IN THE SUPERIOR COURT FOR THE STATE OF ALASKA

THIRD JUDICIAL DISTRICT, AT ANCHORAGE

In The Matter of the Hospitalization           )

                                                                        )

                                                of                    )

                                                                        )

FAITH J. MYERS                                          )

                                                                        )           Case No. 3AN 03-277 P/S

 

OPPOSITION TO MOTION TO VACATE STAY ON MEDICATION ORDERS

The Supreme Court's April 30, 2003, Order (Supreme Court Order) moots the state's Motion to Vacate Stay on Medication Orders.  The Supreme Court Order at paragraph 4,

grants an interim stay pending issuance of a post-remand superior court order granting or denying a stay of the administration-of-medication order and allowing at least seven days for appellant to return to this court to decide the stay motion that is being held in abeyance.

(emphasis added).  Thus, the stay issued on March 14, 2003, is extraneous (moot).  The Supreme Court in Paragraph 1, remanded the stay issue to this Court "for resolution of all material factual disputes relevant to the criteria for granting a stay pending appeal" and granted this Court discretion whether to permit additional briefing and fact submission on that topic.

Respondent believes the only post remand decision that this court could properly make without additional fact submission is to grant the stay.  In the preamble to the stay portion of the Supreme Court Order, the Supreme Court states that one of the factual issues is the scientific validity of the expert witnesses' opinions.  Thus, the standards of Daubert v. Merrill Dow Pharmaceuticals, Inc., 509 U.S. 579, 587-89 (1993), Kumho Tire Company, Limited v. Carmichel, 526 U.S. 137 (1999) and State v. Coon, 974 P.2d 386 (Alaska 1999) apply to the court's stay decision.  Respondent put on competent expert opinion that satisfies the standards of Daubert, Kumho Tire Company and Coon, while the state did not.  Thus, the only proper decision that can be made without further evidence is to grant the stay pending appeal.

However, realistically, it seems this Court should want to fill out this type of evidence it cut off in connection with the 30-Day Petition and ruled could not be presented on the 90-Day Petition.  Moreover, while also relevant to the considerations for issuing the stay, the evidence by Respondent at the 30 Day Hearing showing the medication will be harmful to her, was directed toward the requirements of issuing the Forced Medication Order, not the requirements for issuing a stay pending appeal.  Thus, it seems to Respondent that further evidentiary presentation makes sense.

Moreover, the Supreme Court also mentioned in the preamble to the stay portion of the Supreme Court Order that the "credibility of expert witnesses" was implicated.  Proper resolution of such credibility issues almost certainly requires a hearing.

In order to properly implement the Supreme Court Order's remand therefore, Respondent believes that a discovery,[1] briefing and hearing schedule should be set.  This should be set on as expeditious a schedule as possible that does not prejudice the rights of Respondent.

However, as counsel for Respondent stated at the April 30, 2003 scheduling conference, Respondent believes the entire issue of a stay pending appeal would be vitiated by proper action on her Motion for Reconsideration.  Therefore, Respondent suggests this Court defer setting such a schedule until it decides the pending motion for reconsideration.  If this Court decides not to grant reconsideration it could notify the parties quite quickly so that should not be the occasion for any significant delay.  In such event, the Respondent can decide what course of action to take, including whether to file an emergency motion to the Alaska Supreme Court to correct what she believes is the gross misapplication of Alaska Statutes and constitutional law that occurred in this Court's April 19th Order granting the 90-Day Commitment and Forced Medication Petitions as set forth in the Motion for Reconsideration.

If instead, as Respondent believes is appropriate, reconsideration is granted and the April 19th Order is vacated, or at least that part pertaining to Forced Medication, then the entire issue of a stay pending appeal becomes moot. 

For these reasons, Respondent suggests the entire issue of a stay pending appeal be revisited after reconsideration has been decided.  Otherwise, the court should set a discovery, briefing and hearing schedule that allows Respondent a meaningful opportunity to brief the issue and assemble her expert(s).

            DATED:  May 5, 2003.

 

Counsel certifies that he hand delivered a copy of this pleading to Jeff Killip this same date.

 

_________________________
 
                                                            Law Offices of James B. Gottstein

 

 

                                                            By:                                                                             

                                                                    James B. Gottstein, ABA # 7811100


[1] Respondent needs to know what opinions the state's proffered expert witness(es) will be offering and the specific scientific studies and other authority relied on in order to rebut the testimony.  This is particularly true because of the prevalence of faulty and biased research in this area.