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SJC-13492 in the matter of an impounded case
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and SJC-13493 in the matter of an impounded case.
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Okay, Attorney Cheyette,
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Cheyette?
Yes, yes.
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Okay.
Thank you,
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Chief Justice Budd, and may it please the Court?
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My name is Cara Cheyette,
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and I represent the two juveniles.
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These Courts have been paired
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because they raise identical statutory
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and vagueness challenges to Chapter 123, Section 35.
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And I do expect to devote most of my time today
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to those issues, but I'd be remiss if I just didn't note,
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put a pin right up front that even if the Court disagrees
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with me on the constitutional and the broader challenges,
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that there are very fact-specific reasons
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why my clients are entitled
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to have their commitments vacated
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and all just the complete lack of findings
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in the young man's case in Bristol County
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and the Court's really problematic,
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least restrictive alternative analysis
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in the young woman's case in Essex.
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Can I ask you about that?
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'Cause I was curious 'cause I think you've got
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a very good argument on JP,
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but on ES, there was an issue where there was an inquiry
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about other available less restrictive placements
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and that none seemed to be available.
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Why was that deficient?
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Well, because sort of think
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in terms of the order of operations,
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this, you know, will get to what I claim
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are a lot of the procedural defects
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that animate my constitutional challenge.
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But this isn't really a phased statute like Section 12 is,
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but there are sort of you make one determination,
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and then you move to the next,
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and then you move to the next.
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So is there a substance use disorder?
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Is there the substantial, very substantial,
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very imminent likelihood of harm absent hospitalization?
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If so, if there's that grave danger,
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is there some lesser restrictive
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alternative to hospitalization?
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What the judge did was having heard the clinician
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that my client didn't meet the harm criteria,
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well, if there's no other alternative to hospitalization,
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isn't she in danger if she flipped the analysis?
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That's my problem with that.
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And the fact is-
I don't see that.
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I thought she did it right.
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You've got the second, ES, is using fentanyl.
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She's disappearing for four or five days
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without telling her parents where she is.
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(chuckles) We have a clinician finding
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that she has the disorder,
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and the judge is going,
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"Do you have any place to place her?
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"Do you have any place to place her?"
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And even has the person come out of the room
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and come back to the room, and they said,
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"We still don't have anywhere to go."
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Right.
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Isn't that no less restrictive alternatives?
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Well, so I don't wanna...
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Again, part of my big claim is that given
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that the clinician said this young woman
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does not meet the criteria
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for commitment under any of the harm prongs,
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I think if you read that transcript,
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there's the, the judge, here's the clinician
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and just keeps, "Well, you say she's not a danger,
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"but what about, is there any other place for her to go?
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"Don't you have to go and investigate that?"
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And there was a little bit of badgering of the judge
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to this clinician to change her testimony
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if there wasn't another place
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available that afternoon.
Can you walk through this
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because there th there are three parts
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to this statute, right?
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And the first part, just to put my cards on the table,
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I tend to agree with you
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that we need medical testimony.
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It's necessary.
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It may not be sufficient,
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but it's necessary to support a finding
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that you meet these two diagnostic criteria.
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I don't though find that you need a judge
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can decide how dangerous that person is without...
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That's not a medical determination
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whether they're gonna harm themselves or someone else,
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particularly if they're taking fentanyl
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and disappearing from the house for four or five days.
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And how old is she, 16?
She's 16.
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To me, that's like red flag danger.
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And even a judge can do that without medical testimony.
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I cannot point the Court to one definitive place
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that stands for that proposition, but part of the...
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But I-
I can.
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Oh, okay.
Seven and eights.
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I mean, seven and eights, that's what the judge does.
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The judge makes the determination
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on whether or not they're in danger either to themselves
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or to someone else or whether or not they...
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And the judge can do that based on the testimony
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on the first part.
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So, the judge does it in seven and eights.
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But in every other commitment provision,
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there's been some clinical professional evaluation
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that indeed the person being drawn
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into the Court to be further evaluated,
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that there's been some professional assessment
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that indeed this person falls...
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We have reason to believe that this person falls
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within the ambit of the statute.
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Can you help me like on an incompetent to stand trial,
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and you have the security of Bridgewater State Hospital?
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My memory is that the clinician, of course,
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on a Section 15 testifies
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and usually in Court on a 15 a I guess it is
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and says that this person's not competent to stand trial.
