Worcester. Petition filed in the Central District Court of Worcester on September 19, 1975. The case was heard by Gould, J.
Hennessey, C.j., Quirico, Braucher, Wilkins, & Liacos, JJ.
Rules of Appellate Procedure. Practice, Civil, Commitment of mentally ill person, Appeal. Mental Health. Moot Question. Words, "Clear and convincing."
The opinion of the court was delivered by: Braucher
Rule 9 (c) of the Massachusetts Rules of Appellate Procedure does not require the assembly of a record within forty days after the filing of a notice of appeal but requires an appellant to "take any action necessary, or reasonably requested by the clerk" within forty days to make assembly possible. [273-274]
This court expressed its opinion on the propriety of a commitment order under G. L. c. 123, §§ 7 and 8, although the term of the commitment had expired, where the issue was of public importance capable of repetition, yet evading review, and was fully argued in an adversary proceeding. 
In a proceeding to commit a defendant to a mental health facility under G. L. c. 123, §§ 7 and 8, the standard of proof is proof beyond a reasonable doubt rather than clear and convincing proof. [275-277]
The Appellate Division of the District Courts, Western District, decided that, in a proceeding to commit the defendant to a mental health facility under G. L. c. 123, §§ 7, 8, the standard of proof is "proof beyond a reasonable doubt" rather than "clear and convincing proof." The plaintiff, superintendent of the Worcester State Hospital (hospital), appealed. We hold that (1) the appeal is properly before us notwithstanding delay in assembling the record, (2) the issue is one "capable of repetition, yet evading review," and should be decided even though the order appealed may be moot, and (3) "proof beyond a reasonable doubt" is the proper standard.
The petition was filed in the Central District Court of Worcester on September 19, 1975. After hearing, the Judge filed a memorandum of findings and decision and on November 26, 1975, ordered the defendant committed to the hospital for a period not to exceed six months, expiring May 20, 1976. On report to the Appellate Division the order was reversed and the petition dismissed by a decision and order filed December 16, 1976. The plaintiff filed a notice of appeal to this court on February 4, 1977.
We summarize the facts shown by the report. The defendant, a seventy-year old married woman, was committed under G. L. c. 123, § 12, on September 12, 1975, and was then disoriented and unable to care for herself because of age and infirmity. At the time of the hearing on November 20, 1975, she was generally improved but suffering from organic brain syndrome and generalized and cerebral arteriosclerosis. She was mentally ill and unable to care for herself and there was a likelihood of serious harm to herself. She would be a fit subject for alternative nursing home care in the community, if such a facility became available.
The defendant requested the following ruling: "Petitioner-Superintendent has the burden of proof to show beyond a reasonable doubt that respondent is mentally ill and that respondent's discharge would create a likelihood of serious harm." The Judge acted as follows: "Denied, this ruling is denied because the test on District Court procedure at the present time is that of clear and convincing proof as distinguished from proof beyond a reasonable doubt." The Appellate Division held that the standard to be applied is that of proof beyond a reasonable doubt.
1. The defendant's motion to dismiss the appeal. On March 24, 1977, more than forty days after the plaintiff filed his notice of appeal to this court, the defendant moved under Mass. R. A. P. 10 (c), as amended, 367 Mass. 919 (1975), to dismiss the appeal for failure to assemble the record and docket the appeal in timely fashion, citing Westinghouse Elec. Supply Co. v. Healy Corp., 5 Mass. App. Ct. 43 (1977). The trial Judge denied the motion and the record was assembled and docketed on June 3, 1977. No application was made to this court or a single Justice thereof for extension of the time for assembling the record and docketing the appeal.
Under Mass. R. A. P. 9 (a), 365 Mass. 851 (1974), the clerk of the District Court was to assemble the record "as soon as may be after the filing of the notice of appeal." No specific time period is prescribed for the assembly. Under rule 9 (c) *fn1 the plaintiff's obligation, to be performed "within forty days after filing the notice of appeal," was to "take any action necessary, or reasonably requested by the clerk, to enable the clerk of the lower court to assemble the record."
As in Gilmore v. Gilmore, 369 Mass. 598, 603 (1976), the defendant cites no action that the plaintiff failed to take to cause timely assembly. Indeed, the plaintiff asserts that the reason for the delay was that the clerk's office had lost the appeal papers, and that the Judge declared that the court had been derelict and that the plaintiff had not been at all derelict. The record before us shows only that the motion to dismiss the appeal was denied. We said in the Gilmore case, "We are not inclined to dismiss an appeal for what may be termed an inconsequential breach ...