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<v ->SJC-13515 in the matter of an impounded case.</v>

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<v ->Okay, Attorney Hollenberg.</v>
<v ->Oh God.</v>

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<v ->Good morning.</v>
<v ->Good morning.</v>

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May it please the court,

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Ilana Hollenberg on behalf of appellant respondent, FA.

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Your Honors, Section 16(e) tells courts

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that they may order a civilly-committed respondent,

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committed under section 16,

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restricted to the hospital and grounds,

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but it doesn't give them any information about

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when such an order is appropriate

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or what kind of process should be instituted

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for the court to determine.

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<v ->So what do you think that, what should the rules be?</v>

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What should we tell judges?

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<v ->I would like the court to tell judges</v>

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that there must be an evidentiary hearing

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to determine whether there is a substantial

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and imminent non-speculative risk

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to public safety attendant upon-

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<v ->I'm a little-</v>
<v ->Refusing to order it.</v>

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<v ->So did you finish answering Chief Justice's-</v>

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<v ->Yes.</v>
<v ->Question?</v>

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<v ->What I'm concerned about is the timing of this,</v>

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and I agree that there's no standard,

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it was problematic, but you pose it as an imminent risk.

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But, they've already been sectioned, right?

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So they've been found to be a likelihood,

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there's a likelihood of substantial harm, correct?

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<v ->No, Your Honor, there's-</v>

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<v ->Just walk me through the legal standards,</v>

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what's the legal standard to get them there

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to be committed as a danger, which is much more intrusive,

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of course, than a building the grounds restriction.

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<v ->It is more intrusive.</v>

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I would not go so far as to say it is

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much more intrusive.
<v ->Oh, I don't know about that.</v>

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But-
<v ->But I will not</v>

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deal with that right now.
<v ->Yeah.</v>

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<v ->I'll answer your question.</v>

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So, in order to commit somebody-

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<v ->Right.</v>

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<v ->There must be proof beyond a reasonable doubt</v>

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that failure to commit them would cause

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a substantial and imminent risk of harm

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either to themselves or to others.

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<v ->Is it imminent or-</v>
<v ->Imminent is,</v>

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this court has put in the term imminent.

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It's not in the statute, but now it is in the law.

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The harm must be imminent.

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That's GP cited in my brief a number of times, matter of GP.

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So it has to be a non-speculative danger.

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It has to be imminent.

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It has to be, for prong two,

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within days or weeks, not months or years.

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That's the standard for commitment.

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Now, not everyone who is committed is-

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<v ->Right, what I'm wondering is-</v>

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<v ->Yes.</v>
<v ->So,</v>

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now we have to have a second hearing and finding

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of dangerousness, essentially,

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for building and ground restrictions.

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The judge has already made that finding.

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<v ->So, there's a difference between somebody who is dangerous</v>

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to let go, go home to their apartment or to a group home,

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and somebody who's so dangerous

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that they cannot leave the hospital

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without creating a risk to others.

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And this case is one that really

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shows how that can be,

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that you could have somebody who would,

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who might become confused,

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go off their medication, if they were not committed, right?

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Somebody who needs medical attention,

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somebody who needs support

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in continuing to take their medication,

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but who can be trusted to leave the hospital grounds,

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especially in a case like the one here

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in which the hospital is going to make sure

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the person is supervised for many years.

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<v ->So, under your scheme,</v>

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there's a finding that their hospitalized,

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involuntarily hospitalized, right.

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<v ->Mm-hm.</v>
<v ->And then</v>

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the Commonwealth, as is the case,

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would move for building and ground restrictions,

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and then there'd be a second hearing

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where there'd have to be this finding

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and proof beyond a reasonable doubt for the restriction.

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<v ->No, Your Honor, if there's going to be</v>

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a commitment hearing,

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there could be a separate section of the hearing

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that addresses what are the risks

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attendant upon leaving the hospital ground.

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<v ->I'm being (indistinct).</v>

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So the judge can make the same finding,

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as far as dangerousness of the patient

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and then consider it in context

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of a building and grounds restriction.

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<v ->So, the finding of dangerousness is not that,</v>

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if somebody can be too dangerous to go home,

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but not too dangerous to leave the grounds.

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And that's the kind of,

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and so if you have somebody who's been proved

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beyond a reasonable doubt to need hospitalization

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because they'd be a danger-
<v ->No, I understood your brief.</v>

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<v ->Oh, okay.</v>
<v ->I'm just wondering</v>

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how this works in real life as far as-

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<v ->In real life you could have-</v>

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<v ->Under your scheme.</v>
<v ->Yes.</v>

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In my scheme, it would be done the way we did it in my case,

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in an earlier year,

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which is that there'd be a separate section

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of the commitment hearing that would

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address the issue of building and grounds.

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<v ->Okay.</v>
<v ->In which there'd</v>

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be testimony about what the risks might be,

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what the hospital plan

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to do to mitigate.
<v ->But counsel,</v>

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why do we need that?

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Why don't we already have that in the statute?

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Why doesn't others mean others mean others?

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I mean the statute doesn't say

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others outside of the facility.

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Right? It just says others.

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Prong two.
<v ->Yes, I gather that.</v>

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But, Your Honor, the reason we need it

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is because there is a remaining liberty interest

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under the due process clause,

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according to this court and the U.S. Supreme Court-

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<v ->But the respondent, pardon me,</v>

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the petitioner has already demonstrated this

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under the highest burden that we have,

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beyond a reasonable doubt.

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So if beyond a reasonable doubt,

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the petitioning facility, or the petitioner,

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has met prong two, which,

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if I remember correctly,

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in this case they satisfied all three prongs.

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<v ->In this case-</v>
<v ->Wasn't it all three?</v>

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<v ->I believe, Your Honor, this was a 6(b).</v>

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There was no hearing on whether or not

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there was proof that my client needed commitment

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because he waived his hearing.
<v ->Mm-hm.</v>

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<v ->And so the 6(b) waiver,</v>

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all that established was that the petition

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was sufficient on its face.
<v ->Okay.</v>

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<v ->Was like a complaint.</v>

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Right?

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And that my client was not contending against it.

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<v ->Okay.</v>
<v ->So there was</v>

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no evidence of any of the prongs in my particular case.

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<v ->Can I-</v>
<v ->I'm sorry.</v>

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<v ->Go ahead, go ahead.</v>
<v ->Yeah.</v>

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One last question I hope.

