Opposition Brief — Okunieff v. Skomorossky

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No. 99-449 | Supreme cout, U.S.

IN THE

Suprene Court of the nited States

o>.

RHODA OKUNIEFF,

Petitioner,

ams Y

ANNE SKOMOROSSKY, M.D., personally, LORRAINE INNES, M.D.,

personally, STAN ACROW, M.D., personally, ELIZABETH MIRABELLO,

M.D., personally, JANE DOE, personally, COLUMBIA PRESBYTERIAN

MEDICAL CENTER and HERBERT PARDES, in His Official Capacity of

Head of the Department of Psychiatry of Columbia Presbyterian Medical

Center,

Respondents.

ON PETITION FOR A WRIT OF CERTIORARI TO THE UNITED STATES

COURT OF APPEALS FOR THE SECOND CIRCUIT

BRIEF IN OPPOSITION

PATRICIA D’ALVIA

Counsel of Record

MARTIN, CLEARWATER & BELL

220 East 42nd Street

New York, New York 10017

(212) 697-3122

Attorneys for Respondents

1

LIST OF PARTIES

The names of the parties in the proceeding in the

Court whose judgment is sought to be reviewed are as

follows:

Petitioner

Rhoda Okunieff

Respondents

Anne Skomorossky, M.D.

Lorrainer Innes, M.D.

Stan Arcow, M.D.

Elizabeth Mirabello, M.D.

Jane Doe

Columbia Presbyterian Medical Center

Herbert Pardes, In His Official Capacity as

Head of the Department of Psychiatry of

Columbia Presbyterian Medical Center

ll

TABLE OF CONTENTS

PAGE

TABLE OF AUTSRERRET Mee <i sa eee eee e kc ea ill

I. THE REASONS BY THE WRIT

SHOULD BS ee oes a ek is wee 2

State Compubiiell TR 25 coe on eeau ves bh enks 2

Public Femncteteh Bie. hcg ol ee eos 6

Nexus/Jommt Actiom Tit <5. 5 casa xdwscsccsas 9

Il. THERE IS NO CONFLICT AMONG

THE FEDERASE, CORTES coc cccsusscuce cscs 11

Ill. PETITIONER HAS AN ADEQUATE

STATE REMEDY AND A FUNDING

OF STATE ACTION IS BOTH

UNNECESSARY AND DETRIMENTAL ...... 13

CONCLUSION... .i<kickenuee aera an ees 19

ill

TABLE OF AUTHORITIES

Page

Federal Cases

Addington v. Texas,

441 U.S. 418, 431-32, 99 S.Ct. 1804,

RM PEE DIOD bcc cscc ck ncsecesenses 12

-imerican Manufacturers Mutual

Ins. Co. v. Sullivan,

526 U.S. 40, 119 S.Ct. 977, 988,

ge oe Et 6) 12, 13, 17, 18

Blum vy. Yaretsky,

457 U.S. 991, 102 S.Ct. 2777, 73 L.Ed.2d 534 (1982)

Se ee goa Cea wa bad’ b an «4 x's-0-e 0 eg iy ie Pe

Community Medical Center v. Emergency Services of

Northeastern Pennsylvania, Inc.,

pp es Fk eC) era 15

Cunningham v. Southlake Center

For Medical Health,

924 F.2d 106, 109 (7th Cir.1991) .............. 5

Ellison v. A.J. Garbarino, M.D.,

ae | rr Oe F

Flagg Brothers Inc., v. Brooks,

436 U.S. 149, 158, 98 S.Ct. 1729,

(i TR eB Tey 4: | ee ere 7

iV

Harvey v. Harvey,

ew Bre cit ge > oe 10, 11

Jackson v. Metropolitan Edison Co.,

419 ULS. 345, 352, 95 S.Ct. 449,

454, 42 L.Ed.2d 477 (1974) .......... 75-80 8a: 82

Janicsko v. Pellman,

774 F.Supp 331 (M..D. Pa. 1991),

aff'd w/o opinion, 970 F.2d 899 (3d Cir. 1992) ... 11

Lugar v. Edmonson Oil,

457 U.S. 922, 929, 102 S.Ct. 2744,

FS ie ee ee CE oe cn ee Peeks 10

Okunieff v. Rosenberg,

166 F.36 S07 (26 Cir. 1999) 0 one cece aaes 16, 17

Pino v. Higgs,

Tare 1061 CIP Cie T906) s o cee cat, 1]

