-: SJC-12863 Marcos Garcia V Commonwealth.
-: Okay Attorney Hugetz.
-: Morning your honors.
Elizabeth Hugetz on behalf of Marcos Garcia.
As this court is well aware
even temporary involuntary hospitalization
can disrupt ongoing outpatient treatment efforts
as well as ties to the community.
The harm is real and tangible,
and it certainly was for my client.
In this matter, following a verdict of not guilty
by reason of mental illness,
Mr. Garcia was ripped from the community
after being out for 10 months
prior to trial without incident.
He was denied of his liberty
for 42 days without justification.
There was no balancing tasks
to consider his fundamental right to freedom
against any government interest.
My argument today is twofold.
First, chapter 123 section 16A is unconstitutional
because it provides no evidentiary standard
justifying a commitment to a facility,
nor does it provide a least restrictive alternative.
Second, even if this court is to construe
that the statute passes constitutional muster,
the lower court in this matter
failed to apply a constitutionally permissible standard.
And as such Mr. Garcia's involuntary hospitalization
was unlawful.
As the court is aware 16A allows,
says that a court may involuntarily hospitalize
an individual for up to 40 days
following a verdict of not guilty
by reason of mental illness.
This court has found that even a three-day hold
is a massive curtailment of liberty.
Such a deprivation of liberty requires due process.
Yet as it stands, 16A allows for automatic commitments,
not mandatory but permissive automatic commitments.
And it says that anybody may be committed.
That includes individuals that are on wait list,
participating in outpatient treatment programs,
as well as those that are not guilty
by reason of mental defect,
that they have a cognitive disorder--
-: Isn't there a sense though that,
it was Judge Ullmann
after the lack of criminal responsibility verdict, right?
-: Yes.
-: So, and I know the quote that you took out
from his statement about not being comfortable.
But he just heard the entire trial,
and the circumstances were that your client, Mr.Garcia,
was sort of in a similar position
than he was before the episode,
the carjacking and the chase and everything.
He didn't have medication, and he wasn't in a program.
And why do we assume from that one statement
that a very thoughtful judge
didn't take into account everything he just heard,
recognize, because you have to be right.
Being held for 40 days is a deprivation of liberty.
I mean come on.
That he took that all into account, and made a decision
that there should be not a commitment,
not a commitment but an evaluation at a hospital
as it relates to these issues.
-: Because I think what Judge Ullmann was focusing on
was twofold.
One, he was focusing on that the two experts
didn't have a meaning of minds
as to what the correct diagnosis of the individual.
And he was speaking particularly
to what the appropriate mental health treatment here.
The problem with looking at that alone
is that it's avoiding looking at the loss of liberty.
And here Judge Ullmann did find
that there was no likelihood of serious harm.
But he said that that standard only applied to Bridgewater.
It didn't apply to a commitment to a facility.
And I think that that indicates
that he wasn't taking into consideration.
Moreover, when we're looking at the facts of the case,
yes, they can be considered for sure,
but again, the factual questions at trial
are very different than the factual question
at whether or not somebody should be confined
for a mental health reasons.
And I think that at trial you're looking back,
here in 19 months as to Mr. Garcia's state of mind.
The time of trial,
you're looking to a state of mind at that time.
And here he'd been out of custody for 10 months.
And yes, he was unmedicated,
but he'd been unmedicated for five months.
And I think that the problem with 16A
is that it has a flavor of punishment.
And here we're talking about punishing somebody
by depriving them of their liberty
without a greater justification than just treatment.
And I think that that also goes to why
the statute is unconstitutional.
There is no least restrictive alternatives.
There's no ability
to do one of these evaluations outpatient.
And so here,
Judge Ullmann involuntarily hospitalized Mr. Garcia,
despite the fact that there was no eminence
met by the Commonwealth.
He did find that there was no likelihood of serious harm,
but said that that standard only applied to Bridgewater.
And I think that that goes
to the issue with the statute in of itself
is that there is no standard applicable
to those that are facing commitment under 16A.
-: Is there any way to save the section in your view?
