qualitative character of theliberty deprivation is the same, irrespective of the factthat the Superior Court rather than the Probate Courtretains jurisdiction over the propriety of an acquittee'scontinued commitment. General Statutes 17a-582 (e),17a-497 and 17a-498.

These constitutional concerns lead us to construethe maximum period of commitment authorized by17a-582 (e)(1)(A) as a reasonably identified point ofdemarcation beyond which the presumption of dangerousnessinitially accompanying an acquittee does notcontinue.18 Accordingly, we conclude that 17a-593 (c)impliedly imposes the same burden on the state ata hearing for the continued commitment of an acquitteebeyond his current definite period of commitmentas is imposed in a civil commitment hearing under17a-498 (c); namely, to show by clear and convincingevidence that the acquittee is currently mentally ill anddangerous to himself or herself or others or gravelydisabled.

Our conclusion finds additional support in the equalprotection clause of our state constitution, which forbidsdiscrimination on the ground of mental illness.If the defendant were not suffering from mental illness,the state could not constitutionally confine himbeyond the maximum term of his criminal convictions.Although the state may well have a compelling interestin the continued commitment of acquittees whosemental illness makes them dangerous to themselves orothers; cf. Daly v. DelPonte, 225 Conn. 499, 511-18,624 A.2d 876 (1993); that interest arises only when thestate has shouldered the burden of establishing the existenceof the underlying facts. Id., 517-18. Because the

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     underlying criminal conduct may be relatively minor,and indeed need not involve a crime of violence, thepresumption of the existence of facts warranting thedefendant's commitment does not survive the expirationof the maximum term of criminal sanctions.19

Finally, our conclusion is consistent with our recognition,in State v. Joyner, 225 Conn. 450, 467,625 A.2d 791 (1993),20 that our state jurisprudence assignsconstitutional import to a defendant's right to present aninsanity defense. Burdening the successful assertionof an insanity defense with a presumption of insanityand dangerousness that has no time constraints wouldseriously undermine a criminal defendant's recourseto such a defense.

Accordingly, we conclude that the trial court's recommitmentof the defendant must be vacated. We will,however, stay the effective date of our order for a reasonableperiod of time to enable the state to ask thetrial court for a new hearing at which the state will bearthe burden of proving the defendant's continuedinsanity and dangerousness.

The judgment is reversed.

In this opinion the other justices concurred.

1. General Statutes 17a-582 (formerly 17-257c)provides: "CONFINEMENT OF ACQUITTEE FOR EXAMINATION. COURTORDER OF COMMITMENT TO BOARD OR DISCHARGE. (a) When any personcharged with an offense is found not guilty by reason of mentaldisease or defect pursuant to section 53a-13, the court shallorder such acquittee committed to the custody of the commissionerof mental health who shall cause such acquittee to be confined,pending an order of the court pursuant to subsection (e) of thissection, in any of the state hospitals for mental illness or tothe custody of the commissioner of mental retardation, for anexamination to determine his mental condition. "(b) Within forty-five days of the order of commitment pursuantto subsection (a) of this section, the superintendent of suchhospital or the commissioner of mental retardation shall causethe acquittee to be examined and file a report of the examinationwith the court, and shall send a copy thereof to the state'sattorney and counsel for the acquittee, setting forth thesuperintendent's or said commissioner's findings and conclusionsas to whether the acquittee is a person who should be discharged. "(c) Within ten days of receipt of such superintendent's orsaid commissioner's report, either the state's attorney orcounsel for the acquittee may file notice of intent to perform aseparate examination of the acquittee. An examination conductedon behalf of the acquittee may be performed by a psychiatrist orpsychologist chosen by the acquittee and shall be performed atthe acquittee's expense unless he is indigent. If the acquitteeis indigent, the court shall provide him with the services of apsychiatrist or psychologist to perform the examination at theexpense of the state. The superintendent or said commissioner whoconducted the initial examination shall, within five days of arequest of any party conducting a separate examination pursuantto this subsection, release to such party all records and reportscompiled in the initial examination of the acquittee. Anyseparate examination report shall be filed with the court withinthirty days of the filing with the court of the initialexamination report by the superintendent or said commissioner. "(d) The court shall commence a hearing within fifteen days ofits receipt of any separate examination report or if no notice ofintent to perform a separate examination has been filed undersubsection (c) of this section, within twenty-five days of thefiling of such initial examination report. "(e) At the hearing, the court shall make a finding as to themental condition of the acquittee and, considering that itsprimary concern is the protection of society, make one of thefollowing orders: "(1) If the court finds that the acquittee is a person whoshould be confined or conditionally released, the court shallorder the acquittee committed to the jurisdiction of the boardand either confined in a hospital for mental illness or placedwith the commissioner of mental retardation, for custody, careand treatment pending a hearing before the board pursuant tosection 17a-583; provided (A) the court shall fix a maximum termof commitment, not to exceed the maximum sentence that could havebeen imposed if the acquittee had been convicted of the offense,and (B) if there is reason to believe that the acquittee is aperson who should be conditionally released, the court shallinclude in the order a recommendation to the board that theacquittee be considered for conditional release pursuant tosubdivision (2) of section 17a-584; or "(2) If the court finds that the acquittee is a person whoshould be discharged, the court shall order the acquitteedischarged from custody. "(f) At the hearing before the court, the acquittee shall havethe burden of proving by a preponderance of the evidence that heis a person who should be discharged. "(g) An order of the court pursuant to subsection (e) of thissection may be appealed by the acquittee or the state's attorneyto the appellate court. The court shall so notify the acquittee. "(h) During any term of commitment to the board, the acquitteeshall remain under the jurisdiction of the board until dischargedby the court pursuant to section 17a-593. Except as provided insubsection (c) of said section, the acquittee shall beimmediately discharged at the expiration of the maximum term ofcommitment. "(i) On committing an acquittee to the jurisdiction of theboard, the court shall advise the acquittee of the right to aheating before the board in accordance with section 17a-583."

2. General Statutes 17a-593 (formerly 17-257n)provides: "COURT ORDER TO DISCHARGE ACQUITTEE FROM CUSTODY.(a) The board, pursuant to section 17a-584 or 17a-592, mayrecommend to the court the discharge of the acquittee fromcustody or the acquittee may apply directly to the court fordischarge from custody. The court shall send copies of therecommendation or application to the state's attorney and tocounsel for the acquittee. An acquittee may apply for dischargenot more than once every six months and no sooner than six monthsafter the initial board hearing held pursuant to section 17a-583. "(b) The recommendation or application shall contain the dateson which any prior recommendations or applications for dischargehad been filed with the court, the dates on which decisionsthereon were rendered, and a statement of facts, including anychange in circumstances since the determination on the mostrecent recommendation or application, sufficient to qualify theacquittee as a person who should be discharged. A recommendationby the board shall contain findings and conclusions to supportthe recommendation. "(c) If reasonable cause exists to believe that the acquitteeremains mentally ill or mentally retarded to the extent that hisdischarge at the expiration of his maximum term of commitmentwould constitute a danger to himself or others, the state'sattorney, at least one hundred thirty-five days prior to suchexpiration, may petition the court for an order of continuedcommitment of the acquittee. "(d) The court shall forward any application for dischargereceived from the acquittee and any petition for continuedcommitment of the acquittee to the board. The board shall,within ninety days of its receipt of the application or petition,file a report with the court, and send a copy thereof to thestate's attorney and counsel for the acquittee, setting forth itsfindings and conclusions as to whether the acquittee is a personwho should be discharged. The board may hold a hearing or takeother action appropriate to assist it in preparing its report. "(e) Within ten days of receipt of a recommendation fordischarge filed by the board under subsection (a) of this sectionor receipt of the board's report filed under subsection (d) ofthis section, either the state's attorney or counsel for theacquittee may file notice of intent to perform a separateexamination of the acquittee. An examination conducted on behalfof the acquittee may be performed by a psychiatrist orpsychologist of the acquittee's own choice and shall be performedat the expense of the acquittee unless he is indigent. If theacquittee is indigent, the court shall provide him with theservices of a psychiatrist or psychologist to perform theexamination at the expense of the state. Any such separateexamination report shall be filed with the court within thirtydays of the notice of intent to perform the examination. Tofacilitate examinations of the acquittee, the court may order himplaced in the temporary custody of any hospital for mentalillness or other suitable facility or placed with thecommissioner of mental retardation. "(f) After receipt of the board's report and any separateexamination reports, the court shall promptly commence a hearingon the recommendation or application for discharge or petitionfor continued commitment. At the hearing, the acquittee shallhave the burden of proving by a preponderance of the evidencethat the acquittee is a person who should be discharged. "(g) The court shall make a finding as to the mental conditionof the acquittee and, considering that its primary concern is theprotection of society, make one of the following orders: (1) Ifthe court finds that the acquittee is not a person who should bedischarged, the court shall order the recommendation orapplication for discharge be dismissed; or (2) if the court findsthat the acquittee is a person who should be discharged, thecourt shall order the acquittee discharged from custody. Thecourt shall send a copy of such finding and order to the board."

