JOHNSON, District Judge:

The named plaintiff and intervening plaintiff, suing on their own behalf and as representatives of a class composed of persons who are now, or who may be, involuntarily civilly committed in Alabama, seek to have three statutes authorizing involuntary commitment declared unconstitutional on their face and as applied and to have their enforcement enjoined.

This action arises under the Fourteenth Amendment to the Constitution of the United States. Plaintiffs invoke the jurisdiction of this Court pursuant to 42 U.S.C. § 1983 and 28 U.S.C. § 1343(3).

The defendants are the Attorney General of the State of Alabama; the Commissioner of the Department of Mental Health of the State of Alabama; and the Probate Judges of Montgomery County, Alabama, and Clarke County, Alabama, individually and as representatives of all other judges of probate in the State of Alabama.

Because an injunction was sought against statutes of statewide application whose constitutionality was at issue, plaintiffs requested that a three-judge court be convened. A survey of the pertinent case law indicated that the complaint raised a substantial constitutional question, Ex parte Poresky, 290 U.S. 30, 54 S.Ct. 3, 78 L.Ed. 152, (1933), but that the defense of the constitutionality of the statutes was neither frivolous nor foreclosed by prior decisions of the United States Supreme Court, Bailey v. Patterson, 369 U.S. 31, 82 S.Ct. 549, 7 L.Ed.2d 512 (1962). Consequently, a three-judge court was constituted pursuant to the requirements of 28 U.S.C. § 2281 and 2284.

The case is submitted upon the pleadings, briefs, stipulations, and documentary evidence. All parties are in agreement that the Due Process Clause of the Fourteenth Amendment applies to involuntary commitment proceedings, Specht v. Patterson, 386 U.S. 605, 608, 87 S.Ct. 1209, 18 L.Ed.2d 326 (1967); Donaldson v. O'Connor, 493 F.2d 507, 520 (5th Cir. 1974), and that certain minimal constitutional standards and safeguards must be observed throughout the commitment process. Whereas plaintiffs argue that the statutes in question are unconstitutional both on their face and as applied, defendants maintain that they are constitutional on their face but concede that they may have been applied unconstitutionally in some cases. There being substantial controversy concerning the specific minimal standards and safeguards mandated by the Due Process Clause, the parties in this case join in requesting this Court to determine those constitutionally required standards and safeguards.

I.

From the pleadings and stipulations in this case, it appears that plaintiff Jean P. Lynch, a resident of Montgomery County, was arrested by the Montgomery County Sheriff's Department on November 2, 1973, pursuant to a warrant issued that date by the defendant Probate Judge of Montgomery County under the authority of Ala. Code, tit. 15, § 432 (1958). Said warrant was sworn out by one Theresa Lynch, daughter of the named plaintiff, who averred that plaintiff "is at large and not under the control, restraint or management of any person, and that she is not able to restrain or manage said person, and that it is necessary for his [sic] own and the public good that she be restrained and an inquisition proceedings had to determine whether or not she should be committed to an insane hospital."

On the same day the warrant was issued, inquiry was made by the probate court as to the availability of facilities at Bryce Hospital for the accommodation of plaintiff, who was at that time confined in the Montgomery County Jail. Also on the same day an order was issued by the probate judge directing the Sheriff to summon six (6) jurors at 2:00 p.m. that day to determine whether "the said Jean P. Lynch is so deficient mentally that she should be committed to an insane hospital." At the appointed time, a hearing was held, and the jury returned a verdict that plaintiff was "sufficiently defective mentally to be sent as a patient to a hospital for insane persons." It is undisputed that plaintiff was not present at the hearing, that she was not represented by counsel, and that she was not advised of any right to the presence of counsel and the appointment of counsel if indigent. On November 6, 1973, plaintiff was ordered committed to Bryce Hospital by the defendant Probate Judge of Montgomery County under the authority of Ala. Code, tit. 45, §§ 208 and 211. Plaintiff remains at this date an involuntary patient in Bryce Hospital.

The parties have entered into the following stipulations regarding the procedures ordinarily followed in the course of involuntary civil commitments in Alabama:

1. The individual who is the subject of the commitment proceeding is given no notice of hearing, is not present during the hearing, is not informed of his/her right to counsel, and is not appointed counsel if indigent.