-: I mean I think as I suggest in my brief
that if the court,
and I suggested this to Judge Ullmann following the trial,
is that you have to apply the only standard,
evidentiary standard in this chapter,
which is in section one, likelihood of serious harm.
With that said,
it doesn't solve the least restrictive alternative.
If the court looks at chapter 15A,
there is a least restrictive alternative.
And I suppose the court could do that.
But as it stands now, unless the court was to interpret
that there is a least restrictive alternative
allowing for an evaluation to be done outpatient,
I think that that are the two key issues here.
And as the plain language of 16A,
there is no least restrictive alternative.
But I would say at the very least,
the court would have to read in
that the standard is likelihood of serious harm
even to a facility.
-: So given that,
let's assume that we agree with you
that there needs to be a likelihood of serious harm,
how can we really salvage this statutory provision
if in fact that the statute itself
says that's the standard only for Bridgewater?
-: Well I think that
we use canons of statutory interpretation.
And we look for-
-: Right, and one of those
is words mean what they say, right?
So if there is an absence of words
in a particular provision,
and the presence of those same words in another provision,
I don't see how we can add the words
that are specifically absent.
-: Well, I think that there's also the standard that says
that where language of one section
closely monitors the language of another section,
the court can read in that the standard exists.
And I think we can also read in to the legislative intent.
It was clear that in 1970,
that the legislature intended to do away
with automatic commitments,
and provide greater due process of law.
And I think that this is just a vestige of that old law
that has not been addressed previously.
And I think that it goes without saying,
and I think the other thing that can be done
is that if you look at the standard for Bridgewater,
there is an additional requirement.
Well, there's two additional requirements.
First, the individual has to be male.
And second, there has to be a showing
that strict security is required
where that wouldn't necessarily be true to a DMH facility.
-: So you would import,
which you would import 16B to 16A?
-: Yes, and that's what I think is done in practice.
Dr.Buonagurio testified to this effect,
and said that there was no standard
associated with a 16A evaluation.
So they look to the standard of 16B.
-: And you would say under 16B,
I think this might be the point you were making.
Lemme know if not.
That under 16B, there could be still a concern
that requires hospitalization obviously,
but just doesn't require hospitalization at Bridgewater.
Doesn't require the precarity of Bridgewater.
-: Correct, correct.
-: And I think that that also by looking at 16B
solves another issue here,
which is also that 16B is very specific
in that you have to be mentally ill,
and there has to be a likelihood of serious harm.
And thus as 16A stands right now,
those that are not guilty by reason of mental defect,
by cognitive issues can be hospitalized under 16A,
but not under 16B.
And I think that's also probably inconsistent
with the legislative intent.
And so I think that is further reason
as to why we should be looking at the standard in 16B,
and throughout the rest of the section--
-: I'm sorry, I thought the general definition
of mental illness in the statute
required a so called defects.
So someone that had a cognitive issue
would not be categorized as mentally ill.
-: Correct-
-: Organic brain dysfunction, for instance.
-: Correct, and so I think we agree,
and I think and that's what you see under 16B
where 16A would allow, because it says-
-: Right, that's why I'm missing that gap.
Because I thought the overall definition,
maybe it's the DMH definition of mental Illness.
'Cause we've had this before,
when someone has a cognitive dysfunction
is really, there's no place to put them
because they're not mentally ill under the statute.
They have an organic brain disorder.
Do you think someone that has an organic brain disorder
could be evaluated on a 16A?
-: As it stands now, yes, I think anybody could.
I don't think there's any restrictions on 16A whatsoever,
which is, I think, precisely why we're here
is that there's no limitations.
There's no due process requirements for anybody,
anybody that's in treatment,
or anybody that with the cognitive deficits
that you've illustrated.
And so I, go ahead.
-: No, please finish your answer.
-: You get my question, thank you.
-: No, that's-
-: Then if Justice Gaziano's question's answered,
even though, with both of them reticence to me
to reach constitutional issues that we don't need to,
and its implications for 16A when it's competency,
and maybe even 15B,
if we reach this issue,
you sort of talk about proof beyond reasonable doubt,
and probably should recognize that not going to happen,
and talk about clear and convincing evidence.
But, but this is to determine
whether or not somebody needs to be committed.