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And then the next inquiry by the Court is,
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where should we place this person?
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And we've been pretty strict on this and say,
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well, if they're a harm to themselves or others,
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and they're male, they have to go
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to the strict confines of Bridgewater.
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Is it that the judge gets to do that?
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The clinician doesn't say the placement.
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The judge gives the placement, correct?
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Or am I wrong about that?
Yeah.
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You know, I've having never appealed
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or litigated one of those.
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I don't feel competent to answer.
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I'll look it up.
That's a good question.
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But actually, I think when we start thinking
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about 15 and 16, I'd actually point the Court to Garcia.
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In Garcia, right, so there's a full blown trial
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with all of its procedural protections.
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And then there's the question
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about whether this individual who's been found NGRI
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is gonna be hospitalized.
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The Commonwealth bears the burden of proof.
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The Commonwealth's expert says this individual
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does not need to be hospitalized.
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And the Court registers in its decision its concern
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about the fact that there was no competent expert testimony
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that the individual needed hospitalization
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and says in a footnote we leave for another day
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whether expert testimony is necessary
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to make this kind of a commitment decision
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because otherwise, it leaves unfettered discretion
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in the hands of a judge to determine
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who falls within the ambit of a statute.
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And it points in that footnote, the Court looks to 123A,
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and that's one of my other arguments
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that we've got the...
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So coming back to the-
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Let me just stop you right there for a second.
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That's an interesting point, but in Garcia,
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we're talking about commitment to a locked facility
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and the like after an NGI finding, right?
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Here, we've said before that Section 35s,
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although they obviously implicated liberty interest,
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and you've done a great job of telling us
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what that is, it's less restrictive
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than an NGRI finding, right, NGI finding?
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Of placement.
Well, you mean
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the commitment that followed like in Garcia,
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it was a 40 day evaluation, right,
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in the hands of some clinical professionals
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to determine whether, in fact, the person
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should be subjected to a longer hospitalization
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Because they're gradients of these things,
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and the legislature, like in the sexually dangerous persons
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with a QE, they've said, no, you can't.
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And we've said you can't do this without a QE.
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You need a QE, and you're basically asking us
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to hold the same in a Section 35.
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So a couple things on that,
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One, actually, I think that when you look at Garcia,
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which was a 40 day hold for evaluation,
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that looked to the SDP context.
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In Minor, the rule that Minor imported
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into Section 35 commitment hearings
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for specific factual findings,
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it cited to SORB cases for that proposition.
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SORB and SCP are different,
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but they're also looking
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at these predictive dangerousness
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assessments of individuals.
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There are a couple of other cases AM also cited out
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to 123 for as an analogy
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'cause that's what we do, right?
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We argue by analogy.
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But the Garcia case,
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and then if I can a little bit get
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to Justice Georges' question
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'cause a case that I found as I was preparing
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for argument was Carillo, which I hadn't read before,
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I had not registered that's the...
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The cite is 483 Mass. 269.
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I hadn't registered originally
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that it had any connection at all to Section 35,
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but in listening to the oral argument,
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thank you, Fran Kenneally,
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for getting all those on the website.
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(Justices chuckles)
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Actually, Justice Gaziano, you raised Carrillo in that case.
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That was where some, you know, you vacated the conviction
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for involuntary manslaughter
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because of the young man who gave his friend
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or distributed to his friend that heroin
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that led to his overdose, and an amici in that case,
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and Justice Gants pressed the parties,
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how does this fit within our Section 35 jurisprudence?
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If the possibility of overdose from heroin is enough
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to get a conviction for involuntary manslaughter,
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doesn't that mean that the possibility
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of overdose satisfies the harm criteria?
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And what the Court said in that case is
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what the Commonwealth argued
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was the vulnerability to overdose was heightened
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because the victim was in withdrawal,
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and it was heightened because the potency was so great.
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And the Court said those things
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are not susceptible to judicial notice.
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There was no expert testimony
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that the Commonwealth offered for those.
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And those are not things that reasonable people would know.
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So that I think is the closest that I can get
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to that when you get to that harm criteria,
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that's sort of the rubber meets the road.
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And the other thing that I draw the Court's attention to
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in terms of the procedural deficits in these cases,
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right, there's no notice, you get dragged in.
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You know, my loved one can say, "Cara has a problem."
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And I have no notice.
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I'm in front of a clinician getting evaluated.
