Petition for Writ of Certiorari — Goetz v. Crosson

No. 94- QEFICE OF THE CLERK ,

IN THE

SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1994

LYLE R. GOETZ, MARK CANS and

ANNA SELLETTL, on behalf of themselves

and all others similarly situated,

Petitioners,

-against-

The Honorable MATTHEW CROSSON,

in his official capacity of chief

administrator of the courts of

New York, and DR. RICHARD C.

SURLES, in his official capacity

of Commissioner of the New York

State Office of Mental Health,

Respondents.

PETITION FOR A WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS FOR THE

SECOND CIRCUIT

WILLIAM M. BROOKS

(Counsel of Record)

Mental Disability Law Clinic

Touro Law Center

300 Nassau Road

Huntington, New York 11743

(516) 421-2244, ext.331

Ae OR Stee am ~

2 Fhe Se . a . ne ? Ce, IPRA Yes NETS ORNS

QUESTIONS PRESENTED

i. Does the Fourteenth Amendment require the

State of New York to provide indigent mental patients, who

challenge their confinement, with a psychiatrist who is

available to (1) testify promptly on their behalf if the

expert's clinical determinations are favorable to the patient

and (2) assist in the preparation and presentation of the

patient's case?

= Whether a delay of six weeks from the time

of a request for a hearing until the provision of a

constitutionally adequate hearing violates the Due Process

Clause of the Fourteenth Amendment?

LIST OF PARTIES

The caption of the case contains the names of all the parties.

TABLE OF CONTENTS

CONSTITUTIONAL AND

STATUTORY PROVISIONS

THE DECISIONS OF THE SECOND

CIRCUIT SIGNIFICANTLY

LIMITING THE PROVISION OF

PSYCHIATRIC ASSISTANCE AT

CIVIL COMMITMENT HEARINGS

RAISE ISSUES OF FUNDAMENTAL

IMPORTANCE AND ARE

ARGUABLY AT ODDS WITH PRIOR

RII I UI APOIO cen cssncnsncccnccscenssesnconnessanacsnesores 1]

The Critical Role Played by the

Psychiatric Expert in Civil Commitment

Proceedings Warrants a Determination of

the Applicability of the Provision of

ee I ON a cao n cca cecenesentancsecnancnns 13

This Case Raises Significant Legal and

Practical Questions Regarding the Right

to a Prompt Hearing to Challenge One's

No eccctddnwnsn deeenicncncanaterseinndasversiies 21

EERIE SES TEE 2 ERIC RR ee tt a EEN NORIO SMO OE 26

APPENDIX

Opinion of the Court of Appeals for the

Second Circuit dated November 28, 1994 .0000000.0.ccccccccccccceceseesseeees la

Opinion of the Court of Appeals in the

Second Circuit dated June 10, 1992.00... cccccceeceseeeseseseeeseeeeeees 12a

Opinion of the United States District

Court for the Southern District of New

Wee GRE PE ee icici cscs sess cteissa careers 37a

Opinion of the United States District

Court for the Souther District of New

York @uted Duly 30, 1991 os Poe? eh oe RES 49a

Opinion of the United States District

Court for the Southern District of New

Youts Gated Jammaiiy 02. 190 iss oh aces 60a

Order of the Court of Appeals for the

Second Circuit dated February 2, 1995

denying appellants’ petition for rehearing .............0.0.0.cccccccceseeeeeeeeees 77a

Judgment of the United States District

Court for the Southern Distrit of New

Youk dated Noventner 30, 895s. 78a

Judgment of the United States District

Court Court for the Southern District of

DUD FORM GI DE De, NY sasscciccciee dois sescctsscdsccsibdjucccaspcecodancons 79a

Relevant texts of the Constitutional and

Statutory Provisions Trrvolved «......................0.cccccccecesesesseseseccoseceesoses 80a

TABLE OF AUTHORITIES

Cases

Addington v. Texas, 441 U.S. 418 (1979)

Ake v. Oklahoma 470 U.S. 68 (1980)...........:.ccccecsssesssseeseseeseseeneneens

Allen v. Illinois, 478 U.S. 364 (1986)...0.......c.ccccccccsecesecsesesceeseseseseees

Armstrong v. Manzo, 380 U.S. 545

CI adele cis k sindistiss thas Voesisiichetaadlditaleiocascrisassshncsintis Shaneisuken omapnatbeunoaal

Bell v. Wayne County General Hospital

384 F. Supp. 1085 (E.D. Mich. 1974)

aaah iach lechiies senses nccieiigemntc clan

Coll v. Hyland, 411 F. Supp. 905 (D.N_J.

a inet cisieinbarctinesed ati

County of Riverside v. McLaughlin 500

iE 2 ; | SRR ina terts. ic ke Neto el mea a een Ta

Dolan v. City of Tigard, U.S._,114S.

Oe eg ed

iV

Doremus v. Farrell, 497 F. Supp. 509

(D. Neb. 1975) (three-judge court)..........

French v. Blackburn, 428 F. Supp. 1351

(M_D.N.C. 1977) (three-judge court),

GE, 443 US. FOE CISTI) sna cceceseviveesess0s.

Gagnon v. Scarpelli, 411 U.S. 778

Illinois State Board of Elections v.

Socialist Workers Party, 422 U.S. 173

i gy , CEPR Sue SCENE ieee

In re Gannon, 301 A.2d 493 (N.J. Super.

In re Williams, 478 NE. 2d 867 (I.

aa ON eee

Jackson v. Indiana, 406 U.S. 715 (1972)

Jones v. United States, 463 U.S. 354

| SEAT Re ee Ln sete Nem NTE AEs Rey ae 19

Kendall v. True, 391 F. Supp. 413 (W.D.

as, 3572) CR CI iinet Neeiibakens 20

Lassiter v. Department of Social

SOT IN, GEE TI. TE CID iets iccansincccessinadinsiotictaen ind ldibedaee 15

Lessard v. Schmidt, 349 F. Supp. 1078

(E.D. Wisc. 1972) (three-judge court),

vacated and remanded, 414 U.S. 473, on .

remand, 379 F. Supp. 1376 (E.D. Wisc.

1974), vacated and remanded, 421 U.S.

957, reinstated, 413 F. Supp. 1318 (E.D.

