Law Offices of James B. Gottstein
Office of Counsel
Attorney for Faith J. Myers, Respondent
IN THE SUPERIOR COURT
FOR THE STATE OF
THIRD JUDICIAL DISTRICT,
In The Matter of the Hospitalization )
FAITH J. MYERS )
) Case No. 3AN 03-277 PR
MEMORANDUM IN SUPPORT OF MOTION TO DISQUALIFY
Respondent, Ms. Myers, by and through counsel, has moved (a) to disqualify the currently assigned judge from further proceedings in this matter under AS 22.20.020 and the Alaska Code of Judicial Conduct, and (b) pursuant to AS 22.20.020(c), in the event that the Court denies disqualification, for the matter to be referred for assignment to another judge by the presiding judge of the next higher level of court, which would appear to be the Chief Justice of the Alaska Supreme Court. The grounds for the motion to disqualify follow.
First, literally as the hearing set for the 90-Day Petition for Commitment and the separate Petition for Court Ordered Administration of Psychotropic Medication was about to begin, the judge distributed a Notice of Disclosure, apparently under AS 22.20.020(b) or the Commentary to Canon 3 E.(1) of the Alaska Code of Judicial Conduct, allowing either party to disqualify the judge. See, Exhibit 1. This presented a Hobson's Choice to Respondent because she was currently locked up in the mental hospital and disqualification necessarily meant a delay in the possibility of her release. Respondent did not elect to disqualify the judge at that time. Respondent did not elect to disqualify the judge at that time even though the judge had ruled against her at the hearing on the 30-Day Commitment Petition and later on the separate First Forced Medication Petition because while it was felt these rulings were not correct, at least with respect to the 30-Day Commitment Petition, counsel felt it was understandable considering the testimony presented, the inability of Respondent to have her own expert in that case and the judge's relative inexperience. In other words, the 30-Day Commitment Order was within the range of fairness.
The ruling on the First Forced Medication Petition really was probably outside the range of fairness, but Counsel felt that Respondent had such an overwhelming case to defeat the state's burden of showing entitlement to both the 90-Day Commitment Petition and the Second Forced Medication Petition by clear and convincing evidence that Ms Myers had a very good chance of prevailing. Therefore counsel recommended to Ms. Myers that the hearing go forward and Ms. Myers accepted the recommendation.
While this may have constituted a proper
waiver for the 90-Day Commitment and Second Forced Medication Petitions,
the judge is under a continuing duty with respect to fairness and impartiality
and the appearance of fairness and impartiality. Respondent brings up the Notice of Disclosure
because it was certainly considered by the judge to be grounds for
disqualification at that time and factors into the totality for consideration
of this motion to disqualify. This was
precisely one of the factors in Perotti
v. State, 806P.2d 325 (Alaska App. 1991).
There, the Court said, "It is highly relevant that Judge Hodges
initially offered to recuse himself from the adult sentencing
hearing." Id, at 328. This alone, is
probably not enough, but the court, referring to a prior version of the Code of
Judicial Conduct, pointed out that "a judge 'should disqualify himself in
a proceeding in which his impartiality might reasonably be questioned,' a judge
challenged under AS 22.20.020(a)(9) is independently required to consider not
only actual impartiality, but also the appearance that is likely to flow from
participation in the case at issue."
This, however, is just one element demonstrating the judge's lack of fairness and impartiality or where the judge's fairness and impartiality might reasonably questioned, and, standing alone, perhaps is insufficient to mandate disqualification.
Canon 3.B.(2)(b) provides in pertinent part, "A judge shall be faithful to the law.* A judge shall not deviate from the law to appease public clamor, [or] to avoid criticism." The asterisk denotes a defined term and in the Terminology section of the Canons, "law" is defined as follows: "'Law' means court rules as well as statutes, constitutional provisions, and decisional law" and Canon 3.B(2) is specifically referenced. In this case, the judge has consistently and steadfastly refused to apply the applicable law when it is favorable to Respondent.