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And really, I know the amicus argued
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that these are really adversarial proceedings,
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but who's the adversary?
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You know, the judge is the fact finder.
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The judge is applying the law to the facts.
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The judge is like the prosecutor,
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and certainly in the Essex case was.
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And if the judge can say,
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"Well, fentanyl's really toxic," right,
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"I mean, what are the effects of that,"
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then the judges effectively opine it.
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But I think actually, ironically,
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one problem you have on Carrillo is that we said
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that heroin as it is isn't enough,
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and then we wrote, except if there's fentanyl.
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Well, no, but...
(Justices laugh)
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Well, exactly, but first of all, that's combining
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if heroin is laced with fentanyl,
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so that would've been one of those x factors
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that might've gotten 'em.
Right, that was
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a plus factor, right.
But the other thing
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I didn't include in my brief,
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I was running up against my word limit time,
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but so we say, if you were to tell me,
265
00:12:16.800 --> 00:12:19.890
well, SDP's its own thing, you know, one day to life,
266
00:12:19.890 --> 00:12:21.900
we're not gonna analogize for that.
267
00:12:21.900 --> 00:12:25.080
Then why is it that if I'm sued for malpractice,
268
00:12:25.080 --> 00:12:27.150
the plaintiff doesn't even get to the jury
269
00:12:27.150 --> 00:12:30.390
if there's not an expert about the standard of care, right?
270
00:12:30.390 --> 00:12:32.490
I mean, so my reputational harm,
271
00:12:32.490 --> 00:12:37.470
my investment in my education is sufficiently protective
272
00:12:37.470 --> 00:12:39.240
that there's gotta be an expert
273
00:12:39.240 --> 00:12:41.790
that's gonna stand between me and a jury,
274
00:12:41.790 --> 00:12:44.190
but in these cases, a family member,
275
00:12:44.190 --> 00:12:46.248
and it's almost all a family member.
276
00:12:46.248 --> 00:12:50.250
Yeah, not if we impose what you say on the first prong,
277
00:12:50.250 --> 00:12:52.680
which is you need clinical support
278
00:12:52.680 --> 00:12:55.530
for a diagnosis that you meet the alcohol
279
00:12:55.530 --> 00:12:58.170
or the substance abuse syndrome or whatever.
280
00:12:58.170 --> 00:13:00.150
I'm not using the proper terminology.
281
00:13:00.150 --> 00:13:02.130
So say we give you that,
282
00:13:02.130 --> 00:13:04.130
and we think you're right on that point.
283
00:13:05.124 --> 00:13:08.170
(chuckles) And we have a kid on fentanyl
284
00:13:09.240 --> 00:13:10.590
running away from home.
285
00:13:10.590 --> 00:13:11.520
You know, we have all kinds,
286
00:13:11.520 --> 00:13:14.583
you know, this is what we can do, right?
287
00:13:16.200 --> 00:13:18.450
We can make those kinds of calls.
288
00:13:18.450 --> 00:13:21.480
We can't decide whether you have a substance use disorder.
289
00:13:21.480 --> 00:13:22.830
That's a clinical decision.
290
00:13:22.830 --> 00:13:25.383
But we can decide, oh my God,
291
00:13:27.060 --> 00:13:29.274
there's a real danger that kid's gonna get hurt.
292
00:13:29.274 --> 00:13:32.880
And honestly, the clinician is silly
293
00:13:32.880 --> 00:13:36.018
to think that that's not dangerous. (chuckles)
294
00:13:36.018 --> 00:13:38.490
Because we know too often about those kids
295
00:13:38.490 --> 00:13:40.290
who disappear from their home
296
00:13:40.290 --> 00:13:44.520
and get hurt when they're on drugs.
297
00:13:44.520 --> 00:13:47.010
So I mean, we know a lot about that.
298
00:13:47.010 --> 00:13:49.171
But Justice Kafker, remember,
299
00:13:49.171 --> 00:13:52.207
these are supposed to only happen in emergency, right?
300
00:13:52.207 --> 00:13:55.590
So a couple things,
301
00:13:55.590 --> 00:13:57.905
yes, we as reasonable people,
302
00:13:57.905 --> 00:13:59.794
you as juris might look at a situation
303
00:13:59.794 --> 00:14:02.970
and say, "Well, geez, that sounds dangerous to me,"
304
00:14:02.970 --> 00:14:04.339
but the statute is supposed
305
00:14:04.339 --> 00:14:07.890
to be this carefully circumscribed tool,
306
00:14:07.890 --> 00:14:11.460
and the danger has to be due to the disorder,
307
00:14:11.460 --> 00:14:13.890
not to just adolescent rashness.