Wik 10 a ea a re 20, 21

LAGS V. SUMNGE, ASE CEB ERTS isiiesintncesid eck iesntohinteaies 17

Logan v. Arafeh, 346 F. Supp. 1265

(1972) (three-judge court), affd. sub

nom. Briggs v. Arafeh, 411 U.S. 911

Lynch v. Baxley, 386 F. Supp. 378 (M.D.

Pat TS I CI ainsi caso cisecsnssn ovis ansicioie ects eo 20

Mandel v. Bradley, 423 U.S. 173

vi

Mathews v. Eldridge, 424 U.S. 319

O'Connor v. Donaldson, 422 U.S. 563

PP sei hciceicheaciedc ta A EE ee eK

Fcerteamne V. IR, 442 US. SOA (UGTD) acc cescesccescosescscccsocsecessece:

Proctor v. Harris, 413 F. 2d 383 (D.C.

7 GREESENSS Sa eve tk 2 aaa aor a a ne i LR

Project Release v. Prevost, 722 F.2d 960

6 A, ESRF ROE SEs Taare Ott ORR Ce REIS NEES COC Se ah

Scott v. Illinois, 440 U.S. 367 (1979) ooo... ecccceccccccscsccseeseesecseesseseesee

Swann v. Charlotte-Mecklenburg Board

WE BIN i vsicsnecscsssevinseecduccscrecnessesasccc

Thomas v. Review Board of Indiana

Employment Sec. 450 U.S. 707 (1981) ....c.ccccccsscsses ocssessecsesseecsesseee

Vitek v. Jones, 445 U.S. 480 (1980) .....cccccccccccccccsssessescseceeeeceessssee

Washington v. Confederated Bands &

Tribes of the Yakima Indian Nation, 439

I

Vii

Other Authorities

Appelbaum, Jn Wake of Ake: The Ethics

of Fxpert Testimony in an Advocate's

World, 15 Bull. Am. Acad. Psychiatry &

RI Fe ea encinie sahcaisa dae ciohanin eat cccisiaps esha hiieodtiminch sce 18

Center for Mental Health Services,

Mental Health, United States 1994,

Developments in the Law-Civil

Commitment of the Menially IIl, 87 Harv.

Be. Bee. PE TE inc asco A ciiciendeecnniorda 21-22

Farrell, The Right of an Indigent Civil

Commitment Defendant to Psychiatric

Assistance of His Own Choice at State

SEUPUING, 11 TEMG. TV. THE CRIN vvccevvccenececqecesarscesansvesdccsersssers 17

Hiday, Judicial Decisions in Civl

Commitment: Facts, Attitudes and

Psychiatric Recommendations, 17 Law

Se ey TO cinch ar sidic apse veopsstharpnsbchcctonges 12

Hiday, Reformed Commitment

Procedures: An Empirical Study in the

Courtroom, 11 Law & Society Review

2 5 BRN RMR ABE SAP a eM ER EER DH OT 12

Vili

ee ee ey rey

Legal Issues in State Mental Health

Care: Proposals for Change-Civil

Commitment, 2 Ment. & Phys. Dis. L.

aac teas oo schesecucdsajasvsocnincaseniabovasitacs 17

Lipton & Simon, Psychiatric Diagnosis

in a State Hospital: Manhattan State

Revisited, 36 Hosp. & Comm. Psych.

yf ETRE TRE > 2 SiR RN ely ea eT ee 16

Morse, Crazy Behavior, Morals and

Science: An Analysis of Mental Health

BE, FRG GN Tae DUE, PF CR PID iiiseccccsncsqsasevocesesoscsevovsesvovaseceson 12

National Center for State Courts,

Guidelines for Involuntary Civil

Commitment, 10 Ment. & Phys. Dis. L.

I i Od caidatssiniacny 22

Slobogin, Dangerousness and Expertise,

RO Ta Oe ik OE OR oink scceissodeciucuaopcecdsbconee sneecovehvces 12

Stromberg & Stone, A Model State Law

on Civil Commitment of the Mentally IIl,

BO TRRIY. 3 LA, Bae COE ti bctsstitiin cicstencststvibhacincskttsitaasuiilell 22-23

No. 94-

IN THE

SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1994

LYLE R. GOETZ, MARK CANS and

ANNA SELLETTLI, on behalf of themselves

and all others similarly situated,

Petitioners,

-against-

The Honorable MATTHEW CROSSON,

in his official capacity of chief

administrator of the courts of

New York, and DR. RICHARD C.

SURLES, in his official capacity

of Commissioner of the New York

State Office of Mental Health,

Respondents.

PETITION FOR A WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS FOR THE

SECOND CIRCUIT

Petitioners Lyle Goetz, Mark Cans and Anna

Selletti respectfully request that a writ of certiorari issue

to review the judgments and opinions entered in this case

by the United States Court of Appeals for the Second

Circuit on November 28, 1994 and June 10, 1992.

OPINIONS BELOW

The November 28, 1994 opinion of the United

States Court of Appeals for the Second Circuit is reported

at 41 F. 3d 800 (2d Cir. 1994). It is set forth in the

Appendix to this Petition at la-1 1a.

The June 10, 1992 opinion of the Second Circuit is

reported at 967 F. 2d 29 (2d Cir. 1992) and is set forth in

the Appendix to this Petition at 12a-36a.

The opinion of the United States District Court,

dated November 23, 1993, that granted summary judgment

to the defendants after remand from the Second Circuit is

reported at 838 F. Supp. 136 (S.D.N.Y. 1993) and set forth

in the Appendix to this Petition at 37a-48a.

The opinion of the United States District Court,

dated July 30, 1991, that initially granted summary

judgment to the defendants is reported at 769 F. Supp. 132

(S.D.N.Y. 1991) and set forth in the Appendix to this

Petition at 49a-59a.

The opinion for the United States District Court for

the Southern District of New York, dated January 12, 1990,

that certified this lawsuit as a class action is reported at 728

F. Supp. 995 (S.D.N.Y. 1990) and set forth in the Appendix

to this Petition at 60a-79a.

JURISDICTION

The United States Court of Appeals for the Second

Circuit entered an opinion and judgment in this case on

November 28, 1994. The petitioners filed a petition for

rehearing containing a suggestion that the action be reheard

en banc. On February 2, 1995, the Court of Appeals denied

the petitioners’ motion. The order denying the motion is set

forth in the Appendix at 77a of the Appendix. This petition

for a writ of certiorari is taken from the November 28,

1994 and June 10, 1992 opinions and judgments of the

United States Court of Appeals for the Second Circuit

pursuant to 28 U.S.C. § 1254(1).

