IN THE SUPERIOR COURT
FOR THE STATE OF
In the Matter of the Hospitalization )
FAITH J. MYERS )
____________________________________) Case No. 3AN 03-277 PR
OPPOSITION TO SECOND AMENDED 90-DAY COMMITMENT PETITION AND
REPLY TO OPPOSITION TO MOTIONS TO DISMISS RE: TIME AND INADEQUACY OF THE PETITION
COMES NOW Respondent, by and through her counsel of record, and hereby opposes to proceeding on the second amended 90-day commitment filed on this day by the state. Respondent also hereby replies to the state’s opposition to her motions to dismiss regarding time and the inadequacy of the 90-day commitment petition.
OPPOSITION TO 2ND AMENDED PETITION
state is without authority to proceed on yet another
petition. AS 47.30.740(a) specifically
provides that the 90-day petition must be filed during the Respondent’s 30-day
commitment. Under AS 47.30.805, that
time is long past. Allowing the state to
continue to amend the 90-day petition would render these provisions
meaningless. It would also be contrary
to decisions in a great many other jurisdictions that have recognized the
“massive curtailment of liberty” that involuntary commitment to a mental
hospital imposes, by strictly interpreting involuntary commitment statutes. Humphrey v. Cady, 405
In addition to the facts that the state has no statutory authority, and has provided no judicial support for filing yet another amended petition almost two months after Respondent has been involuntarily committed, it has also been stated by the state’s counsel on the record during the hearing setting conference for this matter, that the state would be proceeding on the first amended petition. Respondent has relied upon this statement, as well as clear statutory mandates, and guidance from other jurisdictions, for preparing a defense to the allegations provided in the first amended petition. To allow the state to proceed on the second amended petition at this point would be fundamentally unfair.
opposing Respondent’s motion to dismiss regarding the expiration of time to
commence the 90-day commitment hearing and the inadequacy of the 90-day
commitment petition, the state has essentially one argument: Waiver.
The state claims that Respondent waived her right have a hearing
commenced within five days of the petition being filed because she requested a
public hearing in a courtroom other than a conference room at the Alaska Psychiatric
Institute (API). In support of its
waiver argument, the state ignores the guidance from other jurisdictions cited
by Respondent’s motion
and refers in passing to two
the two waiver cases Respondent cites involve a real estate transaction Miscovich
v. Tryck, 875 P.2d 1293 (
the cases the state cites in support of waiver require “the intentional
relinquishment of a known right.” Tryck, 875 P.2d at 1301 (quoting
the state claims that Respondent never objected to the delay in resetting the
hearing prior to filing a motion to dismiss Re: time. This is simply not true. The state waited until
Lastly, the state asserts that Respondent’s claim of irreparable injury is not convincing. Is the injury from being committed against her will for what amounts to nearly a second 30-day commit following the filing petition not evident? The Supreme Court cases cited above make clear the deprivation of liberty involved, as well as the other harms that are associated with involuntary commitment. For every second, minute, day, and week her hearing has been delayed, Respondent suffers further loss of liberty and harm. This time can never be given back to her. Therefore, it is the state’s suggestion of resetting the hearing as soon as possible (when it is convenient for the state, API, and the court visitor) that is “simply not convincing.”
REPLY TO OPPOSITION TO MOTION RE: INADEQUACY OF THE PETITION
The state also asserts that Respondent waived her right to be notified of the specific facts and behavior that the state would be relying on as the basis for the allegations set forth in the petition because she did not assert this right soon enough. The state further claims that even if Respondent is found not to have waived these rights, the remedy should not be dismissal, but rather this court should reset the hearing (“which has been done”) and grant a continuance if Respondent can demonstrate that one is required.
to the state’s waiver argument on this issue for similar reasons as she objects
to the application of waiver to the five-day rule issue above.
objected to the state’s authority to even proceed with a hearing as soon as
possible after the state moved to reset the hearing. Therefore, the state was on notice that
Respondent objected to having a hearing at all, so further objections to the
petition should have been no surprise.
In addition, during the hearing setting conference, Respondent
specifically inquired with this court regarding when further motions were
due. This court specifically allowed
The state also argues that assuming there has been no waiver of this issue, the remedy of dismissal is not appropriate because another amendment to the petition will cure any problems with the previous two petitions and a continuance may be granted. Respondent cannot agree. She has already been committed against her will for far too long. Forcing her to choose between putting on meaningful defense which would require a continuance and further uncertain confinement, and the certainty of finally have a hearing without proper notice, is not appropriate. The proper remedy is dismissal because the liberty interest she has lost, and will continue to be deprived of with a continuance, is great, and like the liberty lost due to continuances past the five-day time for commencing a hearing, this liberty can never be returned.
Law Offices of James B. Gottstein
Martin A. Engel
Of the foregoing was served by Fax on_________,
Jeffrey Killip, Esq.
Office of Attorney General
Fax No. 258-6872
 The state seems to suggest that Respondent has been on notice regarding the information included in the second petition because this information could have been gathered from the 30-day commitment hearing, a deposition prior to the 30-day hearing, and Respondent’s medical chart. If this were so, 90-day commitment petition requirements would be meaningless, since Respondent would be forced to guess which specific facts and behavior the state will be relying upon from the 30-day proceeding and voluminous medical records.
 See also, the cases cited above under Respondent’s argument against the second amended petition for the rulings of other jurisdictions regarding interpreting involuntary commitment statutes strictly.