Law Offices of James B. Gottstein
Office of Counsel
907-274-7686 phone
907-274-9493 fax
Attorney for Faith J.
Myers, Respondent
IN THE SUPERIOR COURT
FOR THE STATE OF
THIRD JUDICIAL DISTRICT,
AT
In The Matter of the Hospitalization )
)
of )
)
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,[1]
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:[2]
2
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.
* * *
13
21 MR. KILLIP:
I could start with Ms. Humphreys, Your
22 Honor.
23 MR. GOTTSTEIN: Your Honor, I renew my objection to
24 Ms. Humphreys. She wasn't listed, as required by the
25 statute.
14
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
7
that?
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.[3] The judge did not follow the law on this.
So, the judge has consistently failed to
follow the statutes enacted to protect Ms. Myers.[4] 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).[5] 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:
Date:
To:
"Jeff Killip" <Jeff_Killip@law.state.ak.us>
From:
Jim Gottstein <jimgotts@touchngo.com> Subject:
Re:
Faith Myers: 2 New Petitions [90 Day + Meds]
Cc:
"Kletti, Nicholas" <Nicholas_Kletti@health.state.ak.us>
Hi
Jeff,
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)[7]
Counsel for the State confirmed this agreement in a
responding e-mail:
From: "Jeff Killip"
<Jeff_Killip@law.state.ak.us>
To:
<jimgotts@touchngo.com>
Cc:
<Nicholas_Kletti@health.state.ak.us>,
<Robert_Hanowell@health.state.ak.us>
Subject:
Re: Faith Myers: 2 New Petitions [90 Day + Meds]
Jim,
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)[8]
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.
The
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.
The
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]
504
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.
DATED:
Law
Offices of James B. Gottstein
By:
James
B. Gottstein
[1] 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.
[2] The court has this transcript.
[3] 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.
[4] It can be pointed out here that the extremely short time frames involved makes compliance particularly important.
[5] 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.
.
[6] 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).
[7] There were other items addressed in the e-mail, which are not included in the exhibit.
[8] Again, only the relevant portion is presented in the exhibit.
[9] See, Certificate of Service and Typeface
filed
[10] This is
particularly true because the March 14, 2003 Order was faxed to counsel with a
time stamp bearing