CONSTITUTIONAL AND STATUTORY

PROVISIONS INVOLVED

This case involves an interpretation of the

Fourteenth Amendment to the United States Constitution.

This lawsuit also involves New York Judiciary Law § 35(4)

(McKinney 1983 and Supp. 1995) and New York Mental

Hygiene Law § 9.31 (McKinney 1988 and Supp. 1995).

The relevant texts of these provisions are set forth at 80a-

81a of the Appendix.

STATEMENT OF THE CASE

This case involves two of the most basic elements of

due process that arise when the State deprives someone of

his liberty by locking him in a mental hospital: (1) the right

to meaningfully challenge one's confinement through the

provision of psychiatric assistance; and (2) the right to do so

in a timely fashion. This lawsuit is a class action in which

the class representatives are individuals who have been

involuntarily hospitalized in Dutchess County, New York.

They assert that the Fourteenth Amendment confers upon

indigent mental patients the right to the appointment of a

psychiatrist who is available to (a) testify promptly on the

individual's behalf if the court-appointed expert's clinical

determinations are favorable to the patient and he wishes to

use such testimony, and (b) otherwise assist in the

preparation and presentation of the patient's case.

Presently in New York, New York Judiciary Law §

35 governs the appointment of psychiatric experts in

retention, i.e., civil commitment, proceedings. The statute

authorizes a court to appoint up to two psychiatric experts

if a court so chooses. However, the statute sets forth a fee

schedule of no more than two hundred dollars per

appointment if the court appoints one expert, and three

hundred dollars if the court appoints two psychiatrists.

The class representatives assert that the present

appointment practice in Dutchess County violates the Due

Process Clause in a number of ways. First, appointment is

soley within the court's discretion. Second, because the

statute authorizes the appointment of an expert witness

whose only function is to provide information to the court

and testify for either party in the retention proceeding, the

court appointed expert fails to provide assistance to the

patient in the preparation and presentation of his case.

Finally, the provision of expert assistance in Dutchess

County violates procedural due process because the

appointment process results in a four to six-week delay in

the patient's commitment hearing. Such a delay results from

the inability to attract doctors willing to accept court

appointments because of the low fee schedule. This delay

violates the State's obligation to provide a constitutionally

adequate hearing in a timely fashion. This delay also

effectively requires a patient to choose between a timely

commitment hearing and the opportunity to pursue

favorable psychiatric testimony.

Proceedings Below

In December 1988, pursuant to 28 U.S.C. §§ 1331

and 1343(3), petitioner Lyle Goetz, an indigent involuntarily

hospitalized patient, filed this lawsuit in the United States

District Court, Southern District of New York, on behalf of

himself and other involuntarily hospitalized patients in

Dutchess County. He sought a declaration that the State's

failure to appoint, as of right, a psychiatrist who would

provide favorable testimony if the patient's condition

warranted such testimony, and otherwise assist in the

preparation and presentation of the patient's case, violated

the Due Process Clause of the Fourteenth Amendment and

42 U.S.C. § 1983.' While the defendants' motion to dismiss

was pending,’ petitioners Mark Cans and Anna Selletti

Lyle Goetz asserted further that a practice at the hospital to

which he was confined in which a non-treating psychiatrist examined

patients for the sole purpose of gathering information, which he could

use at the patient's commitment proceeding, violated the patient's

privilege against self-incrimination. This issue is not before this

Court.

Mr. Goetz had named as defendants in their official Capacities

the Chief Administrative Judge of New York State, the Commissioner

of the New York State Office of Mental Health, and two local state

court judges who presided over retention proceedings in Dutchess

County. Subsequently, upon consent, the two local state court judges

moved to intervene and serve as class representatives,

raising Claims identical to those presented by Mr. Goetz.

The district court (Goettel, J.) denied the defendants'

motion to dismiss, granted the motion by Mr. Cans and Ms.

Selletti to intervene, and certified this lawsuit as a class

action. The class consisted of individuals civilly committed

within Dutchess County who will request retention hearings

to challenge their confinement and will further request the

assistance of an independent psychiatrist. 728 F. Supp. at

1003. In denying the motion to dismiss, the district court

held that once the Office of Mental Health ("OMH") sought

to retain the plaintiff past the terms of his present

commitment, and the plaintiff expressed an intention to seek

the appointment of an independent psychiatrist, a ripe

controversy existed. 728 F. Supp. at 999.°

Subsequently, the district court granted summary

judgment to the defendants. The court rejected the plaintiff

and intervenors' ("plaintiffs") contention that commitment

proceedings are quasi-criminal, ag the goals of such

proceedings are the care and treatment of the individual.

769 F. Supp. at 135. The court then concluded that the

appointment of psychiatric experts as of right would create

difficulties in attracting an adequate number of psychiatrists.

769 F. Supp. at 136. In addition, requiring a psychiatrist

who believed a patient required in-patient treatment to assist

the individual in obtaining his release would create ethical

problems for the medical expert. /d. Finally, the court

were removed as defendants.

3

The district court granted the portion of the defendants’

motion to dismiss addressing the privilege against self-incrimination

claim, holding that because retention proceedings are civil in nature,

the privilege did not attach. 728 F. Supp. at 1002.

found that the numerous avenues of review for psychiatric

patients under state law lessened the risk of an erroneous

deprivation in the absence of the appointment of a

psychiatric expert. 769 F. Supp. at 137. Consequently, the

district court held that due process does not require the

provision of expert psychiatric assistance in commitment

proceedings. /d.

The Second Circuit reversed in part the decision of

the district court. The court first held that except in a

limited number of fact specific instances, the Due Process

Clause does not require the provision of a psychiatric expert

who would provide favorable testimony if the patient's

condition warranted and otherwise assist in the preparation

and presentation of the patient's case. The court referred to

this type of expert as a consulting psychiatrist.

In reaching this decision, the court applied the three-

prong criteria set forth Mathews v. Eldridge, 424 U.S. 319,

335 (1976): (i) the interest of the individual subject to

involuntary commitment; (ii) the governmental interest

affected by the provision of expert assistance; and (iii) the

risk of an erroneous deprivation of the individual's interests

in the absence of the additional procedural safeguard and

the probable value of the additional safeguard. 967 F. 2d at

33. In assessing these factors, the Second Circuit found

that the roles of providing testimony if a patient's clinical

condition warrants such testimony and assisting in the

preparation and presentation of the patient's case "are not of

sufficient import to implicate due process in every

proceeding." 967 F. 2d at 34.