308
00:14:13.890 --> 00:14:16.330
In the young woman's case,
309
00:14:16.330 --> 00:14:19.200
already, she'd had two mental health lockups
310
00:14:19.200 --> 00:14:22.350
for two years prior, and she fled
311
00:14:22.350 --> 00:14:23.677
when she was basically said,
312
00:14:23.677 --> 00:14:26.347
"You're going to this place voluntarily,
313
00:14:26.347 --> 00:14:27.997
"or we're basically gonna put you
314
00:14:27.997 --> 00:14:31.050
"in handcuffs and take you there," and she ran.
315
00:14:31.050 --> 00:14:33.240
And for the five days that she was gone,
316
00:14:33.240 --> 00:14:34.410
she was texting her mom,
317
00:14:34.410 --> 00:14:36.540
letting her mom know that she was safe.
318
00:14:36.540 --> 00:14:40.470
Mom didn't say that those texts sounded like she was loopy.
319
00:14:40.470 --> 00:14:41.610
There was no indication
320
00:14:41.610 --> 00:14:44.883
that she was high when she came back on her own.
321
00:14:45.900 --> 00:14:48.600
You know, she asked her mom if she could come home.
322
00:14:48.600 --> 00:14:50.200
I understand that these are dangerous,
323
00:14:50.200 --> 00:14:53.970
but there's be a closer connect,
324
00:14:53.970 --> 00:14:55.807
and, you know, the-
325
00:14:55.807 --> 00:15:00.330
Well, the alternative is we're endangering kids
326
00:15:00.330 --> 00:15:01.350
going too far the other way.
327
00:15:01.350 --> 00:15:05.490
I get the first person, okay, he's classic.
328
00:15:05.490 --> 00:15:08.580
He's smoking too much marijuana.
329
00:15:08.580 --> 00:15:11.040
In the old days, he would be growing his hair long.
330
00:15:11.040 --> 00:15:12.450
Now he's cutting his hair off.
331
00:15:12.450 --> 00:15:15.335
You know, it sounds like this is not the kind of thing
332
00:15:15.335 --> 00:15:18.330
we wanna institutionalize somebody,
333
00:15:18.330 --> 00:15:21.797
but he's quite different from the second child, you know?
334
00:15:21.797 --> 00:15:25.080
Right, well, so on sort of the parade of horribles,
335
00:15:25.080 --> 00:15:26.220
and just I'm gonna watch my...
336
00:15:26.220 --> 00:15:28.400
I do actually wanna talk about the chronic,
337
00:15:28.400 --> 00:15:32.430
the vagueness issue, even given what you said,
338
00:15:32.430 --> 00:15:36.780
but the Court's core judicial function
339
00:15:36.780 --> 00:15:41.780
is to construe statutes consistent with the Constitution.
340
00:15:42.060 --> 00:15:45.690
So the what would happen if we were to do it?
341
00:15:45.690 --> 00:15:47.190
You know, that's a little bit,
342
00:15:47.190 --> 00:15:49.350
again, order of operations out.
343
00:15:49.350 --> 00:15:51.630
First, test the statute,
344
00:15:51.630 --> 00:15:55.200
and if it's not carefully circumscribed
345
00:15:55.200 --> 00:15:59.310
as I contend it isn't, then what do you do?
346
00:15:59.310 --> 00:16:00.840
I thought we did that matter of Minor.
347
00:16:00.840 --> 00:16:02.970
We told 'em the order of operations
348
00:16:02.970 --> 00:16:05.583
in matter of Minor, right?
349
00:16:06.540 --> 00:16:08.850
I'm sorry.
We told juvenile judges
350
00:16:08.850 --> 00:16:10.530
what to do in matter of Minor
351
00:16:10.530 --> 00:16:12.780
as far as the order of operations.
352
00:16:12.780 --> 00:16:14.400
Oh, no, but I'm talking in terms
353
00:16:14.400 --> 00:16:15.840
of this Court's consideration.
