Oral argument — Mondelli v. Berkeley Heights Nursing

Three cases this morning, and we're going to start with the Mondelli case Yes, one of you will have to get up Good morning. It may have to please the court. My name is Michael Foreman I'm the director of the Penn State Civil Rights Appellate Clinic, and I'm also the supervising attorney on this case I wanted to introduce Anna Natchek and Kira Geary who will be arguing the case and thank the court for giving them the opportunity To argue the case and with that I will get out of their way and let them go forward Well first, thanks to you. Mr. Foreman for your work and We'll be happy to listen to your charges and we are going to be peppering them with questions You May I proceed yes, please Judge Greenaway your honors and may it please the court My name is Anna Natchek, and I serve as court-appointed amicus counsel for mr. Victor Mondelli the appellant in the present case So let's just ask you one thing to begin with you're here as as amicus not as pro bono counsel Representing Mr. Mondelli right just so that we're clear for the record. Yeah, correct your honor and obviously you're gonna help us with your Understanding of the work that you've done and your understanding of 17c, etc. Yeah. Yes, your honor Okay, just hop on one further question is your understanding that mr. Mondelli no longer opposes the amicus Participating in these proceedings correct your honor. He has on consented to amicus's Presentation in this court as well today, right and that's and that's in the record. I I think I saw a letter and All right, and I guess an email exchange to that effect. So I think we're all clear on that Since um, I have your attention at the moment. What how much time would you like for a rebuttal two minutes? Your honor right and are you all I know you're splitting subject Yes, I'm gonna split the two minutes Well, I'll be arguing for seven minutes 17c my co-counsel will be arguing the polls factors for six minutes and then we will spend two minutes on rebuttal. Very good Go ahead, please Rule 17c applies to mr. Mondelli's case regardless of the fact that he was represented by counsel and Therefore the district court abused its discretion and failing to grant a competency hearing or at least inquire into mr. Mondelli's incompetency upon being provided with verifiable evidence of his incompetence If that is the rule of law, this court chooses to apply then as my co-counsel will explain the polls factors Cannot possibly be weighed against mr. Mondelli Let me ask you We do this all the time Thank you. Um, let me let me ask you this question about 17c, right? So As it relates to Unrepresented litigants, you know that Gardner and Powell are what we're going to look to should we equate? Representatives in the context of 17c with legal counsel No, your honor. We would actually argue that Unrepresented and rule 17c means an individual who does not have a duly appointed representative The two sentences of rule 17c have to be taken in conjunction with one another Rule 17c to reads that a minor or an incompetent person who does not have a duly appointed Representative may sue by a guardian ad litem or a next friend The court must appoint a guardian ad litem for an individual who is unrepresented in an action Those two sentences have to be taken in conjunction with one another so on Responsibility of a duly represented person as you've described it and legal counsel Well, your honor as the model rules of professional conduct state a lawyer serves as an agent within a litigation But they do not serve as a decision maker Whereas a duly appointed representative would serve as a decision maker within the litigation as the district court noted. Mr Rosalini was placed in the untenable position of trying to serve as both counsel and guardian He was not able to become the decision maker within the case He even asked during the telephone conference, which can be found on pages 13 through 15 of the joint appendix for a power of attorney For mr. Mondelli so that they would be able to sign documents provide with rules 26 disclosures and answer interrogatories Further as this court noted in footnote 14 in Garner It is generally inadvisable for counsel to serve as both guardian and as counsel But what's the concerns that are implicated by that dual wearing those both hats? I'm gonna interrupt for a second not because I want to interrupt the judge We're having trouble hearing you. Do you mind taking your mask off? No Thank you Please answer judge Swartz's question What's the challenge is when a lawyer is asked to wear both hats that is one being their legal Representative to take positions before a court and a proceeding as compared to someone who is a decision maker For the individual what's the challenge? Why is that so hard? Well your honor because a decision maker serves the best interest of the client But they can't they take the client's interest into account and also make the best decision Whereas a lawyer has to serve as counsel serving the best interest of the client but cannot make those Decisions and cannot sign documents for the client That's what the decision maker or a guardian ad litem would have done in this case So one is representing the advocating legal interests But not making a decision and the other is making decisions and also considering non legal interests of the person They represent. Is that your position? Correct? Your honor. I want you to focus for a moment on What this discussion or what effect this discussion has on the court? Yep, so we're really talking about What duty arises through Powell, right? So like my question is this are you suggesting a a court always? Has a duty to inquire when the issue of competency arises Well, your honor that was a concern of this court in Powell this court noted in Powell that bizarre behavior alone is not enough So it's not always a triggering duty for the district court is only a duty that is triggered upon receipt of verifiable evidence in Powell verifiable evidence constituted just one letter from a psychiatrist stating that the Psychiatrist believed the litigant to be incompetent because they had ADD and major depression Here 11 different letters were submitted to the district court stating that mr. Mondelli had major depression paranoid schizophrenia Also, mr. Mondelli submitted a certified affidavit that he had found found incompetent by a municipal court in New Jersey Upon receipt of that verifiable evidence the district courts duty of inquiry was triggered and they did have to inquire into mr Mondelli's incompetence. Okay, let's take a step back then. So how should we think about verifiable evidence now? I I presume your argument would be look, you know, there's so many letters here They're all speaking towards the same, you