This is trying to give the judge the information
he or she needs
to decide whether to have a commitment.
Is clear and convincing evidence really required for that?
-: I think it is here
particularly where this court has found
that clear and convincing evidence is necessary
for even lesser holds for section 12, section 35.
Here, my client was found not guilty.
He was acquitted.
He's legally innocent.
And thus we don't punish the mentally ill.
So I think that there has to be some showing.
And I think clear and convincing evidence
is the minimal quantum of proof here,
because you're talking about a 40-day hold.
And so I think that it's completely appropriate
in particularly with cases like this,
where the individual has been acquitted, found not guilty.
He should be a no different of a circumstance
than those facing a less significant hold.
And so I think it's absolutely important.
And I that that also sort of touches on the fact
that had the Commonwealth move forward on their 16B motion,
Mr.Garcia would have suffered
a significantly shorter period of time in the hospital.
Under 16B,
he would have been entitled to a hearing within 14 days
that the Commonwealth could not have extended,
that a hospital could not extended.
And I think undoubtedly that we can see now,
hindsight's 2020 from Dr.Luger's report
that he, in the standard at that 16B hearing
would have been beyond a reasonable doubt
that he would have been released.
And so I think that having clear and convincing evidence
as the gatekeeper to 16A is completely appropriate here,
especially given the significant period of time
that he is being deprived of his liberty.
-: If 16A was only a deprivation for a day
to conduct the evaluation,
what would your argument be
in terms of the standard of proof?
-: And towards in terms of the standard of proof,
or the quantum of proof?
-: Right, well both, frankly.
I mean, if all we want is as Justice Lowy is suggesting
that we give the judge the information that he or she needs
in order to determine whether a commitment is an order.
It seems to me the problem with 16A is the 40 days,
not so much the standard or the quantum of proof,
but the fact that it's a 14-day commitment,
a substantial deprivation of liberty.
-: Right, and I think that if we had something like 15A,
which is a bit of a gatekeeper
that allows for evaluations to be done in the courthouse
by a court clinician, we wouldn't be here at all.
And so I do think that there,
you wouldn't necessarily have to have
the same balancing act.
But I think the moment
that you're talking about confining an individual,
especially for 40 days
which is what 16A stands for right now,
is that you do need a higher quantum of proof,
and you do need an evidentiary standard.
So I-
-: And we're rewriting the statute.
Assuming we rewrite it to in support a standard,
which do we edit?
The 40 days, or the standard of proof?
-: Well, that's a great question.
(laughing)
-: Well thank you.
-: I think both, honestly,
because if we're talking about strict scrutiny,
you need a least restrictive alternative
in addition to the due process,
and two, having the balancing test.
So if we could eliminate the 40 days,
and allow for an evaluation to be done in the courthouse,
then that would solve that issue.
But if the 40 days remains
for those that are going to have the full 16A evaluation
in the hospital,
I think there still has to be a balancing test
requiring the evidentiary standard and quantum proof.
-: Well counsel, we can't edit the statute though, can we?
-: No.
-: We would have to just say this is unconstitutional,
or whatever problem,
and the legislature would have to start over.
If they got around to it.
-: Right, and that was what I was trying to outline
in the beginning
with the issue of the least restrictive alternatives-
-: Right.
-: And the lack of a 15A gatekeeper
allowing for this to be done outpatient.
That's I think the biggest issue to overcome here,
where I think canons of statutory interpretation
allow this court to read in that likelihood of serious harm
is the appropriate evidentiary standard.
I think the problem here really
is the least restrictive alternative.
-: So this sort of links into the how this case got here,
and adequate alternative remedy issue.
Although I'm not going to ask you about that
because your answer is quite simple,
which is that Justice Kafker reached the merits.
But how did this issue go all this time
without being adjudicated?
-: I think these circumstances are unique.
I'm a trial attorney.
I'm not an appellate attorney.
I definitely have had these sort of cases,
and I've worked with many colleagues.
And I think the truth is to have a client
in a superior court case
where you don't have the appellate division
of the district court to review these sort of proceedings,
it's very rare to have somebody who is out of custody,
and not facing a commitment,
or who hasn't already been committed under 15B and 15C.