For example, with respect to the 30-Day Commitment Petition, AS 47.30.30(a)(6) provides that the petition must, "list the prospective witnesses who will testify in support of commitment or involuntary treatment." This right is critical to due process because the hearing has to be held within 72 (non holiday and weekend) hours from the person's arrival at the hospital under AS 47.30.725(b) and can only be waived for seven calendar days by the person's counsel under AS 47.30.725(f). The 30-Day Petition, however, listed "none." See, Exhibit 2, page 2. Counsel for Ms. Myers knew, however, that Dr. Hanowell was going to be called, and held his deposition (under a one hour time limit imposed by the judge). At the March 5, 2003 hearing, counsel for Ms. Myers objected to anyone else testifying:
12 MR. GOTTSTEIN: Your Honor, I would note under AS
13 47.37.30(a)(6) that the petition must list the prospective
14 witnesses who will testify in support of commitment or
15 involuntary treatment, and only Dr. Hanowell was listed.
16 And I would object to any witness other than the one
17 specifically listed testifying.
18 THE COURT: All right. The objection is noted, but
19 again, I'm not going to make any substantive ruling until
20 your client gets here. My intention is to stay on record
21 just to get some housekeeping taken care of.
* * *
21 MR. KILLIP: I could start with Ms. Humphreys, Your
23 MR. GOTTSTEIN: Your Honor, I renew my objection to
24 Ms. Humphreys. She wasn't listed, as required by the
1 THE COURT: And you think you've been prejudiced by
2 that in some way?
3 MR. GOTTSTEIN: Yes, I haven't been able to take her
4 deposition. I mean, she wasn't listed.
5 THE COURT: But she's one of the people who signed
6 the original petition, or provided the information for
8 MR. KILLIP: Yes, Your Honor.
9 THE COURT: Is that the basis for her testimony now?
10 MR. KILLIP: Yes.
11 THE COURT: All right. I'm going to allow her
12 testimony, then.
Thus, the judge allowed the state to call witnesses that were not listed on the petition even though the law states that the petition "must . . . list the prospective witnesses who will testify in support of commitment or involuntary treatment." Therefore, this very important due process protection and clear statutory directive for the benefit of Ms. Myers was violated by the judge.
Similarly, the judge violated the clear requirement of AS 47.30.730(a)(7) that the Petition for 30-Day Commitment "list the facts and specific behavior of the responding supporting the allegation [of mental illness, likelihood of harm and being gravely disabled]. Instead, the 30-Day Commitment Petition lists only
1. Ms. Myers exhibits clear evidence of a psychotic process.
2. She is felt to be unable to provide adequately for her basic needs.
This was amended to add:
3. She has reportedly been making threatening remarks to other tenants @ her apartment complex.
Being "felt to be unable to provide adequately for her basic needs" is not a fact or specific behavior and even if it was, is a far cry from supporting an allegation of being gravely disabled. Similarly an allegation of making threatening remarks comes nowhere close to supporting that she "is likely to cause harm to self or others" as required by AS 47.30.730(a)(1).
This was the subject of Ms. Myers' Motion to Dismiss for failure to comply with the statute. See, Memorandum in Support of Motion to Dismiss and Pre-Hearing Brief at page 8. However, the judge violated this law too by refusing to afford Ms. Myers the protection mandated by this statute.
At a minimum, the violation by the judge of these laws enacted to protect Ms. Myers' rights by requiring the witnesses that can be called against her be listed in the petition and that the specific facts and behavior supporting the petition also be listed demonstrate that "the judge’s impartiality might reasonably be questioned." It is particularly important that there not be even be a hint of the judge's refusal to follow these statutory protections because the consequences to the respondent are so severe -- she is locked up and most likely forced to take medications against her will -- and appellate relief is virtually unobtainable, particularly for the former. Ms. Myers is entitled to the protection of these laws, which the judge has refused to follow.
The same thing then happened at the hearing on the 90-Day Commitment Petition. The petition allegations were totally devoid of any facts and specific behavior supporting the 90-Day Commitment Petition, stating only:
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.
See, Exhibit 3.
