0001 1 IN THE SUPERIOR COURT OF THE STATE OF ALASKA 2 THIRD JUDICIAL DISTRICT AT ANCHORAGE 3 ____________________________________ 4 ) ) 5 IN THE MATTER OF: ) ) 6 FAITH MYERS ) ) 7 ___________________________________) Case No. 3AN-03-277PR 8 9 10 11 ___________________________________________________ 12 13 HEARING BEFORE 14 JUDGE MORGAN CHRISTEN ___________________________________________________ 15 16 17 June 27, 2003 18 8:30 a.m. 19 20 21 22 23 24 25 0002 1 A-P-P-E-A-R-A-N-C-E-S 2 3 For Respondent: 4 James B. Gottstein, Esq. 406 G Street, Suite 206 5 Anchorage, Alaska 99501 (907) 274-7686 6 7 8 For The State: 9 Jeffrey T. Killip, Esq. Attorney General's Office 10 1031 West 4th Avenue, Suite 200 Anchorage, Alaska 99501 11 (907) 269-5140 12 13 14 15 16 17 18 19 20 21 22 23 24 25 0003 1 PROCEEDINGS 2 THE COURT: The record should reflect 3 that Mr. Gottstein is present in the court room, 4 along with Mr. Killip. Is your client here, sir? 5 MR. GOTTSTEIN: I think she is coming. 6 She just went to the restroom. And then I would 7 like to introduce Mr. Lou Agagi, who is going to 8 hold my hand. Anyway, introduce the court to 9 Mr. Agagi. He is a long time attorney here. 10 THE COURT: Good morning. Counsel, is 11 it your intension to file an entry of appearance? 12 MR. GOTTSTEIN: No, I don't intend to, 13 unless you prefer one. 14 THE COURT: Your request, 15 Mr. Gottstein, is that he just sit at counsel table 16 with you? 17 MR. GOTTSTEIN: Correct. 18 THE COURT: That's fine. Ms. Myers has 19 entered the court room, which I appreciate very 20 much. Is it Ms. Myers' request that this 21 proceeding be open to the public, Mr. Gottstein? 22 MR. GOTTSTEIN: It was the last time I 23 talked to her. Is that what you still want, Faith? 24 MS. MYERS: Can I make a correction? 25 My name is Ms. Tussing. 0004 1 THE COURT: There is going to be a 2 problem getting the recording on the microphone, 3 ma'am. Could you come around to the microphone, 4 around to counsel table? 5 Ms. Myers is correcting me that her 6 name is something else and I can't hear what you 7 are saying. Ma'am, you were telling me you wish to 8 be addressed with a different name? 9 MS. MYERS: I have not been a Myers 10 since I was divorced in 1993 on June 23, Your 11 Honor. 12 THE COURT: All the pleadings in this 13 case have been titled Faith Myers, so how is it you 14 would like to be addressed, ma'am? 15 MS. MYERS: My maiden name is Tussing 16 and I come from a line of Tousissants. 17 THE COURT: How do you spell that, 18 please? 19 MS. MYERS: Tussing is T-u-s-s-i-n-g.. 20 THE COURT: All right. 21 MS. MYERS: Tousissant is 22 T-o-u-i-s-s-a-n-t. 23 THE COURT: All right. I will do my 24 best to remember. It's just that I have had this 25 case for several months and I have been thinking of 0005 1 you and referring to you as Ms. Myers consistently, 2 so I'll do my best to remember to refer to you as 3 you wish with your maiden name, Ms. Tussing. 4 This is the time set for a jury trial 5 on the state's voluntary petition -- involuntary 6 commitment petition and the petition for forced 7 medication. Mr. Gottstein, on behalf of his 8 client, filed a motion to disqualify the trial 9 court judge, which I reviewed last night and I have 10 entered an order. 11 Well, actually, I have drafted an order 12 responding to that motion and they are just 13 formatting it, so I don't have it yet to give to 14 both of you. 15 The motion is denied upon review by me, 16 but as I explained yesterday, it automatically goes 17 to be reviewed by another judge, so I will arrange 18 for that to occur just as soon as I can arrange for 19 it to occur. 20 What I said yesterday is that I thought 21 that could be done pretty promptly. I have never 22 had one filed in my court before. I have served as 23 the reviewing judge before, and, in those 24 instances, the issue has been quite discreet, so 25 it's been possible to rule on review quite quickly. 0006 1 Mr. Gottstein's motion actually raises 2 several different points, so I don't know and I 3 don't want to try to predict how long it is going 4 to take to get that reviewed. I think the most 5 efficient way for me to proceed is to tell you that 6 it will be delivered to Judge Hensley just as soon 7 as I can have my clerk take it down there, along 8 with my order. 9 I will serve that order on each of you, 10 and as soon as it is reviewed, we'll let you know. 11 So what phone numbers do I use to contact each 12 counsel, please? I'll start with you, Mr. Killip. 13 MR. KILLIP: 269-8484. 14 THE COURT: Mr. Gottstein, where will 15 you be today, please? 16 MR. GOTTSTEIN: 274-7686. 17 THE COURT: All right. And you will 18 notify your co-counsel? 