know malady But of course as we think about it and right we have to sort of line draw, right? So and my question isn't like is one letter not enough in this are three letters enough. That's not the point but How should we think about verifiable evidence? Well your honor a verifiable evidence It would be any evidence submitted to the court at the district court level that goes to show that an individual would be found Incompetent in a court proceeding. So in this case the letters were enough in Powell This court also noted that any evidence that someone was found incompetent by another district court would also be verifiable evidence so in following the reason of Powell a psychiatrist letter or Evidence that someone was found incompetent by another district court would be verifiable evidence While this court did not specifically define what exactly constitutes verifiable evidence in Powell This is a chance to clarify that rule and we would argue that any evidence submitted to the district court Tending to show that an individual is incompetent would be verifiable evidence And all that does is trigger a duty of inquiry. It doesn't it's not a finding of competency Just notifies the court now you have to find out if the person's competent Am I right? Correct Your honor this court didn't know inciting Pirelli in Powell that the district court needs to at least consider the idea that rule 17c may apply to a litigants case upon receipt of verifiable evidence Mr. Rossellini Was retained counsel Correct regional counsel. So how do you sort out or limit? Intrusion of the court into the attorney-client relationship Mr. Rossellini's view was that there was no need for appointed counsel for for represented guardian ad litem So, where does that put the court how far does the court go in inquiring as to that relationship? Well, your honor. Mr. Rossellini did acknowledge that he was not able to make all of these decisions for mr. Mondelli Additionally, we would argue that at the district court level. I see my time is expiring. May I just briefly relax Red lights a suggestion Thank you Well, your honor upon receipt of that verifiable evidence we would say that the district court needs to put the interest of the litigant in in plain view in front of the front of the interest of the lawyer client relationship because that client my question is how far does that go how Intrusive into the relationship with a lawyer to the client. Does the court need to go? Was it prima facie or is it is it a a deep dive into that relationship? Is there a concern about that? Well, your honor while it may be a concern that is something that can be discussed at a competency hearing But the district court still has that duty to inquire into an individual's incompetence upon receipt of verifiable evidence and then at No, no, and that I'm listening and at that competency hearing there would be evident more evidence brought in and that lawyer-client Relationship could be explored further at that competency hearing. Let me ask you this so Verifiable evidence is presented The court is alerted. I have to have a hearing Now a hearing is had How does Poulos come in because it would Appear that one way of thinking about this is Once 17 C is triggered and you have your hearing Poulos really Doesn't play a role But I'd be I know that your colleague is the Poulos person for the day, but what what I'm trying to inquire is Does the triggering of a 17 C hearing sort of cut off any? consideration or necessary consideration of the Poulos factors Well your honor with a finding of incompetency at least three of the Poulos factors cannot possibly be weighed against a litigant And it is a it is a balancing determination and as my co-counsel will mention at least three of the factors specifically personal responsibility a history of dilatory nests and bad faith cannot possibly weigh it against a litigant who is Incompetent at the district court level so okay flip it Hearing is held the person's competent Well your honor at that point on the fact that the individual still does have mental Illnesses and in this specific case if they were paranoid schizophrenia and major depression still does have to be taken into account When weighing the Poulos factors and an inadequate foundation on even one of the Poulos factors does require Is a reversible error as this court has no brief that can see that if the person is competent? The Poulos factors were likely properly weighed by the district court didn't you guys can see that already? Yes, your honor however that competency determination does have to be made by the district court We are simply asking that this court reverse the case so that that competency determination can be made at the district court level You know you're asking the court to impose a rule that says if Incompetency is determined the courts got to go out in a point find someone to serve in this capacity right and if you have Experience as we have seen in the efforts to try to find pro bono counsel We're now asking a whole group of other folks to join us So think if you could just take that frame for a moment Should the court jump to the merits of the case first before even going through this exercise? cognizant of the fact that the Inquiry that could lead to the need to appoint somebody could be for the purposes of a case that's substantively lacks legal merit Have you thought about that? Well your honor No, I the court first must determine whether or not the litigant is incompetent So they can't have that decision maker that decision maker would be able to Amend a complaint and while the merits of the case are one of the factors in the polls factor It is a six-factor analysis and no one factor is dispositive as this court noted I'm not in polis land for the purpose of this question I'm in rule 17 land and the considerations a district court judge or a magistrate judge may face in in considering These circumstances and the consequences should they jump to let me even look to see if this case has any potential merit Or is it your view that issues and consistent with perhaps our decision in? It's Gardner or Powell. I can't remember which one that a determination on merits is really you can't it's got to survive 1915 which is basically the frivolity. It's not frivolous Do you know what I'm talking about? Yes, your honor and Beyond that though the court should stay at hand Yes, your honor. I mean the Merits of the case do have to be weighed in that and that could be done at that competency hearing as well However, that competency hearing does have to be had Before we can just dismiss a case on the merits without Inquiring into one whether or not an individual is actually incompetent and can't proceed with their prosecution of their case Are you asking us to? Impose rules