Polk County yv. Dodson,

454 U.S. 312, 102 S.Ct. 445,

rT we et | fare ere rey 4,6

Rendell-Baker v. Kohn,

ee Be OE nko sb bas ee eee as 2-4, 7,9

Rockwell v. Cape Cod Hospital,

26 F.3d 255 Gl" Cr. 1998) 2 ons cc cecns 7, 9%, t4, 82

Rubenstein v. Benedictine Hosp.,

790 F.Supp. 396 (N.D.N.Y. 1992) .........5... 16

Vv

Ruffler v. Phelps Memorial Hospital,

453 F.Supp. 1062 (S.D.N.Y. 1978) ............ 16

S.P. v. City of Takoma Park, Md., ‘

198 F200 Ce 198 a 1]

Sherlock v. Montefiore Medical Center,

BSF 06 o7e Cle Gs Ps 5 ove ee 5

Snyder vy. Albany Medical Center,

206 A.D.2d 816, 615 N.Y.S.2d 139

(AR GR. SH voc eee eee 16

Spencer v. Lee,

864 F.2d 1376, 1380-81 (7" Cir. 1989),

cert. denied 494 US 1016,

SIG SAA T3570 kk eee 4 9 48, bz

West v. Atkins,

487 U.S. 42, 108 S.Ct. 2250.

101 6. 2A 2G SCG) ov ink oe eke 4,5,10

State Cases

People v. Kin Kan,

78 N.Y.2d 54, 574 N.E.2d 1042,

571 N.Y.S.2d 436 (1991),

reargument denied 78 N.Y .2d 1008,

580 N.E.2d 1061, 547 N.Y.S.2d 458 (1991). ..... 15

vi

Statues and Regulations

42 USS. SIDER ss san cdi 12, 13, 17,

New York Mental Hygiene

(McKinney's Cons. Laws of NY, 1966)

7G uiescanndonge seeks aea ees eee

CIR 646s tines ceataee eee y

SEE 60600 000 bee eben Ue ee ee eee

OF.58 cies seuvauead ennene ee eaeeeeeeeee 10

ee | eT eer Perry ere 7, 10, 12,

O31 OME) v6 aces cbiciucesseuswesaaee sas

O35) OOONA) oo s ccacvcuaccuhaets neko

Other Authorities

Albert Deutsch, The Mentally Ill In America:

A History of Their Care and Treatment

From Colonial Times,

AG GAG BE. FPG) socks sh teres 16,

Henry M. Hurd, The Institutional Care of the

Insane in the United States,

Vol. 1,27 (Johns Hopkins Press 1916) .........

Vil

Lawrence C. Kolb. M.D. &

H. Keith H. Brodie, M.D.,

Modern Clinical Psychiatry,

(10" Ed. 1982)

* 862 9.64688 6.8.88 £46 46 6 £226 OO 6 268 @ Oo SS *D

IN THE

SUPREME COURT OF THE UNITED STATES

No. 99-449

RHODA OKUNIEFF,

Petitioner,

against

ANNE SKOMOROSSKY, M.D.., personally,

LORRAINE INNES, M.D., personally,

STAN ACROW, M.D. personally,

ELIZABETH MIRABELLO, M.D., personally,

JANE DOE, personally,

COLUMBIA PRESBYTERIAN MEDICAL CENTER

and HERBERT PARDES, in His Official Capacity of

Head of the Department of Psychiatry of

Columbia Presbyterian Medical Center,

Respondents.

ON PETITION FOR A WRIT OF CERTIORARI TO THE UNITED STATES

COURT OF APPEALS FOR THE SECOND CIRCUIT

BRIEF IN OPPOSITION

Respondents respectfully request that Petitioner's request,

for a writ of certiorari to review the judgment and opinion

entered in this case by the United States Court of Appeals

for the Second Circuit, be denied.

to

THE REASONS WHY THE WRIT SHOULD BE DENIED

I. THE OPINIONS BELOW ARE CONSISTENT

WITH THE PRIOR DECISIONS OF THIS

COURT

State Compulsion Test

Pursuant to Supreme Court Rule 10, this Court can

consider whether a United States Court of Appeals has decided

an important federal question in a way that conflicts with the

relevant decisions of this Court, when determining whether to

grant certiorari. To meet this standard, the plaintiff-petitioner

claims that the private conduct of the defendants-respondents

should be converted into state action because New York State

“created the legal framework” governing civil commitment (p.

