-: SJC-13492 in the matter of an impounded case
and SJC-13493 in the matter of an impounded case.
-: Okay, Attorney Cheyette,
Cheyette? -: Yes, yes.
-: Okay. -: Thank you,
Chief Justice Budd, and may it please the Court?
My name is Cara Cheyette,
and I represent the two juveniles.
These Courts have been paired
because they raise identical statutory
and vagueness challenges to Chapter 123, Section 35.
And I do expect to devote most of my time today
to those issues, but I'd be remiss if I just didn't note,
put a pin right up front that even if the Court disagrees
with me on the constitutional and the broader challenges,
that there are very fact-specific reasons
why my clients are entitled
to have their commitments vacated
and all just the complete lack of findings
in the young man's case in Bristol County
and the Court's really problematic,
least restrictive alternative analysis
in the young woman's case in Essex.
-: Can I ask you about that?
'Cause I was curious 'cause I think you've got
a very good argument on JP,
but on ES, there was an issue where there was an inquiry
about other available less restrictive placements
and that none seemed to be available.
Why was that deficient?
-: Well, because sort of think
in terms of the order of operations,
this, you know, will get to what I claim
are a lot of the procedural defects
that animate my constitutional challenge.
But this isn't really a phased statute like Section 12 is,
but there are sort of you make one determination,
and then you move to the next,
and then you move to the next.
So is there a substance use disorder?
Is there the substantial, very substantial,
very imminent likelihood of harm absent hospitalization?
If so, if there's that grave danger,
is there some lesser restrictive
alternative to hospitalization?
What the judge did was having heard the clinician
that my client didn't meet the harm criteria,
well, if there's no other alternative to hospitalization,
isn't she in danger if she flipped the analysis?
That's my problem with that.
And the fact is- -: I don't see that.
I thought she did it right.
You've got the second, ES, is using fentanyl.
She's disappearing for four or five days
without telling her parents where she is.
(chuckles) We have a clinician finding
that she has the disorder,
and the judge is going,
"Do you have any place to place her?
"Do you have any place to place her?"
And even has the person come out of the room
and come back to the room, and they said,
"We still don't have anywhere to go."
Cara: Right.
-: Isn't that no less restrictive alternatives?
-: Well, so I don't wanna...
Again, part of my big claim is that given
that the clinician said this young woman
does not meet the criteria
for commitment under any of the harm prongs,
I think if you read that transcript,
there's the, the judge, here's the clinician
and just keeps, "Well, you say she's not a danger,
"but what about, is there any other place for her to go?
"Don't you have to go and investigate that?"
And there was a little bit of badgering of the judge
to this clinician to change her testimony
if there wasn't another place
available that afternoon. -: Can you walk through this
because there th there are three parts
to this statute, right?
And the first part, just to put my cards on the table,
I tend to agree with you
that we need medical testimony.
It's necessary.
It may not be sufficient,
but it's necessary to support a finding
that you meet these two diagnostic criteria.
I don't though find that you need a judge
can decide how dangerous that person is without...
That's not a medical determination
whether they're gonna harm themselves or someone else,
particularly if they're taking fentanyl
and disappearing from the house for four or five days.
And how old is she, 16? -: She's 16.
-: To me, that's like red flag danger.
And even a judge can do that without medical testimony.
-: I cannot point the Court to one definitive place
that stands for that proposition, but part of the...
But I- -: I can.
-: Oh, okay. -: Seven and eights.
I mean, seven and eights, that's what the judge does.
The judge makes the determination
on whether or not they're in danger either to themselves
or to someone else or whether or not they...
And the judge can do that based on the testimony
on the first part.
So, the judge does it in seven and eights.
-: But in every other commitment provision,
there's been some clinical professional evaluation
that indeed the person being drawn
into the Court to be further evaluated,
that there's been some professional assessment
that indeed this person falls...
We have reason to believe that this person falls
within the ambit of the statute.
-: Can you help me like on an incompetent to stand trial,
and you have the security of Bridgewater State Hospital?
My memory is that the clinician, of course,
on a Section 15 testifies
and usually in Court on a 15 a I guess it is
and says that this person's not competent to stand trial.
And then the next inquiry by the Court is,
where should we place this person?
And we've been pretty strict on this and say,
well, if they're a harm to themselves or others,
and they're male, they have to go
to the strict confines of Bridgewater.
Is it that the judge gets to do that?
The clinician doesn't say the placement.
The judge gives the placement, correct?
Or am I wrong about that? -: Yeah.
-: You know, I've having never appealed
or litigated one of those.
I don't feel competent to answer.
-: I'll look it up. -: That's a good question.
But actually, I think when we start thinking
about 15 and 16, I'd actually point the Court to Garcia.
In Garcia, right, so there's a full blown trial
with all of its procedural protections.