354
00:16:15.840 --> 00:16:20.310
It's sort of that I don't think that you don't not get
355
00:16:20.310 --> 00:16:25.310
to the most extraordinary relief that I'm asking
356
00:16:26.040 --> 00:16:27.840
because of what might happen next.
357
00:16:27.840 --> 00:16:30.120
And if I can channel Justice Lowy
358
00:16:30.120 --> 00:16:31.890
for a second, in Chapman...
(Justices laugh)
359
00:16:31.890 --> 00:16:35.370
I consumed so many oral arguments in the last few weeks,
360
00:16:35.370 --> 00:16:38.820
but during Chapman, the Commonwealth wanted you
361
00:16:38.820 --> 00:16:40.470
to overrule Johnstone.
362
00:16:40.470 --> 00:16:41.880
And the Commonwealth's argument
363
00:16:41.880 --> 00:16:45.120
was you couldn't have anticipated the consequences
364
00:16:45.120 --> 00:16:46.020
of that decision.
365
00:16:46.020 --> 00:16:49.620
And Justice Lowy said, "That's a legislative decision."
366
00:16:49.620 --> 00:16:53.040
We look at the Constitution, we construe statutes that way,
367
00:16:53.040 --> 00:16:55.410
and then the legislature can fix it.
368
00:16:55.410 --> 00:16:57.330
You know, in Bruno, the Court noted
369
00:16:57.330 --> 00:17:01.080
that for 10 years, there'd been no classifications for SDP,
370
00:17:01.080 --> 00:17:03.210
no commitment hearings for SDP
371
00:17:03.210 --> 00:17:06.871
because the statute, I guess, it had been reversed.
372
00:17:06.871 --> 00:17:09.000
I don't know the history of that statute,
373
00:17:09.000 --> 00:17:12.090
but for 10 years that didn't happen, and we survived.
374
00:17:12.090 --> 00:17:17.070
And SDP is much graver concern and danger to the public.
375
00:17:17.070 --> 00:17:22.070
We're looking at sort of the most extreme state power
376
00:17:22.140 --> 00:17:24.660
when we're talking about protecting people
377
00:17:24.660 --> 00:17:27.066
from, you know, their worst moments.
378
00:17:27.066 --> 00:17:28.950
Counsel, I don't disagree with you
379
00:17:28.950 --> 00:17:29.954
in the stuff that you...
380
00:17:29.954 --> 00:17:33.330
The lead up to it is very difficult, and I hear you.
381
00:17:33.330 --> 00:17:35.790
You know, somebody comes in for a warrant of apprehension.
382
00:17:35.790 --> 00:17:36.623
They have no idea.
383
00:17:36.623 --> 00:17:38.760
They haven't done anything wrong
384
00:17:38.760 --> 00:17:41.760
other than potentially being sick.
385
00:17:41.760 --> 00:17:45.157
But I give you, and I'm with Justice Kafker on this one,
386
00:17:45.157 --> 00:17:47.310
because as a practical matter,
387
00:17:47.310 --> 00:17:51.960
we do tether the first finding to what the clinician says.
388
00:17:51.960 --> 00:17:54.930
It might not say that explicitly in the statute,
389
00:17:54.930 --> 00:17:57.720
but I don't think you hear any judge say,
390
00:17:57.720 --> 00:17:59.347
"I credit what the clinician said
391
00:17:59.347 --> 00:18:02.040
"and find the first prong."
392
00:18:02.040 --> 00:18:03.510
The dangerous prong is the stuff
393
00:18:03.510 --> 00:18:05.360
that I'm really having at issue with.
394
00:18:06.210 --> 00:18:09.180
Judges do this all the time, and they do this,
395
00:18:09.180 --> 00:18:10.800
and we mentioned some other context,
396
00:18:10.800 --> 00:18:14.370
but we do it in bail, we do it in 58A.
397
00:18:14.370 --> 00:18:18.180
Judges all the time have to make determinations
398
00:18:18.180 --> 00:18:23.160
about the prospects of harm.
399
00:18:23.160 --> 00:18:27.067
So why do we need a clinician to say,
400
00:18:27.067 --> 00:18:32.067
"In my clinical judgment, I think that x?"
401
00:18:32.280 --> 00:18:34.740
Why does the judge need that?
402
00:18:34.740 --> 00:18:36.720
In part so that the...