15, Petitioner's Brief) and because the defendants-respondents

hospitalized Ms. Okunieff involuntarily pursuant to a state

statute (New York Mental Hygiene Law §9.27). This is merely

a distortion of the state compulsion test, misapplied, which

requires proof that the state significantly encouraged or coerced

the private party to act, so that the private party’s actions were

effectively those of the state. See Ellison v. A.J. Garbarino,

M_D., 48 F.3d 192 (6th Cir. 1995).

On the contrary, this Court has expressly found that

under circumstances such as this case - where the sole criterion

is private medical judgment - there is no such state coercion.

See Blum v. Yaretsky, 457 U.S. 991, 102 S.Ct. 2777, 73

L.Ed.2d 534 (1982); see also Rendell-Baker v. Kohn, 457 U.S.

830 (1982) (decision to terminate a teacher was not state action

because the decision was based on discretionary judgment,

|

*

Pa

independent of State influence). Although the Mental Hygiene

Law provides the legal framework under which physicians may

involuntarily hospitalize a patient by creating procedures and

Standards fo# ce=xmitment, what is critical is that the statute

leaves the de<is.on to hospitalize a patient to a physician’s

discretion. Sa, Blum v. Yaretsky, supra; Rendell-Baker vy.

Kohn, supra.

In Blum v. Yaretsky, for example, private nursing home

officials discontinued plaintiffs’ Medicaid benefits because

plaintiffs refused to be transferred to another health care

facility. This Court found that New York State’s social service

regulations did not demonstrate that the State was responsible

for the decision to discharge or transfer patients due to the

discretion left to the private physicians. The decisions to

transfer patients “ultimately turn on medical judgments made

by private parties according to professional standards that are

not established by the State.” Jd 457 U.S. at 1008, 102 S.Ct.

at 2788. Accordingly, this Court clearly held that the decision

to transfer Medicaid patients to lower levels of care was not

coerced by the State and did not constitute state action under 42

U.S.C. §1983, even though the entire Medicaid “legal

framework”, governing all aspects of the care, was pursuant to

Statute.

Like the New York State constitutional provision at

issue in Blum v. Yaretsky, supra, New York Mental Hygiene

Law §7.01 simply does not mandate the provision of any

particular care. Moreover, as in Blum, the Mental Hygiene Law

allows the private actor to use his or her discretion. Therefore,

a finding that the defendant-respondents were not state actors

when Ms. Okunieff was involuntarily hospitalized is consistent

with established Supreme Court precedent.

4

Similarly, in Rendell-Baker v. Kohn, supra, this Court

found that although a private school was generally subject to

extensive state regulation and received extensive state funding,

the regulations and funding did not influence the school’s

decision to terminate the plaintiff, a teacher at the school. The

Court held that the decision to terminate the plaintiff-teacher

did not constitute state action under 42 U.S.C.§1983 because

the decision to terminate the teacher was merely defendants’

private decision and the State had no role in it.

Plaintiff-petitioner’s reliance on West v. Atkins, 487

U.S. 42, 108 S.Ct. 2250, 101 L.Ed.2d 40 (1988), and Polk

County v. Dodson, 454 U.S. 312, 102 S.Ct. 445, 70 L.Ed.2d

509 (1981) is unavailing, as West involved prisoners, who were

wards of the state, and Polk involved state employees, not

private individuals. Because of these distinctions, the holdings

in these cases do not apply to the case at bar.

A true examination of Polk County reveals that this

Court distinguished a public defender who is paid by the state

from both an administrator of a hospital and a physician in a

prison hospital. This Court held that because the public

defender works under the same standards of competence as a

private lawyer and uses professional judgment, the lawyer is

not a state actor even if he is working on behalf of the state.

The discussion in Polk regarding physicians’ activities is

limited to state employees, such as a prison physician and an

administrator of a state hospital, and is therefore not material

to the instant case. Certainly, Po/k does not support plaintiff-

petitioner’s contention that the private defendant-respondents

are state actors.

Similarly, plaintiff-petitioner’s reliance on West, is

misplaced, because it was decided in the context of providing

|

5

medical treatment to prisoners. This Court in, West. carved out

the very narrow exception that a private party will be held a

State actor for providing medical care to prisoners in custody.