Respondent also moved to dismiss the Petition on the grounds that these statements were legally insufficient to satisfy the involuntary confinement of Ms. Myers under AS 47. 47.30.730(a)(1). Ms. Myers pointed out that while the judge admitted the allegations in the 30-Day Commitment Petition were "sparse," but had allowed it "based, in part upon the fact that the statute requires that the Petition be prepared in a very short timeframe," there was absolutely no such time exigency for the 90-Day Commitment and that Ms. Myers was entitled to know the specific facts and behavior being used to lock her up (without any crime having been committed). See, Motion And Supporting Memorandum To Dismiss Based On The Inadequacy Of The Commitment Petition, page 2. This was to no avail, the judge once again refusing to follow the law providing specific protections for Ms. Myers.
The judge's refusal to follow the law with respect to the requirement to list witnesses also occurred at the hearing on the 90-Day Commitment Petition with the state allowed to spring a surprise witness at the trial over Respondent's objection, with no notice whatsoever. Counsel believes the justification for this was that the witness' name appeared in Ms. Myers chart. Of course there are many, many names appearing in the chart and it is unfair and a denial of due process to require Ms. Myers to guess who might be called. The law requires that in order for anyone to be allowed to testify against Ms. Myers the person has to be listed in the Petition. The judge did not follow the law on this.
So, the judge has consistently failed to follow the statutes enacted to protect Ms. Myers. The bottom line, is that Respondent is entitled to have a judge who upholds the law and the judge has consistently refused to do so. This is grounds for disqualification. If it was just one or two instances, it could be put off as mere error, but there is a pervasive and consistent refusal of the judge to follow the statutes protecting Ms. Myers rights showing actual unfairness and bias leading unquestionably to a conclusion that "the judge’s impartiality might reasonably be questioned."
The judge also explicitly refused to follow
controlling case law. In both the Motion
to Dismiss for the 30-Day Commitment Petition and at the hearing on the 90-Day
Commitment Petition, Ms. Myers pointed out that the "gravely disabled"
standard for locking someone up is not constitutional unless it means harm to
self or others under the controlling decisions of the United States Supreme
Court in Foucha v.Louisiana, 504 U.S. 71, 112 S.Ct. 1780 (1992) and Kansas v. Crane, 534 U.S. 407, 409, 122
S.Ct. 867, 869 (2002). When Mr. Martin Engel, who was handling most
of the 90-Day Commitment hearing stated in his closing something to the effect
"that under decisions of the Supreme Court the gravely disabled standard
is unconstitutional unless it means a harm to self or others" the judge
asked for the citations. When counsel
here responded, "Foucha and
The judge also allowed the state to renege on a formal agreement not to proceed on the Second Forced Medication Petition. When the Second Forced Medication Petition was filed, the Order granting the First Medication Petition (First Forced Medication Order) was on appeal in S-11021 and the First Forced Medication Order was stayed. When counsel received this, he immediately called and left voice mail saying something to the effect that since the First Forced Medication Order was stayed, he didn't think it was appropriate for the state to proceed on the second one. Counsel for the state responded with a voice mail that he agreed. This occasioned a confirming e-mail, the relevant portion of which is:
To: "Jeff Killip" <Jeff_Killip@law.state.ak.us>
From: Jim Gottstein <email@example.com> Subject:
Re: Faith Myers: 2 New Petitions [90 Day + Meds]
Cc: "Kletti, Nicholas" <Nicholas_Kletti@health.state.ak.us>
I received your messages that the hospital was not going to proceed with the medication petition absent guidance from the Supreme Court. I appreciate your letting me know about that because I was trying to figure out what I was going to do about it with the previous one having been stayed. I assume you will be filing some sort of appropriate pleading to the court to confirm that you won't be proceeding on it at this time.