In so holding, the court first recognized that

"psychiatrists often disagree about the proper diagnosis and

treatment of particular patients" and lack the ability to

predict a person's dangerousness with any great certainty.

967 F. 2d at 34. However, the court found that while a

battle of the experts is often thought to increase the

accuracy of a judicial proceeding in the adversary system,

civil commitment proceedings are not entirely adversarial

because the State provides care to those unable to care for

themselves as a result of of mental disability. /d.

Significantly, the Second Circuit concluded that the

appointment of a psychiatric expert will not alter the number

of erroneous adjudications. Jd. at 35.

In assessing the importance of the psychiatric expert,

the Second Circuit concluded that the consulting

psychiatrist's role of providing favorable testimony of a

patient's clinical condition overlaps with the role of a

psychiatrist who is available to testify on behalf of either

party. The court referred to this type of expert as an

independent psychiatrist. The court then held that while due

process may require the appointment of a consulting

psychiatrist in a limited number of fact-specific cases, as a

general rule, the Constitution does not require the

appointment of an expert who will assist in the preparation

of the patient's case since the patients’ counsel can obtain a

sufficient level of expertise to satisfy due process. /d.

However, the Second Circuit determined further that when

the State judge determines that independent psychiatric

testimony is necessary for a reliable assessment of a patient,

the individual's interests in freedom and self-protection

implicate due process concerns and the individual should

have the right to obtain an independent psychiatrist. 967

F.2d at 36, 37. The Second Circuit then remanded this case

for the district court to determine whether the procedures in

Dutchess County for appointing an independent psychiatrist

satisfy due process.

Judge Newman concurred in the judgment in which

he specifically addressed the following language in

Addington v. Texas, 441 U.S. 418 (1979):

It cannot be said, therefore, that it is much

better for a mentally ill person to "go free"

than for a mentally normal person to be

committed.

967 F. 2d at 38 (quoting 441 U.S. at 429). Judge Newman

emphasized that the statement should not be read to mean

that committing a mentally normal person is no worse than

releasing a mentally ill person. 967 F. 2d at 39. Because

the consequences resulting from a wrongful confinement are

worse than the consequences of an erroneous release, and,

no matter how much care is exercised, many mentally ill

individuals will remain undiagnosed and at liberty, it is

better to add one more mentally ill person to the population

at large than to institutionalize a non-mentally ill person. Jd.

Judge Newman then opined that the appointment of a

consulting psychiatrist will enable the adversary system to

function on a more informed basis, leaving it up to the State

courts to rule on an individual's challenge to his involuntary

hospitalization. 967 F. 2d at 40.

Judge Van Graafeiland dissented from the portion of

the opinion that remanded the lawsuit to the district court.

He rejected the notion that civil commitment proceedings

are adversarial, stating that a patient's attorney must attempt

to procure treatment for any client in need. 967 F. 2d at 37.

Judge Van Graafeiland further opined that the federal courts

are ill-equipped to address such issues as the amount of fees

paid to experts in State court proceedings. As such, Judge

Van Graafeiland would have either denied all relief without

prejudice to the patients raising their claims in State court or

abstained from resolution of the questions raised pending a

decision in State court of the issues raised in this lawsuit.

967 F. 2d at 38.

Upon remand, the district court again granted

summary judgment to the defendants, rejecting the plaintiffs'

assertion that delays of over one month violated due

process. The court recognized that the limited number of

psychiatrists in Dutchess County, the time it took to

complete psychiatric evaluations and the inability to compel

psychiatrists to complete their evaluations in a more timely

fashion rendered it impracticable to compel the State to

provide hearings more promptly when a court appointed an

independent psychiatrist. 838 F. Supp. at 141. The court

concluded that it lacked the authority to compel the State to

raise the fees paid to expert witnesses as to induce them to

conduct examinations more expeditiously. The court then

held that because of a lack of effective remedial measures, it

would not declare a situation unconstitutional. 838 F.

Supp. at 141.

On appeal, the Second Circuit affirmed the judgment

of the district court. Although the Second Circuit

recognized that the State court system utilized only one

psychiatrist for all its appointments, and the use of only one

expert delayed proceedings four to six weeks, 41 F. 3d at

803, 804, it found that the delays did not violate due

process because such confinement did not involve "a

massive curtailment of liberty." 41 F. 3d at 804. The court

then recognized that the delays resulting from the

appointment of an independent psychiatrist are directly

related to the limited number of psychiatrists in Dutchess

County and the time constraints resulting from their other

professional obligations. 41 F. 3d at 804. The court ruled

that because the plaintiffs failed to establish that there were

additional psychiatrists who were available to accept

10

assignment, and otherwise come forth with a practical

remedy for the delays in Dutchess County, there was no due

process violation. 41 F. 3d at 804-805.

REASONS FOR GRANTING THE WRIT

THE DECISIONS OF THE SECOND CIRCUIT

SIGNIFICANTLY LIMITING THE PROVISION OF

‘PSYCHIATRIC ASSISTANCE AT CIVIL

COMMITMENT HEARINGS RAISE ISSUES OF

FUNDAMENTAL IMPORTANCE AND ARE

ARGUABLY AT ODDS WITH PRIOR DECISIONS

OF THIS COURT.

This Court has recognized that “for the ordinary

citizen, commitment to a mental hospital produces ‘a

massive curtailment of liberty,'...[that]... ‘requires due

process protection.” Vitek v. Jones, 445 U.S. 480, 491-92

(1980) (cites omitted). To date, this Court has addressed

the question of the appropriate burden of proof in civil

commitment proceedings, see Addington v. Texas, 441 U.S.

418 (1979), and the applicability of the privilege against

self-incrimination in sexual delinquency proceedings. See

Allen v. Illinois, 478 U.S. 364 (1986). However, this Court

has never delineated fully the scope of procedural

protections that the State must afford involuntarily

hospitalized patients as to enable them to challenge their

confinement in a meaningful time and manner, see

Armstrong v. Manzo, 380 U.S. 545, 552 (1965), and lessen

the risk of an erroneous deprivation of liberty. See Mathews

v. Eldridge 424 U.S. 319, 335 (1976). Specifically, this

Court has never resolved the extent to, and the manner in

which, the State must provide independent psychiatric

assistance to individuals facing civil commitment.