3. General Statutes 17a-580 (formerly 17-257a)provides in relevant part: "DEFINITIONS. As used insections 17a-581 to 17a-602, inclusive, and this section: "(1) `Acquittee' means any person found not guilty by reason ofmental disease or defect pursuant to section 53a-13. . . ."

4. These procedures differ substantially from those thatgovern the confinement in mental hospitals of other personssuffering from a mental illness. Civil commitments generally notonly are administered by the Probate Court but require the personproposing such confinement to establish its propriety by clearand convincing evidence. General Statutes 17a-498 (c).Civil commitment procedures also apply to any person who, whilein the custody of the commissioner of correction, manifestsmental illness and dangerousness to himself and others. GeneralStatutes 17a-515.

5. General Statutes 17a-585 (formerly 17-257f)provides: "PERIODIC REVIEW BY BOARD. The board shallconduct a hearing and review the status of the acquittee not lessthan once every two years. At such hearing the board shall makea finding and act pursuant to section 17a-584."

6. The defendant also cites General Statutes 17a-596(f) for the proposition that an acquittee bears the burden ofproof at a court hearing on a petition for a period of continuedcommitment. Section 17a-596 (f) provides that "[a]t any hearingbefore the [psychiatric security review] board, the acquittee, orany applicant seeking an order less restrictive than the existingorder, shall have the burden of proving by a preponderance of theevidence the existence of conditions warranting a lessrestrictive order." That statute is inapposite in this appeal,however, as it governs only matters before the psychiatricsecurity review board.

7. For those who may be mentally ill and dangerous, butare not acquittees, the mental hospital at which the person hasbeen confined for a specified period of time may instituteproceedings in Probate Court to extend the person's commitment.General Statutes 17a-508 (further civil commitment ingeneral); General Statutes 17a-520 (further civilcommitment at end of term of imprisonment for criminal conduct).See footnote 4.

8. Although both the state, in its petition for acontinued commitment, and the psychiatric security review board,in its recommendation of a continued commitment, requested thatthe trial court specify a time period for the defendant'scontinued confinement, the record indicates that the trial courtgranted the state's petition without term. The defendant has notchallenged the validity of this aspect of the trial court'sorder.

9. Public Acts 1987, No. 87-486, 9, advanced thetime for filing of a state's petition for continued confinementfrom ninety to 135 days before the maximum period of commitment;General Statutes 17a-593 (c); and also extended the periodin which the psychiatric security review board is required tofile a report with the trial court regarding such a petition fromforty-five days to ninety days from the filing of the petition.General Statutes 17a-593 (d). These changes were motivatedby a concern that the psychiatric security review board could notconduct a hearing, and prepare and file a report with the trialcourt, in the forty-five days after filing of the petition, aswas mandated by that statute prior to 1987. Conn. Joint StandingCommittee Hearings, Judiciary, Pt. 3, 1987 Sess., pp. 994-95,1052.

10. Involuntary commitment without the full protectionsof Addington v. Texas, supra, 441 U.S. 418, andO'Connor v. Donaldson, supra, 422 U.S. 563, has beenapproved in narrowly circumscribed situations. See, e.g.,Jackson v. Indiana, supra, 406 U.S. 738 (state'sinterest in determining whether accused may become competent tostand trial in foreseeable future justifies commitment "for [a]reasonable period of time"); McNeil v. Director,Patuxent Institution, supra, 407 U.S. 249-50 (implying short-termcommitment of convicted criminal for purposes of psychiatricevaluation legitimate); cf. Vitek v. Jones, supra,445 U.S. 495-96 (convicted felon serving sentence may not betransferred to mental institution without appropriate procedures,including notice and adversarial hearing, to prove mentally ill);see also Jones v. United States, supra, 463 U.S. 372-73n. 3 (Brennan, J., with whom Marshall and Blackmun, Js., joined,dissenting).

11. The release provisions of the District of ColumbiaCode provide an insanity acquittee with "a judicial hearing[within fifty days of commitment] to determine his eligibilityfor release, at which he has the burden of proving by apreponderance of the evidence that he is no longer mentally illor dangerous. . . . If he fails to meet this burden at the50-day hearing, the . . . acquittee subsequently may be released,with court approval, upon certification of his recovery by thehospital chief of service. . . . Alternatively, the acquittee isentitled to a judicial hearing every six months at which he mayestablish by a preponderance of the evidence that he is entitledto release. . . ." (Citations omitted.) Jones v. UnitedStates, supra, 463 U.S. 357-58.

12. Under the District of Columbia Code, "the basicstandard for release is the same under either civil commitment orcommitment following acquittal by reason of insanity: theindividual must prove by a preponderance of the evidence that heis no longer dangerous or mentally ill." Jones v. UnitedStates, supra, 463 U.S. 363 n. 11. However, "[a] patient whois committed civilly is entitled to unconditional release uponcertification of his recovery by the hospital chief ofservice . . . whereas a committed insanity acquittee may bereleased upon such certification only with courtapproval . . . ." (Citations omitted.) Id.

13. In Foucha, the acquittee's mental status wasnot at issue because the head of the mental facility had rendereda decision of "no mental illness" in accordance with theLouisiana statutes, thus affording the acquittee a hearing atwhich he bore the burden of proving, by clear and convincingevidence, that he was no longer a danger to the community.Foucha v. Louisiana, supra, 112 S.Ct. 1786. Thus, thestate was seeking to perpetuate the acquittee's prior legitimateconfinement solely on the basis of his continuing propensity fordangerousness. Id., 1784.

14. Two separate opinions in Franklin v. Berger,supra, 211 Conn. 591, however, specifically questioned whether anacquittee could constitutionally be required to prove hisentitlement to be released once his maximum term of confinementhad expired. Id., 606 (Glass, J., concurring); id., 608n. 1 (Healey, J., concurring).

15. To the extent that dicta in Franklin v.Berger, supra, 211 Conn. 603, assumed that General Statutes17a-593 (f) allocates the burden of proof to an acquitteein a hearing for his continued commitment, we decline to convertdicta into a holding. We note that Franklin addressedneither the constitutionality of 17a-593 (f); but seefootnote 14; nor the relevant legislative history that plainlyindicates the subsection was intended to place the burden ofproof on an acquittee only with respect to applications fordischarge. By so assigning the burden of proof, irrespective ofwhether the application is brought by the acquittee or by thepsychiatric security review board, the 1987 amendments sought toavoid placing the board in the awkward position of representingan acquittee on an application for discharge when the acquitteewas already represented by counsel. See Conn. Joint StandingCommittee Hearings, Judiciary, Pt. 3, 1987 Sess., p. 1052,written testimony of Robert Berger, chair of psychiatric securityreview board. Such concerns do not arise in the context of astate's petition for continued commitment. Finally, by decliningto follow the Franklin dicta construing 17a-593(f), we do not call into question our holding inFranklin that it is not a denial of equal protection torefuse to credit pretrial jail time against the length of aninsanity acquittee's commitment to a mental hospital.Franklin v. Berger, supra, 604.

16. The expressed purpose of the ABA standards "is tobalance a legitimate concern for public safety against the needfor fair and consistent treatment of . . . acquittees." ABACriminal Justice Mental Health Standards (1989) pt. 7, p. 399.Like Connecticut, the ABA recommends the setting of a maximumduration of commitment, the outer limit of which is the maximumsentence of imprisonment that an acquittee could have receivedfollowing conviction. Id., p. 433. The disparate treatment of acquittees for purposes of theirinitial commitment has been severely criticized by the ABA: "Afinding, at whatever level of certainty, that an acquittee wasmentally disabled at the time of an alleged offense revealslittle or nothing about mental condition at the time ofacquittal. Months or even years may have intervened between thetwo events. The passage of time and, in many cases, theprovision of treatment or habilitation in the interim generate aserious possibility that an acquittee's mental condition will nothave remained constant from activity through acquittal. To drawinferences from such stale information may well be seriouslyunfair if the consequences of the presumption of continuingdangerousness affect something as important as personal liberty."Id., p. 424. Accordingly, the ABA would impose on the state theburden of persuasion, by clear and convincing evidence,concerning an acquittee's current mental status and dangerousnessat the initial commitment hearing, and at subsequent periodicreviews. Id. pp. 418, 437. Whatever the merits of such anargument with respect to the initial commitment, we note that theexpressed concerns are significantly heightened by the inevitablepassage of time and the provision of treatment or habilitationfollowing an initial commitment. See id., p. 442.