This is not inconsistent with defendant-respondents’ argument

herein. In West, this Court found that a private physician, who

was under contract with the state to provide medical care to a

prison inmate, was a state actor despite the fact that the

physician’s challenged activity turned upon medical judgments.

This Court reasoned that the physician within the state prison

performed a public function reserved to the state: to provide

medical care to inmates. This Court recognized that “because

West was a prisoner in ‘close custody’ he was not free to

employ or elect to see a different physician of his own

choosing.” 487 U.S. at 51. This Court pointed out that

“although the provision of medical services is a function

traditionally performed by private individuals. the context in

which respondent performs these services for the

State...distinguishes the relationship between respondent and

West from the ordinary physician-patient relationship”. Jd. at

56, n. 15.

The rationale behind the West decision is that an inmate

must rely entirely on prison authorities for medical treatment

and is, in fact, forbidden to seek medical attention elsewhere;

therefore, in such cases, health care is the exclusive prerogative

of the state which cannot be delegated to a private institution.

Id. at 55; see also Cunningham v. Southlake Center F or

Medical Health, 924 F.2d 106. 109 (7th Cir.1991):; Sherlock v.

Montefiore Medical Center, 84 F.3d 522 (2d Cir. 1996).

Unlike a prisoner, a private citizen has numerous

choices for health care, whether it be private or controlled by

the state. Plaintiff-Petitioner’s contention that Presbyterian

Hospital serves as a catchment area for involuntary admissions

6

does not constitute state action because the private citizen is

free to seek medical care elsewhere. The concept of a

catchment area only speaks to a hospitals geographic location

and not to the basis of the medical decisions made for a

plaintiff's benefit.

It does not follow that because private physicians who

are contracted to provide medical care to prisoners, who are

wards of the state, can be held to be state actors, so too must

private physicians who provide treatment to citizens who are

not wards of the state. Otherwise, all private physicians’

independent medical decisions would become actions

attributable to the state. Instead, the defendants-respondents

are similarly situated as the lawyers in Polk were, who

exercised their professional judgment and were held to the

standards of the canons of professional responsibility and the

competence of other lawyers. In Polk, one would believe a

public defender was a state actor being paid by the state, but in

fact, this Court held that the public defender was not a state

actor because the attorney relied on his own professional

judgment.

Public Function Test

Contrary to plaintiff-petitioner’s contentions, the Courts

below did not misapply the public function test. Although

plaintiff-petitioner contends that state action exists pursuant to

the public function test, and that the decisions in the Courts

below are inconsistent with the decisions previously rendered

by this Court, the decisions in the Courts below are actually

entirely consistent with the application of the public function

test as previously applied by this Court.

ae

7

In order to convert private action into state action under

the public function test, it is not enough to show that the private

actor performed a public function. The plaintiff must prove

that the private entity assumed functions “traditionally

exclusively reserved to the State.” Jackson v. Metropolitan

Edison Co., 419 U.S. 345, 352, 95 S.Ct. 449, 454, 42 L-Ed.2d

477 (1974) (emphasis added); see also Rendell-Baker, 457 U.S.

at 842, 102 S.Ct. at 2770 (“[w]e have held that the question is

whether the function performed has been ‘traditionally the

exclusive prerogative of the State.’” (emphasis in original,

citing Jackson, supra). In Flagg Brothers Inc., v. Brooks, 436

U.S. 149, 158, 98 S.Ct. 1729, 1734, 56 L.Ed.2d 185 (1978) this

Court restricted a broad interpretation of the public function

test and stated that “[w]hile many functions have been

traditionally performed by governments, very few have been

exclusively reserved to the State.” The fact that the private

party is serving a “public function” is immaterial, and will not

trigger 42 U.S.C. §1983 liability. Rendell-Baker, 457 U.S. at

842, 102 S.Ct. at 2772 (holding that education is a public

function, but not the exclusive prerogative of the state).

History is extremely relevant regarding whether a given

activity was an exclusive sovereign function. See Rockwell v.

Cape Cod Hospital, 26 F.3d 254 (1* Cir. 1994); Spencer v. Lee,

864 F.2d 1376, 1380-81 (7th Cir. 1989) (historical analysis

demonstrated that involuntary commitment was not a

traditional public function). In the case at bar, history

demonstrates that involuntary commitment has not been

exclusively performed by the State of New York, and thus is

not a traditional public function.