And so I think that that is probably why the circumstances
have taken so long to reach this court
because I think the circumstances here are unique.
But I would say that I think
that it's also often not pursued
if the individual is out of custody.
I think it was a combination of the facts of this case,
and the fact that Mr.Garcia was out of custody.
And so that's my honest take on it.
-: Thank you very much.
-: Thank you.
-: Attorney Rall.
-: The Chief Justice Budd, good morning.
Good morning associate justices
of the Supreme Judicial Court.
My name is Ryan Rall representing Middlesex County,
and the Commonwealth.
Your honor, the case before you starts with counsel
having a fundamental conflation of the statute under 123
with involuntary commitments of hospitalization,
and examinations for orders of observation and treatment.
And that directly plays into the question
of whether Mr.Garcia receives sufficient due process
in this case, which he did.
I wanna start first with pointing that the trial judge,
and as well, the single justice did not abuse his discretion
in denying this petition for extraordinary relief
where the trial judge committed clear error of law,
or abuse of discretion.
And I think it's important to start with discussing
what due process Mr.Garcia had.
He had an adversarial hearing.
He had an opportunity to cross examine,
and a direct examination of Dr.Buonagurio,
and present evidence
about his present mental health treatment and medication
if there was any, in this case, there was a-
-: Because you get into those details,
before you get into those details,
how do we measure whether sufficient due process,
or an error of law or an abuse of discretion
if we don't know what standard to apply?
-: So I'll start with,
your honor address this a little bit
on talking about how the trial judge
had just witnessed the entire trial,
which was an entire factual endeavor,
which involved a series of armed carjackings,
in which there were two doctors who opined
that he lacked criminal responsibility
due to a chronic substantial mental illness.
And so the court
already has a large amount of information before it
in the triggering event.
Whether it be an incompetency finding under 16A,
or whether it be a verdict of not guilty
by reason of insanity,
there was a lot of information factually before the court
at that time.
And so you start with the premise
that the court is not a mental health professional,
as the appeals court has recognized
in Commonwealth vs Johnson.
And is dealing with complex mental health cases,
has a large amount of information,
but it's always incomplete.
And if you look at the statute as a whole under chapter 123,
it's best looked at as two distinct areas,
the examination areas, which you see under 15B, 15A,
15E and 16A,
which has to do with aid in sentencings under 15E,
competency evaluations
on inpatient hospitalization under 15B,
and then here after a finding of incompetence, or an NGRI,
a inpatient hospitalization for examination and treatment.
And then there's the secondary part of statutes
has to do with commitment.
Now-
-: I understand.
And we talked a lot about that difference.
And we talked a bit
about what the judge could have relied on.
But I mean there may be an answer to this question.
I just honestly don't know it.
How do I measure, how much due process is due?
How do I measure whether there's been an error of law,
or whether the single justice abused his discretion
if I don't know what standard to apply?
-: And I think that rolls
right into the due process question itself,
which I understand.
And the question in any due process analysis
is sort of the risk of erroneous deprivation of liberty,
balancing the compelling and legitimate state interests
that are specific to examinations, and not to commitments,
and balancing that against the individual rights
of the defendant.
So I would first suggest as I did in my brief
that this is sort of insufficiently brief.
That it's difficult when Mr.Garcia's only concerns
under the statute with NGRIs,
whereas incompetency issues
present completely different due process concerns,
and issues.
But as I address in my brief, the question in examinations
whether it be 15B or 16A or 15E is fact-gathering exercise.
The court's trying to gather information
to fulfill the purposes of the statute.
And that is distinctly different
than involuntary hospitalizations for six months, and then-
-: How is that different from involuntary hospitalizations,
when from the defendant's perspective
it's committed time, 40 days here?
Whether you call it for evaluation and observation,
or whether you call it a commitment,
from the defendant's Liberty interest perspective,
he's confined for 40 days, 42 here.
-: And so that's certainly a factor-
-: Why does it matter what the legislature calls it?
-: I understand that,
and I agree to what the legislature calls it
doesn't dictate the result,
but it's not just the amount of time that passes,
which could be as short as 10 days,
depending on if a full 15B examination was done
with the 20 days, and then additional 20 days
because there's a cap under 16A
to not go above 50 days between those two evaluations.
