MOTION AND SUPPORTING MEMORANDUM TO DISMISS BASED ON THE INADEQUACY OF THE COMMITMENT PETITION

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.

FACTS

On March 24, 2002 the state filed a petition for 90-day commitment, seeking court approval for further involuntary hospitalization of the Respondent. Later on that same day, the state replaced this petition with an amended petition. The state’s only support for the general pre-printed allegations in the petition, are as follows:

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.

LAW AND ANALYSIS

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 ghosts.” Id. Even though this court found that the recitation of facts were “sparse,” it found that they “were sufficient to support the allegations of Ms. Myers mental illness and likelihood of causing harm to herself.” Id. This court went on to state that it’s decision was “based, in part upon the fact that the statute requires that the Petition be prepared in a very short timeframe.” Id.

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 psychosis.” Id. By stating in the petition that Respondent “remains very psychotic,” the state is merely alleging that she is mentally ill, without providing specific facts to support the allegation. The statement is also circular, since psychosis means the same thing as mental illness, according to the state, Respondent is mentally ill because she is mentally ill. Thus, this statement provides absolutely no factual support to the allegation that respondent is mentally ill as required under AS 47.30.730(a)(1), let alone the allegations that she is gravely disabled and a danger to herself and others.

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).[1] 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).[2] 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.[3] 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.”[4] 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] 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 U.S. 504, 509, 92 S.Ct. 1048, 1052 (1972).

Because of the liberty interest involved, due process must be protected in these proceedings. Addington v. Texas, 441 U.S. 418, 425, 99 S.Ct. 1804, 1809 (1979); O’Conner v. Donaldson, 422 U.S. 563, 580, 95 S.Ct. 2486, 2496 (1975) (Burger, C.J., concurring). The “right to be free from, and to obtain judicial relief for, unjustified intrusions on personal security” is “among the historic liberties” protected by the right to due process.” Ingraham v. Wright, 430 U.S. 651, 673, 97 S.Ct. 1401, 1413 (1977). This right is denied if the statutory mandate of providing the respondent with a list of facts and specific behavior that is the basis of seeking involuntary confinement is not strictly interpreted. In re Cross, 662 P.2d 828 (Wash. 1983). In order to put on a meaningful defense, respondents must know the specific facts and behavior that the state plans to rely upon as support for commitment. Id. at 834. The state should not be allowed to rely upon time constraints as an excuse for not providing individuals the specific information necessary for their defense.

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.

CONCLUSION

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.

Dated:______________, 2003

Law Offices of James B. Gottstein

By:_________________________

Martin A. Engel

ABA#0011073

Counsel certifies that this Memorandum, including the underlying Motion and proposed Order was faxed to Jeff Killip at 258-6872 this same date.

__________________

[1] 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.

[2] 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.

[3] 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 U.S. 407, 409-10, 122 S.Ct. 867, 869 (2002) (discusses the three constitutional requirements of commitment statutes and includes the element of dangerousness to self or others as a requirement).

[4] 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).

[5] 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.