1]

In Ake v. Oklahoma, 470 U.S. 68 (1985), this Court

held that, because of the pivotal role played by a psychiatric

expert when a criminal defendant raises an issue of his

sanity, due process requires the provision of psychiatric

assistance when the defendant deimonstrates that his sanity

at the time of the offense will be a significant factor at trial.

470 U.S. at 83. This appeal presents this Court with an

opportunity to resolve the question of the applicability of

Ake to civil commitment hearings. This lawsuit also

provides an appropriate opportunity for this Court to set

forth a framework for due process analysis in the civil

commitment context and examine the scope of procedural

protections required by the Fourteenth Amendment. As

such, it raises questions of fundamenta! importance to

hundreds of thousands of individuals deemed mentally ill

and dangerous whom State and local governments subject

to involuntary hospitalization.*

. The latest figures compiled by the federal government detail

that in 1986 state and county psychiatric hospitals involuntarily

hospitalized 211,566 individuals. In the iast year for which statistics

have been compiled, a total of 414,349 people were hospitalized in

State and county hospitals, private psychiatric hospitals, multi-service

facilities and psychiatric wards of general hospitals. Unpublished

Data, Center for Mental Health Services, 1986 Client/Patient Sample

Survey of Inpatient, Outpatient & Partial Care Programs. These

figures are consistent with the latest published data from the federal

government that details that in 1983, approximately 351,000

individuals were hospitalized at state and county mental hespitals,

averaging 116 days per patient per year. Center for Mental Health

Services, Mental Health, United States, 1994 at 49 (1994). As far

back as 1972, this Court noted that considering the number of

individuals involuntarily hospitalized, it was "perhaps remarkable that

the substantive constitutional limitations on this power have not been

more frequently litigated." Jackson v. Indiana, 406 U.S. 715, 737

(1972).

12

The Critical Role Played by the Psychiatric Expert in

Civil Commitment Proceedings Warrants a

Determination of the Applicability of the Provision of

Expert Assistance as of Right.

When the State brings its judicial power to bear on

an indigent individual in a proceeding in which his liberty is

at stake, due process requires that the individual be given a

fair opportunity to present his defense. Ake v. Oklahoma,

470 U.S. at 76. This principle of meaningful participation

has been extended beyond the criminal realm to "quasi-

criminal" proceedings. Jd. at 76.

Because of the medical nature of civil commitment

hearings, meaningful participation requires utilization of

psychiatric experts: "[w]hether the individual is mentally ill

and dangerous to either himself or others and is in need of

confined therapy turns on the meaning of facts which must

be interpreted by expert psychiatrists and psychologists."

Addington v. Texas, 441 U.S. at 429 (emphasis in original).°

. Numerous scholars have recognized the substantial

correlation between expert opinions and judicial dispositions. See

Morse, Crazy Behavior, Morals and Science: An Analysis of Mental

Health Law, 51 So. Cal. L. Rev. 527, 536, n. 16 (1978) (concordance

rate, i.e., rate of correlation, between psychiatric opinions and ultimate

legal disposition is "extraordinarily high"); Slobogin, Dangerousness

and Expertise, 133 U. Pa. L. Rev. 97, 147, n. 182 (1984) (three studies

find concordance rate between judicial disposition and psychiatric

opinions to be 100% when a violent act was predicted, 100%, and

96%); Hiday, Judicial Decisions in Civil Commitment: Facts,

Attitudes and Psychiatric Recommendations, 17 Law & Society

Review 517, 526-527 (1983) (both underlying facts and psychiatric

opinion "significantly influence" court decisions in civil commitment

cases). One scholar has concluded that courts often defer to

psychiatric opinion even when a preponderance of the evidence

indicates that the opinion is unsubstantiated: informal conversations

with judges and attorneys suggest that they defer to psychiatric opinion

13

However, psychiatry is not an exact science and

psychiatrists disagree widely and frequently about what

constitutes mental illness and the likelihood of future

dangerousness. Ake, 470 U.S. at 81. Because of the

medical nature of commitment hearings and the fallibility

and uncertainty of psychiatric diagnoses, see Addington v.

Texas, 441 U.S. at 429, a court appointed psychiatric expert

serves numerous important functions.

First, the psychiatrist serves as an expert witness.

Unlike a lay witness, the psychiatrist can identify the

"elusive and often deceptive’ symptoms" of mental illness.

Ake, 470 U.S. at 80 (cites omitted). The expert analyzes

facts, draws appropriate conclusions, and presents

information in a form that provides meaning for the

factfinder. Ake, 470 U.S. at 80. The expert is also able to

uncover and take into account the well-recognized

"shortcomings" in the prediction of dangerousness. Ake,

470 US. at 84.

In addition to serving as a witness, the expert can

assist the preparation of the cross-examination of the State's

psychiatric witness. Ake, 470 U.S. at 82. Psychiatrists

"know the probative questions to ask of the opposing

party's psychiatrists and how to interpret their answers."

470 U.S. at 80. Accordingly, because of the dominant role

of psychiatry in commitment hearings, just as when a

mentally ill defendant raises the insanity defense, a civil

committee's case "may be devastated by the absence of

psychiatric testimony," while the provision of expert

assistance dramatically enhances the potential accuracy of a

because they feel they lack the requisite expertise and want to obtain

help for those in need. Hiday, Reformed Commitment Procedures: An

Empirical Study in the Courtroom, 11 Law & Society Review 651, 665

(1977).

14

factfinder’s determination. Ake, 470 U.S. at 83. Indeed,

because commitment hearings involve medical issues, "a

person possessing . . . [psychiatric] qualifications normally

would be preferred" to the assistance provided by an

attorney. Vitek v. Jones, 445 U.S. at 500 (Powell, J.

concurring); see also Proctor v. Harris, 413 F. 2d 383, 389

(D.C.Cir. 1969) (Bazelon, C.J. concurring) (“if an indigent

patient needs and is entitled to a lawyer, far more may he

also need the assistance of a psychiatrist in the presentation

of his case"). Indeed, just as this Court recognized that

utilization of lawyers in criminal proceedings indicated that

they are "necessities, not luxuries," Gideon v. Wainwright,

372 U.S. 335, 344 (1963), the same holds true for

psychiatrists in the civil commitment context.