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Was Judge McGuiggan right,

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that this is an all-or-nothing proposition?

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'Cause once the judge decides there's no restriction,

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there's no restriction,

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and the person could be unsupervised outside the wire.

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<v ->Judge McGuiggan was partially correct.</v>

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She was correct that for that year-

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<v ->Yeah.</v>
<v ->Right?</v>

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Because of course there are repeated annual opportunities

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to put a restriction on.
<v ->Mm-hm.</v>

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<v ->But for that year it would be up to the hospital,</v>

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which is also part the government, the executive branch,

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to determine under what conditions my client,

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the appellant respondent,

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would leave-
<v ->But wouldn't a concern,</v>

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I guess the judge could take this into account

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that they have someone who is sexually dangerous,

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delusional, and has rape compulsions,

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perhaps, therapeutically,

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they could have some supervised integration,

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but no way should they be unsupervised,

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and by saying no buildings and grounds,

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I'm giving license to whatever the hospital wants to do.

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<v ->Yes, and under Carrera,</v>

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the Carrera decision cited

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by both my sister and myself, in our brief,

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we have the discussion of a similar situation

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cited by Judge McGuiggan,

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in which the court was told

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that it could not encroach on the executive branch's-

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<v ->Right.</v>
<v ->Ability to do its job</v>

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the way it saw fit.

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And so in this case, without evidence

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of imminent risk, and without evidence that the hospital

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would be remiss in doing its job,

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which is-
<v ->I'm not so sure</v>

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she was wrong, but that's beside the point, 'cause you've...

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There's no restriction right now

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because of the second commitment, right?

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As we stand here, there's no restriction.

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<v ->You're asking if my client is currently restricted.</v>

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<v ->Right.</v>
<v ->It's outside the record,</v>

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but with your permission, I'll let you know, he is,

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because there's been a subsequent-

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<v ->Okay.</v>
<v ->Order.</v>

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<v ->Okay, 'cause, all right.</v>

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But, I mean the judge can take into account

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all of these things, as far as the lack of,

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basically you're ceding your discretion to the hospital

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and they can have supervised or unsupervised

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building lack of restrictions, right?

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<v ->Yes, I think that in this case,</v>

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given the lack of any evidence of any recent,

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even within 15 years, dangerous behavior,

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the un-contradicted evidence of consistent medication taking

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and the-
<v ->I'm not so sure</v>

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you're right on

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whether her decision was clearly erroneous.

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But I take your point about

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this being a liberty deprivation,

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it's a substantive due process issue,

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and there should be a standard to apply.

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<v ->Thank you, Your Honor.</v>

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Are there any other questions?

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<v ->Well, my question was the same as Justice Gaziano,</v>

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but I'm not quite sure I understand the answer.

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So if it is an all or nothin' for that year

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and the judge says, "Okay, I'm just,

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"I'm not comfortable with the possibility

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"of completely unsupervised leaving of the grounds,"

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isn't an abuse of discretion then?

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Why is that wrong then?

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<v ->Your Honor's question points out</v>

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the very problem that is the main point of my brief,

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which is that the lack of standards in this provision

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means that you're wondering about abuse of discretion

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or whether a decision is clearly erroneous.

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But actually what we should address first

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is whether the interpretation of the law is correct

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or whether the law itself, on its face,

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doesn't work because of the lack of standards.

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<v ->You're agreeing with the Commonwealth and the judge</v>

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that it is an all-or-nothing proposition, right?

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<v Ilana>As written.</v>

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<v ->So, if as a matter of law,</v>

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the judge says the possibility,

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"This guy's so dangerous

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"that the possibility of him go being out on his own,

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"I can't allow,"

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it just seems that that seems reasonable if...

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Doesn't it?

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I get your point if it weren't all-or-nothing,

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that if they...

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I get your point that there's value of having him

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leave the building one-on-one,

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and even in a group with multiple things.

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00:11:15.240 --> 00:11:17.070
But if the judge is worried

253
00:11:17.070 --> 00:11:19.910
about this possibility doesn't...

254
00:11:22.020 --> 00:11:24.660
And you agree it's possible, too.

255
00:11:24.660 --> 00:11:26.010
<v ->No, I don't agree that it's possible.</v>

256
00:11:26.010 --> 00:11:27.480
<v ->Why isn't it?</v>

257
00:11:27.480 --> 00:11:30.480
How can it be all-or-nothing and not be a possibility?

258
00:11:30.480 --> 00:11:34.680
<v ->Because we have un-contradicted testimony as well as</v>

259
00:11:34.680 --> 00:11:37.290
the representation of DMH counsel

260
00:11:37.290 --> 00:11:39.570
that it would be many years before

261
00:11:39.570 --> 00:11:43.620
the hospital would ever even consider allowing my client

262
00:11:43.620 --> 00:11:46.590
to leave the hospital grounds without supervision.

263
00:11:46.590 --> 00:11:50.640
And furthermore, as I'm sure you read in the briefs,

264
00:11:50.640 --> 00:11:55.640
there are many layers of internal DMH safety protocols,

265
00:11:55.680 --> 00:11:58.950
both clinical evaluations by non-treating doctors,

266
00:11:58.950 --> 00:12:01.020
the most senior non-treating doctors,

267
00:12:01.020 --> 00:12:04.860
as well as independent forensic risk evaluations

268
00:12:04.860 --> 00:12:08.130
by professional risk assessors.

269
00:12:08.130 --> 00:12:11.160
And those all have to take place even before...

270
00:12:11.160 --> 00:12:14.550
There has to be another enhanced clinical review

271
00:12:14.550 --> 00:12:16.590
in the absence of a building and grounds restriction.

272
00:12:16.590 --> 00:12:19.590
<v ->But that's in the hands of the executive branch, and-</v>

273
00:12:19.590 --> 00:12:23.890
<v ->That's correct, but unless the executive branch</v>

274
00:12:25.770 --> 00:12:28.770
has been determined to be remiss and unreliable,

275
00:12:28.770 --> 00:12:32.160
then it seems extremely unlikely

276
00:12:32.160 --> 00:12:35.910
that my client would be allowed outside the hospital

277
00:12:35.910 --> 00:12:38.400
without supervision for many years.

278
00:12:38.400 --> 00:12:41.280
I can't imagine a circumstance in which it would occur.

