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July 30, 1991


The opinion of the court was delivered by: Goettel, District Judge:


This case challenges the procedures employed by the State of New York for involuntarily committing psychiatric patients in Dutchess County. We will presume familiarity with our earlier decision granting motions for intervention and class certification, and dismissing plaintiffs' claim relating to the fifth amendment's privilege against self-incrimination. See Goetz v. Crosson, 728 F. Supp. 995 (S.D.N.Y. 1990). Thus, only a brief recitation of the facts is required.


Under New York law, the state may involuntarily hospitalize an individual for up to sixty days upon the signature of two physicians. N.Y. Mental Hyg. Law § 9.27(a). Once such an individual is committed, he can demand a retention hearing to contest his confinement. N.Y. Mental Hyg. Law § 9.31(a). If the state satisfies the criteria for retention, the state can hold the patient for the longer of sixty days from the date of admission or thirty days from the order denying the application for release. N.Y. Mental Hyg. Law § 9.33(a).*fn1 Once this time has expired, further retention is not permitted unless the state applies for a further order of retention, at which time the patient is entitled to a hearing before a justice of the supreme court. Id. Moreover, even if the patient has not challenged his initial commitment, the state must seek such an order if it wishes to detain him beyond the sixty-day period. N.Y. Mental Hyg. Law § 9.33(b). The patient can thereafter seek rehearing and review of any order of retention before a different justice of the same court. N.Y. Mental Hyg. Law § 9.35. At any of these hearings, the court may order the appointment of no more than two psychiatrists or psychologists to examine the patient and testify at the hearing. N.Y.Jud. Law § 35(4). The psychiatrists are hired at state expense with a cap of $300 if two are appointed and $200 if only one is appointed. The statute does, however, permit an application for greater fees in exceptional circumstances.

We previously certified as class plaintiffs involuntarily committed psychiatric patients located in Dutchess County. The two hospitals affected are Harlem Valley Psychiatric Center ("HVPC") and Hudson River Psychiatric Center ("HRPC"). Plaintiffs' complaint first seeks a declaration that the due process clause of the fourteenth amendment mandates that the state appoint an advocate psychiatrist to assist the patient and his counsel at retention hearings, much like the mandatory assignment of defense counsel in criminal matters upon a showing of financial need. Plaintiffs seek a further declaration that New York Judiciary Law section 35(4) fails to satisfy such constitutional dictates.*fn2 Defendants, in turn, suggest that the statute comports with any constitutional requirements that may exist. Plaintiffs now move for summary judgment. Defendants, while admitting that there are no genuine issues of material fact to be tried, do not bother to make a cross-motion for summary judgment. Nonetheless, it is well-settled that if the requisite showing is made, we can grant summary judgment to the non-moving defendants. See Project Release v. Prevost, 722 F.2d 960, 969 (2d Cir. 1983).

At HVPC, once the patient contests his detention, a non-treating psychiatrist, Dr. Howard Smoller, who is nonetheless a HVPC employee, examines the patient. Smoller is not the psychiatrist involved in the daily treatment of the patients whom he examines. Smoller, unless he determines that the patient should be released, then testifies on behalf of the state at a retention hearing. The procedure at HRPC, however, is somewhat different. There, even if the patient contests confinement, the treating psychiatrist will testify at the retention hearing. However, defendants contend that while there is no employee with responsibilities analogous to those of Dr. Smoller, the treating physician's findings are nonetheless reviewed by at least one supervisory doctor. Plaintiffs challenge this purported supervisory involvement (through counsel's conclusory claims we might add), and while this creates a disputed issue of fact, it is not one which is material. Thus, it does not prevent the granting of summary judgment.

In Dutchess County, the overwhelming majority of retention hearings are held before either Justice Judith Hillary or Justice John King, Acting Justices of the Supreme Court of the State of New York, County of Dutchess. Generally, one presides at the initial hearing and, if necessary, the other will conduct the section 9.35 rehearing. As noted, they have the power to appoint up to two psychiatrists to examine the patient and testify at the hearing. Plaintiffs contend that while Justice Hillary usually appoints a psychiatrist if requested by the patient's counsel, Justice King does so only about half the time such a request is made, often demanding that counsel justify the making of such a request. The evidence establishes that in recent years, only Dr. Werner Cohn has accepted such appointments in Dutchess County. We are told, however, that quite recently a second psychiatrist, Dr. Paul Garson, has agreed to handle such matters. While hearings are held on a weekly basis, Cohn apparently is available only one day each month and plaintiffs suggest that this creates unreasonable delays.