a slightly different subject that says counsel can never serve as a rule 17 Representative no, your honor. That is up to the discretion of the district court However, that would be a determination made at a competency hearing Which as this court noted in Powell is triggered upon receipt of verifiable evidence The district court must have a competency hearing or at least inquire into an individual's incompetence. Thank you What is the initial showing that needs to be made in order to trigger the competency hearing Well, your honor it was it would be receipt of verifiable evidence as this court noted in Powell verifiable evidence could be evidence from Another court that the litigant was found incompetent or it can be a letter from a psychiatrist I'm stating that the psychiatrist believed to the litigants being competent in this case There were 11 different letters submitted to the district court. Specifically. There was a letter submitted on page 98 of the joint appendix Acknowledging that mr. Mondelli had a severe psychiatric illness the Ninth Circuit in Allen v Calderon suggested that the holding in Powell suggests that any find any evidence submitted to the district court which tends to show that an individual has a severe mental illness would be Verifiable evidence of incompetence and that duty duty would be triggered the district court acted correctly though when it opined that there was nothing in front of it concerning the Alleged declaration of incompetency by the Fanwood Municipal Court. Her honor was correct then, right? Yes, your honor. There was not evidence However, there was that sworn affidavit by mr. Mondelli that he had been found incompetent of By the Municipal Court in New Jersey and as well there was those 11 different letters submitted from psychiatrists There was a difference between the evidence presented to the magistrate judge and the evidence presented to the district judge is is your argument that the evidence before the magistrate judge was Either constructively or part of the record that the district judge should have looked at or are we talking about Simply the evidence that was presented to the district judge Well, your honor the evidence that was presented to the district to the magistrate was also presented to judge Salas and judge Salas at the district court level did acknowledge that she had reviewed the record that she did go through the Certification and the supporting documentation in the telephone conference, which is found on pages 1 through 15 of the joint appendix So at that point her duty of trip to her duty of inquiry was triggered because she did review the record and specifically the certification and supporting documentation Thanks, thank you Good Morning If you introduce yourself, I have a question sure, would you like me to take off the mask? Absolutely. Okay Right your honors and may it please the court as my co-counsel mentioned, my name is Kira Geary. I will be Speaking to the second issue presented in this case. So so what we're what I'm interested. I won't presume that my colleagues are but what I'm interested in is the interplay between Pullis on the one hand and 17 C on the other so specifically What when does a 17 C inquiry essentially cut off a necessity to? Address the Poulos factors. Yeah, okay, so First Once it's triggered, we've gone through verifiable evidence and you know, okay, we're good. We're gonna have the hearing is the way to think about Poulos in that context if Incompetency is ultimately found pursuant to 17 17 C hearing you don't get to Poulos because now the court has to go through a process of finding a representative and That's one path on the other hand if The 17 C hearings held and the court then makes a finding of competency It's not necessarily So that you go to Poulos because you might proceed on a non Poulos path, but one potential way would be once companies competency is found to then Go on the Poulos path. Am I thinking about this the right way? Yeah, so the rule of law that we would we would submit is that in an instance such as this where the Plaintiff does have that verifiable evidence of incompetence submitted to the district court That the district court needs to resolve that issue first before moving on to the Poulos factors Because the Poulos factors it's a six-factor test. It's a holistic review No one factor is dispositive and in this situation the district court disregarded entirely Most of the evidence that was submitted those psychiatric letters were not mentioned. And so in that situation it The decision to dismiss based on those factors inherently rely on the district court having to hold the plaintiff in that case Personally responsible for their actions. So let me let me ask you this question. Maybe I should have asked this of your colleague If so, we'll do it on rebuttal The letters are sparse right, then I Think we could all agree, you know one or two sentence letters explaining that someone's schizophrenic Is sparse? Why shouldn't we look at this? record and say The district judge actually did what she was supposed to write. She looked at the letters. She chose not to Determine That they rose to the level of verifiable evidence of incompetency and then went to the Poulos factors So the particular hearing where judge Salas was reviewing those records was not a competency hearing So at that point, you know a a determination of mr Mondelli's competency wasn't happening and when that telephone conference happened the letters were in front of the district court But there was no notice to mr Mondelli to provide more before then because there was no suggestion that his Incompetence was at issue in that particular situation Because his client his lawyer Represented to the judge the district court judge that he needed a power of attorney because he couldn't get his client to focus he couldn't couldn't make a decision on his behalf meaning counsel couldn't so it sounds to me like Mondelli's lawyer was making a representation of competency was an issue. So Yes And and and at that point that would have also been the point where as part of rule 17 see that that duty of inquiry At the district court level should have been triggered I think what judge Greenaway was was asking he can obviously correct me is the materials in front of the district judge Assuming she actually read them Yes, and saw them was on notice of them as judge Greenaway characterized him and I think appropriately or sparse, isn't it? Could we infer from her conclusion that it was? Insufficient to trigger the duty. I I do not believe that the letters while they are sparse there were 11 different letters and Some of those letters specifically said that his paranoid schizophrenia his major depression Prevented him from going into court. They prevented him from