As Judge Sweet determined, involuntary treatment and

confinement of the mentally ill in New York originated in

private homes, and later took place in both private and public

8

institutes. Even today, both private and public institutions and

individuals share responsibility for the involuntary confinement

and treatment of the mentally ill. Families, friends and

guardians have cared for the mentally ill privately since the

beginning of the United States. Henry M. Hurd, 7he

Institutional Care of the Insane in the United States, Vol. 1, 27

(Johns Hopkins Press 1916) (hereafter “Hurd”). Mentally ill

persons who had relatively well-to-do families or friends were

usually cared for in their own homes. Albert Deutsch, 7he

Mentally Ill In America: A History of Their Care and

Treatment From Colonial Times, 40 (2d Ed. 1949) (hereinafter

“Deutsch”, JA 332-349). If violent or troublesome, mentally ill

persons were locked up and chained by their families in strong-

rooms, cellars, attics, and even outhouses.

New York State also was the home of the first private,

for-profit, institutions to treat the mentally-ill in the United

States. Hurd, supra. As of 1890, Sanford Hall on Long Island

had been in operation for nearly half a century. Brigham Hall

had been organized and opened in 1855 by Dr. George Cook in

Canandaigua, New York. /d. Both institutions were under

private ownership. /d.

In his decision, Judge Sweet specifically noted (26a-

27a):

Private institutional care predated public

institutional care, as it was not until 1842 that

laws were passed to erect the first state

institution in New York [citation omitted]. The

earliest movement toward complete state care

did not come until the second half of the

nineteenth century [citation omitted]. In 1874,

New York passed a law authorizing any asylum,

public or private, institution, home, or retreat

)

9

that cared for the mentally ill, without court

order, to commit for five days any person upon

the certificates of two physicians [citation

omitted].

Today, responsibility for the treatment and care of the

mentally ill is shared between private and public institutions.

Although New York State and its local governments have a

responsibility for the care of mental illness, New York Mental

Hygiene §7.01 (McKinney’s Cons. Laws of NY. 1966), the

Mental Hygiene Law permits private institutions to care for the

mentally ill. See New York Mental Hygiene §9.01 ef seq.

These private institutions, such as Presbyterian Hospital, The

New York Hospital, Mount Sinai Hospital and Gracie Square

Hospital, play a pivotal role in providing involuntary care. See

generally Lawrence C. Kolb, M.D. & H. Keith H. Brodie,

M.D., Modern Clinical Psychiatry, (10 Ed. 1982) 151-52

(discussing the rise of short-term hospitalizations in the

psychiatric services of general hospitals).

Thus, this Court should follow the Supreme Court

decisions of Blum and Rendell-Baker and the recent decisions

of several sister circuits, which considered whether involuntary

commitment is an exclusive prerogative of the state, and held

that it is not. See, e.g., Rockwell, 26 F.3d at 258-59; Spencer

v. Lee, 864 F.2d at 1380-1381.

Nexus/Joint Action Test

Plaintiff-petitioner notes that Sections 31.02(a)(2),

31.04(a)(4) and 7.07 of the New York Mental Hygiene Law

prohibit a hospital from operating a psychiatric ward unless it

receives a certificate of operation from the State Office of

10

Mental Health, and that a private hospital must serve a

catchment (i.e., geographical) area for involuntary psychiatric

admissions as a condition of renewal of an operating certificate.

Plaintiff-petitioner argues that because these statutes require

general hospitals to assume primary responsibility for

emergency psychiatric admissions, an activity that the State

would otherwise assume, the opinion below creates a situation

in which mentally ill individuals lack a federal remedy where

there has been a misuse of power because the hospital is

“ciothed with the authority of state law.” Lugar v. Edmonson

Oil, 457 U.S. 922, 929, 102 S.Ct. 2744, 73 L.Ed.2d 482 (1982).

Citing West v. Atkins, 487 U.S. 42, 56, n.14, 108 S.Ct. 2250,

101 L.Ed.2d. 40 (1988), petitioner argues that the decision

below “impermissibly enables” th< state to contract out, or

otherwise delegate, its constitutional responsibilities, while

simultaneously depriving individuals of a constitutional

remedy.

Although plaintiff-petitioner uses different terminology,

she is essentially arguing that the Hospital and physicians

should be deemed state actors under the joint action/nexus test.