17. We note that "[w]here the [statutory] classificationimpinges upon a fundamental right or impacts upon an `inherentlysuspect' group, it will be subjected to strict scrutiny and willbe set aside unless it is justified by a compelling stateinterest. [Dunn v. Blumstein, supra, 405 U.S. 342];Bruno v. Civil Service Commission, 192 Conn. 335, 345,472 A.2d 328 (1984); Laden v. Warden, 169 Conn. 540,542, 363 A.2d 1063 (1975). On the other hand, where theclassification at issue neither impinges upon a fundamental rightnor affects a suspect group `it will withstand constitutionalattack if the distinction is rounded on a rational basis.'Laden v. Warden, supra, 543; see also McGinnis v.Royster, 410 U.S. 263, 270, 93 S.Ct. 1055, 35 L.Ed.2d 282(1972); Dandridge v. Williams, 397 U.S. 471, 485, 90S.Ct. 1153, 25 L.Ed.2d 491 (1970)." Franklin v. Berger,supra, 211 Conn. 595. Because we construe General Statutes17a-593 (c) to negate the disparate treatment of acquittees fromother civil committees with respect to the allocation of theburden of persuasion at a hearing for a period of continuedcommitment, we need not decide whether heightened review would beappropriate in a constitutional analysis of the disparatetreatment of acquittees and civil committees in another context.

18. Because the defendant's original term of commitmenthas expired in this case, we need not decide whether it ispossible for the validity of the presumption of dangerousness tocease before expiration of the maximum period set by the courtpursuant to General Statutes 17a-582 (e)(1)(A).

19. In contrast to Connecticut's statutory scheme, theABA recommends that special commitment procedures apply only tothose who were acquitted of "felonies involving acts causing,threatening, or creating a substantial risk of death or seriousbodily harm"; and that in all other circumstances the proceduresafforded civil committees be employed. ABA Criminal JusticeMental Health Standards, pt. 7 (1989) 7-7.3. As anempirical matter, no information about the propensities forfuture violent behavior is gained through an acquittal ofnonviolent crimes and, thus, such acquittees are, in the ABA'sview, "sufficiently similar in relevant characteristics togeneral commitment patients that the same procedures forcommitment and period review hearings and release [are]appropriate." Id., pp. 413-14.

20. Our conclusion also finds support in the holdings of

The principal issue in this appeal is the properallocation of the burden of proof to determine thecontinued commitment to a mental hospital of a personpreviously found not guilty of criminal charges byreason of mental disease or defect. The defendant,Thomas Metz, was originally charged with assault inthe second degree of a person over the age of sixty inviolation of General Statutes 53a-60b, a class Dfelony, and with interfering with a police officer in violationof General Statutes 53a-167a, a class A misdemeanor.The trial court, Buzaid, J., found thedefendant not guilty by reason of mental disease ordefect and committed him to the custody of the commissionerof mental health, pursuant to General Statutes17a-582 (e)(1),1 for the maximum allowableperiod of six years.

[230 Conn. 403]

Sixty-eight days prior to the expiration of the maximumperiod of commitment, the state petitioned for its

[230 Conn. 404]

     extension, pursuant to General Statutes 17a-593 (c),2on the ground that the defendant continued to be mentally

[230 Conn. 405]

     ill and a danger to himself or others. The trialcourt, Bingham, J., denied the defendant's motions todismiss the state's petition and accepted the recommendationof the psychiatric security review board for thedefendant's continued commitment at the WhitingForensic Institute. The defendant appealed from thejudgment of the trial court to the Appellate Court, andwe transferred the appeal to this court pursuant toPractice Book 4023 and General Statutes 51-199 (c).We reverse the judgment of the trial court.

The validity of the defendant's initial confinementto a mental hospital is unchallenged. That confinementarose in the following procedural and factual circumstances.Because the defendant was found not guiltyby reason of mental disease or defect pursuant to GeneralStatutes 53a-13 in the underlying criminal proceedings,he is an "acquittee" as that term is definedby General Statutes 17a-580 (1).3 Although the ProbateCourt ordinarily has jurisdiction over the commitment

[230 Conn. 406]

     to a mental hospital of a person with a mentalillness who is dangerous to himself or others; GeneralStatutes 17a-497 and 17a-498; in the case of acquittees,the Superior Court has the authority to decide thepropriety of such a confinement. General Statutes17a-582 (e). In deciding whether to order the commitment,the conditional discharge or the discharge ofan acquittee, the governing statute enjoins the SuperiorCourt "that its primary concern is the protectionof society." General Statutes 17a-582 (e). The SuperiorCourt's order of confinement is, however, limitedto "a maximum term of commitment, not to exceed themaximum sentence that could have been imposed if theacquittee had been convicted of the offense." GeneralStatutes 17a-582 (e)(1)(A). In this case, the defendantwas ordered to be confined in a state mental hospitalfor a maximum term of six years.

To contest the appropriateness of his confinementduring this six year maximum term, the defendant .would have had to establish, "by a preponderance ofthe evidence that he is a person who should be discharged."General Statutes 17a-582 (f).4 Throughouthis six year maximum term, after the periodic reviewsmandated by General Statutes 17a-585,5 the psychiatricsecurity review board has concurred in theprofessional opinion of the defendant's treating psychiatristthat the defendant continues to be mentallyill and a danger to himself and others.

[230 Conn. 407]

As the end of the six year maximum term of thedefendant's commitment approached, the state's attorneypetitioned the Superior Court to extend the defendant'scommitment for a further period of time on theground that "reasonable cause exists to believe thatthe acquittee remains mentally ill . . . to the extentthat his discharge at the expiration of his maximumterm of commitment would constitute a danger to himselfor others . . . ." General Statutes 17a-593 (c).In the opinion of the psychiatric security review board,to which a referral was made pursuant to 17a-593 (d),the defendant continues to suffer from mental illnessand to be a danger to himself and others.

In the trial court, the defendant moved, on twogrounds, to dismiss the state's petition to extend hiscommitment. As a procedural matter, he argued thatthe state was not entitled to invoke 17a-593 (c)because it had not filed its petition at least 135 daysprior to the expiration of his commitment, as specifiedby that subsection. As a constitutional matter, heargued that 17a-593 is unenforceable to the extentthat subsection (f) of that statute6 requires him, evenafter the expiration of his maximum criminal sentence,to prove that he has regained his sanity in accordancewith the rules governing commitment of acquitteesrather than in accordance with the rules governing civilcommitments and commitments of prisoners whoseterm of incarceration has ended.7 After extensive argument

[230 Conn. 408]

     and reargument, the trial court concluded thatthe state's petition should be granted and that thedefendant should continue to be confined at the WhitingForensic Institute.8

On appeal, the defendant renews the procedural andthe constitutional issues that he raised at trial. We disagreewith his contention that the state's failure to filea petition within the time constraints of 17a-593 (c)automatically requires dismissal of the petition. Weagree, however, that he has raised serious constitutionalissues with regard to the burden of proof. To avoid suchconstitutional jeopardy, we construe 17a-593 (c) torequire the state to bear the burden of proving the needfor a period of continued commitment of an acquitteeafter the expiration of the maximum term specified by17a-582 (e)(1)(A).

I

Section 17a-593 (c) authorizes a state's attorney toseek a court order for the continued commitment ofan acquittee "[i]f reasonable cause exists to believe thatthe acquittee remains mentally ill or mentally retardedto the extent that his discharge at the expiration of hismaximum term of commitment would constitute a dangerto himself or others . . . ." Although that statutespecifies that such a petition be filed "at least onehundred thirty-five days prior to such expiration," thestate did not file its petition until sixty-eight days prior

[230 Conn. 409]

     to the expiration of the defendant's six year maximumterm. The defendant maintains that the 135 day timeperiod is mandatory, while the state maintains that itis merely directory. We agree with the trial court thata petition invoking 17a-593 (c) should not be dismissedon the grounds of untimeliness unless the state's delayhas prejudiced the acquittee. In this case, the defendanthas not alleged any prejudice attributable to thestate's delay in filing the petition.