403
00:18:36.720 --> 00:18:40.839
Partly because I think that some of what happens
404
00:18:40.839 --> 00:18:42.750
in what happened in my case
405
00:18:42.750 --> 00:18:44.460
and particularly the Essex one
406
00:18:44.460 --> 00:18:46.680
is you've got a parent who's very sympathetic
407
00:18:46.680 --> 00:18:49.830
who's legitimately concerned about her daughter,
408
00:18:49.830 --> 00:18:51.648
and you've got a clinician
409
00:18:51.648 --> 00:18:55.230
who, you know, is sort of a neutral arbiter, says there's...
410
00:18:55.230 --> 00:18:57.510
You know, where's the imminence of harm?
411
00:18:57.510 --> 00:18:59.764
We may have a possibility of harm,
412
00:18:59.764 --> 00:19:02.040
but she's taken three doses of...
413
00:19:02.040 --> 00:19:03.360
If I can just-
But hold on.
414
00:19:03.360 --> 00:19:05.070
But they're not a neutral arbiter though.
415
00:19:05.070 --> 00:19:08.130
I mean, you mentioned what the judge is.
416
00:19:08.130 --> 00:19:10.380
The judge is both the finder of fact.
417
00:19:10.380 --> 00:19:12.240
So that's a witness,
418
00:19:12.240 --> 00:19:16.677
and the judge is free to not credit that witness
419
00:19:16.677 --> 00:19:18.727
when the witness says,
420
00:19:18.727 --> 00:19:21.570
"I think this person can be out in the community."
421
00:19:21.570 --> 00:19:24.690
But, again, I think it's about sort of do you get to...
422
00:19:24.690 --> 00:19:27.480
Do you get over like a required finding
423
00:19:27.480 --> 00:19:30.630
if there's not competent evidence?
424
00:19:30.630 --> 00:19:33.570
And given this, I mean, there's a little bit of,
425
00:19:33.570 --> 00:19:38.570
why not require that there be some professional assessment?
426
00:19:38.910 --> 00:19:43.388
Yes, the judge can decline if clinician says-
427
00:19:43.388 --> 00:19:47.370
What's the role of the judge then in this?
428
00:19:47.370 --> 00:19:49.337
To evaluate all of the evidence and-
429
00:19:49.337 --> 00:19:51.162
Right, right.
Absolutely to evaluate,
430
00:19:51.162 --> 00:19:53.900
but you're missing competent evidence.
431
00:19:53.900 --> 00:19:56.130
So it's basically heads I win, tails you lose.
432
00:19:56.130 --> 00:19:59.980
So if the clinician says
433
00:20:01.590 --> 00:20:05.790
this person should not be committed under your view
434
00:20:05.790 --> 00:20:10.790
of the constitutional provision or limitations,
435
00:20:11.670 --> 00:20:15.180
the person can't be committed just like a QE, right?
436
00:20:15.180 --> 00:20:17.039
Yes.
But if the clinician says
437
00:20:17.039 --> 00:20:19.830
this person can be committed,
438
00:20:19.830 --> 00:20:21.907
the judge and only then can say,
439
00:20:21.907 --> 00:20:25.470
"I don't credit you, and I'm not going to commit."
440
00:20:25.470 --> 00:20:28.110
And the findings of the judge should explain why
441
00:20:28.110 --> 00:20:30.687
she doesn't credit the expert's testimony.
442
00:20:30.687 --> 00:20:34.110
But isn't that you're sort of running right in the face
443
00:20:34.110 --> 00:20:36.780
of the legislature going the opposite way?
444
00:20:36.780 --> 00:20:39.420
Now, I understand, and I want you to address Kenniston
445
00:20:39.420 --> 00:20:40.620
before you sit down too,
446
00:20:40.620 --> 00:20:43.800
but the legislature is saying
447
00:20:43.800 --> 00:20:47.163
the way it redrafted the statute, it's moving away from.
448
00:20:48.090 --> 00:20:51.510
It's going the exact opposite way that you're arguing.
449
00:20:51.510 --> 00:20:53.224
Now we may need to make a correction
450
00:20:53.224 --> 00:20:55.530
at least on the first part,
451
00:20:55.530 --> 00:20:59.370
but it's certainly not what they intended, that's for sure.
452
00:20:59.370 --> 00:21:00.280
May not be what they intended.
453
00:21:00.280 --> 00:21:02.671
But actually, I point the Court,
454
00:21:02.671 --> 00:21:07.671
the Court cited to the 2019 Section 35 commission report
455
00:21:08.490 --> 00:21:10.771
in I think it was in GP.
