Man Off-Camera: SJC-13081
in the matter of an impounded case.
-: Okay, good morning, attorney Kelly?
-: Good morning may it please the court,
Karen Talley on behalf of the (indistinct)
People with serious mental health issues
can enter the system through the door marked civil
or the door marked criminal.
Sometimes it depends merely on their zip code
or even the color of their skin.
Yet as this case demonstrates it can affect
whether and where they get adequate mental health treatment.
This case involves the commissioner
of the department of correction.
Being able to override the decision of a court
to place the respondent, civilly commit him
to a department of mental health facility.
There are three possibilities,
if this court is inclined to construe the statute
in a way that avoid some
of the serious constitutional issues raised.
So I will start there.
There are three possibilities that are outlined
in the various briefs.
The (indistinct) reply brief posits
that one possibility would be to construe the language
in the statute
about not withstanding the court's failure to
find that commitment and strict security was required.
The commit-, then the commissioner can act,
one interpretation might be
to construe that language literally
as a sort of fail safe, where the commissioner can come in,
if the court has not considered those elements
that relate to-
-: Miss Talley, Can I ask you a question, please?
Kelly: Yes.
-: When I look at the plain meaning of the statute
and we have confinement to Bridgewater State Hospital
as you point out with those four criteria,
when you read the statute, the certification is
if it's necessary to ensure continued retention in custody.
So it speaks to me at least of a,
what we call elopement
or as you recognize in your brief
as I look at the strict security and the other cri-
criteria from commit to Bridgewater State Hospital
confinement and the possibility
of elopement is not one of those.
So can you address that?
And this is particularly pertinent
to your separation of powers issue.
-: Sure. Yes.
So it, you're correct in that the statute talks
about strict security in terms of determining
whether the person is not an appropriate candidate
for any other department of mental health facility.
So our position is that it's intrinsic
in the statutory finding that the court is required to make.
In other words, in order to find that the person is not
an appropriate candidate for DMH facility
the court is forced to consider the primary differences
between DMH and-
-: It could be that the person is dangerous
not necessarily an escape risk, right?
And we'll put aside whether or not there's any evidence
of that here and also your due process argument, which
which we'll get to, but if you read it narrowly and I
I get what you're saying that included
within this strict security is a consideration
of the possibility of elopement.
That's your argument for, for article 30?
-: Yes. Well, and it's more than that
but I'll address your question first.
Yes, as we talked about in the brief
and as the parties agree, the main differences
between DMH and Bridgewater relate to the secure perimeter
and the lack of any access to the community.
And so even when you're considering dangerousness
to other persons or likelihood of serious harm
that requires the strict security, again, that's in relation
to whether DMH can be, equally prevent that harm
and access to the community.
So it's dangerousness or likelihood
of serious harm within the confines of DMH,
but also if the person were to escape and to elope
and as I think you, you noted it was the case here
that the court very clearly considered elopement.
There was testimony.
-: Right, Right, I, I think that
that that record is, is, is solid
but our duty is to construe statutes
if we can constitutionally, right.
And also to, to conform to the will of the legislature
if at all possible, is it possible to narrowly
construe the statute to say that the commissioners
ability to certify is limited
to that very narrow issue of the possibility of elopement.
-: Not in the sense that she can come behind the court when
the court has made the determination that a DMH facility
which again, one of the primary differences is
the perimeter security is sufficient to prevent a likelihood
of, of serious harm.
And the finding of, of the need for strict security
is considered by the judge.
I would also point out, and this is getting a little bit
into the separation of powers argument.
Is that nowhere in the mental health statute, or
in fact, in any of the general laws, does the commissioner
have the power to send anyone, transfer anyone much less
commit anyone for a year to any mental health facility
department of mental health or Bridgewater accepting
this provision in the statute;
and that includes even the initial transfer under 18a
so a person who's in charge of a place of detention.
If they believe that the person in their custody
needs mental health treatment, and presumably
it's an emergency, it can't be addressed at the facility.
A clinician is called in to evaluate the person.
And even if that clinician at the place of detention
determines that evaluation under 18a
either at DMH or Bridgewater is necessary.
According to-
-: I, I, I know, I know, I know, I know
we're familiar with the statute
so rather than waste your time, that's very valuable.
Let me ask you a different question, please.
The next question I have has to do
with the substantive due process issue.
Can you explain to me if we've ever reached,
cause all the substitute process cases that, and I've
I read them all and, and, and familiar with most of them,
they all deal with custody versus no custody,
their bail, their initial determinations,
here we have a substantive due process claim
that's built upon the differences
between Bridgewater and DMH.
