-: SJC-13515 in the matter of an impounded case.
-: Okay, Attorney Hollenberg. -: Oh God.
-: Good morning. -: Good morning.
May it please the court,
Ilana Hollenberg on behalf of appellant respondent, FA.
Your Honors, Section 16(e) tells courts
that they may order a civilly-committed respondent,
committed under section 16,
restricted to the hospital and grounds,
but it doesn't give them any information about
when such an order is appropriate
or what kind of process should be instituted
for the court to determine.
-: So what do you think that, what should the rules be?
What should we tell judges?
-: I would like the court to tell judges
that there must be an evidentiary hearing
to determine whether there is a substantial
and imminent non-speculative risk
to public safety attendant upon-
-: I'm a little- -: Refusing to order it.
-: So did you finish answering Chief Justice's-
-: Yes. -: Question?
-: What I'm concerned about is the timing of this,
and I agree that there's no standard,
it was problematic, but you pose it as an imminent risk.
But, they've already been sectioned, right?
So they've been found to be a likelihood,
there's a likelihood of substantial harm, correct?
-: No, Your Honor, there's-
-: Just walk me through the legal standards,
what's the legal standard to get them there
to be committed as a danger, which is much more intrusive,
of course, than a building the grounds restriction.
-: It is more intrusive.
I would not go so far as to say it is
much more intrusive. -: Oh, I don't know about that.
But- -: But I will not
deal with that right now. -: Yeah.
-: I'll answer your question.
So, in order to commit somebody-
-: Right.
-: There must be proof beyond a reasonable doubt
that failure to commit them would cause
a substantial and imminent risk of harm
either to themselves or to others.
-: Is it imminent or- -: Imminent is,
this court has put in the term imminent.
It's not in the statute, but now it is in the law.
The harm must be imminent.
That's GP cited in my brief a number of times, matter of GP.
So it has to be a non-speculative danger.
It has to be imminent.
It has to be, for prong two,
within days or weeks, not months or years.
That's the standard for commitment.
Now, not everyone who is committed is-
-: Right, what I'm wondering is-
-: Yes. -: So,
now we have to have a second hearing and finding
of dangerousness, essentially,
for building and ground restrictions.
The judge has already made that finding.
-: So, there's a difference between somebody who is dangerous
to let go, go home to their apartment or to a group home,
and somebody who's so dangerous
that they cannot leave the hospital
without creating a risk to others.
And this case is one that really
shows how that can be,
that you could have somebody who would,
who might become confused,
go off their medication, if they were not committed, right?
Somebody who needs medical attention,
somebody who needs support
in continuing to take their medication,
but who can be trusted to leave the hospital grounds,
especially in a case like the one here
in which the hospital is going to make sure
the person is supervised for many years.
-: So, under your scheme,
there's a finding that their hospitalized,
involuntarily hospitalized, right.
-: Mm-hm. -: And then
the Commonwealth, as is the case,
would move for building and ground restrictions,
and then there'd be a second hearing
where there'd have to be this finding
and proof beyond a reasonable doubt for the restriction.
-: No, Your Honor, if there's going to be
a commitment hearing,
there could be a separate section of the hearing
that addresses what are the risks
attendant upon leaving the hospital ground.
-: I'm being (indistinct).
So the judge can make the same finding,
as far as dangerousness of the patient
and then consider it in context
of a building and grounds restriction.
-: So, the finding of dangerousness is not that,
if somebody can be too dangerous to go home,
but not too dangerous to leave the grounds.
And that's the kind of,
and so if you have somebody who's been proved
beyond a reasonable doubt to need hospitalization
because they'd be a danger- -: No, I understood your brief.
-: Oh, okay. -: I'm just wondering
how this works in real life as far as-
-: In real life you could have-
-: Under your scheme. -: Yes.
In my scheme, it would be done the way we did it in my case,
in an earlier year,
which is that there'd be a separate section
of the commitment hearing that would
address the issue of building and grounds.