279
00:12:41.280 --> 00:12:44.070
And this is a client who the record shows

280
00:12:44.070 --> 00:12:49.070
has been cooperative, takes his medication,

281
00:12:49.110 --> 00:12:53.400
you know, is engaged with treatment, and also has a limp,

282
00:12:53.400 --> 00:12:55.170
has difficulty walking,

283
00:12:55.170 --> 00:12:58.020
and has to be sometimes persuaded to walk with staff.

284
00:12:58.020 --> 00:13:01.260
<v ->But he was disengaged in sex offender treatment.</v>

285
00:13:01.260 --> 00:13:03.450
<v ->He was described in the transcript</v>

286
00:13:03.450 --> 00:13:05.820
as superficial in some of his answers.

287
00:13:05.820 --> 00:13:09.810
And the disengaged remark from the doctor

288
00:13:09.810 --> 00:13:11.400
had to do with whether he believed

289
00:13:11.400 --> 00:13:13.320
he needed both his antipsychotics.

290
00:13:13.320 --> 00:13:15.150
He hoped he could only

291
00:13:15.150 --> 00:13:15.983
take one.
<v ->He's actively</v>

292
00:13:15.983 --> 00:13:17.190
delusional, though.

293
00:13:17.190 --> 00:13:19.590
<v ->That is the one remaining symptom.</v>

294
00:13:19.590 --> 00:13:21.500
And so if you look at this-

295
00:13:21.500 --> 00:13:24.220
<v ->And there's a command control to rape</v>

296
00:13:25.170 --> 00:13:27.330
that's part of his delusion.

297
00:13:27.330 --> 00:13:30.240
<v ->The delusion, as it was put in the record,</v>

298
00:13:30.240 --> 00:13:32.640
is that not a command control to rape,

299
00:13:32.640 --> 00:13:36.360
but that the director could potentially control him.

300
00:13:36.360 --> 00:13:37.380
Although by the time

301
00:13:37.380 --> 00:13:38.310
of the hearing-
<v ->Rape.</v>

302
00:13:38.310 --> 00:13:39.947
<v ->In 2020, the testimony-</v>
<v ->To rape.</v>

303
00:13:39.947 --> 00:13:43.470
<v ->Showed that he did not think he could be made</v>

304
00:13:43.470 --> 00:13:45.870
to commit a violent offense or rape.

305
00:13:45.870 --> 00:13:48.060
So that was the testimony.

306
00:13:48.060 --> 00:13:50.250
I know the petition says something different,

307
00:13:50.250 --> 00:13:52.263
but that was not in the record.

308
00:13:53.700 --> 00:13:57.210
So, we've got here a lack of standards

309
00:13:57.210 --> 00:14:02.210
that lead the judge to think about the index event in 1995,

310
00:14:03.360 --> 00:14:06.030
rather than about the un-contradicted testimony-

311
00:14:06.030 --> 00:14:08.190
<v ->I agree, if there is a standard it has to do</v>

312
00:14:08.190 --> 00:14:09.843
with present danger.
<v ->Yes.</v>

313
00:14:10.708 --> 00:14:15.210
And so we've got rule-abiding, cooperative,

314
00:14:15.210 --> 00:14:17.730
non-threatening, nonviolent behavior

315
00:14:17.730 --> 00:14:20.790
from a person who's around 60 at this point

316
00:14:20.790 --> 00:14:22.980
and walks with difficulty

317
00:14:22.980 --> 00:14:26.340
after having had surgery and problems with his spine.

318
00:14:26.340 --> 00:14:28.890
And the doctors have offered to have him

319
00:14:28.890 --> 00:14:32.220
have one-on-one supervision for six months to a year,

320
00:14:32.220 --> 00:14:34.980
at least, and not cease that

321
00:14:34.980 --> 00:14:37.770
unless it looks like he could be okay with a group.

322
00:14:37.770 --> 00:14:38.603
<v ->Last question, I think.</v>

323
00:14:38.603 --> 00:14:42.180
Could the judge condition a ruling on supervision?

324
00:14:42.180 --> 00:14:43.710
<v ->I'm sorry, could you-</v>
<v ->Could a judge make</v>

325
00:14:43.710 --> 00:14:45.030
a conditional finding?

326
00:14:45.030 --> 00:14:46.987
Could a judge say, "I'm going to

327
00:14:46.987 --> 00:14:48.900
"deny building and ground restrictions,"

328
00:14:48.900 --> 00:14:52.150
or "Deny the request for building and ground restrictions

329
00:14:53.017 --> 00:14:55.497
"with the condition that it be supervised?"

330
00:14:56.460 --> 00:14:57.870
<v ->I-</v>
<v ->Would that be</v>

331
00:14:57.870 --> 00:14:59.253
an Article 30 violation?

332
00:15:01.800 --> 00:15:03.780
<v ->If the judge had made that ruling,</v>

333
00:15:03.780 --> 00:15:05.190
we wouldn't be here today.

334
00:15:05.190 --> 00:15:06.690
I wouldn't have appealed it.

335
00:15:06.690 --> 00:15:09.044
But I don't know whether the statute allows it.

336
00:15:09.044 --> 00:15:11.568
<v Justice Gaziano>Okay.</v>

337
00:15:11.568 --> 00:15:12.900
<v ->[Chief Justice Budd] Okay.</v>

338
00:15:12.900 --> 00:15:15.540
<v ->Do you have any other questions for me?</v>

339
00:15:15.540 --> 00:15:17.040
<v ->Thank you very much.</v>
<v ->Thank you.</v>

340
00:15:17.040 --> 00:15:19.620
<v ->Thank you.</v>

341
00:15:19.620 --> 00:15:20.470
<v ->Attorney Riley.</v>

342
00:15:27.120 --> 00:15:28.833
<v ->Thank you and good morning.</v>

343
00:15:30.330 --> 00:15:31.530
My name is Patricia Riley.

344
00:15:31.530 --> 00:15:34.280
I'm an assistant district attorney for Plymouth County.

345
00:15:36.360 --> 00:15:40.050
A building and grounds restriction can only be imposed

346
00:15:40.050 --> 00:15:42.510
after a person has been civilly committed.