Have we ever gone so far
as to find this a violation of substantive due process
or you're asking us to expand our jurisprudence
on substantive due process
-: I'm asking for in the context of a commitment,
and I'm not aware of a case that compares
the additional constraints on physical liberty
between Bridgewater and DMH in this context.
And squarely says that that's an additional substantive
due process issue,
a liberty interest that requires strict scrutiny.
However, in this case we assert three additional due process
liberty and trust that requires strict scrutiny.
One is the additional physical constraints on liberty
that Bridgewater involves.
The second is a liberty interest created
by the statute itself, which requires or allows,
creates an expectation that our respondent will not
be committed to Bridgewater absent the additional finding
of strict security beyond a reasonable doubt.
And third that the stigma associated with a commitment
to Bridgewater is an added liberty interest
and this court has addressed the issue of stigma
not in this context necessarily.
So-
-: We've done it in procedural due process
not in substantive due process, correct for stigma.
-: It, most of them relate
to the more recent ones relate to the chart.
Yes, the, the mootness on a pellet review
and matter of a minor, I think came closer, but yes
it was probably still procedural due process
but it was discussing the impact of a commitment
on future employment, prospects, future commitments
and things like that.
So-
-: Thank you Miss Talley, those are all the questions I had.
-: Can I ask you to go back
to Justice Gaziano's first question,
which was where in the statute do you see this risk?
Does the judge need to find the risk
of continued detention, retention
that Bridgewater is required in order to
ensure his continued detention, retention in custody?
Where, where is it that the judge is making that finding?
Because it seems to me, one
of the things you were arguing is
that the commissioner is usurping
or overriding the decision of the court.
And I'm wondering when the court decided
that it was necessary to
ensure his continued retention in custody,
commitment in Bridgewater, where is that in the statute?
-: Like I said, it's, it's not,
it's intrinsic to the statutory-
-: Where, where is it intrinsic in the statute?
-: Where it says that commitment
to Bridgewater shall not be ordered
unless the person is not an appropriate candidate
for the department of mental health.
-: So you're not relying on the strict custody would,
would create a likelihood of serious harm element.
You're relying on the other element that such person is not
a proper subject for commitment
to any facility of the department.
-: I think both of them
when you read them in, in tandem and certainly-
-: Let's stick with the strict custody
would create a likelihood of serious harm.
The statute defines likelihood of serious harm right?
-: Correct.
-: All right, and so where in that definition
of likelihood of serious harm
do you find the risk of elopement assessed by the court?
-: Because again, if the risk of, if the main differences
between the two types of facilities is the perimeter
security and the additional perimeter security
of Bridgewater is deemed as it was in this case
not necessary to prevent a likelihood of serious harm.
Then that's where I'm saying that it's intrinsic
to the statute, that the judge is finding
that the lesser perimeter of security, which is in the view
of DOC is going to create an increased risk of elopement.
It's not simply a likelihood of serious harm
to the individuals in the facility.
It's a likelihood of serious harm that cannot be contained
by the lesser perimeter security that DOC alleges
that a DMH facility has.
So it is not, you're correct in that it's not explicit.
We believe it's intrinsic to the court's decision
about whether strict custody is required.
And then in this case
it was explicitly considered.
-: You know, serious harm is not necessarily equivalent
with issues involving a risk of flight.
It's just not the same.
And so retention might involve a completely
different evaluation than what's required under 18a.
-: It's, it's certainly possible
that an individual could have,
could create a likelihood of serious harm that was not
necessarily related to a risk of elopement,
but in the agreed upon statement of facts,
both parties agree that in these cases,
the judge typically has bail information
before him or her understands the nature of the charges
has specific testimony about the risk of elopement.
So that is if not, you know, clearly written
in the statute, I understand that I'm saying
it's intrinsic to the statute, but both parties agree
that that's part of the focus of strict security, whether
or not the person needs district security of Bridgewater.
And I'm sorry if I'm not answering the precise nuances
of the question, feel free to let me know if I'm not.
-: Well, it just is that your assumption is that the risk
of elopement is baked into the likelihood of serious harm.
And I think the point that I'm suggesting, I know the point
that I'm suggesting is that the two are different;
and that while the parties may agree
as to any particular facts they want to
our job is to construe the statute constitutionally
and where the judge makes one finding
and the commissioner is allowed to certify something else.
It seems to me, there is not a direct conflict.