understanding his legal issues So while those letters were sparse, they were brief They they did say enough that directly connected mr. Mondelli's mental state to his ability to prosecute his own claims So in that situation We would submit that the duty of inquiry would have been triggered and that determination of competency should have been made before the district court will Examine the first third and fourth polis factor which all rely on having to hold the plaintiff in this situation Accountable for his own action asking us to excuse the dilatory I understand the position concerning personal responsibility and bad faith or willfulness factors as Potentially being excused based upon one's mental health, but you're also asking us to conclude that the dilatory ness factors could also be excused why so the dilatory ness factors as to that the Appellees claimed that the statute of limitations initially had run out on the claim by one day that when it ran out That was on a Sunday. So there I we would argue that that wasn't even necessarily the case But even if there was any delay equitable tolling is certainly available in situations like these This court has said that that's available. So long as there's reasonable diligence and extraordinary circumstances present So, mr Mondelli's incompetence in this situation certainly would I think that the dilatory ness factor There is his delay in connection with moving the case forward in this case was cooperating with discovery not the statute of limitations That's yeah, and that's true. But I think in this situation, especially His his incompetence also weighs into the fact that discovery wasn't able to happen because mr Rossellini wasn't able to get a hold of mr. Mondelli wasn't able to get his consent to participate in discovery and so his incompetence then would also weigh into that consideration because Again, much of this was due to his incompetence and not necessarily due to any purposefully evasive actions any kind of delay, that was His his personal responsibility in that situation Your colleague forgive me your colleague this question Why not just dump to meritoriousness like why should the district court go through all of these steps and not should we? Why shouldn't a district court judge have the discretion to like look at the merits of the case and make a conclusion as to whether this Case could potent could ever survive in 12 b6 or something along those lines Your honor at the district court level during that telephone conference judge Salas explicitly declined to dismiss. Mr Mondelli's intentional infliction of emotional distress claim So at that point that claim would still have been alive if not for the other factors that were weighed The district court judge have jurisdiction which she've only had supplemental jurisdiction over that claim because she had opined that the ADA claim Was not legally cognizable perhaps her rationale wasn't quite on point, but she already wrote she already had concluded that So what was the jurisdiction for the court to even hold the emotional distress claim? So like Was it supplemental jurisdiction because I don't know if there was complete diversity between these parties no from from my understanding The intentional infliction of emotional distress claim would have been supplemental jurisdiction added on because of that ADA So they could all have been heard it. Why was it timely? What do you what is your what is the event? That led to the emotional infliction of emotional distress. That was still timely on more in March of 2016 So, I believe that the triggering event was the nursing home denying mr. Mondelli the access to his mother And that was the way it was. You mean no longer having 12 hours having one or two hours in the lobby. Yes Yeah, that would be the triggering event in that situation You may have touched on this and if so just remind me but in the instance where 17 C is considered and you End up with a competency ruling from the court as If you were assumed for a moment just just for a moment that you were counsel for mr. Mondelli Would you argue During the courts consideration of the poolist factors that notwithstanding the competency determination that the medical condition should be considered within the six-factor I Believe that that would be that would be an appropriate argument to make because the rule asks for the court to Determine the extent of the party's personal responsibility and I think even without that formal determination of Incompetency that those types of issues mental illness issues could still be considered and a more holistic way of evaluating what how how personally responsible the Plaintiff would have been for the delays in this case what is the Is there any balancing in this case to the extent that the defendant is being dragged through? These series of events and has an interest in the orderly Resolution of this case. Yes and What how is that interest play in? Trying to determine that whether there is competency or not competency So I believe that that would go to the second factor in the poolist test that evaluates the prejudice to the adversary here Here the appellees do claim that they would be prejudiced by this However, our position is that the prejudice here itself is minimal and by itself would not warrant dismissal The appellees were on notice of these claims since 2016 So that was the same year that the nursing home was sold even without mr Mondelli's participation those documents that were important could have been placed on a litigation hold they could have reached out to those reached out to the involved parties and Additionally much of the delay that happened here that would That would make it more difficult to litigate the case for both parties not just the defendant We're largely due to the fact that the the when the verifiable evidence of mr Mondelli's incompetence was presented to the court that that competency hearing was not triggered and as a result the litigation Dragged out for much longer than it needed to because mr Mondelli did not have a guardian ad litem to represent his interest to sign documents to have discovery proceed so you would have there would be a Determination beyond the first factor regardless of whether or not there was a finding of incompetency You would you would continue to run not just stop at personal responsibility But all of the other factors would have to be weighted in as well. Yes there. It's a six-factor test No one factor is dispositive However, this court did state in 2019 and Hildebrand versus Allegheny County that it is never upheld a court's dismissal when it was supported by an inadequate foundation on even one of the polis factors So here the district courts disregard of mr. Mondelli's mental illness the verifiable evidence of incompetency