347
00:15:42.510 --> 00:15:45.000
<v ->Do you find this to be a liberty violation?</v>

348
00:15:45.000 --> 00:15:45.833
<v Patricia>I beg your pardon?</v>

349
00:15:45.833 --> 00:15:47.260
<v ->Is this a restriction on liberty?</v>

350
00:15:48.390 --> 00:15:52.170
<v ->If it can be considered a restriction on liberty,</v>

351
00:15:52.170 --> 00:15:54.360
and I say if because it's totally

352
00:15:54.360 --> 00:15:56.730
to the discretion of the hospital, whether or not

353
00:15:56.730 --> 00:15:58.080
to let a person-
<v ->Okay, we can't</v>

354
00:15:58.080 --> 00:15:59.400
deal with ifs, so,

355
00:15:59.400 --> 00:16:02.010
either there's a substantive due process issue

356
00:16:02.010 --> 00:16:04.593
if it implicates a liberty interest or there's not.

357
00:16:05.580 --> 00:16:08.820
<v ->It is not a substantial deprivation of liberty interest.</v>

358
00:16:08.820 --> 00:16:13.410
However, even this court in, I think it was in AZ,

359
00:16:13.410 --> 00:16:16.730
said that it could be considered...

360
00:16:18.823 --> 00:16:19.713
What was it?

361
00:16:22.560 --> 00:16:24.990
There are lesser liberty interests at stake,

362
00:16:24.990 --> 00:16:29.100
and I don't see how this

363
00:16:29.100 --> 00:16:30.990
actually can be considered

364
00:16:30.990 --> 00:16:33.240
a substantial deprivation of liberty,

365
00:16:33.240 --> 00:16:35.580
or even a minor deprivation of liberty,

366
00:16:35.580 --> 00:16:37.770
because it is up to the hospital.

367
00:16:37.770 --> 00:16:39.150
The building and grounds restriction

368
00:16:39.150 --> 00:16:41.580
is actually a restriction on the hospital.

369
00:16:41.580 --> 00:16:43.770
It's not a restriction on the defendant.

370
00:16:43.770 --> 00:16:47.700
It's telling the hospital, should you choose,

371
00:16:47.700 --> 00:16:50.760
if you think it's possible to let this person off grounds,

372
00:16:50.760 --> 00:16:52.350
we're saying no.
<v ->But that seems</v>

373
00:16:52.350 --> 00:16:53.880
very semantical, I mean,

374
00:16:53.880 --> 00:16:58.320
it is a restriction on this particular person.

375
00:16:58.320 --> 00:16:59.280
<v ->Not really.</v>
<v ->They can't go</v>

376
00:16:59.280 --> 00:17:00.780
off the building.

377
00:17:00.780 --> 00:17:02.760
<v ->But only-</v>
<v ->They can't have home visits.</v>

378
00:17:02.760 --> 00:17:04.620
They can't go out into the community.

379
00:17:04.620 --> 00:17:07.290
And I get that maybe it's

380
00:17:07.290 --> 00:17:09.900
limiting the treatment options for the hospital,

381
00:17:09.900 --> 00:17:13.680
but it affects the individual.

382
00:17:13.680 --> 00:17:15.690
I don't see how this is gonna-

383
00:17:15.690 --> 00:17:17.010
<v ->Well-</v>
<v ->Carry the day</v>

384
00:17:17.010 --> 00:17:19.230
as to whether or not there's a liberty interest or not.

385
00:17:19.230 --> 00:17:22.290
<v ->Even if there is no building and grounds restriction,</v>

386
00:17:22.290 --> 00:17:24.780
that person has no right to leave the facility.

387
00:17:24.780 --> 00:17:26.760
They have no right to leave the building and grounds.

388
00:17:26.760 --> 00:17:27.630
Even with the-
<v ->But they have</v>

389
00:17:27.630 --> 00:17:31.920
the opportunity to, which this would would eliminate it.

390
00:17:31.920 --> 00:17:34.050
<v ->Respectfully, not necessarily.</v>

391
00:17:34.050 --> 00:17:35.130
At the time of this hearing,

392
00:17:35.130 --> 00:17:37.710
no one was allowed off-grounds privileges.

393
00:17:37.710 --> 00:17:40.307
<v ->That's at the discretion of the executive, right?</v>

394
00:17:40.307 --> 00:17:42.210
You're just saying as a practical matter,

395
00:17:42.210 --> 00:17:44.460
the executive gets to choose,

396
00:17:44.460 --> 00:17:46.980
but the executive never gets that chance

397
00:17:46.980 --> 00:17:49.440
if there's a building and ground restriction.

398
00:17:49.440 --> 00:17:51.930
<v ->Well, but they do, they can remove it.</v>

399
00:17:51.930 --> 00:17:54.540
I mean, there's-
<v ->Wait, maybe I'm...</v>

400
00:17:54.540 --> 00:17:56.790
So, the person's committed,

401
00:17:56.790 --> 00:17:58.800
the DA's office is notified,

402
00:17:58.800 --> 00:18:03.180
the DA's office comes to court with a motion

403
00:18:03.180 --> 00:18:05.310
to restrict the person to buildings and grounds.

404
00:18:05.310 --> 00:18:06.780
Do I have that right?

405
00:18:06.780 --> 00:18:09.990
<v ->It actually doesn't even have to be a DA's motion.</v>

406
00:18:09.990 --> 00:18:11.460
The court may do it on its own.

407
00:18:11.460 --> 00:18:13.080
<v ->Okay.</v>
<v ->And-</v>

408
00:18:13.080 --> 00:18:15.156
<v ->But, all right, but in this case, this is what happened.</v>

409
00:18:15.156 --> 00:18:15.989
That's what happened.
<v ->In this case,</v>

410
00:18:15.989 --> 00:18:17.190
this is what happened.
<v ->All right.</v>

411
00:18:17.190 --> 00:18:19.770
'Cause you folks think in your judgment,

412
00:18:19.770 --> 00:18:22.410
as people who are charged to protect the public,

413
00:18:22.410 --> 00:18:24.780
that this person shouldn't be in the community.

414
00:18:24.780 --> 00:18:28.380
<v ->And it was after obtaining the medical records that showed</v>

415
00:18:28.380 --> 00:18:29.670
that he's still suffering-
<v ->I'm not getting into</v>

416
00:18:29.670 --> 00:18:31.890
the merits, but that's how that works, right?

417
00:18:31.890 --> 00:18:33.090
<v ->Yes.</v>
<v ->So that</v>

418
00:18:33.090 --> 00:18:36.360
the chief law enforcement officer in the county

419
00:18:36.360 --> 00:18:39.397
is saying this person shouldn't leave

420
00:18:39.397 --> 00:18:43.380
the perimeters of Taunton, or wherever.