And then there's the question
about whether this individual who's been found NGRI
is gonna be hospitalized.
The Commonwealth bears the burden of proof.
The Commonwealth's expert says this individual
does not need to be hospitalized.
And the Court registers in its decision its concern
about the fact that there was no competent expert testimony
that the individual needed hospitalization
and says in a footnote we leave for another day
whether expert testimony is necessary
to make this kind of a commitment decision
because otherwise, it leaves unfettered discretion
in the hands of a judge to determine
who falls within the ambit of a statute.
And it points in that footnote, the Court looks to 123A,
and that's one of my other arguments
that we've got the...
So coming back to the-
-: Let me just stop you right there for a second.
That's an interesting point, but in Garcia,
we're talking about commitment to a locked facility
and the like after an NGI finding, right?
Here, we've said before that Section 35s,
although they obviously implicated liberty interest,
and you've done a great job of telling us
what that is, it's less restrictive
than an NGRI finding, right, NGI finding?
Of placement. -: Well, you mean
the commitment that followed like in Garcia,
it was a 40 day evaluation, right,
in the hands of some clinical professionals
to determine whether, in fact, the person
should be subjected to a longer hospitalization
-: Because they're gradients of these things,
and the legislature, like in the sexually dangerous persons
with a QE, they've said, no, you can't.
And we've said you can't do this without a QE.
You need a QE, and you're basically asking us
to hold the same in a Section 35.
-: So a couple things on that,
One, actually, I think that when you look at Garcia,
which was a 40 day hold for evaluation,
that looked to the SDP context.
In Minor, the rule that Minor imported
into Section 35 commitment hearings
for specific factual findings,
it cited to SORB cases for that proposition.
SORB and SCP are different,
but they're also looking
at these predictive dangerousness
assessments of individuals.
There are a couple of other cases AM also cited out
to 123 for as an analogy
'cause that's what we do, right?
We argue by analogy.
But the Garcia case,
and then if I can a little bit get
to Justice Georges' question
'cause a case that I found as I was preparing
for argument was Carillo, which I hadn't read before,
I had not registered that's the...
The cite is 483 Mass. 269.
I hadn't registered originally
that it had any connection at all to Section 35,
but in listening to the oral argument,
thank you, Fran Kenneally,
for getting all those on the website.
(Justices chuckles)
Actually, Justice Gaziano, you raised Carrillo in that case.
That was where some, you know, you vacated the conviction
for involuntary manslaughter
because of the young man who gave his friend
or distributed to his friend that heroin
that led to his overdose, and an amici in that case,
and Justice Gants pressed the parties,
how does this fit within our Section 35 jurisprudence?
If the possibility of overdose from heroin is enough
to get a conviction for involuntary manslaughter,
doesn't that mean that the possibility
of overdose satisfies the harm criteria?
And what the Court said in that case is
what the Commonwealth argued
was the vulnerability to overdose was heightened
because the victim was in withdrawal,
and it was heightened because the potency was so great.
And the Court said those things
are not susceptible to judicial notice.
There was no expert testimony
that the Commonwealth offered for those.
And those are not things that reasonable people would know.
So that I think is the closest that I can get
to that when you get to that harm criteria,
that's sort of the rubber meets the road.
And the other thing that I draw the Court's attention to
in terms of the procedural deficits in these cases,
right, there's no notice, you get dragged in.
You know, my loved one can say, "Cara has a problem."
And I have no notice.
I'm in front of a clinician getting evaluated.
And really, I know the amicus argued
that these are really adversarial proceedings,
but who's the adversary?
You know, the judge is the fact finder.
The judge is applying the law to the facts.
The judge is like the prosecutor,
and certainly in the Essex case was.
And if the judge can say,
"Well, fentanyl's really toxic," right,
"I mean, what are the effects of that,"
then the judges effectively opine it.
-: But I think actually, ironically,
one problem you have on Carrillo is that we said
that heroin as it is isn't enough,
and then we wrote, except if there's fentanyl.
-: Well, no, but... (Justices laugh)
Well, exactly, but first of all, that's combining
if heroin is laced with fentanyl,
so that would've been one of those x factors
that might've gotten 'em. -: Right, that was
a plus factor, right. -: But the other thing
I didn't include in my brief,
I was running up against my word limit time,
but so we say, if you were to tell me,
well, SDP's its own thing, you know, one day to life,
we're not gonna analogize for that.
Then why is it that if I'm sued for malpractice,
the plaintiff doesn't even get to the jury
if there's not an expert about the standard of care, right?
I mean, so my reputational harm,
my investment in my education is sufficiently protective
that there's gotta be an expert
that's gonna stand between me and a jury,
but in these cases, a family member,
and it's almost all a family member.