Well established principles of statutory constructiongovern our determination of whether a statutory timeperiod is mandatory or directory. Our fundamentalobjective is to ascertain and give effect to the apparentintent of the legislature. Ambroise v. WilliamRaveis Real Estate, Inc., 226 Conn. 757, 764,628 A.2d 1303 (1993); Iovieno v. Commissioner of Correction,222 Conn. 254, 258, 608 A.2d 1174 (1992); Chairman v.Freedom of Information Commission, 217 Conn. 193,200, 585 A.2d 96 (1991). "In seeking to discern thatintent, we look to the words of the statute itself, to thelegislative history and circumstances surrounding itsenactment, to the legislative policy it was designed toimplement, and to its relationship to existing legislationand common law principles governing the samegeneral subject matter . . . ." (Citations omitted; internalquotation marks omitted.) Ambroise v. WilliamRaveis Real Estate, Inc., supra, 764; see GlastonburyVolunteer Ambulance Assn., Inc. v. Freedom of InformationCommission, 227 Conn. 848, 852-57,633 A.2d 305 (1993).

Applying these rules in the present circumstances,we conclude that the 135 day period specified in17a-593 (c) is directory. The defendant seeks a constructionof this statute that would require automaticdismissal of a late filed state's petition for the continuedcommitment of an acquittee. Thus, noncompliance with17a-593 (c) would effectively deprive the Superior

[230 Conn. 410]

     Court of further jurisdiction over an acquittee's continuingcommitment. As in the case of time limitationson a right to appeal, "the established principle [is] thatevery presumption is to be indulged in favor of jurisdiction. . . [and] we require a strong showing of alegislative intent to create a time limitation that, in theevent of noncompliance, acts as a subject matter jurisdictionalbar." (Citations omitted; internal quotationmarks omitted.) Ambroise v. William Raveis RealEstate, Inc., supra, 226 Conn. 765. We can discern nosuch showing in either the plain language of the statuteor its legislative history.

Significant to our determination is the absence in thestatute of words, such as "must" or "shall," whichordinarily express legislative mandates of a nondirectorynature. See Statewide Grievance Committee v. Rozbicki,211 Conn. 232, 240, 558 A.2d 986 (1989); Lo Saccov. Young, 210 Conn. 503, 507, 555 A.2d 986 (1989);Caulkins v. Petrillo, 200 Conn. 713, 717, 513 A.2d 43(1986); Sullivan v. Liberty Mutual Fire Ins. Co.,174 Conn. 229, 233, 384 A.2d 384 (1978). This stands in contrastto other subsections of 17a-593 that employ suchdefinitive terminology. See, e.g., General Statutes17a-593 (d). The legislature, if intending the 135 daytime limitation to be mandatory, could easily haveexpressed this intent. See State v. Ortiz, 217 Conn. 648,654, 588 A.2d 127 (1991).

The legislative history of 17a-593 (c) reveals thatthe 135 day time frame was incorporated into that statutein 1987; Public Acts 1987, No. 87-486, 9; in orderto make the psychiatric security review board "moreeffective and efficient." Conn. Joint Standing CommitteeHearings, Judiciary, Pt. 3, 1987 Sess., p. 1051, writtentestimony of Robert Berger, chair of psychiatricsecurity review board; see also 30 S. Proc. Pt. 14, 1987Sess., pp. 4879-80, remarks of Senator Anthony Avallone.9

[230 Conn. 411]

     "[L]egislative provisions designed to secureorder, system and dispatch in proceedings are ordinarilyheld to be directory where, as here, they are statedin affirmative terms or, to express it differently, areunaccompanied by negative words." (Internal quotationmarks omitted.) State v. White, 169 Conn. 223, 238,363 A.2d 143, cert. denied, 423 U.S. 1025, 96 S.Ct.469, 46 L.Ed.2d 399 (1975); Caron v. Inland Wetlands& Watercourses Commission, 222 Conn. 269, 280,610 A.2d 584 (1992). We note that 17a-593 (c) attachesno penalty for the failure of the state to comply withits provisions, nor does it otherwise require that thestate seek an extension of time. See State v. White,supra, 238; Caron v. Inland Wetlands & WatercoursesCommission, supra, 273-74.

Accordingly, we conclude that the 135 day time limitationof 17a-593 (c) is directory, rather than mandatory.The trial court therefore correctly decided notto dismiss the state's petition for the continuation ofthe defendant's commitment.

II

The trial court granted the state's petition for thecontinuation of the defendant's initial commitmentdespite the defendant's claim that the manner of hisfurther commitment violated his federal and state constitutionalrights to due process and equal protection

[230 Conn. 412]

     of the laws. Having been confined for the maximumterm specified in 17a-582 (e)(1)(A), the defendantmaintains that it is unconstitutional for his further commitmentto be ordered without the procedural safeguardsafforded to those whose term of incarcerationhas expired or who, for other reasons, have been civillycommitted. The state contends, to the contrary, thatthe procedural constraints imposed by 17a-593 areconstitutional because the defendant's prior criminalconduct carries with it a continuing presumption thatthe defendant is a danger to society. We agree withthe defendant that he is entitled to greater proceduralsafeguards than he was afforded in this case.

A

Our examination of the specific claims made by thedefendant must be informed by an understanding ofthe nature of the constitutional rights that he is asserting.These constitutional rights have been articulatedin cases decided by the Supreme Court of the UnitedStates and applied in cases decided by this court.

Freedom from unjustified governmental intrusionsinto personal security and bodily freedom are basic,historically recognized liberty interests that are protectedby the federal constitution. Foucha v. Louisiana,504 U.S. 71, 80, 112 S.Ct. 1780, 1785, 118 L.Ed.2d 437(1992); Vitek v. Jones, 445 U.S. 480, 492, 100 S.Ct.1254, 63 L.Ed.2d 552 (1980). As a matter of federallaw, "`[i]t is clear that commitment for any purposeconstitutes a significant deprivation of liberty thatrequires due process protection'"; that is, "the natureof commitment [must] bear some reasonable relationto the purpose for which the individual is committed."Foucha v. Louisiana, supra, 1785. The United StatesSupreme Court has recognized involuntary commitmentto a mental institution, in particular, as involving"more than a loss of freedom from confinement";

[230 Conn. 413]

     Vitek v. Jones, supra, 492; due to its stigmatizing consequences,and the potential exposure to invasive, compulsorymedical and psychiatric treatment. Id.

The law of federal due process accordingly imposessignificant constitutional constraints on involuntarycommitments. Even for the purpose of psychiatrictreatment, a state may not confine an individual, unlessthe individual is both mentally ill and dangerous. O'Connor v.Donaldson, 422 U.S. 563, 573-76, 95 S.Ct. 2486,45 L.Ed.2d 396 (1975). To prevail in civil commitmentproceedings, "the Government . . . [must] demonstrateby clear and convincing evidence that the individualis mentally ill and dangerous." Jones v. UnitedStates, 463 U.S. 354, 362, 103 S.Ct. 3043, 77 L.Ed.2d694 (1983); Addington v. Texas, 441 U.S. 418,426-27, 433, 99 S.Ct. 1804, 60 L.Ed.2d 323 (1979).Although these procedural protections are directed topersons who are civilly committed, they apply as well,under federal equal protection law, to a state's initiationof involuntary commitment proceedings for certainpersons involved in the criminal justice system,such as prisoners after the expiration of their prisonterm; McNeil v. Director, Patuxent Institution,407 U.S. 245, 92 S.Ct. 2083, 32 L.Ed.2d 719 (1972); Baxstromv. Herold, 383 U.S. 107, 86 S.Ct. 760, 15 L.Ed.2d620 (1966); and criminal defendants found not competentto stand trial. Jackson v. Indiana, 406 U.S. 715,724, 92 S.Ct. 1845, 32 L.Ed.2d 435 (1972).10

[230 Conn. 414]

Federal law has, however, recognized that insanityacquittees are "a special class that should be treateddifferently from other candidates for commitment," soas to warrant a departure from the Addington standard.Jones v. United States, supra, 463 U.S. 370. Thus,"when a criminal defendant establishes by a preponderanceof the evidence that he is not guilty of a crimeby reason of insanity, the Constitution permits theGovernment, on the basis of the insanity judgment, toconfine him to a mental institution until such time ashe has regained his sanity or is no longer a danger tohimself or society." Id. For an insanity acquittee, thestate may adopt procedures that presume the acquittee'scontinued dangerousness and that envisage adiminished risk that a person will be committed whois not mentally ill. Id., 364-67.

