MEMORANDUM IN SUPPORT OF MOTION TO DISMISS Re: TIME

Respondent Faith J. Myers, has moved to dismiss the petition for 90-day commitment

because the time to hold the hearing has expired. This Memorandum is submitted in support of

the Motion to Dismiss.

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. To date, Respondent has not been provided a hearing on the amended petition.

LAW AND ANALYSIS

It is clear that the Alaska legislature recognized the important liberty interests at issue in 90–day civil commitment actions by requiring, among other things, strict compliance with relatively short time limits. AS 47.30.745(f). These specific requirements mandating when a hearing on a commitment petition is required to take place are enumerated in 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 so the time to proceed with this matter has expired.

The five-day time limit for a hearing to commence imposed by AS 47.30.740(b) is mandatory. See Fowler v. City of Anchorage, 583 P.2d 817, 820 (Alaska 1983) (“unless the context otherwise indicates, the use of the word ‘shall’ denotes a mandatory intent.”). There is nothing in the context of Alaska law governing involuntary commitment proceedings to suggest that the time frame regarding an individual’s right for a hearing is flexible. Therefore, this court is without discretion to hear this matter, since the mandatory time for doing so has long since expired.

Although no Alaska appellate decision has been found to offer guidance on this exact issue, another jurisdiction has addressed the violation of a similar time deadline imposed by involuntary commitment statute. See Hashimi v. Kalil, 446 N.E.2d 1387 (Mass. 1983) (a copy has been attached). In Kalil, a psychiatrist at a Massachusetts state hospital filed a petition for civil commitment of a patient for an additional year. Kalil 446 N.E.2d at 1388. Under Massachusetts law at the time, the patient was entitled to have a hearing on the petition commenced within fourteen days of the filing of the petition. Id. at 1389. However, the patient’s hearing was not scheduled until fifteen days after the petition was filed, and did not take place until seven days after the scheduled date. Id. at 1388. The patient’s motion to dismiss based upon the delay was denied by the trial court but granted by the appellate division of the district courts. Id. On appeal, the supreme judicial court of Massachusetts found that since the statute at issue stated that the commitment hearing “shall” be commenced within fourteen days it was mandatory to do so within that time frame. Id. at 1389. The supreme judicial court affirmed the appellate division’s dismissal of the commitment petition on this basis. Id. at 1390. Since the delay in providing Respondent a hearing is substantially similar to the delay in Kalil, the petition for her commitment should be dismissed for the same reason, and she should be released.

Kalil is not unique in strictly interpreting statutorily imposed time limits for providing respondents a hearing following involuntary commitment petitions. At least one other court has recognized the overriding importance of the liberty interest at stake in involuntary commitment actions by finding that delaying a patient’s right to a statutorily prescribed hearing within five days of a commitment petition being filed, for even a few hours, violated his rights. See In re Chiumento, 688 A.2d 217 (Pa. Super. 1997) (copy attached). Respondent Faith Myers was also entitled to a hearing within five days of the commitment petition being filed; however, her argument is even more compelling, because unlike the respondent in In re Chiumento, her hearing has not been merely slightly delayed, it has been days since the time has expired for the commencement of the hearing she was entitled to.

The above cases demonstrate that when the state wishes to deprive individuals of one of their most fundamental rights—their right to be free from confinement by the government against their will, the process by which it does so will be reviewed strictly by the courts. These cases also send a clear message that when individuals are confined beyond the statutory time set by statute of their right to be heard and defend against involuntary hospitalization, their liberty interests will weigh heavily against governmental interests in confining them against their will. In fact, the liberty interest involved in involuntary commitment proceedings is so great that safeguarding statutorily imposed time limits on the holding of the hearing “goes to the essence of public duty.” Kalil at 1390. Less than strict adherence to these time limits violates individuals’ rights and fosters unnecessary concerns and uncertainty.

CONCLUSION

There is currently no legal basis for the continued confinement of Respondent Faith Myers. The time for commencement of the hearing she was entitled to for her defense of the 90-day commitment petition filed against her on March 24, 2003 has expired. She has suffered irreparable injury by not knowing when, and if, she would be granted her right to defend her confinement. Therefore, Respondent respectfully requests this honorable court to dismiss the 90-commitment petition and order her immediate 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.

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