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Elijah NORWOOD, a/k/a Elijah Williams, Jr. v. Louis JACOBS, Appellant.

No. 23214.

United States Court of Appeals, District of Columbia Circuit.

Argued June 22, 1970.

Decided July 24, 1970.

Mr. Warren R. King, Asst. U. S. Atty., with whom Messrs. Thomas A. Flannery, U. S. Atty., and John A. Terry and Miss Mary E. Folliard, Asst. U. S. Attys., were on the brief, for appellant.

Mr. Andrew L. Geisler, Washington, D. C. (appointed by the District Court), for appellee.'

Before WRIGHT, LEVENTHAL and WILKEY, Circuit Judges.

PER CURIAM:

On November 1, 1957, appellee was committed to Saint Elizabeths Hospital as a sexual psychopath pursuant to provisions of 22 D.C.Code §§ 3501-3510 (1967). On April 29, 1969, the District Court, acting on appellee’s application for a writ of habeas corpus, ordered that, since appellee is mentally ill, the writ be issued and made absolute and petitioner discharged from custody “at the expiration of thirty (30) days from the date hereof unless within said thirty (30) day period the Government initiates civil commitment proceedings under the provisions of the 1964 Hospitalization of the Mentally 111 Act, 2 [1] D.C. Code §§ 501-91 (1967).”

The evidence is uncontroverted that appellee is mentally ill. The Sexual Psychopath Act, 22 D.C.Code § 3503, provides for commitment of one “not insane, who by a course of repeated misconduct in sexual matters has evidenced such lack of power to control his sexual impulses as to be dangerous to other persons * * In Millard v. Harris, 132 U.S.App.D.C. 146, 406 F.2d 964 (1968), we held that “not insane” in the Sexual Psychopath Act should be construed to mean “not mentally ill.” Since by statutory definition a mentally ill person cannot be a sex psychopath, appellee may not remain committed under the Sexual Psychopath Act. Appellant argues that Millard should be applied prospectively only. We do not agree. Since appellee is not a sexual psychopath as defined by the statute, his continued detention under that statute is unwarranted.

The District Court’s order makes provision for the retention of appellee in custody until the conclusion of the commitment proceedings under the 1964 Hospitalization of the Mentally 111 Act. This provision is pursuant to the teaching of Millard v. Harris, supra. It is particularly appropriate in this case since appellee admits he is mentally ill and dangerous.

The Government’s resistance to any requirement of two court proceedings *904can be avoided by the Government in the future by responding to the petition of anyone, committed as a sexual psychopath, who seeks release from confinement under 22 D.C.Code § 3503 by consenting to that relief if there is a commitment under the 1964 Act and asking that this proceeding for release from confinement as a sexual psychopath be stayed provided that within 30 days a petition is filed under the 1964 Act by (i) the offender’s next of kin, if there be such, or (ii) if there is none, by a guardian appointed by the court for the purpose of presenting such a petition, with notice to those now holding the person under sexual psychopath confinement, or (iii) by a Government official. Undue delay in the progress of the proceedings under the 1964 Act would, of course, be a basis for vacating the stay. When the record of a hearing before the Mental Health Commission is transmitted to the court under 21 D.C.Code § 544, that proceeding can be consolidated with the hitherto stayed proceeding on the application for release from commitment under the Sexual Psychopath Act. This both ensures that there will be only one court consideration and precludes possibility of slippage.

Affirmed.

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