456
00:21:10.771 --> 00:21:12.221
No, it might have been Minor.
457
00:21:13.170 --> 00:21:15.840
And on page eight of that report,
458
00:21:15.840 --> 00:21:17.100
there was a recommendation
459
00:21:17.100 --> 00:21:19.110
that the Commonwealth should commence a process
460
00:21:19.110 --> 00:21:22.890
with the goal to reduce or eliminate the use of 35
461
00:21:22.890 --> 00:21:26.029
as there is insufficient evidence of its efficacy
462
00:21:26.029 --> 00:21:29.940
to justify the deprivation of individuals' civil liberties.
463
00:21:29.940 --> 00:21:31.890
Six people on that commission said,
464
00:21:31.890 --> 00:21:32.723
yeah, that's what we should do,
465
00:21:32.723 --> 00:21:34.290
and three people said no.
Okay, before you sit down,
466
00:21:34.290 --> 00:21:38.337
Kenniston, Kenniston, can't we just say,
467
00:21:41.040 --> 00:21:43.923
okay, the legislature softened the first prong,
468
00:21:45.900 --> 00:21:47.370
whether they may have done that,
469
00:21:47.370 --> 00:21:51.150
but they can't constitutionally, so we fixed that problem.
470
00:21:51.150 --> 00:21:54.330
Your brief suggests we can't fix that problem.
471
00:21:54.330 --> 00:21:57.736
We have to declare the whole statute unconstitutional.
472
00:21:57.736 --> 00:21:58.819
I don't, why?
473
00:22:00.250 --> 00:22:04.020
Well, I mean, the Court's jurisprudence
474
00:22:04.020 --> 00:22:08.400
on Section 123 has certainly embraced
475
00:22:08.400 --> 00:22:11.220
a lot of kind of importing standards
476
00:22:11.220 --> 00:22:13.770
and requiring doing sometimes declining
477
00:22:13.770 --> 00:22:15.990
to import language and standards,
478
00:22:15.990 --> 00:22:18.450
but as you just said,
479
00:22:18.450 --> 00:22:22.650
how do you reintroduce a standard
480
00:22:22.650 --> 00:22:24.091
that the legislature stripped out?
481
00:22:24.091 --> 00:22:26.670
Because they softened it thinking
482
00:22:26.670 --> 00:22:30.360
that they could constitutionally, but they can't.
483
00:22:30.360 --> 00:22:34.472
And we're gonna say, no, it needs to be supported.
484
00:22:34.472 --> 00:22:38.610
We've been doing our whole case law in this area
485
00:22:38.610 --> 00:22:41.894
has been toughening up these statutes, haven't they?
486
00:22:41.894 --> 00:22:44.400
Look, are you gonna hear me complain
487
00:22:44.400 --> 00:22:47.130
if you judicially amend the statute?
488
00:22:47.130 --> 00:22:50.340
No, but actually I-
489
00:22:50.340 --> 00:22:51.880
Justice Lowy will be very unhappy with you.
490
00:22:51.880 --> 00:22:54.258
Right.
(all laugh)
491
00:22:54.258 --> 00:22:56.820
And I know that my time's up.
492
00:22:56.820 --> 00:22:58.830
There was one brief point I wanted to make
493
00:22:58.830 --> 00:23:00.780
on the chronic and vague
494
00:23:00.780 --> 00:23:03.240
just 'cause the Donahue issue
495
00:23:03.240 --> 00:23:08.240
that if the subsidiary clause of the harm
496
00:23:08.640 --> 00:23:10.410
in the substance use disorder,
497
00:23:10.410 --> 00:23:14.280
if that's modifying chronic use or habitual use,
498
00:23:14.280 --> 00:23:16.680
then you just get rid of chronic habitual
499
00:23:16.680 --> 00:23:19.680
and it means the same thing, and words have to have meaning.
500
00:23:19.680 --> 00:23:21.990
But there was a point that I didn't make in the brief
501
00:23:21.990 --> 00:23:24.030
about Donahue that I really wanna make.
502
00:23:24.030 --> 00:23:26.490
That case in which the appeals Court said
503
00:23:26.490 --> 00:23:29.820
that chronic habitual was unconstitutionally vague,
504
00:23:29.820 --> 00:23:31.590
that was-
We fixed that, right?