(See, Exhibit 4)
Counsel for the State confirmed this agreement in a responding e-mail:
From: "Jeff Killip" <Jeff_Killip@law.state.ak.us>
Subject: Re: Faith Myers: 2 New Petitions [90 Day + Meds]
I will just go down your list:
1. Notice of intention not proceed on new meds petition. I will file some sort of notice that reflects the Hospital's intention that the new meds petition be held in abeyance pending some ruling from the Alaska Supreme Court on at least your motion for stay. I hope to file this before Friday's hearing, but we can always just make that statement on the record on Friday;
(See, Exhibit 5)
In spite of this formal agreement not to proceed on the Second Forced Medication Petition until such time as the issue of the stay of the First Medication Petition pending appeal in S-11021 was determined, the judge allowed the state to renege on this agreement over the strenuous objections of counsel for Ms. Myers. This also shows unfairness by the judge, or at the least, leads to the conclusion that "the judge’s impartiality might reasonably be questioned."
In addition, the judge showed unfairness and bias by uncritically accepting testimony from the state's witnesses in spite of an incontrovertible showing that they demonstrated a pattern of testifying untruthfully (including untruthfully filling out various petitions under oath), while categorically rejecting the opinion of the independent psychiatrist appointed by the court pursuant to AS 47.30.745(e) to testify on Ms. Myers' behalf. The incontrovertible showing of untruthful testimony and falsely sworn documents is set forth in Respondent's Motion for Reconsideration and/or Motion for Relief from Judgment, a copy of which is attached hereto as Exhibit 6 (Motion for Reconsideration), and incorporated herein by reference as though fully set forth.
Respondent pointed out in her Motion for Reconsideration that this sort of dishonest testimony is widely known to be common in these types of proceedings:
Experts frequently . . . subvert statutory and case law criteria that impose rigorous behavioral standards as predicates for commitment . . .
This combination . . . helps define a system in which (1) dishonest testimony is often regularly (and unthinkingly) accepted; (2) statutory and case law standards are frequently subverted; and (3) insurmountable barriers are raised to insure that the allegedly "therapeutically correct" social end is met . . .. In short, the mental disability law system often deprives individuals of liberty disingenuously and upon bases that have no relationship to case law or to statutes.
Psychiatrists explicitly acknowledge that they regularly lie to the courts in order to obtain forced treatment orders. E. Fuller Torrey, M.D., probably the most prominent proponent of involuntary psychiatric treatment says:
It would probably be difficult to find any American Psychiatrist working with the mentally ill who has not, at a minimum, exaggerated the dangerousness of a mentally ill person's behavior to obtain a judicial order for commitment.
(emphasis added) Torrey, E. Fuller. 1997. Out of the Shadows: Confronting America's Mental Illness Crisis. New York: John Wiley and Sons. 152.
Uncritically accepting demonstrably false testimony and falsely sworn documents, especially when shown that such dishonest testimony is known to be common, demonstrates bias and unfairness by the judge, going far beyond merely establishing the conclusion that "the judge’s impartiality might reasonably be questioned." However, an objective observer would certainly have reason to believe "the judge’s impartiality might reasonably be questioned" by her uncritically accepting demonstrably false testimony and sworn documents.
judge also recited that she found the state had established its case by clear
and convincing evidence as if the mere recitation of these words made it
so. Not only does the statute require
proof by clear and convincing evidence, due process under the United States
Constitution demands it as well. In Foucha v.Louisiana, 504
Addington v. Texas, 441 U.S. 418, 99 S.Ct. 1804, 60 L.Ed.2d 323 (1979), held that to commit an individual to a mental institution in a civil proceeding, the State is required by the Due Process Clause to prove by clear and convincing evidence the two statutory preconditions to commitment: that the person sought to be committed is mentally ill and that he requires hospitalization for his own welfare and protection of others. Proof beyond a reasonable doubt was not required, but proof by preponderance of the evidence fell short of satisfying due process. [footnote omitted]
At the hearing on the 90-Day Commitment
Petition, Dr. Douglas Smith, the independent psychiatrist appointed by the
court to evaluate Ms. Myers and testify and who has considerable experience obtaining
involuntary commitments and forced medication orders in
Any one of the above items, or even a couple, or even a few, might not mandate disqualification, but all of them together has to lead to the conclusion that, at a minimum, "the judge’s impartiality might reasonably be questioned" even if actual bias and unfairness were not found.