that was submitted is enough for Reversal in this situation despite the fact that there are three other factors that the district court also weighed Hmm it is not no it is not such a place Hildebrand, I'm not exactly sure of the exact Citation that was in 2019 and it was quoting needs versus Thorne, which was an unpublished or a non-precedential opinion You can't represent us whether not Hildebrand itself was a precedential opinion It is a precedential opinion Hildebrand was a precedential opinion It was quoting a non-precedential opinion that was that was decided the same year and I can get that citation for you on rebuttal Okay. Thank you Okay, thank you, thank you Are you ready two against one May please the court I have to excuse me for a second because I'm getting immense I Apologize, I'm hard of hearing so with all these shields, it's but the system that they have here is actually there's someone I work with Just turn in person just doesn't want to get there so I Think your honors the may please the court Walter koala from Marshall Ben. He weren't going to go again on behalf of the defendants I think we need to Look at the actual text of 17 C It specifies that the duty that we're talking about here applies when a party is unrepresented It's obviously Uncontested here that mr. Rossellini. What what is it about the language of? 17 C that you want to point us to or the case law that you're going to rely on that Unrepresented must mean Proce. Well, I would say the language of 17 C itself where it says who is unrepresented in an action That's the start The Powell case the Forelli case from the Second Circuit, which it adopted and frankly, it seemed to me that every case from this court that Suggest that's addressed Powell in the context of not just citing it for a Run-of-the-mill Legal proposition in terms of a standard of care or something like that There's like one or two of them anyone that that dealt with it substantively was dealing with pro se parties Gardner's the one exception and as I make note in my brief It's it's the exception that proves the rule there in a case. You had a clear distinct potential conflict So that the attorney could be held as essentially not representing the Daughter, I believe it was for that particular Issue but every other case that's that's looking at this issue. I was talking about pro se parties. There are two leaps as I see it that we need to make in order to come to the conclusion that you'd like for us to make number one that a lawyer Should Be deemed in any 17 seat situation to be able to fill into the roles outlined in C1 Number two that a lawyer is qualified to step into those roles and and Number Three that it's the intent of the the drafters, I guess ultimately, you know, it may be a rubber stamp, but ultimately Congress's is Is responsible for the rules that Congress intended for this to be? the Represent representative to be synonymous with lawyer and when it comes to the question of it of competence and The kind of representation that's required To fill these roles under c1. I don't see how we can deem representative and Counsel synonymously. I know that was a lot to unpack but we've got time right here My response to that would be this is that the rule nor my argument is saying that an attorney Necessarily can act as a guardian ad litem. I'm not saying that at all. What I'm saying is that the trigger for the language that the court must appoint Okay, that's the only thing that the representation affects and here's why because in In addition to this rule, there are also the rules of professional conduct and the attorney representing the party would have diminished capacity has the Obligation to make that analysis and to and to request a guardian ad litem when it's appropriate That was not done here Mr. Rosalene was a power of attorney now Maybe he didn't use the language as contemplate under rule 17 C But he his words surrounding it was I can't make decisions for my client correct And and please appoint someone to do that like a power of attorney So it wasn't the court on notice that he counsel had made his own judgment that he needed someone to speak on I don't believe so because I think right I think number one. There's a distinct difference between a power of attorney And and a guardian ad litem and the key in one in my mind is the fact that Mr. Rosalene he didn't need leave of court to get a power of attorney to involve someone else in the case Now he had the ability to petition the court to appoint a guardian ad litem, but if Mr. Mondelli came to him and said, um, you know, I feel I'm my diminished capacity is such that I'm incapacitated Mr. Rosalene he could have said, okay. Well, let's get a power of attorney Let's you appoint an agent to represent you in this in the litigation and they could have done that alone by themselves The fact that they didn't and all he was he was asked point-blank. Mr. Rosalene II. What do you want me to do? What do you want and he didn't say appoint someone he said give me more time and this is after of course You know many many months of extensions extensions Is you know what You know What is the obligation of the court and what is the obligation of the attorney? I mean, I think her point was okay admittedly, the correct nomenclature was not used right but Substantively listening to what he asked of her. I can't Do both I can't represent him. There's an impediment to me being who I have to be which is his attorney I I Essentially, I need help. I've put before you judge Information that speaks to 17 C Although he did not call out 17 C in the way that you know We might in hindsight say that he should so the question is, you know under what? Circumstances, is there a trigger and I I I hear you on the nomenclature That's a given but on the substance that seems to be you know Correct me if I'm wrong, but that's what we're excited to hear from you about because substantively it seems we were already at at 17 C and we've got to kind of figure it out and in thinking about writing something One of the things is going to be you know, when is this triggered and it would seem that the facts here Trigger it. Well, I would say that under 17 C The fact that the plaintiff was a representative party limits What the district court could do in that case and I think the district court here gave plaintiff's attorney every opportunity To petition for a guardian if if The attorney thought that was appropriate and and didn't do that. I think at that point the You Know the the the protection of the attorney-client privilege which your honor was talking about earlier I think that comes into play, but the the the duty of the court to protect The incompetent goes beyond 17 C. That is if the court Determines that the the incompetent it needs needs