Office of Counsel
Attorney for Faith J. Myers, Respondent
IN THE SUPERIOR COURT
FOR THE STATE OF
In the Matter of the Hospitalization )
FAITH J. MYERS )
____________________________________) Case No. 3AN 03-277 PR
COMES NOW Respondent Faith J. Myers, by and through her attorney of record,
and moves to dismiss the petition for 90-day commitment because the commitment petition does not, as required under AS 47.30.730(a)(6), “list the facts and specific behavior of the respondent supporting the allegation” that she is mentally ill and is likely to cause harm to herself or others or is gravely disabled. (emphasis added). This non-compliance with statutorily mandated notice requirements is also a violation of her right to due process because the lack of notice provided in the petition is extremely prejudicial to her ability to put on a meaningful defense.
1. The Respondent remains psychotic, with poor insight and judgment. i.e. denies suffering from a mental illness, does not believe she needs treatment; and
2. She continues to exhibit threatening behavior to others.
The issue of this motion
is the state’s lack of sufficiency in pleading facts necessary to support the
allegations of the 90-day commitment petition.
Respondent raised this same issue in a motion to dismiss the 30-day
commitment petition. This court found
that the first petition recited “in addition to the allegations identified by
Respondent in her brief…that Ms. Myers reportedly isn’t eating well and
reportedly may be sleeping in the crawl space under her apartment.” (March 21 Order at 5). This
court also found that the 30-day petition “included an additional reference to
In comparing the two
petitions, it is clear that specific facts supporting the 90-day petition are
even more “sparse” than the facts recited in support of the 30-day
petition. The statement that the
Respondent remains psychotic with poor insight and judgment is nothing more
than a general label and circular conclusion.
“Psychosis” is defined as: “a major mental disorder in which the
personality is very seriously disorganized and contact with reality is usually
impaired. Webster’s New World Dictionary, Second College
Edition, 1982. “Psychotic” is
defined as: “(1) of, or having the nature of, a psychosis (2) having a
The state also recited in the petition, that along with remaining psychotic, respondent has extremely poor insight and judgment because she denies having mental illness and does not believe she needs treatment from the Alaska Psychiatric Institute (API). Even if it were accepted as fact that Respondent has poor insight and judgment because she denies having mental illness and refuses treatment from API, this would not be enough to support the allegations that she is mentally ill, let alone gravely disabled and/or likely to harm herself or others under AS 47.30.730(a)(1). Mental illness is defined under AS 47.30.915(12) as:
An organic, mental, or emotional impairment that has substantial adverse effects on an individual’s ability to exercise conscious control of the individual’s actions or ability to perceive reality or to reason or understand.
The cursory statement that Respondent lacks insight and judgment due to denial of her illness (which she really does not), and refusal of coerced treatment by API simply does not support the allegation that she is mentally ill under the statutory definition. In addition, the statement clearly does not support the allegation that she is gravely disabled under AS 47.30.915(7)(a), which requires facts demonstrating that she is dangerous to herself because of a “complete neglect of basic needs…as to render serious accident, illness, or death highly probable.” Nor does it support AS 47.30.915(7)(b), which defines gravely disabled in the alternative as encompassing those essentially suffering from severe and abnormal distress causing loss of ability to function. Lastly, it cannot be said that her alleged lack of insight and judgment regarding the proper course of treatment for her endangers others. In order to satisfactorily plead the dangerous requirement in a 90-day petition, the state must at the minimum specify some recent overt action, or plan to harm another by respondent. AS 47.30.740(a)(1).
With respect to the issue of Respondent’s danger to others as the basis for her further confinement, the state does allege in the current petition that she “continues to exhibit threatening behaviors to others.” However, this statement is nothing more than a general allegation, which at best provides insight regarding Respondent’s demeanor. When government agents subject individuals to involuntary confinement, coupled with the threat of forced medication, should they not expect anger, belligerence, and threatening demeanors from their captives? If an individual is unhappy with being a captive against her will does that make her mentally ill and a danger to others? The answer is no. AS 47.30.740(a)(1) requires that the state must allege much more than that the Respondent continues to be generally threatening. It requires that the state must “allege that the respondent has attempted to inflict or has inflicted serious bodily harm upon the respondent or another since the respondent’s acceptance for evaluation.” The state simply has not made any allegation, let alone provide specific facts, evidencing an attempt by Respondent to inflict serious bodily injury on herself or another since she has been admitted. Without knowing more regarding the basis of the state’s claim that she continues to be threatening to others, Respondent is denied the ability defend this assertion. Furthermore, in Respondent’s case, it seems especially important for the state to present specific facts in support of this claim, since Respondent is a 51 year-old, slightly over nourished, 5 foot 3 inch tall, grandmother; and there is no evidence of her ever harming another. How threatening can she be?