Applying the principle that the commitment ofinsanity acquittees may be governed by rules that differfrom those governing those who are civilly committed,the United States Supreme Court held, in Jonesv. United States, supra, 463 U.S. 354, that the Districtof Columbia Code could constitutionally permit aninsanity acquittee to be committed for an initiallyindefinite period of time, as long as his continued commitmentwas subject to periodic reviews that wouldafford him an opportunity to prove that he was nolonger mentally ill or dangerous. Jones expressly didnot decide whether the release provisions contained inthe District of Columbia Code, which place a similarburden of proof on the insanity acquittee whenever heseeks release, comported with the requirements of dueprocess. Id., 363 n. 11.11 Similarly, the court expressly

[230 Conn. 415]

     did not decide whether considerations of equal protectionmight be implicated by the District Code's disparaterelease provisions for insanity acquittees andother committed persons.12 Compare Humphrey v.Cady, 405 U.S. 504, 92 S.Ct. 1048, 31 L.Ed.2d 394(1972) (remand necessary for lower court to review"persuasive" equal protection claim based on disparityof procedural safeguards afforded committee underWisconsin's Sex Crime Act as compared with other civilcommittees), with Heller v. Doe, ___ U.S. ___, 113S.Ct. 2637, 125 L.Ed.2d 257 (1993) (rational basis fordistinguishing between mentally ill and mentallyretarded for purposes of burden of proof at civil commitmentproceedings; applicability of heightenedreview not reached).

Returning to the commitment of insanity acquitteesin Foucha v. Louisiana, supra, 112 S.Ct. 1780, theUnited States Supreme Court declared unconstitutionala Louisiana statute that permitted the indefinite commitmentof an insanity acquittee who was no longermentally ill, unless he could prove that he was no longerdangerous. Id., 1784. Foucha not only reaffirmed thata "`committed acquittee is entitled to release when he

[230 Conn. 416]

     has recovered his sanity or is no longer dangerous'";id.; but also placed a sane acquittee on an equal footingwith a person who has been civilly committed forpurposes of establishing the propriety of continued commitment.In both cases, the court held, the state mustshow, "`by clear and convincing evidence that the individualis mentally ill and dangerous,' Jones [v. UnitedStates, supra, 463 U.S. 362]." Id., 1786.

Neither Jones nor Foucha squarely addressed theconstitutionality of placing on an insanity acquittee theburden of proving sanity in order to obtain release frominvoluntary commitment.13 The court's holding inFoucha, nonetheless, reiterates that, once thelegitimacy of an original confinement has lapsed, thestate cannot impose on an acquittee a burden of proofthat would "defeat [his] liberty interest under the Constitutionin being freed from indefinite confinement ina mental facility." Id., 82.

Like the state laws reviewed in these federal cases,our statutes distinguish between those who are civillycommitted and those who are insanity acquittees. Wehave upheld the validity of such disparities in a numberof cases. State v. Miller, 192 Conn. 532, 538,472 A.2d 1272 (1984); State v. Reed, 192 Conn. 520, 529,532, 473 A.2d 775 (1984). "The use of a less demandingmeasure of the quantum of evidence" for the initialconfinement of acquittees than that afforded civilcommittees, at least to the extent of permitting thestate to bear the burden of proof by a mere preponderanceof the evidence, "has been constitutionally

[230 Conn. 417]

     justified because of the unique status of persons acquittedby reason of insanity." State v. Miller, supra, 538;Warren v. Harvey, 632 F.2d 925, 931 (2d Cir. 1980);State v. Warren, 169 Conn. 207, 215, 363 A.2d 91(1975). We have acknowledged that "[t]he obviousdifference between insanity acquittees and other personsfacing commitment is the fact that the former havebeen found, beyond a reasonable doubt, to have committeda criminal act." Warren v. Harvey, supra, 931;State v. Warren, supra, 215. "While the acquitteetherefore may be deprived erroneously of his libertyin the commitment process, the liberty he loses is likelyto be liberty which society mistakenly had permittedhim to retain in the criminal process." Warren v. Harvey,supra, 931; see also Lynch v. Overholser, 369 U.S. 705,715, 82 S.Ct. 1063, 8 L.Ed.2d 211 (1962); UnitedStates v. Brown, 478 F.2d 606, 610 (D.C. Cir. 1973).

In contrast to an acquittee's differentiated status atan initial commitment hearing, our state law has, forcertain purposes, likened acquittees to prisoners whohave been transferred to a mental hospital during thependency of their jail sentence. We have noted that"both classes of hospital inmates are being deprivedof their liberty primarily for the protection of society;both have the same financial resources; and both havethe same need for treatment." State v. Reed, supra,192 Conn. 530. Thus, this court has held that equal protectionof the laws mandates that an acquittee, like aprisoner under our statutes, should not bear the costsof his commitment. Id., 529-30, 532 (striking downGeneral Statutes 17-317 and 53a-47 [h], in relationto 17-318, on equal protection grounds for disparatetreatment of acquittees and prisoners in relation to burdenof hospital costs).

With respect to release from confinement, this courthas adopted the principle enunciated in Jones andreiterated in Foucha that, as a matter of due process,

[230 Conn. 418]

     an acquittee is entitled to release when he has recoveredhis sanity or is no longer dangerous. Payne v.Fairfield Hills Hospital, 215 Conn. 675, 684,578 A.2d 1025 (1990); see also Franklin v. Berger, 211 Conn. 591,560 A.2d 444 (1989). In dictum, we have construed17a-593 (f), as currently codified, as placing on anacquittee the burden of proving his entitlement to arelease even after the maximum term of commitmentspecified in 17a-582 (e)(1)(A) has expired. Franklinv. Berger, supra, 603. Until this case, we have not, however,considered the constitutionality of such a constructionof 17a-593 (f), either as a matter of federalconstitutional law or by undertaking an independentanalysis of the applicable provisions of our state constitution.14

In sum, neither federal nor state case law containsdispositive precedents defining the constitutional libertyinterest or the rights to equal protection of insanityacquittees who seek release after they have been committedfor a period of time measured by their maximumpossible criminal confinement. Specifically, thereare no guiding precedents about whether it is constitutionallypermissible to require an insanity acquittee tocontinue to be burdened by a presumption of dangerousnessand insanity after expiration of a statutorilydefined maximum term of commitment.

B

We consider first the defendant's challenge to theconstitutionality of the governing statutes that ispremised on the fact that the evidence supporting hisrecommitment came only from his treating physician

[230 Conn. 419]

     at Whiting. The defendant claims that by not requiringsworn certificates of at least two impartial physiciansnot affiliated with the hospital to whichapplication for commitment is being made, as isrequired for civil committees; General Statutes17a-498 (c); that the procedures to continue his commitmentunder General Statutes 17a-596 and17a-593 violated his rights to equal protection of thelaws.

We note, however, that the defendant did not availhimself of the statutory provision permitting him toobtain a separate examination "by a psychiatrist or psychologistof the acquittee's own choice"; General Statutes17a-593 (e); in order to challenge the proprietyof his continued commitment. "`We have held that thefailure to raise a procedural claim or the failure to utilizea remedy available to cure a procedural defect canconstitute a waiver of the right to object to the allegeddefect.'" Dragan v. Connecticut Medical ExaminingBoard, 223 Conn. 618, 633, 613 A.2d 739 (1992); Jutkowitzv. Department of Health Services, 220 Conn. 86,95-96, 596 A.2d 374 (1991); see also Levinson v. Boardof Chiropractic Examiners, 211 Conn. 508, 536,560 A.2d 403 (1989); Henderson v. Department of MotorVehicles, 202 Conn. 453, 461-63, 521 A.2d 1040 (1987).Accordingly, we deem this issue waived and decline toreach its merits.

C

The defendant's alternate basis for challenging theconstitutionality of 17a-593 concerns the proprietyof assigning him the burden of proving that he is nolonger insane or dangerous in proceedings brought torenew his commitment after expiration of the maximumterm of his initial commitment. The defendantproperly raised this issue at trial. We conclude that the

[230 Conn. 420]

     statute must be construed to avoid the constitutionaljeopardy that the defendant has brought to ourattention.

We start our analysis of 17a-593 with the premisethat "a validly enacted statute carries with it a strongpresumption of constitutionality, [and that] those whochallenge its constitutionality must sustain the heavyburden of proving its unconstitutionality beyond a reasonabledoubt. State v. Breton, 212 Conn. 258, 269,562 A.2d 1060 (1989); University of Connecticut Chapter,AAUP v. Governor, 200 Conn. 386, 391, 512 A.2d 152(1986); Eielson v. Parker, 179 Conn. 552, 560,427 A.2d 814 (1980); State v. Darden, 171 Conn. 677, 678,372 A.2d 99 (1976). In construing a statute, moreover, wewill search for an effective and constitutional constructionthat reasonably accords with the legislature'sunderlying intent. State v. Floyd, 217 Conn. 73, 79,584 A.2d 1157 (1991); McConnell v. Beverly Enterprises-Connecticut,Inc., 209 Conn. 692, 705-706,553 A.2d 596 (1989)." Bartholomew v. Schweizer, 217 Conn. 671,675-76, 587 A.2d 1014 (1991).