representation He would have the power to do so, wouldn't it? Well, I I think that the The issues again depend on the particulars of that that person and and you know The majority of cases where you have pro se plaintiffs. That's right Yeah, sort of unusual case because the incompetent has a has a lawyer But I'm I'm trying to fix that the the scope of that duty goes beyond 17 Whether that whether the party is represented or unrepresented if it's a determination that the incompetent needs protection the court can't appoint and should appoint then a Guardian, I'd like him well But I think that in this case what you're what you also have to look at is is the nature of the materials that was That was placed before the district court. I'm sorry the nature of the what of the materials. Yeah Yeah put before the court I mean there are a number of letters and someone we're talking about, you know, he can't be Get his air conditioning removed because he has asthma and there were some others that we're talking about. He's nice Most of them were sub symptom. Oh, well, they were schizophrenia But not all of them and I'm just simply pointing that out for the record But even those that dealt with his diminished capacity that with his mental illness What we have to look at did they demonstrate that he didn't have the ability to govern himself and manage his own affairs and When we're talking specifically about at its heart we're talking about rule 26 disclosures and you know the Amicus, you know was was talking about you know the ability of my client to you know put the people at issue or notice that you know, they may have to Be deposed and whatnot, but without the rule 26 disclosure, we don't even know who who he believes is involved in the case So we have very limited we have guesswork at that point and I know that goes to it wasn't that enough to Inquire is isn't at the point Not not not that the eventual determination would be to appoint someone what the question would be shouldn't have had a hearing And make that determination, you know upon the proofs if he was My position would be if he was not represented. Absolutely. It was personally party But once you have the attorney in there Then that that changes the dynamic because if you have a situation where she said, I'm sorry Because rule 17 C talks about Representative and defines what a representative for the purposes of that rule so I don't understand why the presence of counsel matters because then the The inquiry by the court would start to potentially interfere with that attorney-client relationship if the attorney and the client Let's just assume for the sake of argument. They talk and he said, you know what? I hate these defendants I'm not gonna do anything I'm just gonna let this keep going and going and going and if they you know We'll submit these letters and then we'll try to make this as horrible for them as possible He's not incompetent and he would you know be on that and I'm not saying this actually happened obviously, you know that this is this is simply a hypothetical but in in that case when you have a situation where the attorney and the client have agreed to a Circumstance or a strategy say for example That potentially could say You know what a district court may say, you know, this may be an incompetency issue Well, then you have to inquire again as to what what's going on in the relationship with the attorney and the client It's the judge supposed to bring them in and say, okay Well, are you doing this as a strategy or is this a part of you know, your mental illness? What have you discussed with the attorney? As a fact finder to make those determinations and and judges have capacities to inquire into the privileged materials without breaching privilege through Inquiry if the judge has some indicia that this is Being done for bad purposes namely the way or to be hostile towards the other side outside the proper litigation right, and I think the balance here again would lie in the The question of whether it's pro se party representative party because in the first instance the question of whether or not a guardian ad litem is Necessary in a representative situation would be with the attorney. Yes That argument right because when I look at the the language of 17c It says 17 c1 with representative the following representatives may sue or defend on behalf of a minor or an incompetent person Right. None of those listed are are an attorney And then without a representative A minor Or incompetent person who does not have a duly appointed representative. So who does not have somebody enunciated in 17 c1 may sue by a friend or guardian ad litem so, you know when when we think of represented unrepresented, I just don't get the The attorney issue comes first. Well, I think that the if you look at the The other part of that language the court can issue another appropriate order in cases dealing with this have found Appointment of counsel is another appropriate order And so in that in that in those cases what it's doing is folding in the representation into that question And so in this case when you have the representative party already Okay, then I think it's like I said I think it just changes the whole dynamic and in the first instance the the issue of do we need guardian ad litem has to come from the plaintiff's attorney Sorry He made a request for some independent person to be the decision maker for the client But I I want to pause on that because I know you don't think that that was sufficient. I understand. That's your position Am I correct? That's your position? Yeah, and and and I think that the the plain fact that judge What do you want me to do open-ended question, I mean he said more time And and we all have it so you can feel free to give us the line and page Okay, it is on joint appendix 15 I'm starting on line 14 Mr. Rossellini, what am I supposed to do? What am I supposed to do? I can't leave these I can't leave this open indefinitely. I can't and he responded. Well, I would ask for one more extension Okay, and then she continues that this gets to my next question. I understand. Thank you for drawing that to my attention. Sure you Judge Salas represents if your client is not mentally fit. I mean again, I have no proof This is lines 23 and 24 at joint appendix 15 Does that indicate to you that her honor was unaware of the letters we've been talking about? because the thrust of the communication about the proof quote-unquote of His competency seemed to focus on the absence of independent evidence about the fan would alleged Incompetency declaration her honor makes no comments about any of these other letters. No because they would they were submitted To the magistrate not to her She was given the United States District Court docket is your position that because