August 8, 1986

Mr. John A. Henderson 
Administrator 
South Dakota Human Services Center 
Post Office Box 76 
Yankton, South Dakota 57078

OFFICIAL OPINION NO. 86-33

Authority of State Human Services Center, as representative payee of patient's social security disability benefits, to deny the expenditure of funds for purposes of filing a writ of habeas corpus

Dear Mr. Henderson:

You have requested an official opinion from this office in regard to the following fact situation:

FACTS: 

You presently have a patient who was involuntarily committed to the Human Services Center on September 15, 1981.  The Hospital has been designated as the representative payee for this patient's social security benefits which happen to be his only source of income.  This patient has recently indicated a desire to retain an attorney for the purposes of filing a writ of habeas corpus in an attempt to secure his release from the hospital.  The problem arises in that the staff at the hospital is reluctant to authorize the release of any social security funds in that, based upon the patient's behavioral status, it appears improbable that he will gain his release via the writ.  Furthermore, the hospital staff is concerned that if the patient's funds are utilized for said purpose, he will not have the necessary resources to pay for various personal need items.  The hospital, therefore, now finds itself caught in the dilemma of either denying the patient his right to file such a writ or making what it feels are prudent treatment decisions.

Based upon the above factual situation, you have asked the following questions:

QUESTIONS: 

1.  Does the Human Services Center, as representative payee for this particular patient, have the legal authority to deny the expenditure of funds for the filing of a writ of habeas corpus? 

2.  What criteria, if any, can be used by the hospital to determine if funds can be used or denied for the filing of a writ? 

3.  Does the patient have the right to file a writ of habeas corpus at any time, no matter what treatment considerations might be involved? 

4.  Are there legal questions raised by the hospital holding a patient through an involuntary commitment while, at the same time, also controlling his funds through their status as representative payee?

IN RE QUESTION NO. 1:

As to your question concerning whether the Human Services Center, as representative payee of this patient's funds, has any authority to prevent the filing of a writ of habeas corpus by refusing to authorize the necessary expenditure of funds, SDCL 27A-12-4 provides that: 

All persons found to be mentally ill by the board of mental illness and all  persons confined or in any manner detained as mentally ill shall be entitled to the benefit of the writ of habeas corpus, and the question of mental illness shall be decided at the hearing.  If the judge or court shall decide that the person is mentally ill, such decision shall not be a bar to the issuing of the writ the second time if it is alleged that the person's behavior is no longer that which precipitated or caused his admission to a facility for treatment.

The legislature has placed no qualifiers on this statement.  The statute is plain and its meaning is clear.  It simply mandates that any person confined or detained for reasons of mental illness shall have a right to apply for a writ of habeas corpus, regardless of who has control over the financial resources.  To hold otherwise would, in all practical effect, result in denying the individual his right to access to the courts.

I recognize your concerns regarding the depletion of this patient's funds should he be allowed to file a petition for a writ of habeas corpus.  I feel, however, that this problem can best be rectified by obtaining court-appointed counsel to represent his interests.  SDCL 21-27-4 provides that: 

If a person has been committed, detained, imprisoned or restrained of his liberty, under any color or pretense whatever, civil or criminal, and if upon application made in good faith to the court or judge thereof, having jurisdiction, for a writ of habeas corpus, it is satisfactorily shown that  the person is without means to prosecute the proceeding, the court or judge shall appoint counsel for the indigent person pursuant to chapter 23A-40. Such counsel fees or expenses shall be a charge against and be paid by the county from which the person was committed, or for which the person is held as determined by the court.  Payment of all such fees or expenses shall be made only upon written order of the court or judge issuing the writ.

Based on the factual circumstances that you have set out with regard to this patient's financial status, I am of the opinion that, in all probability, it could be shown that this individual is without sufficient means to prosecute the proceeding.  If that indeed should be the case, the court will appoint counsel to represent his interests and such costs shall be borne by the committing county.

Therefore, in answer to your first question, the Human Services Center has no authority to deny the expenditure of this patient's funds for the purposes of filing for a writ of habeas corpus.

IN RE QUESTION NO. 2:

I believe that this question has already been answered above. There is simply no criteria by which the Human Services Center can deny the expenditure of funds for the purpose of filing the writ.

IN RE QUESTION NO. 3:

With regard to your question concerning whether a patient will be able to initiate a writ every time a previous writ has been denied, I believe that the answer is again provided for by SDCL 27A-12-4.  That statute, as set out above, provides that, 'If the judge or court shall decide that the person is mentally ill, such decision shall not be a bar to the issuing of the writ the second time if it is alleged that the person's behavior is no longer that which precipitated or caused his admission to a facility for treatment.'  This provision has been construed to mean that no person confined as insane is entitled to a second writ of habeas corpus unless it is alleged that he has been restored to reason.  It follows that this one question of fact as to present sanity is the only matter that can properly be considered upon a second writ, and that the order upon the prior writ stands as res judicata upon all matters that could have been presented upon such writ.  McMahan v. Mead, 139 N.W. 122 (S.D. 1912).

While providing for a somewhat expedited procedure (court may inquire as to the sole issue of whether the individual has been restored to reason), this statute does not place any limitation on the number of times a person so confined can petition for a writ of habeas corpus.  Therefore, an individual  has a right to renew his application as often as he sees fit, even if it only be to relitigate this one issue of whether he has been restored to reason.

IN RE QUESTION NO. 4:

As for your final question, I do not see a conflict of interest problem in the Human Services Center's having been selected as representative payee for this particular patient.  The federal regulations governing this are specifically provide that if it be in the beneficiary's best interest, a public or nonprofit institution having custody of the beneficiary may be designated as the representative payee.  See 20 C.R.F. §  404.2021.  In having been so selected, the Human Services Center is obligated to see to it that the payments are used for purposes which are in the best interests of the beneficiary.

Therefore, in answer to your question, no conflict of interest would arise so long as the hospital, as representative payee, does not put its own interests above those of the patient.  This would necessarily include allowing the patient to apply for a writ of habeas corpus.

Respectfully submitted,

Mark V. Meierhenry
Attorney General