In this case, although 17a-593 (c) permits a state'sattorney to petition the Superior Court to continuethe commitment of an acquittee after the expirationof the maximum term of confinement specified in17a-582 (e)(1)(A), the statute contains limited directionsabout the manner in which such further commitmentshould be adjudicated. Pursuant to 17a-593 (d)and (e), the court must seek the recommendation of thepsychiatric security review board, and the acquitteemust be permitted to challenge the validity of thatrecommendation. Furthermore, under 17a-593 (f), acourt hearing must proceed on any "recommendationor application for discharge or petition for continuedcommitment." Although subsection (f) expresslyrequires the acquittee to bear the burden of establishinghis right to a discharge by a preponderance of the

[230 Conn. 421]

     evidence before expiration of the maximum period ofcommitment, it is unclear whether this subsection wasintended to allocate the same burden when the statepetitions for a period of additional commitment beyondthat maximum term.15 A statutory burden to show thatan "acquittee is a person who should be discharged"assumes the propriety of his commitment. That is thevery question at issue in a hearing on a state's petitionfor an additional period of commitment.

The latent ambiguity inherent in 17a-593 (c) is onlyheightened when the subsection is viewed in context.By authorizing the state to petition for an acquittee'scontinued commitment if reasonable cause exists tosupport such confinement, 17a-593 (c) impliedly placesa burden on the state to establish the need for continuedcommitment. Furthermore, the maximum period ofcommitment authorized by 17a-582 (e)(1)(A) wouldbe rendered a nullity if an indefinite commitment couldbe ordered at the state's behest.

Important considerations of policy suggest that thelegislature would not have intended to impose, even

[230 Conn. 422]

     on an insanity acquittee, a never-ending burden ofrebutting an indefinite presumption of continuinginsanity and dangerousness. The considered view ofprofessional commentators who have promulgatedmodel rules for the commitment of insanity acquitteesis that, after expiration of a stated term of commitment,fairness, convenience and symmetry require an insanityacquittee to be treated like others committed for mentalillness. See ABA Criminal Justice Mental HealthStandards (1989) pt. 7, pp. 435-36.16

In our view, these principles of fairness are notmerely guides for statutory policymakers, but implicateimportant constitutional principles as well. In ourinterpretation of 17a-593, we are guided by the principlethat we should seek to construe the statute so as

[230 Conn. 423]

     not to place it in constitutional jeopardy. Bartholomewv. Schweizer, supra, 217 Conn. 675-76; State v. Floyd,supra, 217 Conn. 79; see also McConnell v. BeverlyEnterprises-Connecticut, Inc., supra, 209 Conn. 705-706.Specifically, we must inquire into whether anindefinite allocation of the burden of proof on aninsanity acquittee raises significant questions of equalprotection.

"`[T]he concept of equal protection [under both thestate and federal constitutions] has been traditionallyviewed as requiring the uniform treatment of personsstanding in the same relation to the governmentalaction questioned or challenged.' Reynolds v. Sims,377 U.S. 533, [565] 84 S.Ct. 1362, 12 L.Ed.2d 506 (1964);Cleburne v. Cleburne Living Center, Inc., 473 U.S. 432,[440] 105 S.Ct. 3249, 87 L.Ed.2d 313 (1985); Dailyv. New Britain Machine Co., 200 Conn. 562, 578,512 A.2d 893 (1986). The `equal protection clause does notrequire absolute equality or precisely equal advantages.'Ross v. Moffitt, 417 U.S. 600, [612] 94 S.Ct. 2437, 41L.Ed.2d 341 (1974); Daily v. New Britain MachineCo., supra, 577-78. Rather, a state may make classificationswhen enacting or carrying out legislation, butin order to satisfy the equal protection clause theclassifications made must be based on some reasonableground. Ross v. Moffitt, supra [612]; Magoun v. IllinoisTrust & Savings Bank, 170 U.S. 283, [293] 18 S.Ct.594, 42 L.Ed. 1037 (1898); Daily v. New BritainMachine Co., supra [577-78]; State v. Reed, supra,[192 Conn. 531]. To determine whether a particular classificationviolates the guarantees of equal protection, thecourt must consider `the character of the classification;the individual interests affected by the classification;and the governmental interests asserted in support ofthe classification.' Dunn v. Blumstein, 405 U.S. 330,335, 92 S.Ct. 995, 31 L.Ed.2d 274 (1972)." Franklinv. Berger, supra, 211 Conn. 594-95. "[T]he legislature

[230 Conn. 424]

     has . . . broad discretion in the exercise of its powerto enact legislation and . . . its judgment in establishingstatutory classifications will [ordinarily] be setaside only where no grounds can be conceived to justifythem. McDonald v. Board of Election, 394 U.S. 802,809, 89 S.Ct. 1404, 22 L.Ed.2d 739 (1969)."17 Statev. Reed, supra, 531.

Despite the substantial degree of legislative discretionrecognized by these precedents, we are of the viewthat the defendant has raised a serious constitutionalconcern in this case. After the expiration of a maximumterm of confinement, it is difficult to find a constitutionaljustification for a categorical distinctionbetween an insanity acquittee and an incarcerated prisonerwho was transferred to a mental hospital whilehe was serving his criminal sentence. In each instance,the purpose of commitment "is to treat the individual'smental illness and protect him and society from hispotential dangerousness"; Jones v. United States,supra, 463 U.S. 368; Payne v. Fairfield Hills Hospital,supra, 215 Conn. 684; see also Franklin v. Berger,supra, 211 Conn. 612 (Healey, J., concurring). In each

[230 Conn. 425]

     instance, furthermore, the qualitative character of theliberty deprivation is the same, irrespective of the factthat the Superior Court rather than the Probate Courtretains jurisdiction over the propriety of an acquittee'scontinued commitment. General Statutes 17a-582 (e),17a-497 and 17a-498.

These constitutional concerns lead us to construethe maximum period of commitment authorized by17a-582 (e)(1)(A) as a reasonably identified point ofdemarcation beyond which the presumption of dangerousnessinitially accompanying an acquittee does notcontinue.18 Accordingly, we conclude that 17a-593 (c)impliedly imposes the same burden on the state ata hearing for the continued commitment of an acquitteebeyond his current definite period of commitmentas is imposed in a civil commitment hearing under17a-498 (c); namely, to show by clear and convincingevidence that the acquittee is currently mentally ill anddangerous to himself or herself or others or gravelydisabled.

Our conclusion finds additional support in the equalprotection clause of our state constitution, which forbidsdiscrimination on the ground of mental illness.If the defendant were not suffering from mental illness,the state could not constitutionally confine himbeyond the maximum term of his criminal convictions.Although the state may well have a compelling interestin the continued commitment of acquittees whosemental illness makes them dangerous to themselves orothers; cf. Daly v. DelPonte, 225 Conn. 499, 511-18,624 A.2d 876 (1993); that interest arises only when thestate has shouldered the burden of establishing the existenceof the underlying facts. Id., 517-18. Because the

[230 Conn. 426]

     underlying criminal conduct may be relatively minor,and indeed need not involve a crime of violence, thepresumption of the existence of facts warranting thedefendant's commitment does not survive the expirationof the maximum term of criminal sanctions.19

Finally, our conclusion is consistent with our recognition,in State v. Joyner, 225 Conn. 450, 467,625 A.2d 791 (1993),20 that our state jurisprudence assignsconstitutional import to a defendant's right to present aninsanity defense. Burdening the successful assertionof an insanity defense with a presumption of insanityand dangerousness that has no time constraints wouldseriously undermine a criminal defendant's recourseto such a defense.

Accordingly, we conclude that the trial court's recommitmentof the defendant must be vacated. We will,however, stay the effective date of our order for a reasonableperiod of time to enable the state to ask thetrial court for a new hearing at which the state will bearthe burden of proving the defendant's continuedinsanity and dangerousness.

The judgment is reversed.

In this opinion the other justices concurred.