it was only presented to the to the magistrate judge meaning Directed to him it did not become part of the district court record. No, I'm not saying that it wasn't part of the district court record I'm saying it wasn't in front of her when she was making that determination and it was plaintiff's attorney's responsibility That was his position counsel made a representation concerning the May certification To her honor suggesting that that he had That there was this May certification with these attachments Right. I mean, is it is there some indication that maybe her honor? Overlooked something that counsel brought to her honor's attention Well, I think that her response indicates that the only thing that was given was the Morristown Medical Center discharge instructions But we know that that's not accurate right? Well, that was what was given to her But but again Joint Appendix 17 1 6 through 10 your honor the certification that was filed on May 19th includes documentation of his medical history Including some recent letters of treatment from Robert Wood Johnson Medical School some others of his treatment This is not without documentation By not acknowledging that material having been presented Well, I think that the may well the May 19th. That was the district. That was the magistrate You're suggesting it wasn't before her but Mr. Mondelli's counsel brought it to her honor's attention. Is that are you saying that's not adequate? I Everything that happened here and the fact again that you know, he took No steps to ask for a guardian ad litem and was asked what she could do He specifically said all he wanted was additional an additional time Well, that's because she had suggested moments earlier that he could withdraw and he said no This is my client of long-standing. I don't want to withdraw and and if and if the client is giving him that kind of Problems and not cooperating. That's one option that he does have and I think that's all she was bringing up that there are ways to handle a client who refuses to cooperate but when we get down to again rule 17 C you know if if the party being represented means Nothing for 17 C. Then the last line is should just be read right out of different scenario Let's assume that we had a lawyer and client and during the course of the representation the client suffers a health condition that renders the client mentally incompetent or Physically incapacitated such that they couldn't participate and therefore couldn't make any decisions counsels in the case Counsel goes to the trial judge and says something has occurred My client is no longer fit to make decisions either because of a recent mental or a physical incapacitation I Point I need you. I need some help. We need a power of attorney We need somebody is it your position that that fact pattern would not be sufficient to trigger appointment under 17? I think that's different than what we had here Because only difference in my hypothetical is a newly discovered problem as opposed to historical from 1967 problem because in that case The attorney is going to the court and saying I need you to appoint someone here. He's saying I need more time and Had he come into court that day and said your honor Rather than you know, the first thing I want you to do is reinstate my my clients Complaint from the administrative dismissal and I want the appointment of a guardian ad litem, but it's at J 13 lines 14 through 18 Counsel for mr. Mondelli says Well, it's it says he needs a power of attorney. He needs a power of attorney to proceed in this case Just because right now in particular there was the municipal proceeding that was transferred Finn with finding him incompetent so The judge was presented with the with the with the the fact that you say makes my hypothetical different than the what happened here No, because I think in this case, you know, he's saying that they need a power of attorney He's not asking for a guardian ad litem and I think that makes it suppose the let's let's tweak the hypothetical The fan in the fan would I hearing there was the foremost expert in Schizophrenia and at that hearing the doctor Dr. Smith she said he's suffering in a way that he's My medical opinion Incompetent the municipal court says great That's presented to the judge. I'll be a municipal court finding Judge I have the letters which we have here and the suggestion by Defense Council on page 17 and 18 are Judge I've read them. There are a lot of letters. Some of them say asthma, but some of them speak to His mental state and I'm sure you've read them judge So the notion that this was on the magistrate judge's docket, but the district court didn't read it. We all know judge solace I've got a credit that she's read it but back to my hypothetical That's the only thing you know about the municipal court. That wouldn't be enough to trigger a Inquiry The problem with the municipal court here is all you had was just a certification by plaintiff that happened I mean, he doesn't he doesn't present any record from the court. He didn't present a finding an order Municipal court whatever the representation is with these letters. That's not enough for verifiable evidence Just the statement by the plaintiff himself. That's I mean, that's literally all he presented. He didn't present, you know a Something from the court. He presented his own statement saying I was in court and you know, I was found to be not competent to stand We don't have that here, I don't have anything sufficient to trigger it based on that I mean if you had a previous competency hearing and you know, there seemed to be some dispute Judge shall seem to be of the opinion that magistrate judge Or municipal judge rather It was an improper venue for that sort of Determination to be made but we'll put that aside I think you need something more than just simply a plaintiff's assertion that this occurred. I think you need an actual court record I mean essentially what you're asking for is for Essentially judicial notice of this occurrence And if you had an actual court record It would be different than the point of saying that this thing occurred if you put the municipal court aside and assume That all of the letters that were asserted and I think it's exhibit B Were before the court that enough I Don't think so because right in that situation what we're looking at is the question of whether not whether he's mentally ill not whether he has a diminished capacity not whether he has a condition but whether or not he's incapable of Essentially Doing a rule 26 disclosure The question is whether that presented to the court is sufficient to trigger a 17 C inquiry That's the question That I would like an answer to and and I would say no based on what we're looking at here based on everything that occurred Said that