2. The defendant Probate Judge of Montgomery County, as well as certain other judges of probate, empanels a jury composed of six (6) persons to determine if the subject of an involuntary commitment proceeding should be committed to a state mental hospital.

3. The defendant Probate Judge of Clarke County, as well as certain other judges of probate, does not empanel a jury in civil commitment proceedings.

4. The only standard which is charged to the jury (if there is a jury) and which is applied by the trier of fact (judge or jury) is that contained in Ala. Code, tit. 45, § 205:

A person shall be adjudged insane who has been found by a proper court sufficiently deficient or defective mentally to require that, for his own or others' welfare, he be moved to the insane hospital for restraint, care and treatment.

II.

III.

This Court concludes from the evidence presented that the named plaintiff and members of the class she represents have been involuntarily civilly committed to Bryce and Searcy Hospitals as a result of proceedings and procedures which do not comport with the minimum requirements of the Due Process Clause of the Fourteenth Amendment. Specht v. Patterson, supra.

We further conclude and declare that Ala. Code, tit. 15, § 432 (1958), which provides for emergency detention in the county jail or state mental hospitals, and Ala. Code, tit. 45 § 210 (1958), which outlines certain procedures for involuntary commitment to such hospitals, are unconstitutional on their face because they purport to authorize ex parte and summary deprivation of liberty without any of the rudimentary protections long recognized as required by the due process of law. Unlike our dissenting brother, we find it unnecessary to reach the question of whether these particular statutes might be saved by excising from them certain constitutionally offensive words and phrases. On the contrary, we are compelled to hold each violative of the Fourteenth Amendment on account of the absence of the substantial procedural protections constitutionally required, as well as because of the offending provisions present in the statutes.

While recognizing that Ala. Code, tit. 45, § 208 (1958), like the other statutes herein attacked, may have been applied unconstitutionally on occasion, we perceive no facial infirmity with respect to Title 45, Section 208, nor anything constitutionally offensive with respect to the authority therein conferred upon the probate judges of Alabama.

IV.

This Court shall now proceed to set forth those standards and safeguards which, at a minimum, the Due Process Clause requires for the protection of persons whose liberty is placed in jeopardy as a consequence of their becoming the subjects of civil commitment proceedings against their will.

Due to the wording of the commitment statutes in question and the practices and procedures followed by the probate judges of Alabama in involuntary commitment proceedings, all Alabama probate court commitments are to be presumed involuntary unless and until there has been a judicial determination in an adversary proceeding during which the person proposed to be committed is represented by counsel, that the commitment is in fact a voluntary one, knowingly and intelligently consented to by the person to be committed. In the absence of any such judicial determination, the commitment proceedings are involuntary as a matter of law and must comply with the following minimum standards:

(A) Emergency detention.

It cannot be seriously doubted that the state may on occasion have a compelling interest in the emergency detention of those who threaten immediate and serious violence to themselves or others. Since the interests of these emergency detainees in retaining their liberty and avoiding unwarranted civil commitment are comparable to the interests of persons accused of criminal offenses in retaining their liberty and avoiding wrongful incarceration, the burden on the state to justify the emergency detention must be similarly heavy. As one means of assuring that persons accused of crimes are not held in custody and involuntarily deprived of their liberty without a showing of probable cause to believe that they have committed punishable offenses, it is generally required that such persons be brought before a judicial officer without unnecessary delay after arrest to determine whether they are being detained on probable cause. Rule 5, Federal Rules of Criminal Procedure; McNabb v. United States, 318 U.S. 332, 343-344, 63 S.Ct. 608, 87 L.Ed. 819 (1943); Brown v. Fauntleroy, 143 U.S.App.D.C. 116, 442 F.2d 838, 839 (1971). Likewise, in the situation here, where a person said to be mentally ill and dangerous is involuntarily detained, he must be given a hearing within a reasonable time to test whether the detention is based upon probable cause to believe that confinement is necessary under constitutionally proper standards for commitment. In re Barnard, 147 U.S.App.D.C. 302, 455 F.2d 1370, 1374 (1971); Lessard v. Schmidt, 349 F. Supp. 1078, 1090-1091 (E.D.Wis. 1972), vacated and remanded 414 U.S. 473, 94 S.Ct. 713, 38 L.Ed.2d 661 (1974); Fhagen v. Miller, 306 F. Supp. 634, 638 (S.D.N.Y. 1969).