A private individual can be deemed a state actor when there is

a sufficiently close nexus between the state and the challenged

action of the private individual, so that the individual’s action

may be fairly attributed to the State. Jackson v. Metropolitan

Edison Co., supra. This requirement ensures that constitutional

standards are invoked only when the State is responsible for the

specific conduct of which the plaintiff complains. Blum v.

Yaretsky, supra. Actions of a private party satisfy the nexus

test only when the state government jointly participates with the

private party to deprive the plaintiff of her constitutional rights.

Harvey v. Harvey, 949 F.2d 1127 (11" Cir. 1992).

1]

The critical aspect to these cases is that for State action

to exist, there must be a nexus between the State and the

challenged action of the private party (i.e., a connection

between the State and the specific conduct that is alleged to be

State action). In the case at bar, the specific conduct is the

involuntary hospitalization and treatment of Ms. Okunieff. The

Statutes and regulations to which the plaintiff-petitioner refers

in her Petition (pp. 23-25) do not specifically relate to

involuntary hospitalization or treatment. For example, the

concept of a catchment area only speaks to a Hospital

geographic location and not to the basis of the medical

decisions made for plaintiff-petitioner’s benefit. Therefore, the

existence of these regulations cannot serve as a basis for

finding state action in this case.

{i. THERE IS NO CONFLICT AMONG THE

FEDERAL COURTS

Pursuant to Supreme Court Rule 10, when determining

whether to grant certiorari on an important federal question,

this Court can consider whether a United States Courts of

Appeals has entered a decision in conflict with the decisions of

other United States Courts of Appeals. In this case, the Circuit

Courts of the United States that have considered the issue have

unanimously held precisely that civil commitment by private

physicians does not constitute state action. See SP. v. City of

Takoma Park, Md., 134 F.3d 260 (4" Cir. 1998); Pino v. Higgs,

75 F.3d 1461 (10" Cir. 1996); Ellison v. Garbarino, 48 F.3d

192 (6" Cir. 1995): Rockwell v. Cape Cod Hospital, 26 F.3d

254 (1* Cir. 1994); Harvey v. Harvey, 949 F.2d 1127 (11" Cir.

1992); Spencer v. Lee, 864 F.2d 1376 (7" Cir. 1989); Janicsko

v. Pellman, 774 F.Supp 331 (M..D. Pa. 1991), aff'd w/o

12

opinion, 970 F.2d 899 (3d Cir. 1992). Therefore, Judge

Sweet's decision, affirmed by the Second Circuit, is consistent

with the decisions rendered by other Courts of Appeals.

Although plaintiff-petitioner’s counsel accurately notes

that the decisions of the Courts of Appeals in these cases

reversed a trend in which numerous District Courts had found

that civil commitment by a private actor is state action, he

incorrectly concludes that there is a lack of clarity in state

action jurisprudence and that there is a need for “guidance.” As

seen by the cases cited supra, the Courts of Appeals have

uniformly concluded that civil commitment does not constitute

state action. To the extent these decisions conflict with some

of the decisions rendered by the District Courts, it is

respectfully submitted that the Circuit Courts have effectively

reversed the decisions rendered by the District Courts and

therefore have a/ready clarified the law in this area such that

there is no need for review by this Court.

Plaintiff-petitioner’s references to decisions rendered by

the State Courts, and her entreaty that this Court grant certiorari

to resolve conflicts among them, are misplaced. One of the

tests to determine whether state action exists is the public

function test. Under this test, the private party must perform a

function that is “traditionally the exclusive prerogative of the

state.” Blum v. Yaretsky, 457 U.S. 991, 1005, 102 S.Ct. 2777,

2786, 73 L.Ed.2d 534 (1982) (quoting Jackson v. Metropolitan

Edison Co., 419 U.S. 345, 353, 95 S.Ct. 449, 454, 42 L.Ed.2d

477 [1974]). History is extremely relevant regarding whether

a given activity was an exclusive sovereign function. See

American Manufacturers Mutual Ins. Co. v. Sullivan, 526 U.S.

40, 119 S.Ct. 977, 988, 143 L.Ed.2d 130 (1999) (reviewing

Pennsylvania’s approach, historically, towards workers’

compensation claims); Rockwell v. Cape Cod Hospital, 26 F.3d

254, 258-59 (1* Cir. 1994); Spencer v. Lee, 864 F.2d 1376,

ee ae ee

aaa

~

13

1380-81 (7" Cir. 1989), cert. denied 494 US 1016. 110 S.Ct.