421
00:18:43.380 --> 00:18:44.700
<v ->This is Worcester Recovery Center</v>

422
00:18:44.700 --> 00:18:45.990
and Hospital-
<v ->Worcester Recovery Center.</v>

423
00:18:45.990 --> 00:18:46.860
<v ->That is correct.</v>
<v ->Okay.</v>

424
00:18:46.860 --> 00:18:49.200
<v ->And there's a reason I think that</v>

425
00:18:49.200 --> 00:18:51.090
the court should look to the language of the statute,

426
00:18:51.090 --> 00:18:54.210
and the reason the DA's office is given notice

427
00:18:54.210 --> 00:18:56.160
of all these-
<v ->I'm not saying</v>

428
00:18:56.160 --> 00:18:57.330
it's a bad thing,

429
00:18:57.330 --> 00:18:59.340
because protecting the public is a good thing.

430
00:18:59.340 --> 00:19:02.070
But what I'm saying is, or what counsel's raised,

431
00:19:02.070 --> 00:19:04.590
is whether or not that restriction

432
00:19:04.590 --> 00:19:05.940
implicates a liberty interest

433
00:19:05.940 --> 00:19:08.550
such that substantive due process kicks in,

434
00:19:08.550 --> 00:19:11.520
and we should, as we've done in other cases,

435
00:19:11.520 --> 00:19:13.590
impose a legal standard,

436
00:19:13.590 --> 00:19:16.203
so the judges aren't acting in an arbitrary fashion.

437
00:19:18.690 --> 00:19:21.150
<v ->I think if there's a standard to be had,</v>

438
00:19:21.150 --> 00:19:24.060
it should be a rational basis standard.

439
00:19:24.060 --> 00:19:25.830
This is the same type language-

440
00:19:25.830 --> 00:19:27.450
<v ->Rational basis</v>

441
00:19:27.450 --> 00:19:31.800
is only applicable if it's not strict scrutiny,

442
00:19:31.800 --> 00:19:33.120
because no liberty interest.

443
00:19:33.120 --> 00:19:35.880
<v ->But this is the same type of interest in probation.</v>

444
00:19:35.880 --> 00:19:38.610
A person who's already been adjudicated and found guilty,

445
00:19:38.610 --> 00:19:40.530
and it's the discretion of the court,

446
00:19:40.530 --> 00:19:42.120
not the probation department,

447
00:19:42.120 --> 00:19:43.230
it's the discretion of the court

448
00:19:43.230 --> 00:19:46.560
whether or not to put conditions of probation on that person

449
00:19:46.560 --> 00:19:48.930
or on pretrial detainees.

450
00:19:48.930 --> 00:19:50.620
<v ->But all mental health cases</v>

451
00:19:51.630 --> 00:19:53.430
where there's a liberty interest involved,

452
00:19:53.430 --> 00:19:56.670
we say there's a substantive due process issue.

453
00:19:56.670 --> 00:19:57.503
And we need...

454
00:19:57.503 --> 00:19:58.710
I get what you're saying,

455
00:19:58.710 --> 00:20:00.570
that it could be clear and convincing evidence,

456
00:20:00.570 --> 00:20:02.850
doesn't have to be beyond a reasonable doubt.

457
00:20:02.850 --> 00:20:04.950
<v ->I would suggest to the court it should be reasonable.</v>

458
00:20:04.950 --> 00:20:07.680
It should just be a reasonable,

459
00:20:07.680 --> 00:20:10.350
if the judge has a reasonable basis,

460
00:20:10.350 --> 00:20:12.030
and in this case, she heard evidence

461
00:20:12.030 --> 00:20:14.010
of the defendant's mental condition.

462
00:20:14.010 --> 00:20:16.350
And don't forget these cases.
<v ->And by the way,</v>

463
00:20:16.350 --> 00:20:20.610
reasonable basis, isn't this all-or-nothing?

464
00:20:20.610 --> 00:20:24.270
I mean, the question Justice Gaziano asked earlier,

465
00:20:24.270 --> 00:20:26.620
could the judge issue an order that says

466
00:20:28.230 --> 00:20:30.150
no unsupervised visitation,

467
00:20:30.150 --> 00:20:33.720
but if you send her client out

468
00:20:33.720 --> 00:20:37.980
with one-on-one supervision, that's okay.

469
00:20:37.980 --> 00:20:39.077
Can the judge do that?

470
00:20:39.077 --> 00:20:44.077
'Cause I look at this as odd in one respect.

471
00:20:44.340 --> 00:20:46.780
DMH thinks it would be valuable

472
00:20:47.640 --> 00:20:50.590
and safe to have this person released

473
00:20:51.600 --> 00:20:55.683
on a one-on-one trip outside the grounds.

474
00:20:56.880 --> 00:21:00.510
The judge says I can't allow that,

475
00:21:00.510 --> 00:21:02.400
because there's a possibility

476
00:21:02.400 --> 00:21:05.340
that he would be released without supervision.

477
00:21:05.340 --> 00:21:06.350
I'm not sure that...

478
00:21:08.400 --> 00:21:10.950
Could the judge have prevented that possibility?

479
00:21:10.950 --> 00:21:12.780
<v ->No, Your Honor, not if-</v>
<v ->Why not?</v>

480
00:21:12.780 --> 00:21:13.800
<v ->Following the decision</v>

481
00:21:13.800 --> 00:21:16.230
of the appellate division of the District Court-

482
00:21:16.230 --> 00:21:20.070
<v ->As much as we love them, we're completely unbound by them.</v>

483
00:21:20.070 --> 00:21:22.200
<v ->I understand, but they did say that it was-</v>

484
00:21:22.200 --> 00:21:23.730
<v ->Why can't we issue,</v>

485
00:21:23.730 --> 00:21:27.303
why can't we say this is not,

486
00:21:28.764 --> 00:21:31.240
there's flexibility here

487
00:21:32.580 --> 00:21:37.023
to allow that kind of visit?

488
00:21:37.890 --> 00:21:40.560
And the judge has the flexibility to do something

489
00:21:40.560 --> 00:21:42.570
more than all-or-nothing

490
00:21:42.570 --> 00:21:45.693
and remand it, and say, okay, now decide?