Emergency detention without a hearing on its appropriateness and necessity can be justified only for the length of time required to arrange a probable cause hearing before the probate judge or other judicial officer empowered by law to commit persons to Alabama mental institutions. Lessard v. Schmidt, 349 F. Supp. at 1091. In no event may such detention in the absence of a probable cause hearing exceed seven (7) days from the date of the initial detention.

Due process does not require that the probable cause hearing be characterized by the formality of the proceedings for final adjudication of commitment; neither does it require that each and every constitutional protection required in the subsequent proceedings be accorded. At the very least, however, due process does require that the hearing be preceded by adequate notice informing the person (or his counsel) of the factual grounds upon which the proposed commitment is predicated and the reasons for the necessity of confinement; that the person be represented by counsel, appointed if necessary; and that the person proposed to be committed be present at the hearing unless his presence is waived by counsel and approved by the court after an adversary hearing at the conclusion of which the court judicially finds and determines that the detainee is so mentally or physically ill as to be incapable of attending the probable cause hearing.

Just as emergency detention is justified only until a probable cause hearing can be conducted, temporary detention following a finding of probable cause to believe that confinement is necessary can be justified only for the length of time required to arrange a full hearing on the need for commitment. Due process requires that such hearing be held within a reasonable time following initial detention, but in no event sooner than will permit adequate preparation of the case by counsel or later than thirty (30) days from the date of the initial detention.

(B) Formal commitment proceedings.

(1) Notice. Due process requires that notice be given of the hearing to be held on the necessity for commitment "sufficiently in advance of scheduled court proceedings so that reasonable opportunity to prepare will be afforded." In re Gault, 387 U.S. 1, 33, 87 S.Ct. 1428, 1446, 18 L.Ed.2d 527 (1967); Lessard v. Schmidt, 349 F. Supp. at 1092. Such notice should include the date, time, and place of the hearing; a clear statement of the purpose of the proceedings and the possible consequences to the subject thereof; the alleged factual basis for the proposed commitment; and a statement of the legal standard upon which commitment is authorized.

(2) Presence of the person proposed to be committed. Due process requires the presence of the person proposed to be involuntarily committed at all judicial proceedings conducted for that purpose, Specht v. Patterson, 386 U.S. at 610, 87 S.Ct. 1209, unless the right has been knowingly and intelligently waived by such person or by adversary counsel acting in his behalf and for good cause shown. Waiver by the person to be committed in his own behalf is valid only upon acceptance by the court following a judicial determination that he understands his rights and is competent to waive them. Waiver by counsel in his client's behalf is valid only upon approval by the court after an adversary hearing at the conclusion of which the court judicially finds and determines that the person proposed to be committed is so mentally or physically ill as to be incapable of attending such proceedings.

The right to be present at the hearing necessarily includes the right to participate therein to the extent of the subject's ability. Due process is not accorded by a hearing in which the individual, though physically present, has no meaningful opportunity to participate because of incapacity caused by excessive or inappropriate medication. Lessard v. Schmidt, 349 F. Supp. at 1092.

(3) Right to counsel. The subject of an involuntary civil commitment proceeding has the right to the effective assistance of counsel at all significant stages of the commitment process. Heryford v. Parker, 396 F.2d 393, 396 (10th Cir. 1968); Lessard v. Schmidt, 349 F. Supp. at 1099; Dixon v. Attorney General of Commonwealth of Pennsylvania, 325 F. Supp. 966, 974 (M.D.Pa. 1971). Further, he has the right to be advised of his right to counsel, In re Gault, 387 U.S. at 42, 87 S.Ct. 1428, and to the appointment of counsel if indigent. Lessard v. Schmidt, 349 F. Supp. at 1097; Dixon v. Attorney General, 325 F. Supp. at 974. Counsel must be made available far enough in advance of the final commitment hearing to ensure adequate opportunity for preparation. In order to aid counsel in the effective presentation of his client's interests, the names of the examining physicians and all others who may testify in support of the petition to commit must be made available to counsel in advance of the hearing, and he must be afforded a reasonable opportunity to inspect any documents and records pertaining to the case. Sarzen v. Gaughan, 489 F.2d at 1085, 1086.