-: Okay. -: In which there'd
be testimony about what the risks might be,
what the hospital plan
to do to mitigate. -: But counsel,
why do we need that?
Why don't we already have that in the statute?
Why doesn't others mean others mean others?
I mean the statute doesn't say
others outside of the facility.
Right? It just says others.
Prong two. -: Yes, I gather that.
But, Your Honor, the reason we need it
is because there is a remaining liberty interest
under the due process clause,
according to this court and the U.S. Supreme Court-
-: But the respondent, pardon me,
the petitioner has already demonstrated this
under the highest burden that we have,
beyond a reasonable doubt.
So if beyond a reasonable doubt,
the petitioning facility, or the petitioner,
has met prong two, which,
if I remember correctly,
in this case they satisfied all three prongs.
-: In this case- -: Wasn't it all three?
-: I believe, Your Honor, this was a 6(b).
There was no hearing on whether or not
there was proof that my client needed commitment
because he waived his hearing. -: Mm-hm.
-: And so the 6(b) waiver,
all that established was that the petition
was sufficient on its face. -: Okay.
-: Was like a complaint.
Right?
And that my client was not contending against it.
-: Okay. -: So there was
no evidence of any of the prongs in my particular case.
-: Can I- -: I'm sorry.
-: Go ahead, go ahead. -: Yeah.
One last question I hope.
Was Judge McGuiggan right,
that this is an all-or-nothing proposition?
'Cause once the judge decides there's no restriction,
there's no restriction,
and the person could be unsupervised outside the wire.
-: Judge McGuiggan was partially correct.
She was correct that for that year-
-: Yeah. -: Right?
Because of course there are repeated annual opportunities
to put a restriction on. -: Mm-hm.
-: But for that year it would be up to the hospital,
which is also part the government, the executive branch,
to determine under what conditions my client,
the appellant respondent,
would leave- -: But wouldn't a concern,
I guess the judge could take this into account
that they have someone who is sexually dangerous,
delusional, and has rape compulsions,
perhaps, therapeutically,
they could have some supervised integration,
but no way should they be unsupervised,
and by saying no buildings and grounds,
I'm giving license to whatever the hospital wants to do.
-: Yes, and under Carrera,
the Carrera decision cited
by both my sister and myself, in our brief,
we have the discussion of a similar situation
cited by Judge McGuiggan,
in which the court was told
that it could not encroach on the executive branch's-
-: Right. -: Ability to do its job
the way it saw fit.
And so in this case, without evidence
of imminent risk, and without evidence that the hospital
would be remiss in doing its job,
which is- -: I'm not so sure
she was wrong, but that's beside the point, 'cause you've...
There's no restriction right now
because of the second commitment, right?
As we stand here, there's no restriction.
-: You're asking if my client is currently restricted.
-: Right. -: It's outside the record,
but with your permission, I'll let you know, he is,
because there's been a subsequent-
-: Okay. -: Order.
-: Okay, 'cause, all right.
But, I mean the judge can take into account
all of these things, as far as the lack of,
basically you're ceding your discretion to the hospital
and they can have supervised or unsupervised
building lack of restrictions, right?
-: Yes, I think that in this case,
given the lack of any evidence of any recent,
even within 15 years, dangerous behavior,
the un-contradicted evidence of consistent medication taking
and the- -: I'm not so sure
you're right on
whether her decision was clearly erroneous.
But I take your point about
this being a liberty deprivation,
it's a substantive due process issue,
and there should be a standard to apply.
-: Thank you, Your Honor.
Are there any other questions?
-: Well, my question was the same as Justice Gaziano,
but I'm not quite sure I understand the answer.
So if it is an all or nothin' for that year
and the judge says, "Okay, I'm just,
"I'm not comfortable with the possibility
"of completely unsupervised leaving of the grounds,"
isn't an abuse of discretion then?
Why is that wrong then?
-: Your Honor's question points out
the very problem that is the main point of my brief,
which is that the lack of standards in this provision
means that you're wondering about abuse of discretion
or whether a decision is clearly erroneous.