19 MR. GOTTSTEIN: Yes. He will be with 20 me, I think. 21 THE COURT: That's fine. I apologize. 22 I don't know how to tell you whether it is going to 23 take an hour or two hours or what it is going to 24 take. 25 Mr. Gottstein, I guess I'll leave it 0007 1 for you to coordinate with your client whether she 2 is going to remain or be transported back to API. 3 I don't know what to tell you about how long this 4 might take. 5 MR. GOTTSTEIN: I don't really have a 6 lot of control over that normally. 7 THE COURT: Well, their representatives 8 -- we need to be clear for the record. There is 9 representatives in the court room from API who have 10 accompanied Ms. Myers here today, correct? All 11 right. 12 Sir, I just don't know how long -- I 13 mean Ms. Tussing here today. I don't know how long 14 this is going to take, so I don't know if you want 15 to wait or if you want to be subject to recall. Do 16 you just take a private automobile or van? 17 (Indiscernible.) 18 THE COURT: I think that is probably 19 the best way to go. It is certainly not going to 20 take -- it is going to be at least an hour. I 21 wouldn't be surprised at all if it takes, you know, 22 most of the morning, so rather than having you just 23 sort of waiting here with Ms. Tussing, perhaps 24 that's the way to go. 25 Does Mr. Killip have a phone number to 0008 1 reach you too or do you want my clerk to call you? 2 API REP: Actually, I have a cell 3 phone, but I can give you the office number where 4 we're going to be at. 5 THE COURT: Okay. Whatever number you 6 want my clerk to call you is the one I should get, 7 so can you give me those? 8 API REP: 269-7204. 9 THE COURT: All right. Is that your 10 office or your cell? 11 API REP: That's the office, ma'am. 12 THE COURT: And, sir, your name, 13 please? 14 API REP: My name is Fred Aeriola. 15 THE COURT: Mr. Aeriola, I appreciate 16 your accompanying Ms. Tussing today and I think 17 there is nothing at this point more that I can do. 18 Let me just stand in recess subject to recall. 19 MR. GOTTSTEIN: Your Honor, if I may. 20 You mentioned that a standing order on AS-222020, 21 and I was wondering if maybe -- oh, and I have got 22 the order that we keep forgetting to get signed on 23 the fees. Anyway, I would just like to see the 24 standing order -- sign it, because the statute says 25 that goes to the presiding judge in the next 0009 1 highest court. 2 THE COURT: I gave you a quizzical 3 look. I know what you mean. I made reference to 4 the -- I may have said standing order from the 5 chief justice to refer this to the presiding judge 6 to be delegated to a superior court judge for 7 review. I have seen that, I think, and I'll see if 8 I can get a copy for you. 9 MR. GOTTSTEIN: I'm just curious what 10 it says what the procedure is and if I have any 11 rights under it. 12 THE COURT: Not a problem. I think I 13 have seen it in other cases and I will get a copy 14 for both counsel. The context I have seen it in is 15 a case where I served as the reviewing judge. I 16 think Judge Hensley probably has a copy of it, 17 counsel. 18 All right. You have just provided an 19 order and judgment. This goes to the fees for 20 Dr. Smith. Mr. Killip, is there any objection to 21 entry of this judgment? 22 MR. KILLIP: My recollection is that I 23 think that was the amount, so no objection. 24 THE COURT: I have just executed that 25 order and that will be served today. Is there 0010 1 anything further? We stand in recess. 2 * * * 3 THE COURT: We're back on record in 4 case number 3AN-03-0277 Civil. This is the matter 5 involving Faith Myers Tussing's petition for 6 involuntary commitment. The record should reflect 7 that Mr. Gottstein and his co-counsel are present 8 in the court room as is Mr. Killip. I didn't 9 request that Ms. Myers Tussing be brought back to 10 the courthouse because this is going to be very 11 quick and it is just a matter of logistics. 12 It is 11:00. It is after 11:00 now and 13 it took me a while to get my order formatted and 14 sent off and this needs to be heard by another 15 judge, as I have indicated, and so I have -- 16 because I was contacted by the jury clerk, I have 17 let the jurors go, and I know you all are in kind 18 of hold, on stand by, so I wanted you to know that 19 I have done that so that you could plan the rest of 20 your days accordingly. 21 I don't have a decision from another 22 sitting judge yet, so I don't have that conclusion 23 to be able to tell you, but wanted to be able to 24 let you know that that's how we're going to proceed 25 today so that you can plan your schedules 0011 1 accordingly. 