Most concerning however, is that it seems
almost certain that the judge improperly back-dated a judicial order in order
to make it appear it was entered before it actually was. The First Forced Medication Order was issued
At this point counsel, needs to state that he tried mightily to avoid having to file this motion through both the Notice of Change of Judge, the denial of which is the subject of a Petition for Review under Case No. 11116, and the motions here and before the Supreme Court to stay the trial currently scheduled for tomorrow pending resolution of the Petition for Review, neither of which have been granted. Counsel feels he was obligated to file this motion because of his duty to his client to try and vindicate her right to a fair and impartial judge. Counsel also needs to say that he has striven to make sure that all the statements contained herein are accurate. Because of the very short time frame available to present this motion, however, it is possible that some statements may not be completely accurate. However, counsel believes that the essence is correct in all cases.
Finally, Respondent re-iterates that if the court denies disqualification that under AS 22.20.020(c), requires the matter to be referred to another judge assigned by the presiding judge of the next higher level of court, which would appear to be the Chief Justice of the Alaska Supreme Court and counsel will be so requesting.
Law Offices of James B. Gottstein
James B. Gottstein
 Counsel does not want to be overly technical here because the most important things are (1) whether the judge is or is not actually fair and impartial, and (2) whether "the judge’s impartiality might reasonably be questioned" (Canon 3.E.(1)), but these do not appear to be waivable under the Canons.
 The court has this transcript.
 This, of course, would have allowed Ms. Myers to depose the prospective witness in order to prepare a defense or otherwise prepare to defend against testimony that could be reasonably anticipated.
 It can be pointed out here that the extremely short time frames involved makes compliance particularly important.
 The United States Supreme Court does not permit a person to be committed because that person is mentally ill and only “gravely disabled” but not dangerous. Thus, only if "gravely disabled" means dangerous under AS 47.30 is it constitutional.
 Standards for commitment to mental institutions are constitutional only if they require a finding of dangerousness to others or to self.
Suzuki v. Quisenberry, supra, at 1121-1126; Doremus v. Farrell, 407 F.Supp. 509, 514- 15 (D.Neb.1975). See also
O'Connor v. Donaldson, 422
Doe v. Gallinot, 486 F. Supp. 983 (C.D. California 1979). See, also, Stamus v. Leonhardt, 494 F. Supp. 439, 451 ( (S.D. Iowa 1976), citing Doremus v. Farrell, 407 F.Supp. 509 (D. Neb. 1975):
Due process and equal protection require that the standards for commitment must be (a) that the person is mentally ill and poses a serious threat of substantial harm to himself or to others; and (b) that this threat of harm has been evidenced by a recent overt act or threat. The threat of harm to oneself may be through neglect or inability to care for oneself.
The State has admitted that the allegation of gravely disabled in the Petition for Commitment is not one that the Respondent is a danger to herself. See, Deposition of Robert Hanowell, MD., at pp 25 line 15 to page 26, line 9, which is attached to the Memorandum in Support of Motion in Limine to Exclude Psychiatric Testimony filed this same date. (Hanowell Deposition).
 There were other items addressed in the e-mail, which are not included in the exhibit.
 Again, only the relevant portion is presented in the exhibit.
 See, Certificate of Service and Typeface
 This is particularly true because the March 14, 2003 Order was faxed to counsel with a time stamp bearing , on that date. Why would the judge not do the same thing if the Order dated March 21st was actually signed on that day? For all the world, it looks like the Order was not signed until after March 21st, probably March 24th and back dated to March 21st to make it look like Order was issued before Respondent's Motion for Stay Pending Appeal was filed in S-11021. In addition, there was nothing to suggest that another order would be forthcoming and in light of the fact that the judge knew a stay pending appeal had to be filed by March 21st, it was incumbent upon the judge to have issued any such rulings a reasonable time before then to allow Respondent to address them in her motion for stay pending appeal.