505
00:23:31.590 --> 00:23:33.083
Yeah, but the point-
506
00:23:33.083 --> 00:23:36.450
This is Justice Milkey's concurrence.
507
00:23:36.450 --> 00:23:37.425
We fixed that, right?
508
00:23:37.425 --> 00:23:40.350
Oh, right.
We said that chronic
509
00:23:40.350 --> 00:23:42.120
has a different meaning.
510
00:23:42.120 --> 00:23:45.900
Didn't we correct this?
For purposes of Section 35?
511
00:23:45.900 --> 00:23:48.270
I thought we've addressed the problem
512
00:23:48.270 --> 00:23:51.060
that Justice Milkey has identified.
513
00:23:51.060 --> 00:23:52.786
I wrote a decision. (laughs)
514
00:23:52.786 --> 00:23:57.786
But just on Donahue, that in that case,
515
00:23:58.260 --> 00:24:02.400
the question was a physician, take physician Smith,
516
00:24:02.400 --> 00:24:05.310
physician A has a patient
517
00:24:05.310 --> 00:24:07.860
who's taken three tabs of fentanyl in a month
518
00:24:07.860 --> 00:24:10.267
and says, "I don't think that's chronic use,
519
00:24:10.267 --> 00:24:12.870
"so I'm not gonna report to the DPH."
520
00:24:12.870 --> 00:24:15.967
Physician B says, "Yeah, three tabs of fentanyl in a month,
521
00:24:15.967 --> 00:24:17.017
"I think that's chronic.
522
00:24:17.017 --> 00:24:18.510
"I'm gonna make that report."
523
00:24:18.510 --> 00:24:21.600
Physician A was criminally prosecuted,
524
00:24:21.600 --> 00:24:22.920
and physician B wasn't.
525
00:24:22.920 --> 00:24:24.570
And the Court said...
526
00:24:24.570 --> 00:24:27.150
And of course, now I don't have it in front of me,
527
00:24:27.150 --> 00:24:29.940
but, you know, vagueness is about
528
00:24:29.940 --> 00:24:32.970
sort of arbitrary assessment of things.
529
00:24:32.970 --> 00:24:34.920
And now you take those physicians
530
00:24:34.920 --> 00:24:37.560
and drop 'em into a Section 35,
531
00:24:37.560 --> 00:24:39.187
and physician A says,
532
00:24:39.187 --> 00:24:41.640
"Yes, this young woman has a chronic disorder,"
533
00:24:41.640 --> 00:24:44.010
and physician B says she doesn't.
534
00:24:44.010 --> 00:24:47.340
There is no standard for chronic or habitual.
535
00:24:47.340 --> 00:24:49.290
It's not defined anywhere further
536
00:24:49.290 --> 00:24:51.240
in the statute, and without...
537
00:24:51.240 --> 00:24:52.835
And I don't know that the Court
538
00:24:52.835 --> 00:24:53.970
can define that.
It's not defined
539
00:24:53.970 --> 00:24:54.843
in the medical.
540
00:24:56.100 --> 00:24:59.795
So the physicians who are testifying on chronic,
541
00:24:59.795 --> 00:25:02.940
there's not a standard in the medical literature on that?
542
00:25:02.940 --> 00:25:05.550
Well, you know, as far as the AG's concerned
543
00:25:05.550 --> 00:25:09.120
to demand that this be a diagnosis
544
00:25:09.120 --> 00:25:12.540
is sort of, you know, reading a whole panoply
545
00:25:12.540 --> 00:25:15.900
of protections and time into this.
546
00:25:15.900 --> 00:25:18.900
And the fact is that the statute used to require
547
00:25:18.900 --> 00:25:19.950
I think it was a psychologist
548
00:25:19.950 --> 00:25:22.830
or a psychiatrist to do the evaluations.
549
00:25:22.830 --> 00:25:25.380
Now basically it's a social worker.
550
00:25:25.380 --> 00:25:29.250
Are they even able to make a medical diagnosis
551
00:25:29.250 --> 00:25:30.090
using the DSM?
552
00:25:30.090 --> 00:25:31.825
I'm not entirely sure,
553
00:25:31.825 --> 00:25:35.193
but I think you start to run into those kinds of problems.
554
00:25:38.100 --> 00:25:39.240
My time is way over.
555
00:25:39.240 --> 00:25:41.540
Thank you so much, and I'll stand on my brief.