So between 10 to 40 days, assuming that it takes that long,
or is necessary for the examination.
I acknowledge in my brief, that's a deprivation of liberty.
That's part of the consideration.
But just as this court found recently,
in terms of setting an unaffordable bail,
and declining to put a standard of clear,
and convincing evidence on that,
you have to balance what the interests are
of the examination that are distinctly different,
and how they fulfill the statute then from a commitment.
I think the examination process
has a couple of compelling and legitimate state interests
that are distinct from an involuntary hospitalization,
which is that the court
is trying to have objective independent evidence
about the questions of rehabilitation,
and protection of the public.
It's trying to garner information
that provides helpful information,
and make sure that someone has access
to the care and treatment
of the department of mental health.
And as sort of outlined in 15C,
which describes sort of what is required for examinations.
There is a requirement that there be an opinion
about whether or not an individual
is in need of care of treatment of the department of mental.
And the overarching statute is designed to make sure
that people who have significant mental health issues,
whether that involves criminal responsibility,
or whether that involves competency
have access to services of department of mental health,
and that the court has objective updated
sufficient information
to make sure that the goals of the statute are met,
which is rehabilitation of the person
and protection of the public.
-: But what is the metric, I guess,
going back to Justice Lowy's question.
I'm gathering information.
I want more information.
How do I determine whether the additional information
is sufficiently needed to deprive this defendant
of his liberty for 40 days?
What metric are you using for that test?
And then on appeal,
how do we determine
whether the judge abused their discretion,
or made it clear error of law
if we don't understand the metric?
-: Well, so I think Justice Ullmann,
I think appropriately made an attempt,
and indeed I think a great job
in attempting to figure out,
in separating the difference between a 16A examination
and a commitment,
understanding that risk of substantial risk of imminent harm
is not a standard that can be-
-: I think I have no doubt that Judge Ullmann did a great job
in the absence of a statutorily prescribed test.
I'm asking you, why is the statute constitutional
if there's no test?
How, if I'm a trial judge, do I determine
whether there's sufficient quantum of proof
in order to commit a defendant for 40 days?
So that I can get more information.
-: This is also why I address in my brief
what I believe the quantum of proof
would be based on balancing all of those interests,
and attempting to come to a situation
if the court felt that it was necessary
to supplement the statute.
As an initial statement,
I would say that the triggering event
based on choosing an affirmative of not guilty
by reason of insanity, or based on an incompetency finding
of a substantial mental illness
with concerns about the protection of the public,
and rehabilitation of the person
with the additional pieces there
about competency restoration as being a potential issue.
I think the scheme as a whole
where you provide the full due process protections
for any commitment for any hospitalization process,
but then you have a lower standard
to have them examined in the first place in the court
without a low standard,
without broad discretion to trial judges
to examine defendants at various stages of proceedings,
it would impair the fair administration of justice.
It would impair the ability of trial judges
to make fast and difficult decisions
in complex mental health cases
without the assistance of objective professionals.
-: If you could please give us a standard then,
because Mr.Garcia seems to ultimately say
clear and convincing,
and you've given us this dichotomy
between examination and commitment,
but it seems that you recognize
that there has to be a standard.
What's your standard?
-: So as to the quantum of proof,
I suggest that the highest standard
that could be argued is preponderance of the evidence.
And I would suggest in the language I used in my brief,
mirror somewhat the language that's used in 15B
in that if there's reason to believe
that somebody needs the care and treatment
of the department of mental health,
that an examination can be ordered.
And I didn't pull that out of thin air
as counsel suggested in her reply brief.
But actually 15B specifically says
if the court has reason to believe that sub's observation,
and examinations are necessary,
in that regard it has to do with questions of competency,
or criminal responsibility before there's a finding.
And if one reads that section, that examination,
then reads 15C
about how that includes a requirement of an opinion
supported by clinical findings,
whether or not someone's in need of care and treatment
by the department of mental health,
what you start to follow through
with the examination process
is that it's designed to make sure that people have access
to the department of mental health resources,
and it's designed to make sure
that if the court has reasons to believe
that someone may need those services,
that they be examined, that they be observed.