The letters weren't necessarily in front of her To you is assume the letters the letters in front of her. You know what the letters say now, right? So sure. Yeah, does that trigger the inquiry? I don't believe so. No, I think that they were minimal at best and the fact that they were from Some cases 50 years ago. I don't think that has any relevance whatsoever. Except for if any minimal Because the question here isn't those that you suffer met from a mental illness Question isn't does he have diminished capacity the question here is is he able to manage his own? The question is whether there was a duty to inquire and I think that's that's I think what we have part in company I think that you are asking the district judge to make a determination of competency and I think the issue was Whether she should have made an inquiry that is whether there were warning cycle signs or signals Something going on here and then she should have made an inquiry and maybe ultimately determined that there was no issue Well, I think that's what's that's a gap here. I think that I think that the trigger has to be something more Than the statements that were made here because none of them addressed where we actually were in the case So you're thinking that the in the exercise of discretion the district judge? Did so and maybe we may disagree with that, but that was a discretionary decision yeah, and fundamentally I think that you know the fact that There was an attorney involved in the case is really, you know, the key the key factor Great thanks so much. Okay All right, how are we carving up these two minutes Your Honor's a few quick points on rebuttal first. We want to acknowledge that. Mr Rosalini is in the courtroom today and was involved out in the district And in the district court at the district court level, which brings me directly to my first point that the appellees argument Completely gets rid of the language duly appointed representative within rule 17 C Unrepresented as we mentioned on During our initial argument does mean an individual who does not have a duly appointed representative and at the district court level Mr. Mondelli did not have that duly appointed representative Further the appellees argued that this was not verifiable evidence that these 11 letters from mr Mondelli's doctors did not constitute verifiable evidence We would point this court to Powell where the Hartman plaintiff in Powell submitted just a three sentence letter Acknowledged that he had ADD major depression and was and that the doctor believed him to be incompetent and that did constitute Verifiable evidence that triggered a duty of inquiry. I think that judge the district court judge Was reviewed the letters? Is there anything in the hearing transcript that would suggest to you that the district court judge actually? Saw those letters because the references last I was the absence of evidence on the fan would and a discharge record from Robert That was it so do you have anything that would tell you the district court actually considered those letters your honor We would point to page 10 of the joint appendix where judge Salas does acknowledge that she reviewed the May 19th 2017 Certification which did have the supporting documentation of those letters and she does acknowledge that even within that certification Mr. Mondelli did submit that he had mental illness that he was Did have psychiatric issues and that's those certifications those letters were submitted with that May 19th 2017 certification Your adversary about abusive discretion if her honor considered those letters and she made the determination Subsidence, you know that that wasn't enough. Why shouldn't we? Why should we disturb that? Well your honor she because there is nothing even within and I see that my time is up To the presider Your honor we would point this court to Powell where this court noted that the failure to at least consider that rule 17c may apply It's an abusive discretion. So while she may have found him incompetent. She did not consider that rule 17c may apply What what do you mean? She didn't consider it. She may decline to follow it, but What's the basis to say that she did not consider it well your honor nowhere in that telephone transcript from that Insight to it or make reference to it Correct your honor and as as this court noted in Powell the failure to consider that rule 17c may apply is an abusive discretion and further the appellees argued that Mr. Rossellini did have should have asked for a guardian for mr. However rule 1.14 of the model rules of professional conduct is a suggestion But the district court does have a duty of inquiry into an individual's incompetence and upon receipt of that verifiable evidence Their duty was triggered and therefore they abused their discretion and failing to inquire into. Mr. Mondelli's incompetency. I just have one question because I didn't understand your May 19th reference the fan would The Fan would reference the judge says there was no documentary support Were you saying that the fan would papers had the letters appended to them? Your honor that this the certification did have that supporting documentation, which was those letters Is my understanding right but but I think to judge Schwartz's point The statement at lines 22 and 23 Would lead the reader to believe that she wasn't aware That there were letters right because she says That The plaintiff also claimed the municipal judge found him in competent stand trial but provided no documentary support for these assertions Yes, your honor there was no documentary support that the Municipal judge found him incompetent. There was documentary support of his mental illnesses However, there was not that documentation from the municipal court of fan would but there was documentation that he did have paranoid schizophrenia And major depression, but she suggests later in the transcript that she had no evidence of any of that and that's why I asked you What in the record leads you to conclude her honor? Actually reviewed those letters and your honor we would point to the joint appendix page 10 where she does say that she reviewed the certification Which did have that supporting documentation? She did review the record as she noted in that telephone conference and and despite that Mr. Mondelli did submit also in that certain in that certification that he did have mental illnesses, which judge Salas did note In the joint appendix on page 10, which did trigger that duty of inquiry Great, thank you so much. Thank you Once again, mr. Foreman we thank you for your service to the court and the Wonderful work of the clinic. So we appreciate that very much counsel Both sides did an outstanding job today. We appreciate it and we'll take them after the hearing Thank you. Thank you. Thank you