334
Blackmun, J., dissenting
The judgment of the Court of Appeals for the Sixth Circuit is
Reversed.
Justice O'Connor, concurring in the judgment in part and dissenting in part.
I agree with Justice Souter that Kentucky's differential standard of proof for committing the mentally ill and the mentally retarded is irrational and therefore join Part II of his opinion. I conclude, however, that there is a rational basis for permitting close relatives and guardians to participate as parties in proceedings to commit the mentally retarded but not the mentally ill. As the Court points out, there are sufficiently plausible and legitimate reasons for the legislative determination in this area. I also agree with the Court that allowing guardians and immediate family members to participate as parties in commitment proceedings does not violate procedural due process. Like my colleagues, I would not reach the question whether heightened equal protection scrutiny should be applied to the Kentucky scheme.
Justice Blackmun, dissenting.
I join Justice Souter's dissenting opinion, for I agree with him that this statute is not even rational. I write sepa-decision, the Court of Appeals held that persons committed upon application of parents or guardians must be considered to have been admitted involuntarily. Doe v. Austin, 848 F. 2d 1386, 1391-1392 (CA6 1988). We denied Kentucky's petition for certiorari from this decision, 488 U. S. 967 (1988), and Kentucky subsequently amended its statutes to remove this provision. In its brief, however, Kentucky again attacks this prior holding of the Court of Appeals. See Brief for Petitioner 20-28. Even were this issue not mooted by the repeal of the provision at issue, see, e. g., Department of Treasury v. Galioto, 477 U. S. 556, 559-560 (1986); Kre-mens v. Bartley, 431 U. S. 119, 128-129 (1977), it is not "fairly included" within the questions on which we granted certiorari, this Court's Rule 14.1(a). See Pet. for Cert. i.
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