In reaching its initial decision, the Second Circuit

ignored the critical roles played by psychiatric experts and

rested its opinion upon premises that directly conflict with

case law from this Court. First, the Second Circuit ignored

this Court's determination in Ake that the provision of a

psychiatric expert will enhance the accuracy of the

factfinding process. See 470 U.S. at 83. Instead, the Court

of Appeals concluded that "the testimony of consulting

psychiatrists may not alter the number of erroneous

adjudications," but would simply lessen the number of

erroneous confinements while increasing the number of

erroneous releases of mentally ill patients. 967 F. 2d at 35.

The Court of Appeals also concluded that while the

adversary system "tolerates and sometimes requires a ‘battle

of the experts’ because it is thought to increase the accuracy

of a trial's outcome," 967 F.2d at 34, civil commitment

proceedings are not entirely adverse because the State seeks

to provide care to mentally ill individuals. 967 F.2d at 34-

35. In so holding, the Court of Appeals ignored this Court's

pronouncement that “[i]t is precisely ‘[t]he subtleties and

15

nuances of psychiatric diagnoses’ that justify the

requirement of adversary hearings." Vitek v. Jones, 445

U.S. at 496 (citing Addington v. Texas, 441 U. S. at 430).

The Court of Appeals also failed to recognize the

crucial role psychiatrists can play in the preparation of an

individual's case, particularly in the development of

"probative questions to ask the opposing party's

psychiatrists" and the interpretation of their answers. Ake,

470 U.S. at 80. Without citing any legal or other authority,

the Court concluded that the patient's counsel will gain a

sufficient level of expertise about psychiatric matters as to

satisfy due process. 967 F. 2d at 35.

The Second Circuit's decision resulted from (1) the

court's failure to reconcile two competing strains of case

law from this Court and (2) the absence of case law from

this Court that addresses the scope of procedural

protections that are designed to enhance the reliability of the

commitment process.° On one hand, this Court has

recognized that "any deprivation of liberty is a serious

matter. . . [and]. . .is different in kind" than other

deprivations. Scott v. Illinois, 440 U.S. 367, 373 (1979);

see also Addington v. Texas, 441 U.S. at 428 (erroneous

commitment sometimes as undesirable as an erroneous

conviction); Lassiter v. Department of Social Services, 452

U.S. 18, 25 (1981) (individual interest in personal freedom

triggers right to counsel); Gagnon v. Scarpelli, 411 U.S.

778, 789, n.12 (1973) (individual facing loss of an absolute

? This Court's decision in Addington v. Texas, supra, addressed

the allocation of the risk of error in the commitment process. 441 U.S.

at 423. In Allen vy. Illinois, supra, this Court assessed the

applicability of the privilege against self-incrimination, a right

designed to foster an accusatory system of justice and not enhance the

reliability of the process at hand. 478 U.S. at 375.

16

liberty interest differently situated from already-convicted

probationer or parolee and is entitled to a higher degree of

protection).

On the other hand, this Court has distinguished

commitment proceedings from criminal trials as the state

seeks to treat those in need instead of punishing them. See

Allen v. Illinois, 478 U.S. at 372-73. The Second Circuit

emphasized this distinction by concluding that civil

commitment proceedings are not entirely adverse because

the state seeks to provide care to mentally ill individuals.

967 F. 2d at 34. In so holding, the court rejected the

relevance to civil commitment proceedings of this Court's

recognition that expert testimony from both sides will

enable a factfinder to render its most accurate decision. 967

F.2d at 34 (citing Ake v. Oklahoma, 470 U.S. at 81).

The failure of the Second Circuit to recognize that

the provision of expert assistance will enhance the reliability

of the commitment process necessarily impacted upon its

analysis of the three-prong Mathews test in an additional

way. A recognition that expert assistance will increase the

reliability of commitment hearings results in a determination

that such assistance will further the governmental interest in

limiting its costly mental health facilities to cases of genuine

need. Parham v. J.R., 442 U.S. 584, 604-05 (1979): see

also Lipton & Simon, Psychiatric Diagnosis in a State

Hospital: Manhattan State Revisited, 36 Hosp. & Comm.

Psych. 368, 372 (1985) (more accurate psychiatric

assessments can result in savings of $40,000 per patient

annually).

In sum, the Second Circuit failed to recognize both

that the provision of expert testimony will enhance the

accuracy of commitment proceeding and a deprivation of

liberty triggers procedural protections that ordinarily would

17

not be required. Such failure, together with the absence of

case law from this Court setting forth relevant

considerations to apply when assessing the applicability to

civil commitment hearings of procedural protections

designed to enhance the reliablity of the civil commitment

process, resulted in the Second Circuit framing its decision

around the principle that "[i]t cannot be said. . that it is

much better for a mentally ill person to ‘go free’ than for a

mentally normal person to be committed."" 967 F. 2d at 35

(quoting Addington v. Texas, 441 U.S. at 429). While such

a focus is appropriate when determining how the risk of

error should be allocated in a commitment proceeding,

Addington, 441 U.S. at 423, the Second Circuit should have

attempted to ensure that "an erroneous confinement should

be avoided in the first instance." Addington, 441 U'S. at

428.

The Second Circuit's emphasis on the non-

adversarial nature of commitment proceedings also resulted

in the court failing to recognize that the State must afford a

litigant with an "opportunity to participate meaningfully in a

judicial proceeding in which his liberty is at stake." Ake v.

Oklahoma, 470 U.S. at 76. This right to meaningful

participation also applies to proceedings that are "quasi-

criminal." 470 U.S. 76. There can be little doubt that

commitment proceedings are quasi-criminal as the patient

faces a loss of liberty as state involvement “undeniably

pervade[s]" the proceeding. Little v. Streater, 452 U.S. 1, 9

(1981). The failure to address the concept of meaningful

participation resulted in the Second Circuit focusing on the

reliability of the ultimate decision to confine by

incorporating into its due process analysis such factors as

the multiple opportunities for patients to obtain release. See

967 F. 2d at 35. Such analysis shifts the focus of the due

process analysis away from the opportunity to meaningfully

18

challenge one's confinement to likely accuracy of the initial

decision to confine. Under such focus, the greater number

of procedural protections the State affords a patient prior to

a commitment hearing, the less protections the State must

afford him at the hearing. This focus shifts the ultimate

responsibility to ensure that there has been no erroneous

deprivation of liberty from a legal factfinder to the

governmental officials who make the decision to confine in

the first instance.’