491
00:21:47.460 --> 00:21:49.143
<v ->If-</v>
<v ->Was that English?</v>

492
00:21:50.220 --> 00:21:51.053
'Cause-
<v ->If this court</v>

493
00:21:51.053 --> 00:21:55.020
doesn't feel like it's intervening in the prerogative of DMH

494
00:21:55.020 --> 00:21:57.300
and how to treat their clients.

495
00:21:57.300 --> 00:21:58.300
<v ->Well, the judge...</v>

496
00:21:59.880 --> 00:22:02.970
We should be very hesitant to interfere with DMH,

497
00:22:02.970 --> 00:22:07.970
but we may say, okay, you have this much discretion,

498
00:22:08.280 --> 00:22:10.380
but this guy's a danger on his own.

499
00:22:10.380 --> 00:22:11.730
We're not gonna allow that.

500
00:22:11.730 --> 00:22:13.650
And that's exactly what it looks like

501
00:22:13.650 --> 00:22:16.290
the legislature was worried about that

502
00:22:16.290 --> 00:22:18.510
there's certain points where the judiciary

503
00:22:18.510 --> 00:22:21.510
needs to step in and protect public safety.

504
00:22:21.510 --> 00:22:25.110
<v ->And I think that's why the-</v>
<v ->But it's not</v>

505
00:22:25.110 --> 00:22:28.087
when DMH says, "We're not gonna let this guy out

506
00:22:28.087 --> 00:22:31.057
"without literally some,

507
00:22:31.057 --> 00:22:32.917
"you know, big guy standing next to him

508
00:22:32.917 --> 00:22:34.717
"as he walks around the grounds.

509
00:22:34.717 --> 00:22:36.847
"But we think it would help his mental health

510
00:22:36.847 --> 00:22:38.497
"if he could leave the building."

511
00:22:39.840 --> 00:22:42.092
Why shouldn't we allow that?

512
00:22:42.092 --> 00:22:44.730
<v ->I don't think that's a bad idea.</v>

513
00:22:44.730 --> 00:22:46.740
However, also factor in the fact that

514
00:22:46.740 --> 00:22:48.150
the building and grounds restriction

515
00:22:48.150 --> 00:22:50.040
is also used on people who have been found

516
00:22:50.040 --> 00:22:52.860
incompetent to stand trial who have open cases,

517
00:22:52.860 --> 00:22:57.450
who might have been found dangerous after a 58A hearing,

518
00:22:57.450 --> 00:22:58.980
that there are no conditions-

519
00:22:58.980 --> 00:23:01.950
<v ->Well, but that's again, we're trying to provide</v>

520
00:23:01.950 --> 00:23:05.400
substance to something that's pretty vague.

521
00:23:05.400 --> 00:23:10.400
But this all-or-nothing thing makes our life a lot harder,

522
00:23:11.190 --> 00:23:13.653
and I don't know the legal basis for it.

523
00:23:15.540 --> 00:23:19.740
And if it doesn't exist, you're both in agreement,

524
00:23:19.740 --> 00:23:21.720
and we don't need to do something hard

525
00:23:21.720 --> 00:23:23.583
on substantive due process.

526
00:23:25.350 --> 00:23:29.310
<v ->I'm not sure what the question was, Your Honor.</v>

527
00:23:29.310 --> 00:23:32.460
<v ->The question is why can't...</v>

528
00:23:32.460 --> 00:23:36.660
This statute provides the judiciary

529
00:23:36.660 --> 00:23:38.850
with substantial flexibility.

530
00:23:38.850 --> 00:23:43.830
Included in that flexibility is, okay,

531
00:23:43.830 --> 00:23:48.390
we will prevent a release that is dangerous to the public,

532
00:23:48.390 --> 00:23:51.390
but we have the ability to allow releases

533
00:23:51.390 --> 00:23:53.553
that aren't dangerous to the public.

534
00:23:54.390 --> 00:23:55.980
'Cause without that,

535
00:23:55.980 --> 00:23:58.773
you may have a substantive due process violation.

536
00:24:01.239 --> 00:24:04.560
<v ->I think the practicality of how</v>

537
00:24:04.560 --> 00:24:08.190
that could come about might be difficult.

538
00:24:08.190 --> 00:24:09.720
<v ->Why?</v>
<v ->For example-</v>

539
00:24:09.720 --> 00:24:11.850
<v ->Well, every case, as you know,</v>

540
00:24:11.850 --> 00:24:13.110
is very, very different.

541
00:24:13.110 --> 00:24:14.553
So how,

542
00:24:15.840 --> 00:24:17.430
I would suggest that it would have to be

543
00:24:17.430 --> 00:24:20.250
after the imposition of a building and grounds restriction.

544
00:24:20.250 --> 00:24:22.080
If the hospital were to remove it,

545
00:24:22.080 --> 00:24:23.369
they could propose to-
<v ->No, no, we're-</v>

546
00:24:23.369 --> 00:24:24.356
<v ->The court</v>

547
00:24:24.356 --> 00:24:25.410
the different conditions.
<v ->The first part of this thing</v>

548
00:24:25.410 --> 00:24:27.660
is incredibly detailed

549
00:24:27.660 --> 00:24:29.310
and has a lot of process to it.

550
00:24:29.310 --> 00:24:31.500
Before we institutionalize you

551
00:24:31.500 --> 00:24:34.110
there are all these very strict requirements.

552
00:24:34.110 --> 00:24:36.510
This little postscript,

553
00:24:36.510 --> 00:24:38.130
it doesn't have a lot of detail to it,

554
00:24:38.130 --> 00:24:41.640
but it's basically a safety file

555
00:24:41.640 --> 00:24:42.930
for the judiciary to say,

556
00:24:42.930 --> 00:24:46.863
okay, this person is too dangerous to let out,

557
00:24:47.790 --> 00:24:52.200
but he's not too dangerous to let out in a supervised way.

558
00:24:52.200 --> 00:24:54.843
He's a 60-year-old man who can barely move,

559
00:24:55.803 --> 00:24:57.720
and it would benefit his mental health

560
00:24:57.720 --> 00:25:00.150
to be outside the building.

561
00:25:00.150 --> 00:25:03.300
So he has a liberty interest, a limited liberty interest,

562
00:25:03.300 --> 00:25:04.133
that we can...

563
00:25:04.133 --> 00:25:07.800
It just seems like we're making this harder than we need to.