-: Yeah, not if we impose what you say on the first prong,
which is you need clinical support
for a diagnosis that you meet the alcohol
or the substance abuse syndrome or whatever.
I'm not using the proper terminology.
So say we give you that,
and we think you're right on that point.
(chuckles) And we have a kid on fentanyl
running away from home.
You know, we have all kinds,
you know, this is what we can do, right?
We can make those kinds of calls.
We can't decide whether you have a substance use disorder.
That's a clinical decision.
But we can decide, oh my God,
there's a real danger that kid's gonna get hurt.
And honestly, the clinician is silly
to think that that's not dangerous. (chuckles)
Because we know too often about those kids
who disappear from their home
and get hurt when they're on drugs.
So I mean, we know a lot about that.
-: But Justice Kafker, remember,
these are supposed to only happen in emergency, right?
So a couple things,
yes, we as reasonable people,
you as juris might look at a situation
and say, "Well, geez, that sounds dangerous to me,"
but the statute is supposed
to be this carefully circumscribed tool,
and the danger has to be due to the disorder,
not to just adolescent rashness.
In the young woman's case,
already, she'd had two mental health lockups
for two years prior, and she fled
when she was basically said,
"You're going to this place voluntarily,
"or we're basically gonna put you
"in handcuffs and take you there," and she ran.
And for the five days that she was gone,
she was texting her mom,
letting her mom know that she was safe.
Mom didn't say that those texts sounded like she was loopy.
There was no indication
that she was high when she came back on her own.
You know, she asked her mom if she could come home.
I understand that these are dangerous,
but there's be a closer connect,
and, you know, the-
-: Well, the alternative is we're endangering kids
going too far the other way.
I get the first person, okay, he's classic.
He's smoking too much marijuana.
In the old days, he would be growing his hair long.
Now he's cutting his hair off.
You know, it sounds like this is not the kind of thing
we wanna institutionalize somebody,
but he's quite different from the second child, you know?
-: Right, well, so on sort of the parade of horribles,
and just I'm gonna watch my...
I do actually wanna talk about the chronic,
the vagueness issue, even given what you said,
but the Court's core judicial function
is to construe statutes consistent with the Constitution.
So the what would happen if we were to do it?
You know, that's a little bit,
again, order of operations out.
First, test the statute,
and if it's not carefully circumscribed
as I contend it isn't, then what do you do?
-: I thought we did that matter of Minor.
We told 'em the order of operations
in matter of Minor, right?
-: I'm sorry. -: We told juvenile judges
what to do in matter of Minor
as far as the order of operations.
-: Oh, no, but I'm talking in terms
of this Court's consideration.
It's sort of that I don't think that you don't not get
to the most extraordinary relief that I'm asking
because of what might happen next.
And if I can channel Justice Lowy
for a second, in Chapman... (Justices laugh)
I consumed so many oral arguments in the last few weeks,
but during Chapman, the Commonwealth wanted you
to overrule Johnstone.
And the Commonwealth's argument
was you couldn't have anticipated the consequences
of that decision.
And Justice Lowy said, "That's a legislative decision."
We look at the Constitution, we construe statutes that way,
and then the legislature can fix it.
You know, in Bruno, the Court noted
that for 10 years, there'd been no classifications for SDP,
no commitment hearings for SDP
because the statute, I guess, it had been reversed.
I don't know the history of that statute,
but for 10 years that didn't happen, and we survived.
And SDP is much graver concern and danger to the public.
We're looking at sort of the most extreme state power
when we're talking about protecting people
from, you know, their worst moments.
-: Counsel, I don't disagree with you
in the stuff that you...
The lead up to it is very difficult, and I hear you.
You know, somebody comes in for a warrant of apprehension.
They have no idea.
They haven't done anything wrong
other than potentially being sick.
But I give you, and I'm with Justice Kafker on this one,
because as a practical matter,
we do tether the first finding to what the clinician says.
It might not say that explicitly in the statute,
but I don't think you hear any judge say,
"I credit what the clinician said
"and find the first prong."
The dangerous prong is the stuff
that I'm really having at issue with.
Judges do this all the time, and they do this,
and we mentioned some other context,
but we do it in bail, we do it in 58A.
Judges all the time have to make determinations
about the prospects of harm.
So why do we need a clinician to say,
"In my clinical judgment, I think that x?"
Why does the judge need that?
-: In part so that the...
Partly because I think that some of what happens
in what happened in my case
and particularly the Essex one
is you've got a parent who's very sympathetic
who's legitimately concerned about her daughter,
and you've got a clinician
who, you know, is sort of a neutral arbiter, says there's...
You know, where's the imminence of harm?
We may have a possibility of harm,
but she's taken three doses of...
If I can just- -: But hold on.
But they're not a neutral arbiter though.
I mean, you mentioned what the judge is.
The judge is both the finder of fact.