But actually what we should address first
is whether the interpretation of the law is correct
or whether the law itself, on its face,
doesn't work because of the lack of standards.
-: You're agreeing with the Commonwealth and the judge
that it is an all-or-nothing proposition, right?
Ilana: As written.
-: So, if as a matter of law,
the judge says the possibility,
"This guy's so dangerous
"that the possibility of him go being out on his own,
"I can't allow,"
it just seems that that seems reasonable if...
Doesn't it?
I get your point if it weren't all-or-nothing,
that if they...
I get your point that there's value of having him
leave the building one-on-one,
and even in a group with multiple things.
But if the judge is worried
about this possibility doesn't...
And you agree it's possible, too.
-: No, I don't agree that it's possible.
-: Why isn't it?
How can it be all-or-nothing and not be a possibility?
-: Because we have un-contradicted testimony as well as
the representation of DMH counsel
that it would be many years before
the hospital would ever even consider allowing my client
to leave the hospital grounds without supervision.
And furthermore, as I'm sure you read in the briefs,
there are many layers of internal DMH safety protocols,
both clinical evaluations by non-treating doctors,
the most senior non-treating doctors,
as well as independent forensic risk evaluations
by professional risk assessors.
And those all have to take place even before...
There has to be another enhanced clinical review
in the absence of a building and grounds restriction.
-: But that's in the hands of the executive branch, and-
-: That's correct, but unless the executive branch
has been determined to be remiss and unreliable,
then it seems extremely unlikely
that my client would be allowed outside the hospital
without supervision for many years.
I can't imagine a circumstance in which it would occur.
And this is a client who the record shows
has been cooperative, takes his medication,
you know, is engaged with treatment, and also has a limp,
has difficulty walking,
and has to be sometimes persuaded to walk with staff.
-: But he was disengaged in sex offender treatment.
-: He was described in the transcript
as superficial in some of his answers.
And the disengaged remark from the doctor
had to do with whether he believed
he needed both his antipsychotics.
He hoped he could only
take one. -: He's actively
delusional, though.
-: That is the one remaining symptom.
And so if you look at this-
-: And there's a command control to rape
that's part of his delusion.
-: The delusion, as it was put in the record,
is that not a command control to rape,
but that the director could potentially control him.
Although by the time
of the hearing- -: Rape.
-: In 2020, the testimony- -: To rape.
-: Showed that he did not think he could be made
to commit a violent offense or rape.
So that was the testimony.
I know the petition says something different,
but that was not in the record.
So, we've got here a lack of standards
that lead the judge to think about the index event in 1995,
rather than about the un-contradicted testimony-
-: I agree, if there is a standard it has to do
with present danger. -: Yes.
And so we've got rule-abiding, cooperative,
non-threatening, nonviolent behavior
from a person who's around 60 at this point
and walks with difficulty
after having had surgery and problems with his spine.
And the doctors have offered to have him
have one-on-one supervision for six months to a year,
at least, and not cease that
unless it looks like he could be okay with a group.
-: Last question, I think.
Could the judge condition a ruling on supervision?
-: I'm sorry, could you- -: Could a judge make
a conditional finding?
Could a judge say, "I'm going to
"deny building and ground restrictions,"
or "Deny the request for building and ground restrictions
"with the condition that it be supervised?"
-: I- -: Would that be
an Article 30 violation?
-: If the judge had made that ruling,
we wouldn't be here today.
I wouldn't have appealed it.
But I don't know whether the statute allows it.
Justice Gaziano: Okay.
-: [Chief Justice Budd] Okay.
-: Do you have any other questions for me?
-: Thank you very much. -: Thank you.
-: Attorney Riley.
-: Thank you and good morning.
My name is Patricia Riley.
I'm an assistant district attorney for Plymouth County.
A building and grounds restriction can only be imposed
after a person has been civilly committed.
-: Do you find this to be a liberty violation?
