Response to Motion to Reset Hearing for Expedited Consideration

Respondent opposes the Motion to reset a hearing for expedited consideration on the 90-day commitment petition. It is Respondent’s position that the state is without authority to continue with her involuntary hospitalization because it has failed to provide her a timely hearing on the petition. Respondent also opposes proceeding with a second medication petition while the issue of the first medication petition is pending before the Alaska supreme court.

1. The statutes that determine when a hearing on the petition is required to take place are AS 47.30.740(b) and AS 47.30.745(b). Under AS 47.30.740(b), “a date for [the] hearing shall be set…for not later than five judicial days from the date of filing of the petition.” Under AS 47.30.745(b), “unless the respondent is released or is admitted voluntarily following the filing of a petition and before the hearing, the respondent is entitled to a judicial hearing within five judicial days of the filing of the petition.” The 90-Day Commitment petition at issue was filed on March 24, 2003. Respondent elected a public hearing on March 28, 2003. The time for a hearing on this matter has since expired as measured starting from either date.

Respondent has not requested, nor has she been granted an extension or continuance of the 90-day commitment hearing. Respondent has been granted no requests in this matter. The state seems to assert that she has requested or been granted a six-day extension of the 90-Day Commitment Hearing. If the state is suggesting that her election of a public hearing under AS 47.30.735(b) is a request for an extension, the state is mistaken. An election of such a hearing is a statutory right to have a full hearing in a courtroom open to the public, it is not a request for an extension, continuance or delay.

The state also mistakenly asserts that AS 47.30.745(g) provides that a hearing shall take place within 20 days of the filing of the petition. AS 47.30.745(g) does not indicate when a hearing shall take place following the petition, it only provides that if a court does not issue a final decision regarding continued treatment within 20 days of the filing of the petition, the Respondent shall be released. As has been demonstrated above, AS 47.30.740(b) and AS 47.30.745(b) control when the hearing must be held, and the time has since expired; therefore, the state has no authority to continue to forcefully hospitalize Respondent and she should be released.

2. The state also seeks to have this court address the second medication petition at this time even though the order regarding the first medication petition has been stayed and is pending before the Alaska supreme court. The state justifies doing so for reasons of judicial economy. Respondent disagrees with the state’s position on this issue and respectfully requests that this court abstain from deciding the second medication petition until such time as the first petition is resolved.

Judicial economy will not be furthered by proceeding with a second medication petition before the first petition is finally resolved. At issue in the first medication petition are important constitutional rights that need to be clarified. It would be illogical to forge ahead before the questions presented in the first petition are resolved since these same issues will undoubtedly arise in a hearing on the second medical petition. After the Alaska supreme court decides the first petition there should be no need for further adjudication of these duplicative issues. Therefore, it seems that judicial economy would be best served by awaiting the Alaska supreme court’s decision and implementing it’s ruling at future hearings as opposed to wasting time arguing over these matters that will be decided in due course anyway.

DATED:__________, 2003

Law Offices of James B. Gottstein

By:_________________________

ABA#

Counsel certifies that this was faxed to Jeff Killip at 258-6872 this same date.

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