And so recognizing some of the issues
that were raised by justice Gaziano for example,
regarding intellectual disability,
there are things under the standard
that I suggest in my brief
that would be an abuse of discretion.
I'll give an example.
There's a temporary psychotic disorder
known as delirium tremens caused by alcohol withdrawal.
It's a temporary psychotic disorder.
It causes someone to completely lose control,
but then it goes away. It's actually one of the few
temporary psychotic disorders that exists,
rather than chronic psychotic disorders.
And if someone had delirium tremens,
assaulted someone in a hospital setting, for example,
and was found not guilty by reason of insanity,
at the time of trial, they would no longer,
there would be an abuse of discretion
to send them for examination
because of the nature of the mental illness.
So the factors I see-
-: What if, lemme just play out your standard for a moment,
which I think is that more likely than not
there's the showing that there's reason to believe
that there might need to be a commitment.
Doesn't there have to be demonstration somewhere
that they need to be held
in order to have that examination to satisfy due process?
-: Well, so under the current statutory scheme, no,
but I pondered that your question
is whether there should be.
And the problem we get into in that scenario
is that in NGRI finding, just factually,
is that the court loses jurisdiction
after it orders or doesn't order under 16A.
So once an NGRI finding happens,
the only process that the court is allowed to Institute
is either a 16A examination or not.
It's separate from 16A under 16B,
the Commonwealth or the director of Bridgewater,
or the superintendent of a DMH facility
can petition for commitment from 60 days.
But there's nothing that allows the court
to control an individual,
or order an outpatient treatment
at the time of an NGRI finding.
The limited authority of the court under the statute
is just the order of 16A examination or not.
-: I understand the problem,
and that's a serious problem
because the person might need to be examined.
And they were just found not guilty,
even though the not guilty
was lack of criminal responsibility.
But if there is more likely than not
a reason to believe that they need to be examined,
that means they can be deprived of their liberty
for up to 40 days
without any demonstration
that they need to be inpatient to have that examination.
-: So I understand that particular concern.
And certainly if the legislature saw it
in its wisdom to add an outpatient basis that had authority,
I would suggest that the reason the statute exists as it is,
I think is in large part
because of the understanding of what happens
after an NGRI case,
and the need for it to be impatient
because there's no control or jurisdiction over the person
after an NGRI finding.
But I would also point that the standard
is not a rubber stamp that I'm suggesting.
It would allow counsel to have an evident.
In this case actually,
the counsel did have an evidentiary adversarial hearing
to present evidence that somebody,
the nature of their mental health condition,
whether or not they're currently receiving treatment,
or medication,
whether or not they're currently
a department of mental health client,
whether or not they're,
and the full circumstances,
or circumstances of the NGRI finding,
or incompetence finding had just occur.
So in terms of what factors the court could consider
in in sort of crafting an analysis under the statute,
it's the very things that this entire statutory scheme
is designed to look at,
which is the nature of the mental illness,
and whether or not someone is in need of care treatment,
or whether there is a question
of whether they need care and treatment
of the department of mental health.
And again, this doesn't preclude in any way
from the Commonwealth filing its own petition
even while the person is being sent for observation.
And as in this case,
the observation, the examination period
satisfies its own prevention of erroneous deprivation
under a commitment under 16B.
So in this case, for example,
Mr.Garcia's evaluation by Dr.Lubin
provided updated information
that specifically would have made an uphill road
for the Commonwealth to ever file a petition of their 16B,
because the hospital specifically opine
that he didn't meet the criteria for hospitalization.
That didn't preclude the Commonwealth
from filing its own petition under 16B,
but it was certainly a factor.
And allowing the court to be able to have people examined,
and provide updated objective information
about whether or not someone needs care and treatment,
not just hospitalization,
but care and treatment generally
is it prevents erroneous deprivations of liberty
under the larger commitment statute under 16B and C.
So respectfully I'd suggest that I see my time is up.
So I would suggest
that the defendant's petition should be denied,
and I yield the rest of my time to brief
unless someone has any questions.
-: All right, thank you counsel.
We'll be in recess.