Patricia: I beg your pardon?
-: Is this a restriction on liberty?
-: If it can be considered a restriction on liberty,
and I say if because it's totally
to the discretion of the hospital, whether or not
to let a person- -: Okay, we can't
deal with ifs, so,
either there's a substantive due process issue
if it implicates a liberty interest or there's not.
-: It is not a substantial deprivation of liberty interest.
However, even this court in, I think it was in AZ,
said that it could be considered...
What was it?
There are lesser liberty interests at stake,
and I don't see how this
actually can be considered
a substantial deprivation of liberty,
or even a minor deprivation of liberty,
because it is up to the hospital.
The building and grounds restriction
is actually a restriction on the hospital.
It's not a restriction on the defendant.
It's telling the hospital, should you choose,
if you think it's possible to let this person off grounds,
we're saying no. -: But that seems
very semantical, I mean,
it is a restriction on this particular person.
-: Not really. -: They can't go
off the building.
-: But only- -: They can't have home visits.
They can't go out into the community.
And I get that maybe it's
limiting the treatment options for the hospital,
but it affects the individual.
I don't see how this is gonna-
-: Well- -: Carry the day
as to whether or not there's a liberty interest or not.
-: Even if there is no building and grounds restriction,
that person has no right to leave the facility.
They have no right to leave the building and grounds.
Even with the- -: But they have
the opportunity to, which this would would eliminate it.
-: Respectfully, not necessarily.
At the time of this hearing,
no one was allowed off-grounds privileges.
-: That's at the discretion of the executive, right?
You're just saying as a practical matter,
the executive gets to choose,
but the executive never gets that chance
if there's a building and ground restriction.
-: Well, but they do, they can remove it.
I mean, there's- -: Wait, maybe I'm...
So, the person's committed,
the DA's office is notified,
the DA's office comes to court with a motion
to restrict the person to buildings and grounds.
Do I have that right?
-: It actually doesn't even have to be a DA's motion.
The court may do it on its own.
-: Okay. -: And-
-: But, all right, but in this case, this is what happened.
That's what happened. -: In this case,
this is what happened. -: All right.
'Cause you folks think in your judgment,
as people who are charged to protect the public,
that this person shouldn't be in the community.
-: And it was after obtaining the medical records that showed
that he's still suffering- -: I'm not getting into
the merits, but that's how that works, right?
-: Yes. -: So that
the chief law enforcement officer in the county
is saying this person shouldn't leave
the perimeters of Taunton, or wherever.
-: This is Worcester Recovery Center
and Hospital- -: Worcester Recovery Center.
-: That is correct. -: Okay.
-: And there's a reason I think that
the court should look to the language of the statute,
and the reason the DA's office is given notice
of all these- -: I'm not saying
it's a bad thing,
because protecting the public is a good thing.
But what I'm saying is, or what counsel's raised,
is whether or not that restriction
implicates a liberty interest
such that substantive due process kicks in,
and we should, as we've done in other cases,
impose a legal standard,
so the judges aren't acting in an arbitrary fashion.
-: I think if there's a standard to be had,
it should be a rational basis standard.
This is the same type language-
-: Rational basis
is only applicable if it's not strict scrutiny,
because no liberty interest.
-: But this is the same type of interest in probation.
A person who's already been adjudicated and found guilty,
and it's the discretion of the court,
not the probation department,
it's the discretion of the court
whether or not to put conditions of probation on that person
or on pretrial detainees.
-: But all mental health cases
where there's a liberty interest involved,
we say there's a substantive due process issue.
And we need...
I get what you're saying,
that it could be clear and convincing evidence,
doesn't have to be beyond a reasonable doubt.
-: I would suggest to the court it should be reasonable.
It should just be a reasonable,
if the judge has a reasonable basis,
and in this case, she heard evidence
of the defendant's mental condition.
And don't forget these cases. -: And by the way,
reasonable basis, isn't this all-or-nothing?