1. General Statutes 17a-582 (formerly 17-257c)provides: "CONFINEMENT OF ACQUITTEE FOR EXAMINATION. COURTORDER OF COMMITMENT TO BOARD OR DISCHARGE. (a) When any personcharged with an offense is found not guilty by reason of mentaldisease or defect pursuant to section 53a-13, the court shallorder such acquittee committed to the custody of the commissionerof mental health who shall cause such acquittee to be confined,pending an order of the court pursuant to subsection (e) of thissection, in any of the state hospitals for mental illness or tothe custody of the commissioner of mental retardation, for anexamination to determine his mental condition. "(b) Within forty-five days of the order of commitment pursuantto subsection (a) of this section, the superintendent of suchhospital or the commissioner of mental retardation shall causethe acquittee to be examined and file a report of the examinationwith the court, and shall send a copy thereof to the state'sattorney and counsel for the acquittee, setting forth thesuperintendent's or said commissioner's findings and conclusionsas to whether the acquittee is a person who should be discharged. "(c) Within ten days of receipt of such superintendent's orsaid commissioner's report, either the state's attorney orcounsel for the acquittee may file notice of intent to perform aseparate examination of the acquittee. An examination conductedon behalf of the acquittee may be performed by a psychiatrist orpsychologist chosen by the acquittee and shall be performed atthe acquittee's expense unless he is indigent. If the acquitteeis indigent, the court shall provide him with the services of apsychiatrist or psychologist to perform the examination at theexpense of the state. The superintendent or said commissioner whoconducted the initial examination shall, within five days of arequest of any party conducting a separate examination pursuantto this subsection, release to such party all records and reportscompiled in the initial examination of the acquittee. Anyseparate examination report shall be filed with the court withinthirty days of the filing with the court of the initialexamination report by the superintendent or said commissioner. "(d) The court shall commence a hearing within fifteen days ofits receipt of any separate examination report or if no notice ofintent to perform a separate examination has been filed undersubsection (c) of this section, within twenty-five days of thefiling of such initial examination report. "(e) At the hearing, the court shall make a finding as to themental condition of the acquittee and, considering that itsprimary concern is the protection of society, make one of thefollowing orders: "(1) If the court finds that the acquittee is a person whoshould be confined or conditionally released, the court shallorder the acquittee committed to the jurisdiction of the boardand either confined in a hospital for mental illness or placedwith the commissioner of mental retardation, for custody, careand treatment pending a hearing before the board pursuant tosection 17a-583; provided (A) the court shall fix a maximum termof commitment, not to exceed the maximum sentence that could havebeen imposed if the acquittee had been convicted of the offense,and (B) if there is reason to believe that the acquittee is aperson who should be conditionally released, the court shallinclude in the order a recommendation to the board that theacquittee be considered for conditional release pursuant tosubdivision (2) of section 17a-584; or "(2) If the court finds that the acquittee is a person whoshould be discharged, the court shall order the acquitteedischarged from custody. "(f) At the hearing before the court, the acquittee shall havethe burden of proving by a preponderance of the evidence that heis a person who should be discharged. "(g) An order of the court pursuant to subsection (e) of thissection may be appealed by the acquittee or the state's attorneyto the appellate court. The court shall so notify the acquittee. "(h) During any term of commitment to the board, the acquitteeshall remain under the jurisdiction of the board until dischargedby the court pursuant to section 17a-593. Except as provided insubsection (c) of said section, the acquittee shall beimmediately discharged at the expiration of the maximum term ofcommitment. "(i) On committing an acquittee to the jurisdiction of theboard, the court shall advise the acquittee of the right to aheating before the board in accordance with section 17a-583."

2. General Statutes 17a-593 (formerly 17-257n)provides: "COURT ORDER TO DISCHARGE ACQUITTEE FROM CUSTODY.(a) The board, pursuant to section 17a-584 or 17a-592, mayrecommend to the court the discharge of the acquittee fromcustody or the acquittee may apply directly to the court fordischarge from custody. The court shall send copies of therecommendation or application to the state's attorney and tocounsel for the acquittee. An acquittee may apply for dischargenot more than once every six months and no sooner than six monthsafter the initial board hearing held pursuant to section 17a-583. "(b) The recommendation or application shall contain the dateson which any prior recommendations or applications for dischargehad been filed with the court, the dates on which decisionsthereon were rendered, and a statement of facts, including anychange in circumstances since the determination on the mostrecent recommendation or application, sufficient to qualify theacquittee as a person who should be discharged. A recommendationby the board shall contain findings and conclusions to supportthe recommendation. "(c) If reasonable cause exists to believe that the acquitteeremains mentally ill or mentally retarded to the extent that hisdischarge at the expiration of his maximum term of commitmentwould constitute a danger to himself or others, the state'sattorney, at least one hundred thirty-five days prior to suchexpiration, may petition the court for an order of continuedcommitment of the acquittee. "(d) The court shall forward any application for dischargereceived from the acquittee and any petition for continuedcommitment of the acquittee to the board. The board shall,within ninety days of its receipt of the application or petition,file a report with the court, and send a copy thereof to thestate's attorney and counsel for the acquittee, setting forth itsfindings and conclusions as to whether the acquittee is a personwho should be discharged. The board may hold a hearing or takeother action appropriate to assist it in preparing its report. "(e) Within ten days of receipt of a recommendation fordischarge filed by the board under subsection (a) of this sectionor receipt of the board's report filed under subsection (d) ofthis section, either the state's attorney or counsel for theacquittee may file notice of intent to perform a separateexamination of the acquittee. An examination conducted on behalfof the acquittee may be performed by a psychiatrist orpsychologist of the acquittee's own choice and shall be performedat the expense of the acquittee unless he is indigent. If theacquittee is indigent, the court shall provide him with theservices of a psychiatrist or psychologist to perform theexamination at the expense of the state. Any such separateexamination report shall be filed with the court within thirtydays of the notice of intent to perform the examination. Tofacilitate examinations of the acquittee, the court may order himplaced in the temporary custody of any hospital for mentalillness or other suitable facility or placed with thecommissioner of mental retardation. "(f) After receipt of the board's report and any separateexamination reports, the court shall promptly commence a hearingon the recommendation or application for discharge or petitionfor continued commitment. At the hearing, the acquittee shallhave the burden of proving by a preponderance of the evidencethat the acquittee is a person who should be discharged. "(g) The court shall make a finding as to the mental conditionof the acquittee and, considering that its primary concern is theprotection of society, make one of the following orders: (1) Ifthe court finds that the acquittee is not a person who should bedischarged, the court shall order the recommendation orapplication for discharge be dismissed; or (2) if the court findsthat the acquittee is a person who should be discharged, thecourt shall order the acquittee discharged from custody. Thecourt shall send a copy of such finding and order to the board."

3. General Statutes 17a-580 (formerly 17-257a)provides in relevant part: "DEFINITIONS. As used insections 17a-581 to 17a-602, inclusive, and this section: "(1) `Acquittee' means any person found not guilty by reason ofmental disease or defect pursuant to section 53a-13. . . ."

4. These procedures differ substantially from those thatgovern the confinement in mental hospitals of other personssuffering from a mental illness. Civil commitments generally notonly are administered by the Probate Court but require the personproposing such confinement to establish its propriety by clearand convincing evidence. General Statutes 17a-498 (c).Civil commitment procedures also apply to any person who, whilein the custody of the commissioner of correction, manifestsmental illness and dangerousness to himself and others. GeneralStatutes 17a-515.

5. General Statutes 17a-585 (formerly 17-257f)provides: "PERIODIC REVIEW BY BOARD. The board shallconduct a hearing and review the status of the acquittee not lessthan once every two years. At such hearing the board shall makea finding and act pursuant to section 17a-584."

6. The defendant also cites General Statutes 17a-596(f) for the proposition that an acquittee bears the burden ofproof at a court hearing on a petition for a period of continuedcommitment. Section 17a-596 (f) provides that "[a]t any hearingbefore the [psychiatric security review] board, the acquittee, orany applicant seeking an order less restrictive than the existingorder, shall have the burden of proving by a preponderance of theevidence the existence of conditions warranting a lessrestrictive order." That statute is inapposite in this appeal,however, as it governs only matters before the psychiatricsecurity review board.

7. For those who may be mentally ill and dangerous, butare not acquittees, the mental hospital at which the person hasbeen confined for a specified period of time may instituteproceedings in Probate Court to extend the person's commitment.General Statutes 17a-508 (further civil commitment ingeneral); General Statutes 17a-520 (further civilcommitment at end of term of imprisonment for criminal conduct).See footnote 4.

8. Although both the state, in its petition for acontinued commitment, and the psychiatric security review board,in its recommendation of a continued commitment, requested thatthe trial court specify a time period for the defendant'scontinued confinement, the record indicates that the trial courtgranted the state's petition without term. The defendant has notchallenged the validity of this aspect of the trial court'sorder.