The Second Circuit's failure to recognize the

importance of an individual's liberty interest also resulted

in the court minimizing the assistance that a psychiatric

expert can play in his role as a consultant and elevating

possible ethical concerns for the court-appointed witness.

967 F. 2d at 35 ("providing assistance in trial strategy

might pose a dilemma for a psychiatrist whose

7 The Second Circuit's view of the utility of a court-appointed

psychiatric expert differs greatly from the other courts and

commentators that have examined the issue. As the court found in Jn

re Gannon, 301 A. 2d 493 (N.J. Super. 1973), "{nJo matter how

brilliant the lawyer may be, he is no position to effectively contest the

commitment proceedings because he has no way to rebut the testimony

of the psychiatrist from the institution...In a commitment proceeding

where the court is in effect bound by the expertise of the psychiatrist,

the right to counsel is of little value without a concurrent right to an

independent psychiatric examination. 301 A. 2d at 494: see also In re

Williams, 478 N.E. 2d 867, 869 (Ill. App. 1985) (rights to counsel and

hearing will often fail to protect patient unless he is able to secure

advice or testimony of own examiner); Legal Issues in State Mental

Health Care: Proposals for Change-Civil Commitment, 2 Ment. &

Phys. Dis. L. Rep. 75, 104 (1977) (rights to counsel and hearing are

hollow without resort to examination and testimony from mental

health professional); Farrell, The Right of an Indigent Civil

Commitment Defendant to Psychiatric Assistance of His Own Choice

at State Expense, 11 Idaho L. Rev. 141 (1975) (due process requires

provision of psychiatric assistance at civil commitment hearings).

19

professional judgment favored commitment"). Not only

does a concern over medical ethics trivialize a patient's

interest in liberty, but such concern is unwarranted

because as long as an expert provides truthful

information, any assistance is ethically permissible.

Appelbaum, In Wake of Ake: The Ethics of Expert

Testimony in an Advocate's World, 15 Bull. Am. Acad.

Psychiatry & Law, 15, 24 (1987).

Finally, by limiting even the provision of

independent psychiatric testimony to cases in which a

court deems it necessary for a reliable assessment of the

patient, the Second Circuit placed patients in a tenuous

position. Because of the nuances, subtleties, and

uncertainties of psychiatric diagnoses, see Addington v.

Texas, 441 U.S. at 429-30, patients may lack the ability

to establish the necessity of an independent psychiatric

evaluation for a reliable assessment without the

appointment of the medical expert in the first place.

For all these reasons the decision of the Second

Circuit raises issues of utmost importance to every mental

patient confined against his will. This Court should grant

certiorari in order to clarify the scope of procedural

protections a State must afford an individual who suffers

the massive curtailment of liberty that civil commitment

entails.

20

This Case Raises Significant Legal and Practical

Questions Regarding the Right to a Prompt Hearing to

Challenge One's Involuntary Hospitalization.

I

In its opinion, the Second Circuit recognized that

the Constitution requires the provision of an independent

psychiatrist when a court determines it is necessary for a

reliable assessment of the patient. However, the court

permitted the State to delay the hearing from four to six

weeks when a court appoints an independent psychiatrist.

41 F. 3d at 803, 804. In so holding, the Second Circuit

failed to recognize that when the State deprives an

individual of liberty, any pre-hearing deprivation must be as

brief as possible and may not be lengthened by delays that

are avoidable. See County of Riverside v. McLaughlin, 500

U.S. 44, 55 (1991).

When the State incarcerates an individual, it must

accommodate competing concerns. On one hand, states

have a strong interest in maintaining public safety, County

of Riverside v. McLaughlin, 550 U.S. at 52, which includes

incarcerating mentally ill individuals deemed to pose a

danger to themselves or others. See e.g., O'Connor v.

Donaldson, 422 U.S. 563, 575-76 (1975); Jones v. United

States, 463 U.S. 354, 368 (1983). On the other hand,

prolonged confinement, whether in jail or a psychiatric

hospital, for even a brief period of time, has adverse

consequences such as imperiling one's job, interrupting one's

source of income and impairing one's family relationships.

County of Riverside, 500 U.S. at 52; see also Parham v.

J.R., 442 U.S. at 626 (Brennan, J., concurring in part and

dissenting in part).

21

This Court has never delineated a constitutionally

acceptable time frame for a commitment hearing. This has

resulted in a problem similar to that which this Court sought

to resolve in County of Riverside. Just as this Court's

admonition that probable cause determinations be "prompt"

led to a "flurry of systemic challenges to city and county

practices," 500 U.S. at 56, the absence of any case law from

this Court setting forth an acceptable time frame for

commitment hearings that lower courts could apply has led

to federal courts attempting ad hoc to assess what

constitutes a "reasonable" period of confinement pending a

hearing. These cases have resulted in courts arbitrarily

deeming a wide range of time periods constitutionally

permissible or setting forth time limitations for the provision

of hearings when courts have found State statutes

unconstitutional. See Project Release v. Prevost, 722 F. 2d

960, 975 (2d Cir. 1983) (hearing within five days without a

probable cause determination satisfies due process because

of other procedural protections within State commitment

statute); French v. Blackburn, 428 F. Supp. 1351, 1355

(M.D.N.C. 1977) (three-judge court), affd, 443 U.S. 901

(1977) (ten day custody prior to full adversary hearing

constitutional; no probable cause hearing required); Coll v.

Hyland, 411 F. Supp. 905, 910-11 (D.N.J. 1976) (three-

judge court) (twenty day period of confinement without a

hearing constitutional); Doremus v. Farrell, 407 F. Supp.

509, 515 (D.Neb. 1975) (three-judge court) (full hearing

within fourteen days; prelimimary hearing within five days

of admission); Kendall v. True, 391 F. Supp. 413, 419

(W.D.Ky. 1975) (three-judge court) (hearing required

within twenty-one days of hospitalization; probable cause

hearing required earlier); Lynch v. Baxley, 386 F. Supp.

378, 388 (M.D.Ala. 1974) (three-judge court) (full hearing

within thirty days of confinement; probable cause hearing

within seven days of confinement); Bell v. Wayne County

22

General Hospital, 384 F. Supp. 1085, 1098 (E.D.Mich.

1974) (three-judge ‘court) ("prompt" preliminary hearing

required; five day limitation on confinement without hearing

appears "appropriate"); Lessard v. Schmidt, 349 F. Supp.