Plaintiffs initially claim that there is a due process right to a psychiatrist who will be an advocate for the patient. Even if the psychiatrist ultimately cannot recommend that the patient be released, plaintiffs argue that the psychiatrist remains necessary to assist the patient's attorney with the case.

In support of this contention, plaintiffs assert that commitment proceedings are quasi-criminal and, hence, the same protections afforded criminal defendants regarding the appointment of psychiatrists must apply. There is no doubt that the Supreme Court has recognized an indigent criminal defendant's right to the appointment of a psychiatrist to assist the defendant and his counsel when the defendant's mental state is at issue. Ake v. Oklahoma, 470 U.S. 68, 83, 105 S.Ct. 1087, 1096, 84 L.Ed.2d 53 (1985) (court must appoint psychiatrist to "conduct an appropriate examination and assist in evaluation, preparation, and presentation of the defense"). The Court stated that when mental state is relevant to culpability and punishment, "the assistance of a psychiatrist may well be crucial to the defendant's ability to marshal his defense." Id. at 80, 105 S.Ct. at 1095. Nonetheless, since we find that commitment proceedings are not criminal, we are not bound by the Court's ruling.

In previously dismissing plaintiffs' contention that their fifth amendment rights were violated, we concluded that retention proceedings under New York's Mental Hygiene Law were civil in nature. See Goetz, 728 F. Supp. at 1003. We relied, inter alia, on a decision of the Appellate Division, Second Department, which recognized that while criminal proceedings seek punishment and deterrence, the goal of retention proceedings is the "care and treatment" of the individual. See Ughetto v. Acrish, 130 A.D.2d 12, 518 N.Y.S.2d 398, 403 (2d Dep't), appeal dismissed, 70 N.Y.2d 871, 518 N.E.2d 8, 523 N.Y.S.2d 497 (1987). In addition, it is clear that the expedited time periods established by New York's legislature attempt to insure that "committed persons may be released after the briefest time in confinement." Allen v. Illinois, 478 U.S. 364, 370, 106 S.Ct. 2988, 2992, 92 L.Ed.2d 296 (1986). Finally, while wrongful confinement must be avoided whenever possible, "the layer's of professional review and observation of the patient's condition, and the concern of family and friends generally will provide continuous opportunities for an erroneous commitment to be corrected." Addington v. Texas, 441 U.S. 418, 428-29, 99 S.Ct. 1804, 1811, 60 L.Ed.2d 323 (1979). The same cannot be said of an erroneously convicted criminal defendant. Therefore, we reaffirm our earlier conclusion that the proceedings at issue are civil in nature.

Plaintiffs contend that even if this is not a criminal or quasi-criminal proceeding, due process demands that patients be given access to a psychiatrist they can call their own. Furthermore, they claim that the current law in New York fails to satisfy these constitutional demands. Among the alleged deficiencies with section 35(4) of New York's Judiciary Law are the following: (1) it is discretionary whether or not to appoint the expert; (2) the expert is a court expert and does not assist the patients' counsel on medical matters; (3) Dr. Cohn is only available once a month, which leads to delays of three to six weeks from the time an expert is requested until a hearing is held; and (4) $200 is grossly inadequate to attract a sufficient number of psychiatrists.

It is uncontroverted that involuntary commitment constitutes a deprivation of liberty and implicates the fourteenth amendment's due process clause. Addington, 441 U.S. at 425, 99 S.Ct. at 1808-09. The issue, therefore, is determining the process to which plaintiffs are entitled. In resolving this question, the Supreme Court has announced a three prong test:

  The first is the private interest that will be
  affected by the action of the State. The second is
  the governmental interest that will be affected if
  the safeguard is to be provided. The third is the
  probable value of the additional or substitute
  procedural safeguards that are sought, and the
  risk of an ...

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