-: Well, I think on this
and I think that gets to the separation of powers issue.
And again, I think what you have here is,
yes the DOC is arguing that they are two separate decisions
but again that would require that the analysis
under the separation of powers is
that it's not a core function of the judiciary, as opposed
to a core function of the commissioner of correction.
This is not akin to the core function of the commissioner
of correction to make classification decisions
and to transfer a sentenced prisoner
to any facility she deems necessary for security.
This is a commitment, a one-year commitment
that the commissioner is making
after the court has already ruled.
And it does amount to a nullification of the court's ruling,
similar to the case of department of revenue
versus John, I'm sorry, (indistinct)
which was cited in the DOC brief.
And it says, we agree that
the separation of powers principle bar
the Commonwealth and its agencies from relitigating an issue
that was contested between the Commonwealth
and the defendant and resolved by a judgment
in the defendant's favor.
And that's what is happening here.
This is not a separate issue of security that is
within the commissioners purview.
And I would just add that the Amicus brief that was filed
by mental health legal advisers committee
and the disability law center, and the BBA notes that even
as a practical matter, the commissioner
of correction no longer has the kind of
expertise and information day to day running of Bridgewater-
-: So you're saying that implicit
in the judge's decision when he finds
that DMH is sufficient,
is finding that,
that he's gonna, he won't flee it.
I'm trying to make sure I understand that.
Is that what you're saying that implicit in that,
is a finding that he can be kept
at DMA, in a DMH facility and it'll show up in court.
-: Yes, because the likelihood of serious harm
is not confined to just a danger posed to the people
within the DMH facility-
-: Is that because, is that because if he flees
he's no longer going to be in a DMH facility
so he will therefore be a danger to himself.
I'm just trying to understand the logic of that.
-: Well, again, we can presume
that most cases involving strict custody involve a danger
to others, or if the commissioner is asserting her-
-: But we don't have, we're finding here, not,
you're relying on the fact that the judge
didn't find the need for strict custody.
Right, so the DMH facility would be, was adequate, right?
You're, you're arguing the opposite, right?
That we don't need a DMH,
I mean, all we need is a DMH confinement.
We don't need a Bridgewater confinement, right?
-: Yes. Yes.
-: And you're saying that when the judge does that
that's an implicit finding
of something related to custody, I'm just trying to-
-: Yes, and, and again, it goes
back to the primary distinction
between the two facilities being the level
of security and the level of perimeter security-
-: Can I ask one follow up question?
So if we don't agree with you on that, that there is
as Justice Gaziano was saying,
there, there's a difference in the finding
why isn't (indistinct) review
of that sufficient to satisfy procedural due process.
-: Well, as I understand the (indistinct) review
and the cases that were cited in Bridgewater's brief,
there has to be some type of process, some type of records,
some type of, you know, guide to the discretion to
to be reviewed that most of the cases
either are an administrative adjudication
or at the very least some type of written decision.
I don't know how a court would review
for abuse of discretion when there's no policy,
there's no procedure, there's no-
-: If we posit that it's limited to a decision on custody,
not on dangerousness or anything else, but,
and then you would analyze the person's risk of flight.
I take it, you could do that with,
the commissioner to override
needs to make that finding, right.
That there's a risk of flight, right?
-: Presumably, but the reservation report
in this case specifically asked the department
to produce any documents, policies
anything relevant to the certification process-
-: So then we would reverse it
if they didn't have any support for it.
So wouldn't this, with a single justice review
satisfied procedural due process of that.
I'm not saying that's a great process
but I'm just, you know, if, if I would assume
that we're not going to be ignored, that many judges
aren't going to ignore that many times.
And if it's an isolated incident
and you have (indistinct) review, that's
that's not going to be sufficient to you, your views.
I'm just trying to make sure I understand why.
-: Sure, and that's because
all we have in this case is a certification
and the certification simply is a bare bones.
And I can read the precise language,
I hereby certify and (indistinct) full form
or (indistinct) form that you fill in the respondent's name.
If it works-
-: Well, that doesn't mean, that doesn't mean
we're going to prove that,
we could write you a decision that says
if you're going to override the judiciary
on a custody issue, you need to make specific findings
on flight risk
and have us address that.
I mean, then
then you're going to have a standard out there, right?
-: If there was something that was adopted by this court
or written into the statute that created a standard
that has some criteria, ideally it would permit some kind
of input by the respondent as well.
But yes, it would have to be much more
than what currently exists to satisfy
any procedural due process and even review.