The right to counsel is a right to representative counsel occupying a traditional adversarial role. Where state law requires or permits the appointment of a guardian ad litem, such appointment shall be deemed to satisfy the constitutional right to counsel if, but only if, the appointed guardian is a licensed attorney and occupies a truly adversary position. To the extent that these conditions are fulfilled, this Court perceives no difference between a guardian ad litem and other appointed counsel.

(4) Requisite findings to support an order of commitment. It has long been recognized in this country that the involuntary confinement of the mentally ill is justified only under certain specific circumstances where conduct is threatened with which the state has the obligation to deal:

[T]he right to restrain an insane person of his liberty is found in that great law of humanity, which makes it necessary to confine those whose going at large would be dangerous to themselves or others . . . And the necessity which creates the law, creates the limitation of the law. The questions must then arise in each particular case, whether a patient's own safety, or that of others, requires that he should be restrained for a certain time, and whether restraint is necessary for his restoration or will be conducive thereto. The restraint can continue as long as the necessity continues. This is the limitation, and the proper limitation.

Matter of Josiah Oakes, 8 Law Rep. 123, 125 (Supreme Judicial Court of Massachusetts, 1845).

Like the Massachusetts Court — and more recently — the Supreme Court of the United States has indicated that the "massive curtailment of liberty," Humphrey v. Cady, 405 U.S. 504, 509, 92 S.Ct. 1048, 31 L.Ed.2d 394 (1972), occasioned by involuntary civil commitment is permissible only in those situations in which threatened or actual behavior is of a nature which the state may legitimately control: specifically, where the conduct resulting from mental illness poses a serious threat of substantial harm to self or to others. In Humphrey v. Cady, the court interpreted a Wisconsin statute authorizing involuntary civil commitment of a "proper subject for custody and treatment" as requiring a "social and legal judgment that [the mentally ill individual's] potential for doing harm, to himself or to others, is great enough to justify such a massive curtailment of liberty." Id. And in Jackson v. Indiana, 406 U.S. 715, 728, 92 S.Ct. 1845, 1853, 32 L.Ed.2d 435 (1972), the court construed a statute authorizing detention "in the interest of the welfare of such person or . . . others . . ." to require an independent showing of dangerousness. See also Donaldson v. O'Connor, 493 F.2d 507, 520 (5th Cir. 1974).

Because the power of the state to curtail the liberty of a citizen not convicted of a crime, but believed to be suffering from a mental illness, is thus limited, it must follow that an involuntary commitment order must be based upon specific findings sufficient to bring the subject of the proceedings within the limited sphere of legitimate governmental concern. Accordingly, each order of involuntary commitment shall be supported by the following minimum findings made by the fact-finder upon the basis of the evidence introduced at the commitment hearing:

(a) The person to be committed is mentally ill.

(b) The person to be committed poses a real and present threat of substantial harm to himself or to others. Dixon v. Attorney General, 325 F. Supp. at 974.

Although dangerousness to self and dangerousness to others are frequently considered together, it is clear that they actually represent quite different state interests. Commitment on account of dangerousness to others serves the police power, while commitment for dangerousness to self partakes of the parens patriae notion that the state is the ultimate guardian of those of its citizens who are incapable of caring for their own interests. See In re Ballay, 157 U.S.App.D.C. 59, 482 F.2d 648, 658 (1973). Valid exercise of the parens patriae power presumes an incapability to manage one's affairs that approximates, if it is not identical with, legal incompetence to act. Consequently, in order to deprive a person alleged to be a danger to himself alone of the right to choose between treatment and liberty, the state must first demonstrate that, because of his mental illness, he lacks the capacity to weigh for himself the risks of freedom and the benefits of hospitalization.