1078, 1091-92 (ED.Wisc. 1972) (three-judge court),

vacated and remanded, 414 U.S. 473, on remand, 379 F.

Supp.1376 (E.D.Wisc 1974), vacated and remanded. 42)

U.S. 957, reinstated, 413 F. Supp. 1318 (E.D.Wisc 976)

(full hearing required within ten to fourteen days of

detention; preliminary hearing within forty-eight hours);

Logan v. Arafeh, 346 F. Supp. 1265, 1268-1269 (1972)

(three-judge court), affd. sub nom. Briggs v. Arafeh, 411

U.S. 911 (1973) (forty-five day confinement without a

hearing permissible).*

. Furthermore, the Court's summary affirmance in Briggs v.

Arafeh may have inappropriately resulted in at least two three-judge

courts placing undue reliance upon the opinion. The courts in both

Coll v. Hyland and French v. Blackburn cited this Court's summary

affirmance of Logan v.Arafeh and Hicks v. Miranda, 422 U.S. 332

(1975), in which this Court held that a summary affirmance is binding

precedent, to conclude that this Court has determined that a forty-five

day confinement without a hearing is not unreasonable. See French v.

Blackburn, 428 F. Supp. at 1356; Coll v. Hyland, 411 F. Supp. at 910.

However, since these lower court opinions, this Court has made clear

that a summary affirmance has “considerably less precedential value

than an opinion on the merits." Jilinois State Board of Elections v.

Socialist Workers Party, 422 U.S. 173, 180-81 (1979). See also

Washington v. Confederated Bands & Tribes of the Yakima Indian

Nation, 439 U.S. 463, 476-78 n.20 (1979) (summary affirmance

“represents no more than a view that the judgment appealed from was

correct as to those federal questions raised and necessary to the

decision. It does not. . .necessarily reflect our agreemeni with the

opinion of the court whose judgment is appealed"): Mandel v. Bradley,

432 U.S. 173, 175 (1977) ("rationale of the affirmance may not be

gleaned solely from the opinion below"). Moreover, this Court

decided Briggs prior to its decisions in O'Connor v. Donaldson, supra,

and Addington v. Texas, supra, in which this Court first placed

23

i

Admittedly, the Constitution does not require the

State to provide a hearing sooner than is administratively

feasible. See County of Riverside, 500 U.S. at 253-54;

Lessard v. Schmidt, 349 F. Supp. at 1092 (full hearing as

soon after detention as possible while permitting

psychiatrists to conduct examinations and prepare reports

and patients to prepare defense); Developments in the Law -

Civil Commitment of the Mentally Ill, 87 Harv. L. Rev.

1190, 1281 (1974) (hearing as soon as possible while

permitting full diagnostic assessment of patient).

However, this Court has cleavly indicated that the need for

"flexibility has its limits.". County of Riverside, 500 U.S. at

$5.

In its opinion, the court below inappropriately

trivialized the harm suffered by involuntarily confined

mental patients and unnecessarily deferred to administrative

concerns of the State. The Second Circuit first concluded

that a delay of two to four weeks does not amount to a

"massive curtailment of liberty." 41 F. 3d at 804. The

Circuit then ignored the fact that other counties within New

York conducted hearings within one to two weeks of a

psychiatric appointment. See 41 F. 3d at 804. Without

pointing to factual support in the record, the Circuit

attributed the ability of some counties to conduct hearings

one to three times more promptly on both the

concentration of psychiatrists in the particular counties and

their under-utilization by the court systems within each

particular county. See id” In so holding, the Second

limitations upon a state's authority to civilly commit mentally ill

individuals because of the significant deprivations suffered by a

confined mental patient.

9 In relying on local demographics as a basis for its due process

24

Circuit reached a decision at odds not only with at least the

three-judge district courts in Lessard v. Schmidt, Doremus

v. Farrell, and Kendall v. True, but also with well-

recognized authority that has attempted to balance the

competing concerns of individual liberty and the need for

the state to provide treatment to those in need. See

National Center for State Courts, Guidelines for

Involuntary Civil Commitment, 10 Ment. & Phys. Dis. L.

Rep. 409, 480 (1986) (hearing within three days of

confinement); Stromberg & Stone, A Model State Law on

Civil Commitment of the Mentally Ill, 20 Harv. J. Legis.

275, 337 (1983) (hearing within three days for hospitalized

individuals).

Ultimately, the Second Circuit permitted the four to

six week delays because the patients failed to come forth

with practical remedies for the delays. See 41 F. 3d at 804.

In so holding, the Second Circuit ignored two well-settled

principles of consititutional law. First, the Second Circuit

ignored the firmly established distinction between a

constitutional violation and the remedy needed to correct it.

See e.g., Swann v. Charlotte-Mecklenburg Board of

Education, 402 U.S. 1, 15-16 (1971). Indeed, this Court's

decision in County of Riverside establishes that there is no

great difficulty in fashioning equitable relief once a

constitutional violation has been found to exist. Second, by

forcing patients to choose between a hearing within five

analysis, the Second Circuit's opinion is reminiscent of arguments

raised when this Court addressed the question of the right to counsel

in Gideon v. Wainwright, supra. See Amicus Curiae Brief for the

State of Alabama at 13 ("it is not an uncommon situation in thinly

populated rural counties for there to be more persons charged with

crime than there are lawyers versed in criminal practice; and some

judges may encounter real difficulty in appointing enough qualified

lawyers").

days under Mental Hygiene Law § 9.31 and waiting four to

six weeks if they seek, and a court appoints, an independent

psychiatrist, the Second Circuit permitted the State to

compel patients to choose between a prompt hearing and

independent psychiatric testimony. However, it is well-

settled that the government may not condition the exercise

of a right or privilege upon the forfeiture of another right or

privilege. See e.g., Dolan v. City of Tigard, _ U.S._, _, 114

S. Ct. 2309, 2318 (1994); Thomas v. Review Board of

Indiana Employment Sec., 450 U.S. 707, 716-717 (1981).

CONCLUSION

For the reasons set forth in this petition, the petition

for certiorari should be granted.

Dated: Huntington, New York

June 14, 1995

Respectfully submitted,

WILLIAM M. BROOKS

(Counsel of Record)

Mental Disability Law Clinic

Attorney for Petitioners

Touro Law Center

300 Nassau Road

Huntington, New York 11743

(516) 421-2244, ext. 331

Carolyn K. Eghrari

Suzanne Liebman

Law Student Interns

26