I mean, as it stands now, the commissioner override
gives the commissioner more authority to review
or to reverse a decision of the district court
than even this court has.
This court is bound by the factual findings.
-: Okay. Thank you, attorney Talley.
Did that answer your question Justice Kafker.
-: Yes-
-: [Chief Justice Budd] Does anyone
have any further questions?
-: No.
-: Okay. Thank you so much attorney O'Donnell proceed.
-: Good morning your honor,
may it please the court Ted O'Donnell
for the commissioner of correction and the superintendent
at Bridgewater state hospital, the commissioner
certification provision in section 18 does not
in any way violate the constitution or the rights
of the inmates to whom it is applied.
Justice Gaziano: Is it reviewable at all?
-: I would suggest not your honor.
And I'll, I'll say-
-: How could it be constitutional
if someone's going to be committed
involuntarily for a year and there's absolutely no review.
-: It is such a core function
of the commissioner as an executive branch officer
to ensure the retention and custody of an inmate
who's either serving a sentence or held to trial.
-: Can you tell me any other provision
in chapter 123 that's not reviewable.
-: No. I would say this is an
island in the sea of reviewable things.
And for good reason, your honor,
there are distinctly different things.
So I think the other side is mis-characterizing
what's occurring when they call it a commissioner
override. It's really not-
-: That's all labeling. I mean, you know that's
we'll get past the labeling.
Let's get into what actually happens.
-: Sure, so, everything happened, everything unfolded exactly
as the legislature intended, as it set out.
And so by way of explanation.
So there's a section 18 petition filed for the individual.
-: Let me ask you something about
everything unfolding perfectly.
We have a hearing,
there's actually one question asked about elopement.
I.e. escape, not an issue whatever, in front of the judge,
if we read the statute narrowly like you ask us to do,
the judge says DMH.
It goes in front of the commission.
A commissioner says, no, there's an elopement issue.
Again, if we agree with you
and the person's committed for a year,
how is that the way it's supposed to be?
If there's zero evidence supporting the finding
of the commissioner and it's not reviewable.
-: Sure. So the way it occurs is the case is presented
in front of the judge.
The judge finds beyond a reasonable doubt
that the individual is mentally ill
and requires a period of involuntary hospitalization
not to exceed the expiration date.
Now, just a word on that.
The order such as it is, the person can be discharged
at any time without any further court action.
So while it is a commitment order
there is that quality to it.
Now the court was not persuaded beyond a reasonable doubt,
but due to his mental illness, the individual
required the strict security of Bridgewater.
The court then was left only
with the option of committing him
to the department of mental health facility.
And so the order was, then the commissioner looking strictly
at, excuse me, the retention question.
Here's a person, there's no contest.
He has the bail status that he has,
the commissioner as the executive officer,
we've tried to retain people in a secure setting,
did so in this case and why would the legislature-
Justice Gaziano: Based on what?
-: Based on his having the custody status that he has.
-: So, no, but why is the, that's the problem I have.
The commissioners making a determination
and you know article 30 is not airtight compartment
but the commissioners make a determination
of elopement risk.
We had it here and we don't know why the commissioner
is making this determination and unlike anything else
in chapter 123, you're telling it's not reviewable.
Ted O'Donnell: I suggest-
-: It's not a due process concern.
-: No, your honor, I suggest there's no fundamental
liberty interest involved to warrant a due process question
as to whether the inmate receives a psychiatric treatment
at this versus that-
-: Are you talking about procedural substantive due process?
-: I suggest there's, there's no due process
involved in this matter and let me explain,
so at the time the individual is either sentenced,
or has a bail set he has that due process
at the time he is civilly committed.
He has that due process.
And so all we're talking about is whether he is,
that receives in psychiatric care at Bridgewater
where he will be securely retained
for the duration of the period,
or whether he should be receiving psychiatric care
in a less secure department of mental health facility-
-: Council can I interrupt you on that one point,
you, as you were going through what happened here,
the certification process comes after the full hearing
where the burden is beyond a reasonable doubt.
Ted O'Donnell: Yes.
-: So the certification process isn't self-executing right,
because there, it has to be contingent upon a finding
that the patient needs the strict security of Bridgewater.
Would you agree with me on that?
-: Well, in this case that wasn't-
-: That's why I'm saying, that's why I'm asking you, because
if you look at the certification process, there's an,
and that comes just before that
that relates to the sentence right before.
And it would seem to suggest, at least to me, this is just
on the statutory construction part that I have,
the issue with going back to Justice Gaziano's
question to your sister.