9. Public Acts 1987, No. 87-486, 9, advanced thetime for filing of a state's petition for continued confinementfrom ninety to 135 days before the maximum period of commitment;General Statutes 17a-593 (c); and also extended the periodin which the psychiatric security review board is required tofile a report with the trial court regarding such a petition fromforty-five days to ninety days from the filing of the petition.General Statutes 17a-593 (d). These changes were motivatedby a concern that the psychiatric security review board could notconduct a hearing, and prepare and file a report with the trialcourt, in the forty-five days after filing of the petition, aswas mandated by that statute prior to 1987. Conn. Joint StandingCommittee Hearings, Judiciary, Pt. 3, 1987 Sess., pp. 994-95,1052.

10. Involuntary commitment without the full protectionsof Addington v. Texas, supra, 441 U.S. 418, andO'Connor v. Donaldson, supra, 422 U.S. 563, has beenapproved in narrowly circumscribed situations. See, e.g.,Jackson v. Indiana, supra, 406 U.S. 738 (state'sinterest in determining whether accused may become competent tostand trial in foreseeable future justifies commitment "for [a]reasonable period of time"); McNeil v. Director,Patuxent Institution, supra, 407 U.S. 249-50 (implying short-termcommitment of convicted criminal for purposes of psychiatricevaluation legitimate); cf. Vitek v. Jones, supra,445 U.S. 495-96 (convicted felon serving sentence may not betransferred to mental institution without appropriate procedures,including notice and adversarial hearing, to prove mentally ill);see also Jones v. United States, supra, 463 U.S. 372-73n. 3 (Brennan, J., with whom Marshall and Blackmun, Js., joined,dissenting).

11. The release provisions of the District of ColumbiaCode provide an insanity acquittee with "a judicial hearing[within fifty days of commitment] to determine his eligibilityfor release, at which he has the burden of proving by apreponderance of the evidence that he is no longer mentally illor dangerous. . . . If he fails to meet this burden at the50-day hearing, the . . . acquittee subsequently may be released,with court approval, upon certification of his recovery by thehospital chief of service. . . . Alternatively, the acquittee isentitled to a judicial hearing every six months at which he mayestablish by a preponderance of the evidence that he is entitledto release. . . ." (Citations omitted.) Jones v. UnitedStates, supra, 463 U.S. 357-58.

12. Under the District of Columbia Code, "the basicstandard for release is the same under either civil commitment orcommitment following acquittal by reason of insanity: theindividual must prove by a preponderance of the evidence that heis no longer dangerous or mentally ill." Jones v. UnitedStates, supra, 463 U.S. 363 n. 11. However, "[a] patient whois committed civilly is entitled to unconditional release uponcertification of his recovery by the hospital chief ofservice . . . whereas a committed insanity acquittee may bereleased upon such certification only with courtapproval . . . ." (Citations omitted.) Id.

13. In Foucha, the acquittee's mental status wasnot at issue because the head of the mental facility had rendereda decision of "no mental illness" in accordance with theLouisiana statutes, thus affording the acquittee a hearing atwhich he bore the burden of proving, by clear and convincingevidence, that he was no longer a danger to the community.Foucha v. Louisiana, supra, 112 S.Ct. 1786. Thus, thestate was seeking to perpetuate the acquittee's prior legitimateconfinement solely on the basis of his continuing propensity fordangerousness. Id., 1784.

14. Two separate opinions in Franklin v. Berger,supra, 211 Conn. 591, however, specifically questioned whether anacquittee could constitutionally be required to prove hisentitlement to be released once his maximum term of confinementhad expired. Id., 606 (Glass, J., concurring); id., 608n. 1 (Healey, J., concurring).

15. To the extent that dicta in Franklin v.Berger, supra, 211 Conn. 603, assumed that General Statutes17a-593 (f) allocates the burden of proof to an acquitteein a hearing for his continued commitment, we decline to convertdicta into a holding. We note that Franklin addressedneither the constitutionality of 17a-593 (f); but seefootnote 14; nor the relevant legislative history that plainlyindicates the subsection was intended to place the burden ofproof on an acquittee only with respect to applications fordischarge. By so assigning the burden of proof, irrespective ofwhether the application is brought by the acquittee or by thepsychiatric security review board, the 1987 amendments sought toavoid placing the board in the awkward position of representingan acquittee on an application for discharge when the acquitteewas already represented by counsel. See Conn. Joint StandingCommittee Hearings, Judiciary, Pt. 3, 1987 Sess., p. 1052,written testimony of Robert Berger, chair of psychiatric securityreview board. Such concerns do not arise in the context of astate's petition for continued commitment. Finally, by decliningto follow the Franklin dicta construing 17a-593(f), we do not call into question our holding inFranklin that it is not a denial of equal protection torefuse to credit pretrial jail time against the length of aninsanity acquittee's commitment to a mental hospital.Franklin v. Berger, supra, 604.

16. The expressed purpose of the ABA standards "is tobalance a legitimate concern for public safety against the needfor fair and consistent treatment of . . . acquittees." ABACriminal Justice Mental Health Standards (1989) pt. 7, p. 399.Like Connecticut, the ABA recommends the setting of a maximumduration of commitment, the outer limit of which is the maximumsentence of imprisonment that an acquittee could have receivedfollowing conviction. Id., p. 433. The disparate treatment of acquittees for purposes of theirinitial commitment has been severely criticized by the ABA: "Afinding, at whatever level of certainty, that an acquittee wasmentally disabled at the time of an alleged offense revealslittle or nothing about mental condition at the time ofacquittal. Months or even years may have intervened between thetwo events. The passage of time and, in many cases, theprovision of treatment or habilitation in the interim generate aserious possibility that an acquittee's mental condition will nothave remained constant from activity through acquittal. To drawinferences from such stale information may well be seriouslyunfair if the consequences of the presumption of continuingdangerousness affect something as important as personal liberty."Id., p. 424. Accordingly, the ABA would impose on the state theburden of persuasion, by clear and convincing evidence,concerning an acquittee's current mental status and dangerousnessat the initial commitment hearing, and at subsequent periodicreviews. Id. pp. 418, 437. Whatever the merits of such anargument with respect to the initial commitment, we note that theexpressed concerns are significantly heightened by the inevitablepassage of time and the provision of treatment or habilitationfollowing an initial commitment. See id., p. 442.

17. We note that "[w]here the [statutory] classificationimpinges upon a fundamental right or impacts upon an `inherentlysuspect' group, it will be subjected to strict scrutiny and willbe set aside unless it is justified by a compelling stateinterest. [Dunn v. Blumstein, supra, 405 U.S. 342];Bruno v. Civil Service Commission, 192 Conn. 335, 345,472 A.2d 328 (1984); Laden v. Warden, 169 Conn. 540,542, 363 A.2d 1063 (1975). On the other hand, where theclassification at issue neither impinges upon a fundamental rightnor affects a suspect group `it will withstand constitutionalattack if the distinction is rounded on a rational basis.'Laden v. Warden, supra, 543; see also McGinnis v.Royster, 410 U.S. 263, 270, 93 S.Ct. 1055, 35 L.Ed.2d 282(1972); Dandridge v. Williams, 397 U.S. 471, 485, 90S.Ct. 1153, 25 L.Ed.2d 491 (1970)." Franklin v. Berger,supra, 211 Conn. 595. Because we construe General Statutes17a-593 (c) to negate the disparate treatment of acquittees fromother civil committees with respect to the allocation of theburden of persuasion at a hearing for a period of continuedcommitment, we need not decide whether heightened review would beappropriate in a constitutional analysis of the disparatetreatment of acquittees and civil committees in another context.

18. Because the defendant's original term of commitmenthas expired in this case, we need not decide whether it ispossible for the validity of the presumption of dangerousness tocease before expiration of the maximum period set by the courtpursuant to General Statutes 17a-582 (e)(1)(A).

19. In contrast to Connecticut's statutory scheme, theABA recommends that special commitment procedures apply only tothose who were acquitted of "felonies involving acts causing,threatening, or creating a substantial risk of death or seriousbodily harm"; and that in all other circumstances the proceduresafforded civil committees be employed. ABA Criminal JusticeMental Health Standards, pt. 7 (1989) 7-7.3. As anempirical matter, no information about the propensities forfuture violent behavior is gained through an acquittal ofnonviolent crimes and, thus, such acquittees are, in the ABA'sview, "sufficiently similar in relevant characteristics togeneral commitment patients that the same procedures forcommitment and period review hearings and release [are]appropriate." Id., pp. 413-14.

20. Our conclusion also finds support in the holdings of

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