564
00:25:07.800 --> 00:25:11.370
<v ->And also factor in the defendants,</v>

565
00:25:11.370 --> 00:25:13.470
respondent defendants who are flight risks,

566
00:25:13.470 --> 00:25:14.880
who might have a bail status,

567
00:25:14.880 --> 00:25:16.860
who argue to be-
<v ->But then they</v>

568
00:25:16.860 --> 00:25:18.123
don't get out at all.

569
00:25:19.440 --> 00:25:21.850
The judges have this limited right

570
00:25:23.127 --> 00:25:26.340
to protect public safety here

571
00:25:26.340 --> 00:25:29.760
beyond the institutionalizing.

572
00:25:29.760 --> 00:25:32.130
Okay, this guy is so dangerous,

573
00:25:32.130 --> 00:25:35.640
but we're not ruling out this idea

574
00:25:35.640 --> 00:25:38.640
of limited visitation rights.

575
00:25:38.640 --> 00:25:41.460
I just don't see the basis in the statute

576
00:25:41.460 --> 00:25:44.100
that prevented the judge from doing that.

577
00:25:44.100 --> 00:25:46.320
<v ->If the court were to allow that,</v>

578
00:25:46.320 --> 00:25:50.280
and allow the DA's office input based on,

579
00:25:50.280 --> 00:25:51.540
you know, records research,

580
00:25:51.540 --> 00:25:54.030
and as we do with just the imposition

581
00:25:54.030 --> 00:25:55.290
of a building and grounds restriction,

582
00:25:55.290 --> 00:25:57.060
it might not be a bad idea.

583
00:25:57.060 --> 00:25:59.790
I think the fact that FA could-

584
00:25:59.790 --> 00:26:01.328
<v ->Our job is to,</v>

585
00:26:01.328 --> 00:26:04.683
it might not be precluded by the Constitution, right?

586
00:26:07.500 --> 00:26:09.120
Our ability...

587
00:26:09.120 --> 00:26:12.030
We have to make this statute constitutional,

588
00:26:12.030 --> 00:26:13.950
and by pushing it as hard as you're doing,

589
00:26:13.950 --> 00:26:16.170
you may be raising a constitutional question

590
00:26:16.170 --> 00:26:20.160
that's unnecessary if supervised visitation

591
00:26:20.160 --> 00:26:22.530
is within the authority of the judge.

592
00:26:22.530 --> 00:26:23.670
Right?

593
00:26:23.670 --> 00:26:25.080
<v ->If supervised community access</v>

594
00:26:25.080 --> 00:26:26.936
was within-
<v ->Yes, if supervised,</v>

595
00:26:26.936 --> 00:26:30.690
if the judge can not do an all-or-nothing,

596
00:26:30.690 --> 00:26:33.546
but allow a limited visitation,

597
00:26:33.546 --> 00:26:35.610
the right the judge has

598
00:26:35.610 --> 00:26:37.440
that's consistent with the Constitution

599
00:26:37.440 --> 00:26:40.500
is to protect the public from danger, right?

600
00:26:40.500 --> 00:26:41.350
<v Patricia>Yes.</v>

601
00:26:42.270 --> 00:26:44.370
But that's a right that,

602
00:26:44.370 --> 00:26:46.710
I don't know if it's subject to strict scrutiny,

603
00:26:46.710 --> 00:26:51.300
but if it is subject to strict scrutiny,

604
00:26:51.300 --> 00:26:53.280
this could survive strict scrutiny

605
00:26:53.280 --> 00:26:57.283
if we allow judges to do this more limited supervision,

606
00:26:59.670 --> 00:27:00.990
supervised visitation,

607
00:27:00.990 --> 00:27:02.730
which apparently you say is precluded

608
00:27:02.730 --> 00:27:05.490
by the appellate division of the District Court's decision.

609
00:27:05.490 --> 00:27:06.330
I just don't know.

610
00:27:06.330 --> 00:27:08.850
I haven't read that decision, so I don't know.

611
00:27:08.850 --> 00:27:10.320
<v Justice Gaziano>Can I ask you just</v>

612
00:27:10.320 --> 00:27:11.730
maybe a different question?

613
00:27:11.730 --> 00:27:12.990
<v Patricia>Certainly.</v>

614
00:27:12.990 --> 00:27:15.300
<v ->Do you agree that procedural due process</v>

615
00:27:15.300 --> 00:27:18.903
requires at least a hearing and findings?

616
00:27:20.100 --> 00:27:22.830
<v ->Well, the problem for that, Your Honor,</v>

617
00:27:22.830 --> 00:27:26.010
is when the respondent waives his right to a hearing,

618
00:27:26.010 --> 00:27:27.540
but yes-
<v ->But he waived his right</v>

619
00:27:27.540 --> 00:27:28.500
to the commitment hearing.

620
00:27:28.500 --> 00:27:30.960
But this is a different hearing or a different finding.

621
00:27:30.960 --> 00:27:35.010
But assuming we believe that this is a different proceed

622
00:27:35.010 --> 00:27:37.620
and it requires a different finding,

623
00:27:37.620 --> 00:27:40.410
do you agree that procedural due process requires those two,

624
00:27:40.410 --> 00:27:42.060
at least those two elements?

625
00:27:42.060 --> 00:27:43.710
<v ->Yes, but I would suggest</v>

626
00:27:43.710 --> 00:27:45.840
it would be more like Scionti.
<v ->Which was the fault-</v>

627
00:27:45.840 --> 00:27:48.570
Which was the fault in the second proceeding.

628
00:27:48.570 --> 00:27:49.980
The judge made no findings.

629
00:27:49.980 --> 00:27:51.567
<v ->That's correct.</v>
<v ->And didn't have a hearing.</v>

630
00:27:51.567 --> 00:27:53.280
<v ->And there was no evidence presented.</v>

631
00:27:53.280 --> 00:27:56.610
However, I would suggest it shouldn't have to be as formal.

632
00:27:56.610 --> 00:27:58.590
I mean, the Durlin case suggests due process

633
00:27:58.590 --> 00:28:00.270
is a little bit more flexible.

634
00:28:00.270 --> 00:28:02.400
This could be more like a competency hearing

635
00:28:02.400 --> 00:28:04.980
under Commonwealth v Scionti,

636
00:28:04.980 --> 00:28:08.580
which allows for the judge to take,

637
00:28:08.580 --> 00:28:11.770
you know, observation of court officers into account and

638
00:28:14.430 --> 00:28:17.626
gives the judge more discretion in a case like that.