I mean, the question Justice Gaziano asked earlier,
could the judge issue an order that says
no unsupervised visitation,
but if you send her client out
with one-on-one supervision, that's okay.
Can the judge do that?
'Cause I look at this as odd in one respect.
DMH thinks it would be valuable
and safe to have this person released
on a one-on-one trip outside the grounds.
The judge says I can't allow that,
because there's a possibility
that he would be released without supervision.
I'm not sure that...
Could the judge have prevented that possibility?
-: No, Your Honor, not if- -: Why not?
-: Following the decision
of the appellate division of the District Court-
-: As much as we love them, we're completely unbound by them.
-: I understand, but they did say that it was-
-: Why can't we issue,
why can't we say this is not,
there's flexibility here
to allow that kind of visit?
And the judge has the flexibility to do something
more than all-or-nothing
and remand it, and say, okay, now decide?
-: If- -: Was that English?
'Cause- -: If this court
doesn't feel like it's intervening in the prerogative of DMH
and how to treat their clients.
-: Well, the judge...
We should be very hesitant to interfere with DMH,
but we may say, okay, you have this much discretion,
but this guy's a danger on his own.
We're not gonna allow that.
And that's exactly what it looks like
the legislature was worried about that
there's certain points where the judiciary
needs to step in and protect public safety.
-: And I think that's why the- -: But it's not
when DMH says, "We're not gonna let this guy out
"without literally some,
"you know, big guy standing next to him
"as he walks around the grounds.
"But we think it would help his mental health
"if he could leave the building."
Why shouldn't we allow that?
-: I don't think that's a bad idea.
However, also factor in the fact that
the building and grounds restriction
is also used on people who have been found
incompetent to stand trial who have open cases,
who might have been found dangerous after a 58A hearing,
that there are no conditions-
-: Well, but that's again, we're trying to provide
substance to something that's pretty vague.
But this all-or-nothing thing makes our life a lot harder,
and I don't know the legal basis for it.
And if it doesn't exist, you're both in agreement,
and we don't need to do something hard
on substantive due process.
-: I'm not sure what the question was, Your Honor.
-: The question is why can't...
This statute provides the judiciary
with substantial flexibility.
Included in that flexibility is, okay,
we will prevent a release that is dangerous to the public,
but we have the ability to allow releases
that aren't dangerous to the public.
'Cause without that,
you may have a substantive due process violation.
-: I think the practicality of how
that could come about might be difficult.
-: Why? -: For example-
-: Well, every case, as you know,
is very, very different.
So how,
I would suggest that it would have to be
after the imposition of a building and grounds restriction.
If the hospital were to remove it,
they could propose to- -: No, no, we're-
-: The court
the different conditions. -: The first part of this thing
is incredibly detailed
and has a lot of process to it.
Before we institutionalize you
there are all these very strict requirements.
This little postscript,
it doesn't have a lot of detail to it,
but it's basically a safety file
for the judiciary to say,
okay, this person is too dangerous to let out,
but he's not too dangerous to let out in a supervised way.
He's a 60-year-old man who can barely move,
and it would benefit his mental health
to be outside the building.
So he has a liberty interest, a limited liberty interest,
that we can...
It just seems like we're making this harder than we need to.
-: And also factor in the defendants,
respondent defendants who are flight risks,
who might have a bail status,
who argue to be- -: But then they
don't get out at all.
The judges have this limited right
to protect public safety here
beyond the institutionalizing.
Okay, this guy is so dangerous,
but we're not ruling out this idea
of limited visitation rights.
I just don't see the basis in the statute
that prevented the judge from doing that.
-: If the court were to allow that,
and allow the DA's office input based on,
you know, records research,
and as we do with just the imposition
of a building and grounds restriction,
it might not be a bad idea.
I think the fact that FA could-
-: Our job is to,
it might not be precluded by the Constitution, right?
Our ability...
We have to make this statute constitutional,
and by pushing it as hard as you're doing,
you may be raising a constitutional question
that's unnecessary if supervised visitation
is within the authority of the judge.