2 Mr. Gottstein, you asked for a copy of 3 a standing order, that you think I referenced a 4 standing order. I think I did too, but I did check 5 with Judge Hensley and I'm just wrong about that. 6 The order that I entered in this case I entered 7 referring this to Justice Fabe because that's what 8 the statute requires me to do. 9 MR. GOTTSTEIN: That's what I thought, 10 Your Honor. 11 THE COURT: That's what the statute 12 requires me to do and that was my intension. I 13 thought I remembered seeing a standing order from 14 Justice Fabe that she has delegated that to Judge 15 Hensley. I'm just wrong. That's not the case. 16 What I probably saw in another case 17 where I sat as the reviewing judge is an order from 18 Justice Fabe referring it, but at any rate, I 19 promised you the last time we were here this 20 morning I would check on that and I think I was 21 just mistaken, so I apologize for that. 22 Any other questions? 23 MR. GOTTSTEIN: One other thing is I'm 24 trying to get back up to, you know, to speed and so 25 one of the things is you asked for motions in 0012 1 limine and I wasn't quick enough yesterday when the 2 list -- obviously, I objected to all of the 3 witnesses because they weren't listed, but in 4 addition, I would object to and move in limine 5 against any testimony regarding harm, because 6 that's not alleged in this petition. Harm to self 7 or others is not alleged in this petition so there 8 should be no testimony on that. 9 THE COURT: So do you just want to make 10 this oral motion now or are you just providing this 11 notice to the State that this motion to going to be 12 coming? 13 MR. GOTTSTEIN: Would you prefer -- 14 yes, if you prefer a written motion, I can do that, 15 but I wanted to give a heads up on that. 16 THE COURT: Well, I appreciate that. 17 Since we're in limbo and I don't know whether I'm 18 going to be trying the case, I think it is 19 important that you lodge, even if it is just a 20 brief motion, but something in writing so the trial 21 court judge can deal with it. You see it may be 22 that late this afternoon -- and I fully expect I 23 will have a decision today on the motion to 24 disqualify. 25 If I get one, if we all get one 0013 1 indicating that I'm not the trial court judge, then 2 this file to going to be reassigned and I would 3 expect that it will go to a trial judge 4 immediately. I don't know that anybody would be 5 able to keep your trial date for Monday, but in the 6 event that that could happen, we would want that 7 motion in the file so that the trial court judge 8 can take it up. 9 MR. GOTTSTEIN: Your Honor, if it is 10 going to be a new judge, I would file serious 11 motions like I did previously. And so I am kind of 12 in limbo on that, and I suppose I could do that 13 anyway. So not to say that this isn't a serious 14 motion, but anyway, it is just hard to know how to 15 do things. 16 If we have got a new judge that's not 17 familiar with it you kind of would tend to take 18 different tacks normally. I understood from 19 yesterday that you anticipated that if it was 20 assigned to a new judge that we would have a status 21 and scheduling conference to figure out when the 22 trial would be. 23 THE COURT: I am not going to predict 24 what a new judge would do or whether you are going 25 to have a new judge. If you wind up with one, I 0014 1 imagine there would be a status conference. That 2 would be my expectation. Is there anything 3 further? 4 What I'll do is ask that each of you 5 have somebody available at those phone numbers that 6 you provided so that my assistant can notify you 7 when we have a decision on the motion to 8 disqualify, and at the same time, she'll serve a 9 copy of the order I entered earlier this morning 10 and there probably will be an order from the chief 11 justice assigning this to another judge to review 12 and whatnot. There will be two or three orders. 13 Mr. Gottstein, did we serve a copy of 14 the order entered earlier today on you, the one 15 authorizing your expert fees? 16 MR. GOTTSTEIN: No, Your Honor. 17 THE COURT: Okay. So you'll have that 18 as well. She will just serve all of them. 19 Anything further? We'll go off record. Thank you. 20 (Off record.) 21 -o0o- 22 23 24 25 0015 1 TRANSCRIBER'S CERTIFICATE 2 3 I, SONJA L. REEVES, hereby certify that the 4 foregoing pages numbered 1 through 15 are a true, 5 accurate and complete transcript of the proceedings 6 in Case No. 3AN-03-277, In The Matter of Faith 7 Myers, transcribed by me from a copy of the 8 electronic sound recording to the best of my 9 knowledge and ability. 10 11 ____________ _____________________________ 12 Date SONJA L. REEVES, RPR 13 Transcriber 14 15 16 17 18 19 20 21 22 23 24 25