639
00:28:17.626 --> 00:28:19.709
<v Justice Gaziano>Okay.</v>

640
00:28:22.200 --> 00:28:23.340
<v ->Okay.</v>
<v ->Do you have any</v>

641
00:28:23.340 --> 00:28:24.930
further questions?

642
00:28:24.930 --> 00:28:26.356
Justice Georges, it sounds like-

643
00:28:26.356 --> 00:28:28.710
(Justices laughing)

644
00:28:28.710 --> 00:28:30.720
<v ->I'm pained because I, again,</v>

645
00:28:30.720 --> 00:28:32.730
go back to the other standards

646
00:28:32.730 --> 00:28:35.760
for when we curtail people's liberty this way.

647
00:28:35.760 --> 00:28:39.720
When you have the seven and eights, right?

648
00:28:39.720 --> 00:28:41.880
Where there are specific findings

649
00:28:41.880 --> 00:28:44.040
that the court has to make

650
00:28:44.040 --> 00:28:47.100
about the danger the person poses,

651
00:28:47.100 --> 00:28:49.920
either to themselves or others,

652
00:28:49.920 --> 00:28:52.740
that we don't have here without a hearing.

653
00:28:52.740 --> 00:28:56.400
And so making these kinds of decisions in a vacuum

654
00:28:56.400 --> 00:29:01.083
really worry me as to, you know,

655
00:29:02.100 --> 00:29:03.720
okay, they waived their right to a hearing,

656
00:29:03.720 --> 00:29:05.340
but if you're gonna curtail their liberty

657
00:29:05.340 --> 00:29:09.450
without any evidence about what danger level

658
00:29:09.450 --> 00:29:13.983
they might pose, what does that say for what we're doing?

659
00:29:14.850 --> 00:29:17.910
<v ->I think, I mean the standard itself on commitment,</v>

660
00:29:17.910 --> 00:29:20.430
whether or not they file a waiver,

661
00:29:20.430 --> 00:29:22.710
the standard is still there.

662
00:29:22.710 --> 00:29:24.510
We're ready to prove our case

663
00:29:24.510 --> 00:29:26.910
or the hospital would be ready to prove their case.

664
00:29:26.910 --> 00:29:30.064
In this case, I think it was you who brought up,

665
00:29:30.064 --> 00:29:31.860
it was under all three prongs

666
00:29:31.860 --> 00:29:36.000
that this respondent was being committed.

667
00:29:36.000 --> 00:29:39.330
So, I mean, the standard is still,

668
00:29:39.330 --> 00:29:40.710
it still exists for commitment,

669
00:29:40.710 --> 00:29:43.620
whether or not they have an evidentiary hearing or not.

670
00:29:43.620 --> 00:29:47.160
If the petition,

671
00:29:47.160 --> 00:29:49.053
which is included-
<v ->Sure.</v>

672
00:29:50.100 --> 00:29:52.500
But without any kind of finding, again.

673
00:29:52.500 --> 00:29:56.700
So, there's no evidence other than

674
00:29:56.700 --> 00:29:58.830
just what's alleged in the petition.

675
00:29:58.830 --> 00:30:00.780
<v ->The finding is on the order.</v>

676
00:30:00.780 --> 00:30:03.450
The order says, basically,

677
00:30:03.450 --> 00:30:08.040
we have found that this person meets commitment criteria.

678
00:30:08.040 --> 00:30:11.463
And the standard for commitment criteria is very clear,

679
00:30:12.780 --> 00:30:17.070
incompetent to stand trial, or NGRI, danger to,

680
00:30:17.070 --> 00:30:22.070
danger, and requires, mandates hospitalization.

681
00:30:23.850 --> 00:30:26.220
So whether or not they waive their right,

682
00:30:26.220 --> 00:30:30.120
there's still a judicial order that found that through

683
00:30:30.120 --> 00:30:32.460
what was submitted to the court,

684
00:30:32.460 --> 00:30:37.460
a petition, which the respondent chose not to challenge.

685
00:30:37.620 --> 00:30:39.300
<v ->So that subsumes whether or not</v>

686
00:30:39.300 --> 00:30:42.570
we allow you to roam the floor, the building,

687
00:30:42.570 --> 00:30:46.290
or the grounds, whatever the discretion is,

688
00:30:46.290 --> 00:30:48.060
as to the parameters of it?

689
00:30:48.060 --> 00:30:50.223
<v ->Currently.</v>
<v ->Mm-hm.</v>

690
00:30:51.120 --> 00:30:56.070
<v ->And should the court want a hearing, as in this case,</v>

691
00:30:57.060 --> 00:31:01.020
the Commonwealth was ready with the defendant's own doctor

692
00:31:01.020 --> 00:31:04.980
as our witness to show that,

693
00:31:04.980 --> 00:31:07.320
to bring that evidence in front of the court,

694
00:31:07.320 --> 00:31:09.900
to kinda give a boost to the fact that

695
00:31:09.900 --> 00:31:12.150
he's still suffering from the same delusion he had

696
00:31:12.150 --> 00:31:13.653
back when he raped his mother.

697
00:31:15.640 --> 00:31:17.670
It's tweaked a little bit, it fluctuates.

698
00:31:17.670 --> 00:31:20.190
He lives in a completely delusional world.

699
00:31:20.190 --> 00:31:22.380
We wanted to bring that out to the court just to,

700
00:31:22.380 --> 00:31:25.980
because it's still very, very important.

701
00:31:25.980 --> 00:31:27.783
And we thought that would,

702
00:31:28.980 --> 00:31:30.780
you know, the next year we were prepared

703
00:31:30.780 --> 00:31:31.613
to do the same thing.

704
00:31:31.613 --> 00:31:32.446
Well...

705
00:31:33.390 --> 00:31:37.000
I think it's in the record that

706
00:31:38.310 --> 00:31:43.290
we had a petition, we were ready to go,

707
00:31:43.290 --> 00:31:45.540
and there was a,

708
00:31:45.540 --> 00:31:48.300
respondent wanted to argue on constitutional grounds

709
00:31:48.300 --> 00:31:49.750
that it shouldn't be allowed.

710
00:31:50.640 --> 00:31:51.979
<v ->Thank you.</v>
<v ->Thank you.</v>

711
00:31:51.979 --> 00:31:52.812
<v ->Okay, thank you.</v>

712
00:31:52.812 --> 00:31:53.940
<v ->If there are no further questions.</v>