A finding of dangerousness indicates the likelihood that the person to be committed will inflict serious harm on himself or on others. In the case of dangerousness to others, this threat of harm comprehends the positive infliction of injury — ordinarily physical injury, but possibly emotional injury as well. In the case of dangerousness to self, both the threat of physical injury and discernible physical neglect may warrant a finding of dangerousness. Although he does not threaten actual violence to himself, a person may be properly committable under the dangerousness standard if it can be shown that he is mentally ill, that his mental illness manifests itself in neglect or refusal to care for himself, that such neglect or refusal poses a real and present threat of substantial harm to his well-being, and that he is incompetent to determine for himself whether treatment for his mental illness would be desirable.

(c) The danger posed by the person to be committed has been evidenced by a recent overt act. Due process requires that the need for confinement be based upon a substantial likelihood that dangerous behavior will be engaged in unless restraints are applied. While the actual assessment of the likelihood of danger calls for an exercise of medical judgment, the sufficiency of the evidence to support such a determination is fundamentally a legal question. A mere expectancy that danger-productive behavior might be engaged in does not rise to the level of legal significance when the consequence of such an evaluation is involuntary confinement. To confine a citizen against his will because he is likely to be dangerous in the future, it must be shown that he has actually been dangerous in the recent past and that such danger was manifested by an overt act, attempt or threat to do substantial harm to himself or to another. Lessard v. Schmidt, 349 F. Supp. at 1093; Cross v. Harris, 135 U.S.App.D.C. 259, 418 F.2d 1095, 1102 (1969); cf. Millard v. Harris, 406 F.2d at 973.

(d) There is treatment available for the illness diagnosed. Because patients involuntarily committed through non-criminal proceedings "unquestionably have a constitutional right to receive such individual treatment as will give each of them a realistic opportunity to be cured or to improve his or her mental condition," Wyatt v. Stickney, 325 F. Supp. 781, 784 (M.D.Ala. 1971), affirmed sub nom., Wyatt v. Aderholt, 503 F.2d 1305, No. 72-2634 (5th Cir. 1974); Donaldson v. O'Connor, 493 F.2d 507, 527 (5th Cir. 1974), the fact-finder must ascertain the existence and availability of a treatment program for the illness suffered by the person whose commitment is sought.

An exception to this general requirement of due process is recognized in the case of a presently and seriously dangerous person for whose illness there is no known cure or treatment. In such instances, the state may well have an obligation under the police power to restrain the liberty of the threatening individual, even though his condition is not amenable to any currently available treatment. Since the involuntary commitment of an untreatable person is an exception to the general due process requirement that treatment be available and afforded, the committing court must make a finding, based upon clear and convincing evidence, that confinement even without a proposed treatment program is necessary for the safety and well-being of the community and of the person to be committed. Such orders of commitment, when granted, shall provide that, should treatment for the patient's illness become available at any time during the period of his confinement, such treatment shall be made available to him immediately.

(5) The proposed commitment is the least restrictive alternative necessary and available for the person's illness. In addition to the findings which are required to be made by the fact-finder, the state, acting through the probate court or whichever of its agents designates the place of confinement, shall have the burden of demonstrating that the proposed commitment is to the least restrictive environment consistent with the needs of the person to be committed. Welsch v. Likins, 373 F. Supp. 487, 502 (D.Minn. 1974); cf., Covington v. Harris, 136 U.S.App.D.C. 35, 419 F.2d 617, 623 (1969); Wyatt v. Stickney, 344 F. Supp. 373, 379 (M.D.Ala. 1972), affirmed sub nom., Wyatt v. Aderholt, 503 F.2d 1305, No. 72-2634 (5th Cir. 1974). This duty of investigation and burden of persuasion derive from the general and well-recognized principle that ". . . even though the governmental purpose be legitimate and substantial, that purpose cannot be pursued by means that broadly stifle fundamental personal liberties when the end can be more narrowly achieved." Shelton v. Tucker, 364 U.S. 479, 488, 81 S.Ct. 247, 252, 5 L.Ed.2d 231 (1960).

Specifically, the state, which knows or has the means of knowing the available alternatives, must bear the burden of proving what alternatives are available, what alternatives were investigated, and why the investigated alternatives were not deemed suitable. Lessard v. Schmidt, 349 F. Supp. at 1096.