Right?
-: If supervised community access
was within- -: Yes, if supervised,
if the judge can not do an all-or-nothing,
but allow a limited visitation,
the right the judge has
that's consistent with the Constitution
is to protect the public from danger, right?
Patricia: Yes.
But that's a right that,
I don't know if it's subject to strict scrutiny,
but if it is subject to strict scrutiny,
this could survive strict scrutiny
if we allow judges to do this more limited supervision,
supervised visitation,
which apparently you say is precluded
by the appellate division of the District Court's decision.
I just don't know.
I haven't read that decision, so I don't know.
Justice Gaziano: Can I ask you just
maybe a different question?
Patricia: Certainly.
-: Do you agree that procedural due process
requires at least a hearing and findings?
-: Well, the problem for that, Your Honor,
is when the respondent waives his right to a hearing,
but yes- -: But he waived his right
to the commitment hearing.
But this is a different hearing or a different finding.
But assuming we believe that this is a different proceed
and it requires a different finding,
do you agree that procedural due process requires those two,
at least those two elements?
-: Yes, but I would suggest
it would be more like Scionti. -: Which was the fault-
Which was the fault in the second proceeding.
The judge made no findings.
-: That's correct. -: And didn't have a hearing.
-: And there was no evidence presented.
However, I would suggest it shouldn't have to be as formal.
I mean, the Durlin case suggests due process
is a little bit more flexible.
This could be more like a competency hearing
under Commonwealth v Scionti,
which allows for the judge to take,
you know, observation of court officers into account and
gives the judge more discretion in a case like that.
Justice Gaziano: Okay.
-: Okay. -: Do you have any
further questions?
Justice Georges, it sounds like-
(Justices laughing)
-: I'm pained because I, again,
go back to the other standards
for when we curtail people's liberty this way.
When you have the seven and eights, right?
Where there are specific findings
that the court has to make
about the danger the person poses,
either to themselves or others,
that we don't have here without a hearing.
And so making these kinds of decisions in a vacuum
really worry me as to, you know,
okay, they waived their right to a hearing,
but if you're gonna curtail their liberty
without any evidence about what danger level
they might pose, what does that say for what we're doing?
-: I think, I mean the standard itself on commitment,
whether or not they file a waiver,
the standard is still there.
We're ready to prove our case
or the hospital would be ready to prove their case.
In this case, I think it was you who brought up,
it was under all three prongs
that this respondent was being committed.
So, I mean, the standard is still,
it still exists for commitment,
whether or not they have an evidentiary hearing or not.
If the petition,
which is included- -: Sure.
But without any kind of finding, again.
So, there's no evidence other than
just what's alleged in the petition.
-: The finding is on the order.
The order says, basically,
we have found that this person meets commitment criteria.
And the standard for commitment criteria is very clear,
incompetent to stand trial, or NGRI, danger to,
danger, and requires, mandates hospitalization.
So whether or not they waive their right,
there's still a judicial order that found that through
what was submitted to the court,
a petition, which the respondent chose not to challenge.
-: So that subsumes whether or not
we allow you to roam the floor, the building,
or the grounds, whatever the discretion is,
as to the parameters of it?
-: Currently. -: Mm-hm.
-: And should the court want a hearing, as in this case,
the Commonwealth was ready with the defendant's own doctor
as our witness to show that,
to bring that evidence in front of the court,
to kinda give a boost to the fact that
he's still suffering from the same delusion he had
back when he raped his mother.
It's tweaked a little bit, it fluctuates.
He lives in a completely delusional world.
We wanted to bring that out to the court just to,
because it's still very, very important.
And we thought that would,
you know, the next year we were prepared
to do the same thing.
Well...
I think it's in the record that
we had a petition, we were ready to go,
and there was a,
respondent wanted to argue on constitutional grounds
that it shouldn't be allowed.
-: Thank you. -: Thank you.
-: Okay, thank you.
-: If there are no further questions.