So that's a witness,
and the judge is free to not credit that witness
when the witness says,
"I think this person can be out in the community."
-: But, again, I think it's about sort of do you get to...
Do you get over like a required finding
if there's not competent evidence?
And given this, I mean, there's a little bit of,
why not require that there be some professional assessment?
Yes, the judge can decline if clinician says-
-: What's the role of the judge then in this?
-: To evaluate all of the evidence and-
-: Right, right. -: Absolutely to evaluate,
but you're missing competent evidence.
-: So it's basically heads I win, tails you lose.
So if the clinician says
this person should not be committed under your view
of the constitutional provision or limitations,
the person can't be committed just like a QE, right?
-: Yes. -: But if the clinician says
this person can be committed,
the judge and only then can say,
"I don't credit you, and I'm not going to commit."
-: And the findings of the judge should explain why
she doesn't credit the expert's testimony.
-: But isn't that you're sort of running right in the face
of the legislature going the opposite way?
Now, I understand, and I want you to address Kenniston
before you sit down too,
but the legislature is saying
the way it redrafted the statute, it's moving away from.
It's going the exact opposite way that you're arguing.
Now we may need to make a correction
at least on the first part,
but it's certainly not what they intended, that's for sure.
-: May not be what they intended.
But actually, I point the Court,
the Court cited to the 2019 Section 35 commission report
in I think it was in GP.
No, it might have been Minor.
And on page eight of that report,
there was a recommendation
that the Commonwealth should commence a process
with the goal to reduce or eliminate the use of 35
as there is insufficient evidence of its efficacy
to justify the deprivation of individuals' civil liberties.
Six people on that commission said,
yeah, that's what we should do,
and three people said no. -: Okay, before you sit down,
Kenniston, Kenniston, can't we just say,
okay, the legislature softened the first prong,
whether they may have done that,
but they can't constitutionally, so we fixed that problem.
Your brief suggests we can't fix that problem.
We have to declare the whole statute unconstitutional.
I don't, why?
-: Well, I mean, the Court's jurisprudence
on Section 123 has certainly embraced
a lot of kind of importing standards
and requiring doing sometimes declining
to import language and standards,
but as you just said,
how do you reintroduce a standard
that the legislature stripped out?
-: Because they softened it thinking
that they could constitutionally, but they can't.
And we're gonna say, no, it needs to be supported.
We've been doing our whole case law in this area
has been toughening up these statutes, haven't they?
-: Look, are you gonna hear me complain
if you judicially amend the statute?
No, but actually I-
-: Justice Lowy will be very unhappy with you.
-: Right. (all laugh)
And I know that my time's up.
There was one brief point I wanted to make
on the chronic and vague
just 'cause the Donahue issue
that if the subsidiary clause of the harm
in the substance use disorder,
if that's modifying chronic use or habitual use,
then you just get rid of chronic habitual
and it means the same thing, and words have to have meaning.
But there was a point that I didn't make in the brief
about Donahue that I really wanna make.
That case in which the appeals Court said
that chronic habitual was unconstitutionally vague,
that was- -: We fixed that, right?
-: Yeah, but the point-
-: This is Justice Milkey's concurrence.
We fixed that, right?
-: Oh, right. -: We said that chronic
has a different meaning.
Didn't we correct this? -: For purposes of Section 35?
-: I thought we've addressed the problem
that Justice Milkey has identified.
I wrote a decision. (laughs)
-: But just on Donahue, that in that case,
the question was a physician, take physician Smith,
physician A has a patient
who's taken three tabs of fentanyl in a month
and says, "I don't think that's chronic use,
"so I'm not gonna report to the DPH."
Physician B says, "Yeah, three tabs of fentanyl in a month,
"I think that's chronic.
"I'm gonna make that report."
Physician A was criminally prosecuted,
and physician B wasn't.
And the Court said...
And of course, now I don't have it in front of me,
but, you know, vagueness is about
sort of arbitrary assessment of things.
And now you take those physicians
and drop 'em into a Section 35,
and physician A says,
"Yes, this young woman has a chronic disorder,"
and physician B says she doesn't.
There is no standard for chronic or habitual.
It's not defined anywhere further
in the statute, and without...
And I don't know that the Court
can define that. -: It's not defined
in the medical.
So the physicians who are testifying on chronic,
there's not a standard in the medical literature on that?
-: Well, you know, as far as the AG's concerned
to demand that this be a diagnosis
is sort of, you know, reading a whole panoply
of protections and time into this.
And the fact is that the statute used to require
I think it was a psychologist
or a psychiatrist to do the evaluations.
Now basically it's a social worker.
Are they even able to make a medical diagnosis
using the DSM?
I'm not entirely sure,
but I think you start to run into those kinds of problems.
My time is way over.
Thank you so much, and I'll stand on my brief.