Moreover, it should be pointed out that due process does not preclude, and indeed may require, commitment of a person suffering from a mental illness to an environment other than full-time confinement in Bryce or Searcy Hospital. Possible alternatives include voluntary or court-ordered out-patient treatment, day treatment in the hospital, night treatment in the hospital, placement in a private hospital, placement in the custody of a willing and responsible relative or friend, placement in a nursing home, referral to a community health clinic, home health aide services, and prescribed medication.

(6) Standard of proof. The standard of proof required to be adduced in an adjudicatory proceeding is "the kind of question which has traditionally been left to the judiciary to resolve . . ." Woodby v. Immigration Service, 385 U.S. 276, 284, 87 S.Ct. 483, 487, 17 L.Ed.2d 362 (1966). Its function, as pointed out by Mr. Justice Harlan, concurring in In re Winship, is "to instruct the fact-finder concerning the degree of confidence our society thinks he should have in the correctness of factual conclusions for a particular type of adjudication." 397 U.S. 358, 370, 90 S.C.t. 1068, 1076, 25 L.Ed.2d 368 (1970). It is "more than an empty semantic exercise; it reflects the value society places on individual liberty." Tippett v. State of Maryland, 436 F.2d 1153, 1166 (4th Cir. 1971), Sobeloff, J., concurring in part and dissenting in part, cert. dismissed as improvidently granted, sub nom. Murel v. Baltimore City Criminal Court, 407 U.S. 355, 92 S.Ct. 2091, 32 L.Ed.2d 791 (1972).

The degree of confidence demanded of any judicial determination reflects in part the significance of the interests to be affected thereby. It cannot be doubted that the interests of those facing civil commitment proceedings are of the most serious nature:

The destruction of an individual's personal freedoms effected by civil commitment is scarcely less total than that effected by confinement in a penitentiary. Indeed, civil commitment, because it is for an indefinite term, may in some ways involve a more serious abridgement of personal freedom than imprisonment for commission of a crime usually does. Civil commitment involves stigmatizing the affected individuals, and the stigma attached, though in theory less severe than the stigma attached to criminal conviction, may in reality be as severe, or more so.

Donaldson v. O'Connor, 493 F.2d 507, 520 (5th Cir. 1974).

Because the stigmatization and loss of liberty attendant upon forced confinement are of the most profound consequence to the individual affected, due process demands that he be subjected to such disabilities only if the necessity for his commitment is proved by evidence having the highest degree of certitude reasonably attainable in view of the nature of the matter at issue. In a civil commitment proceeding, the questions involved are the primarily subjective ones of the subject's mental condition and the likelihood that he will be dangerous in the future. Such subjective determinations cannot ordinarily be made with the same degree of certainty that might be achieved where purely objective facts and occurrences are at issue. Consequently, the trier of fact must be persuaded by clear, unequivocal, and convincing evidence that the subject of the hearing is in need of confinement under the minimum standards for commitment herein enumerated. No greater margin for error can be tolerated as to either the underlying facts or the ultimate conclusion. Tippett v. State of Maryland, supra, 436 F.2d at 1165-1166 (Sobeloff, J.); Dixon v. Attorney General, 325 F. Supp. at 974.

(7) Conduct of the commitment hearing. Due process requires that the subject of an involuntary commitment proceeding, whether civil or criminal, be given the opportunity to offer evidence in his own behalf. Specht v. Patterson, 386 U.S. at 610, 87 S.Ct. 1209. "The right to offer the testimony of witnesses, and to compel their attendance, if necessary, is in plain terms the right to present a defense . . . This right is a fundamental element of due process of law." Washington v. Texas, 388 U.S. 14, 19, 87 S.Ct. 1920, 1923, 18 L.Ed.2d 1019 (1967).

Due process likewise requires that the subject of a commitment hearing have the opportunity to be confronted with and to cross-examine the witnesses testifying in support of commitment. Specht v. Patterson, 386 U.S. at 610, 87 S.Ct. 1209; Millard v. Harris, 406 F.2d at 973. Holding the commitment hearing in the absence of the person proposed to be committed shall not be deemed an abridgement of his rights of confrontation and cross-examination if, but only if, there has been a prior judicial determination, after an adversary hearing at which he was represented by counsel, that he is so mentally or physically ill as to be incapable of attending the hearing.