If the judge doesn't make a predicate finding that the,
that the patient needs the strict security of Bridgewater,
does the commissioner even have a certification authority?
-: If the court is basing its finding on the mental
illness factor and the commissioner it's a different-
-: No, no no. I understand that.
That's how you're trying to construe it.
But I'm saying that the sentence right before the and,
doesn't it say that there needs to be a finding
before we even get to certification
that the petitioner requires
the strict setting of Bridgewater?
-: No, your honor. I don't believe that that is-
-: It doesn't say that when it says the prisoner
shall be confined at said hospital, if the findings required
for commitment to a facility are made,
speaking of Bridgewater.
-: That's what it says to a facility. It means DMH.
So it falls short of that.
It falls short of that Bridgewater strict security piece.
It's when, whenever they use
the word facility in 123, they mean DMH.
-: Well, I'm just, again, I'm, I'm trying to just understand
because if you go back, if I didn't read the
the fuller sentence, to make a finding required
for commitment to the Bridgewater State Hospital
the prisoner shall be confined at said hospital.
If the findings required for a commitment
to the facility, to a facility are made.
So you're saying any facility?
-: To DMH, yeah.
So in other words the way the statute is written
is the person is found to be mentally ill.
So subject to an involuntary commitment period,
to require hospitalization.
And then that third piece is the one
that would be missing, where if they have a custody status
then the commissioner may weigh in and say
'I certify this, hospitalization should take place
at Bridgewater as a (indistinct)'
Man Off-Camera: Mr O'Donnell.
-: I'm sorry, go ahead Justice Lowy.
-: In, in the statute is, as you know
there's a requirement to certify to the court
that the confinement is necessary.
So the legislature, contemplates court involvement
certified to the court.
So let's go back to Justice Kafker's question.
Why doesn't that at a minimum mean (indistinct)
and abuse of discretion review at a minimum?
-: It, it's really such a core function.
I would say in-
-: I appreciate that, maybe put the
put the constitutional issue aside for me.
Maybe the legislature didn't have to say that, but they did.
They decided it wasn't such a core function.
They said it's a core function
that requires certifying to the court.
That's what they wrote.
Why doesn't that require at a minimum (indistinct) review.
-: I, in, in looking at a court review
of why the commission would determine that someone that is
either serving a sentence that has a bail, why
you know why that person can't instead be somewhere else,
that really intrudes I would suggest
too far into the executive branch.
And I, I say really, it would be an improper encroachment.
Justice Gaziano: So you're,
you're arguing article 30 now.
-: Yes your honor.
-: Are you done Justice Lowy?
Justice Lowy: Yes, thank you.
-: So what you're intimating
to us is that the commissioner's going to certify,
because this criteria is mysterious.
The commissioner's going to certify
in cases where the person is being held
at DMH over the commissioner's objection by a judge.
And now the person also has some type
of bail or custody status.
Is that what you're telling us?
-: Yeah. Only in those instances, only a section 18-
-: So there's no regulation
but the practice you're telling us
is when someone's held on bail to certify.
So that they go to Bridgewater.
-: Yes. If they have a custody status,
only on a section 18 this does not come up.
There's no allowance in a seven and eight commitment,
a 16 commitment.
-: I, I know we're talking about 18a.
Exactly, so that's the, that's the criteria
that really underlies this is-
-: Yes, and I suggest,
and I suggest the reasoning, the legislature fully-
-: Is that written down anywhere or is that just practice.
-: It is the evolved practice your honor.
Justice Gaziano: Evolved practice.
-: There's no written regulation, it has evolved.
Justice Gaziano: Thank you, that clarifies.
-: I still can't figure, I still can't figure out.
So we've got the commissioner deciding
that the petitioner needs to be
in a much more secure environment, essentially in a prison.
This is not a choice
between prison A and prison B like that
we give some deference to the commissioner.
This is basically we've got the commissioner
deciding that something the judge thought
was not necessary on a different ground.
And you're saying there's no review whatsoever,
that, that just seems you're just inviting
due process problems
particularly when you're taking someone from a DMH facility
and putting them in it, you know, in Bridgewater
which is let's, let's face it, it's a prison.
So you really think that that's going to survive a
procedural due process review
without any form of appellate review.
You know, I don't, I don't think
that empowered to do stuff like that.
-: Well, I suggest your honor
that the location of the hospitalization is
is not something that should warrant-
(both men talking over each other)
-: This is not cell block A versus cell block B.
Justice Cypher: Right.