1317 (1990) (historical analysis has demonstrated that

involuntary commitment was not a traditional public function);

see also discussion, infra. The Courts which have applied this

test, not only to the issue of civil commitment, but also to other

private activities, have examined the legislative and social

history of a given activity in relation to the State in which that

activity took place. See, e.g. Sullivan, supra. Consequently,

the historical analysis will differ from State to State. Judge

Sweet recognized this in his decision (26a). The different

conclusions drawn by some courts do not reflect a lack of

clarity on state action jurisprudence, or the need for guidance,

but rather, reflect the different historical circumstances among

the States.

These diverse circumstances should not be disregarded,

but respected. Each State should be able to rely on its own

historical experience when determining whether a given

activity meets the public function test. Therefore. a uniform

rule from this Court is not necessary and would, in fact.

abrogate the public function test.

Ill. PETITIONER HAS AN ADEQUATE STATE

REMEDY AND A FUNDING OF STATE ACTION

IS BOTH UNNECESSARY AND DETRIMENTAL

Private medical care issues - the heart of which is the

professional medical judgment of physicians - are not regulated

by the State and as such, are exclusively the province of

medical malpractice and civil law. Absent control. joint action

or the exercise of an exclusive public function by the State.

there is no constitutional issue under 42 U.S.C. §1983.

:

Plaintiff-petitioner is attempting to create a

constitutional issue out of a medical malpractice case.

Breaches of the standard of care by private physicians, as

alleged herein, do not constitute constitutional violations. As

recognized by the Courts below, the defendants-respondents,

private physicians and a private entity, are shielded from

liability, under 42 U.S.C. §1983, because they are private

individuals who exercised independent medical and psychiatric

judgment which the law has held to be “private” conduct. As

such, they are not state actors. If a patient believes he or she

were hospitalized improperly, there is a remedy under state

medical malpractice law. Constitutional constraints, therefore,

are not required. To the contrary, such a finding would subject

every medical judgment finding regarding involuntary

adimission (or a decision against admission) to federal court

review. This would by-pass the structure already in place in

State Courts and place an enormous unnecessary burden on the

federal resources.

Contrary to petitioner-plainuff's arguments, holding

that civil commitment does not constitute state action would

not permit mentally ill individuals to be _ hospitalized

involuntarily without due process protection. These protections

are incorporated into the New York Mental Hygiene Law, as

this Law puts in place procedural due process safeguards for

the benefit of those who may require temporary retention.

Section 9.27 of New York’s Mental Hygiene Law states:

(a) The director of a hospital may receive and retain therein as

a patient any person alleged to be mentally ill and in need of

involuntary care and treatment upon the certificates of two

examining physicians, accompanied by an application for the

admission for such person. The examination may be conducted

-

15

jointly but each examining physician shall execute a separate

certificate.

New York Mental Hygiene Law, §9.27(a) (McKinney’s 1996)

(emphasis added).

Indeed, to justify involuntary hospitalization, this Court has

held that due process requires that the state establish, by clear

and convincing evidence, that the civil committee suffers from

mental illness and poses a danger to herself or others. See

Addington v. Texas, 441 U.S. 418, 431-32, 99 S.Ct. 1804, 60

L.Ed.2d 323 (1979). This standard is incorporated into the

New York Mental Hygiene Law and therefore the patient is

afforded due process protection. See New York Mental

Hygiene Law §9.39(a) (McKinney’s 1996).

More importantly, Section 9.31 of the New York

Mental Hygiene Law permits a patient to challenge her

confinement and request a hearing on the propriety of the

admission. Here, the plaintiff-petitioner actually invoked this

provision of the statue to effectuate her release. Not only does

the Mental Hygiene Law provide due process, but also.

plaintiff-petitioner’s own actions demonstrate that it works.

Plaintiff-petitioner’s arguments regarding the acts which the

New York State Office of Mental Health might commit in the

future have no bearing on the issue under consideration and, in

essence, plaintiff-petitioner is asking for prospective relief.

It is respectfully submitted that the finding of state

action in the context herein would deprive the private

physicians and the Hospital of the protection inherently

established by the Supreme Court cases and federal statutes

which guard against the impermissible reach of federal law.