The privilege against self-incrimination, which can be claimed "in any proceeding, be it criminal or civil, administrative or judicial, investigatory or adjudicatory," Murphy v. Waterfront Commission, 378 U.S. 52, 94, 84 S.Ct. 1594, 1611, 12 L.Ed.2d 678 (1964), White, J., concurring; In re Gault, 387 U.S. at 49-50, 87 S.Ct. 1428, is fully applicable at all stages of the civil commitment process, including the psychiatric interviews. See Millard v. Harris, 406 F.2d at 973. It protects any disclosures which the subject may reasonably believe could be used in a criminal prosecution or which could lead to other evidence that might be so used. Murphy v. Waterfront Commission, supra.

As we have noted repeatedly, the gravity of the consequences flowing from adjudication of the need for commitment compels the application of procedural safeguards comparable in most instances to those required in criminal proceedings. At the very least, due process requires that the rules of evidence applicable to other judicial proceedings be followed in involuntary commitment proceedings. Lessard v. Schmidt, 349 F. Supp. at 1103. In particular, if hearsay evidence would be excluded from other proceedings, it should be excluded from commitment hearings as well. See In re Gault, 387 U.S. at 11, n. 7, 87 S.Ct. 1428.

(8) Trial by jury. It has been generally assumed that there is no common law right to trial by jury in traditionally equitable probate court proceedings. McKeiver v. Pennsylvania, 403 U.S. 528, 543, 91 S.Ct. 1976, 29 L.Ed.2d 647 (1971); Hanks v. Hanks, 281 Ala. 92, 97, 199 So.2d 169 (1967); Ex parte Floyd, 250 Ala. 154, 33 So.2d 340 (1948). Moreover, the Supreme Court of the United States has held that trial by jury is neither a necessary element of the "fundamental fairness" guaranteed litigants by the Due Process Clause, nor an essential component of accurate fact-finding. McKeiver v. Pennsylvania, supra. Plaintiffs have cited no case, and independent research has disclosed no case, holding that trial by jury is constitutionally required in civil commitment proceedings.

Although there may be no such constitutional right, we believe that in most, if not all, instances a jury is desirable. Involuntary confinement is premised

. . . not solely on the medical judgment that the defendant is mentally ill and treatable, but also on the social and legal judgment that his potential for doing harm, to himself or to others, is great enough to justify such a massive curtailment of liberty. In making this determination, the jury serves the critical function of introducing into the process a lay judgment, reflecting values generally held in the community, concerning the kinds of potential harm that justify the State in confining a person for compulsory treatment.

Humphrey v. Cady, 405 U.S. at 509, 92 S.Ct. at 1052.

It is not enough, however, to say that the right to trial by jury is not in itself an absolute constitutional right. That argument was emphatically rejected by the Supreme Court when it said that the question of whether

. . . summarily denying Rachel Brawner access to the site of her former employment violated the requirements of the Due Process Clause of the Fifth Amendment . . . cannot be answered by easy assertion that, because she had no constitutional right to be there in the first place, she was not deprived of liberty or property by the Superintendent's action. "One may not have a constitutional right to go to Baghdad, but the Government may not prohibit one from going there unless by means consonant with due process of law."

Cafeteria Restaurant Workers Union v. McElroy, 367 U.S. 886, 894, 81 S.Ct. 1743, 1748, 6 L.Ed.2d 1230 (1961), quoting Homer v. Richmond, 110 U.S.App.D.C. 226, 229, 292 F.2d 719, 722 (1961); Dixon v. Alabama State Board of Education, 294 F.2d 150, 156 (5th Cir. 1961). To the extent, then, that Ala. Code, tit. 45, § 210 (1958) permits the exercise of an unbridled discretion by the probate judge in determining whether to empanel or not to empanel a jury, the statute violates the Due Process Clause of the Fourteenth Amendment.