-: This is not one maximum security prison
for another maximum security.
This is a big difference done after a judge has
decided it's not necessary for reasons that
at least implicitly deal with elopement.
I just think you're asking for trouble.
-: And doesn't it just seem unfair?
Isn't it just unfair.
-: I suggest not your honor and the reason
I say that is a person having a custody status,
doesn't have a reasonable expectation of being
in the community during the time they have a custody status.
So whether they're serving a sentence, or have, being held
on bail, awaiting trial, there is no reasonable expectation
that that person should harbor,
that they'd be allowed access
to the community during that time period.
That's what
that's why I don't believe it's fundamentally unfair.
-: If you, when you read the
the procedural due process cases, and as Ms. Talley
indicated we found procedural due process
liberty interests and, and you know
and how much processes do depends on the balancing.
But we found that based upon stigma
we found that based upon differences in custody,
time spent in custody we've and, and again
it may not rise to substantive due process.
Well, haven't we found procedural due process concerns
liberty interest and other
similar deprivations of, of liberty.
-: It's hard to, to have an analogous situation,
your honor it's kind of a unique situation
that we're presented with here,
but you know if the person is serving a sentence
any stigma is already attached to that.
So it isn't, it should be no further the fact
that they happen to be hospitalized
while they're getting psychiatric care at Bridgewater
versus a department of mental health facility.
-: It's a huge difference to be walking
around at Taunton with grounds privileges
versus being locked up at Bridgewater, right?
-: Yep, absolutely your honor no question.
It's night and day, no dispute.
-: Right, that would lead to
procedural due process protection wouldn't it.
-: Especially here where the record
shows that there was no risk of elopement.
And now suddenly it's certified that he needs
Bridgewater in order to maintain him in custody.
Like it just seems that not allowing a procedural
due process procedure is problematic.
And in fact, as Justice Lowy was pointing out
perhaps that's why the legislature sought fit to
say he must certify, or she must certify to the court.
It seems to me that would be helpful to you.
I don't know why you're resisting.
-: A, a review process-
-: To salvage the statute,
otherwise you've got a procedural due process problem.
-: Well, as I had posed as an alternative
in the brief should this court find
that there is a review that's, you know, necessary proper.
Then the (indistinct) was the option that I
felt would probably best meet the need.
My first statement, as I indicated was over-
-: But as your sister said, there's no process
by which the certification is,
what are we to review?
Other than just an order coming down, saying
I'm invoking my authority under 18a and certification
and I'm committing the person back to Bridgewater.
There's no, there's no process for us to review.
-: That's true, your honor.
And that was part of the reasoning why I felt
that another complicating factor to having a review
process is how, you know, the commissioner.
It's a fact, there's no dispute.
He has a custody status.
So it's not an arbitrary and capricious type decision
by the commissioner to say, because of the custody status
his psychiatric treatment
should be at Bridgewater versus DMH.
That's essentially it, there's not a lot, you know,
to go on beyond that, it's essentially that.
So if there were no custody status perhaps, you know that-
-: Why couldn't we review?
Your decision is arbitrary and capricious.
You didn't bring it
to the judge that there was any elopement issue.
There wasn't any, there's no support for it
in any piece of paper you put out.
We don't let let you do things by fiat.
Why can't we just use our (indistinct) process to
reverse what you did?
Because you don't have any basis for it.
What, I mean, why can't the (indistinct),
That's what the (indistinct) works for
things that are hard to define.
-: Well, certainly if, if the court, and it sounds
like from your questioning that you're inclined
(indistinct) review going forward.
-: We're inclined.
We're inclined not to let you do whatever you want
for no reason whatsoever.
That's a due process violation.
-: Yeah. We're not, I wouldn't hold out that we're
doing whatever we want for no reason.
It's, it's all custody status based.
It's not no reason, but that's essentially it.
-: It's not the only tool though.
It's not the only tool though
There's also section 13.
-: The difficulty with that, your honor is when
someone gets returned from DMH on a section 13
the only thing we can do is
file a seven and eight within five days.
And the seven and eight doesn't get you any assistance.
So if someone comes back to us as an 18, cause they
failed say they escaped or something and they get caught
from DMH, get returned to us.
We have a seven and eight only option,
now we could move to amend it to an 18, which might
or might not be allowed by the court
we are appearing in front of it,
but it's certainly not a read
you can hold onto and rely upon.
-: Okay does anyone have any further questions?
Man Off-Camera: Thank you too.
-: Thank you very much
-: Thank you your honors.
(rustling papers)