# Petition for Writ of Certiorari — Goetz v. Crosson

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Petition for Writ of Certiorari
- **Published:** January 1, 1995
- **Citation:** 516 U.S. 821

## Text

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

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386012_1931%3A1. Public record. Not legal advice.