There is a statutory right to trial by jury on the demand of a person confined as insane who prosecutes a writ of habeas corpus to determine the issue of his sanity. Ala. Code, tit. 15, § 3 (1958); Phillips v. Giles, 287 Ala. 469, 475, 252 So.2d 624, 629 (1971). The State of Alabama, having thus granted the right in some cases, may not deny it in others except on the basis of a rational distinction. Humphrey v. Cady, 405 U.S. at 512, 92 S.Ct. 1048; Baxstrom v. Herold, 383 U.S. 107, 110-111, 86 S.Ct. 760, 15 L.Ed.2d 620 (1966); Gomez v. Miller, 337 F. Supp. 386, 391 (S.D.N.Y. 1971). We can perceive no rational basis upon which the state can predicate a decision to grant jury determinations as of right to persons already deprived of their liberty, stigmatized by institutionalization, and removed from their relationships in the community, while denying the same right to persons whose continued freedom, good name, and ongoing associations are at stake. We, therefore, hold that basing the right to a jury determination of the need for commitment on the essentially irrelevant factor of present confinement violates the Equal Protection Clause of the Fourteenth Amendment.

We further hold that, if juries are used in civil commitment proceedings, equal protection requires that all commitment juries throughout the state perform the same function: if the jury is the fact-finder in some jurisdictions, it must be the fact-finder in all jurisdictions.

Plaintiffs maintain that a jury of twelve persons is constitutionally required. It is well settled that, as far as the Sixth Amendment is concerned, the states are left free to prescribe the precise number that shall constitute a jury. Williams v. Florida, 399 U.S. 78, 103, 90 S.Ct. 1893, 26 L.Ed.2d 446 (1970). Similarly, in the context of the Seventh Amendment, the Supreme Court has declined to hold that twelve members is a substantive aspect of the right to trial by jury. Colgrove v. Battin, 413 U.S. 149, 157, 93 S.Ct. 2448, 37 L.Ed.2d 522 (1973). A claim of the right to a jury of twelve is equally unavailing under Section 11 of the Alabama Constitution of 1901, for the Supreme Court of Alabama has recently indicated that a jury composed of six members "would be clearly constitutional" if the right to trial by jury exists, as in this situation, solely by legislative grace. Gilbreath v. Wallace, 292 Ala. 267, 292 So.2d 651, 652 (1974).

(9) Record of proceedings. A full record of the commitment proceedings, including findings adequate for review, shall be compiled and maintained by the probate court. Specht v. Patterson, 386 U.S. at 610, 87 S.Ct. 1209.

(10) Waiver of rights. The knowing and intelligent waiver of constitutional safeguards required in involuntary commitment proceedings is acceptable, provided that the waiver is made by counsel with the informed consent of the subject and with the approval of the court. When a waiver is proposed by counsel, but the subject is deemed incapable of giving his informed consent after appropriate inquiry and finding of facts, the court may approve such waiver for good cause shown.

Finally, we wish to emphasize that our purpose is not to impose unnecessary restrictions or procedural requirements upon the authorities charged with the care and treatment of Alabama's mentally ill. It is not our intention that the treatment of any mentally ill resident of Alabama's mental institutions be disrupted. And, contrary to the assumption made by our dissenting brother, we neither contemplate nor order that the state release from its care and custody any persons presently confined in state mental hospitals who are unable to care and provide for themselves. Such persons over whom the state has heretofore assumed a significant custodial relationship, but who are not proper subjects for commitment to state mental hospitals under the standards herein set forth, shall be permitted to remain where they are presently confined if they so choose after being informed of the available alternatives. Those patients not electing to remain and unable by reason of their physical or mental condition to be released from care entirely shall be transferred to custodial facilities appropriate for the care and treatment of their particular infirmities.

The evidence presented to the Court in this case reflects, as we have herein outlined, that several thousand Alabama citizens are now suffering a "massive curtailment of liberty" by confinement in the state's mental institutions pursuant to court proceedings that were conducted and decrees that were entered in flagrant disregard of the substantial constitutional rights of those committed and now confined. We do, therefore, require, first, that all future involuntary commitments to any of Alabama's mental institutions fully comport with the requirements of procedural and substantive due process and, second, that all patients previously committed in violation of their constitutional rights and who remain committed in Alabama's mental institutions either: (a) be released therefrom; (b) be permitted to remain if they so choose and if they are incapable of caring for themselves; (c) be transferred to appropriate facilities designed for the care and treatment of their particular infirmities; or (d) be afforded, in accordance with the requirements of this opinion and the order to be entered herein, new hearings attended by the full panoply of constitutional rights to which these citizens were initially entitled but of which they were deprived.

A formal judgment will be entered accordingly.