See Jackson v. Metropolitan Edison Co., supra, Community

16

Medical Center v. Emergency Services of Northeastern

Pennsylvania, Inc., 712 F.2d 878 (3d Cir. 1983). Moreover, the

protection from 42 U.S.C. §1983 liability affords private

physicians and the Hospital the freedom to perform their

independent medical judgment without fearing the reach of the

state.

By holding that the defendants-respondents are state

actors, it is respectfully submitted that the Court would be

holding that all private physicians’ decisions made in private

hospitals are actions attributable to the state. This is because

all private hospitals, nursing homes and physicians are highly

regulated by the state in all aspects of care, including the use of

restraints, dealing with Medicaid protocols, health codes, etc.

Such regulation, including state regulation alleged by plaintiff-

petitioner herein, is not intended to expose the daily medical

decisions of private physicians and private hospitals to the

reach of federal law, but rather to provide protection to the

individual patients.

Plaintiff-petitioner’s fear, that individuals in New York

who have suffered violations of their constitutional rights

because they were involuntarily hospitalized will turn to State

Courts to file 42 U.S.C. §1983 actions in the absence of a

federal remedy, is unfounded. In Snyder v. Albany Medical

Center, 206 A.D.2d 816, 615 N.Y.S.2d 139 (3d Dept. 1994),

cited by plaintiff-petitioner in support of this proposition, the

New York Appellate Division, Third Department, relied

heavily upon the District Court decisions in Rubenstein v.

Benedictine Hosp., 790 F.Supp. 396 (N.D.N.Y. 1992) and

Ruffler v. Phelps Memorial Hospital, 453 F.Supp. 1062

(S.D.N.Y. 1978). To the extent that these decisions were

effectively overruled by the Second Circuit’s decision in

Okunieff v. Rosenberg, 166 F.3d 507 (2d Cir. 1999), the

re

17

decision in Snyder would no longer be reliable and therefore

would not serve as a basis for forum shopping. Although the

decision, in Okunieff, is not binding on the New York State

Courts, it is certainly persuasive authority, particularly when it

undermines the federal decisions on which the state decision is

based. See People v. Kin Kan, 78 N.Y.2d 54,574 N.E.2d 1042,

571 N.Y.S.2d 436 (1991), reargument denied 78 N.Y 2d 1008,

580 N.E.2d 1061, 547 N.Y.S.2d 458 (1991).

Plaintiff-petitioner argues (Brief, pp. 13-14) that

granting her petition for certiorari would permit this Court to

address “the role of the State when an individual suffers a

deprivation of rights” because to date, when addressing the

State action issue, this Court has only examined the role of the

government when an_ individual sought constitutional

protection for the receipt of services. Plaintiff-petitioner fails

to recognize, however, that the only issue that would be

decided by this Court is whether the private defendants are, in

fact, state actors (p. 13). The next question - whether there has

been a constitutional violation - is not before this Court.

Furthermore, the issue of whether there was substantive Due

Process violation was not the subject of the decision rendered

in the Courts below, and therefore plaintiff-petitioner’s

references to the Due Process Clause are inapposite.

Plaintiff-Petitioner’s attempt to draw a distinction

between the role of the State, when an individual suffers a

deprivation of rights, and the role of the government, when an

individual seeks constitutional protection for the receipt of

services, and her attempt to characterize this Court’s prior

decisions as falling exclusively in the latter category (Brief, p.

13) are illusory. As this Court noted in Sullivan, supra:

18

[Respondents argument] ignores our repeated

insistence that state action requires both an

alleged constitutional deprivation “caused by

the exercise of some right or privilege created

by the State or by a rule of conduct imposed by

the State or by a person for whom the State is

responsible,’ and that ‘the party charged with

the deprivation must be a person who may fairly

be said to be a state actor.’

Sullivan, supra, 119 S.Ct. at 985 (emphasis added) (citations

omitted).

Clearly, then, the issue of state action has been considered in

the context of an alleged deprivation of constitutional rights.

19

CONCLUSION

For the foregoing reasons, this Court should deny the

petition for a writ of certiorari.

Dated: New York, New York

November 12, 1999

Respectfully submitted,

PATRICIA D’ALVIA

Counsel of Record

MARTIN, CLEARWATER & BELL

220 East 42nd Street

New York, New York 10017

Tel. No.: (212) 697-3122

Counsel for Respondents

Of Counsel:

Gregory J. Radomisli

Peter T. Crean