As mentioned above, in denying Respondent’s motion to dismiss the 30-day petition on this issue, this court emphasized that the decision to do so was based, in part, upon the short time frame afforded for preparation of the petition. Respondent respectfully disagrees with this court’s position on this issue. The short timeframe involved in commitment actions should not be a factor.
When our legislature
imposed the requirement of AS 47.30.730(a)(6) that the
state list facts and specific behavior of the respondent to support the
allegations in the petition, it was certainly aware of the restrictive
timeframe involved in involuntary commitment proceedings. However, it was also equally certain to be
aware that the burden on the state to provide these specific
facts under time pressures is slight compared with the “massive
curtailment of liberty” that involuntary commitment to a mental hospital
imposes. Humphrey v. Cady, 405
Because of the liberty
interest involved, due process must be protected in these proceedings. Addington
v. Texas, 441
When the state seeks extended 90-day commitments, enormous restraints on liberty are at stake—the potential loss of freedom is obviously much greater than the possibly of being committed for 30 days. The legislature has clearly recognized this by providing respondents with additional procedural safeguards for 90-day commitment proceedings. See e.g. AS 47.30.475(c) (right to jury trial); AS 47.30.475(e) (right to independent medical examination); AS 47.30.740(a)(1) (requirement that state’s allegation of dangerousness to self or others must be supported by allegation that during a respondent’s hospitalization she or he has attempted to inflict or has inflicted serious bodily harm or has current plan to do so). Therefore, regarding 90-commitment proceedings, it is unquestionable that there is no excuse for the state’s lack of specificity regarding the facts and behavior it is relying upon to seek extended involuntary confinement.
Respondent in this case had been confined against her will at API for more that thirty days prior to the state’s filing of the 90-day petition. This is more than adequate time to prepare a petition that included a list of specific facts and behavior to support confining her further. Failure to do so not only violates clear statutory mandate, it is prejudicial to her defense.
The 90-day commitment petition is utterly devoid of specific factual support for continuing to confine Respondent against her will. Failing to include specific factual support for the petition violates AS 47.30.730(a)(6), as well as her right to due process, which includes adequate notice for meaningful preparation of her defense. Therefore, Respondent respectfully requests this Honorable Court to dismiss the 90-commitment petition and order her release.
Law Offices of James B. Gottstein
Martin A. Engel
Counsel certifies that this Memorandum, including the underlying Motion and proposed Order was faxed to Jeff Killip at 258-6872 this same date.
 Respondent’s testimony at the 30-day commitment hearing evidences her openness to treatment since she freely admitted to, and provided thorough details, regarding her participation in treatment for over 20 years. Therefore, it is apparent that she does not refuse treatment in general. Her refusal of treatment is refusal of the course of treatment sought by API—coerced treatment with objectionable psychotropic medications.
 Respondent may not agree with the term “mental illness” because of the negative stigma associated with the label; however, it is clear from her life story that she presented during the 30-day commitment hearing that she is candid and insightful regarding her condition. This court has even acknowledged that she is aware of her problems. (March 14 Order at 2). Therefore, the state really cannot properly allege that she denies her condition, when in fact it is obvious that it is the mental illness label that is objectionable to her.
 This subsection of AS 47.30.915(7) is
actually unconstitutional insofar as it permits confinement without
demonstrating that a person is dangerous to themselves or others. See e.g.
Kansas v. Crane, 534
 Alternatively, it must allege that a responds intends to carry out plans to harm seriously harm themselves or another. AS 47.30.740(a)(1).
 According to the admitting physical exam conducted by API. Ironically, the 30-day petition alleged that commitment was necessary in part, because Respondent was not eating well.