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GOETZ v. CROSSON

November 23, 1993

LYLE R. GOETZ, individually, and on behalf of all other similarly situated, Plaintiff, MARK CANS and ANNA SELLETTI, individually, and on behalf of all others similarly situated, Intervenors,
v.
The Honorable MATTHEW CROSSON, in his official capacity of chief administrator of the courts of New York, and DR. RICHARD C. SURLES, in his official capacity of Commissioner of the New York State Office of Mental Health, Defendants.


GOETTEL


The opinion of the court was delivered by: GERARD L. GOETTEL

GOETTEL, D. J.:

 This case began with the allegation by plaintiffs that, inter alia, the Fourteenth Amendment's due process clause required the State of New York to provide a psychiatrist to indigent individuals subject to involuntary commitment or retention proceedings to testify on their behalf. This court held that the due process clause does not confer an absolute right to such assistance. Goetz v. Crosson, 769 F. Supp. 132 (S.D.N.Y. 1991). The Second Circuit affirmed this holding, 967 F.2d 29 (2d Cir. 1992), but remanded for consideration of another, narrower issue: whether alleged deficiencies in the process of obtaining independent psychiatrists for involuntary commitment and retention hearings in Dutchess County, when the presiding judge believes that such testimony is necessary, create a constitutional violation. Having completed discovery, both sides now move for summary judgment.

 We will presume familiarity with the decisions mentioned above, as well as with our decision granting motions for intervention and class certification, and dismissing plaintiffs' claim relating to the Fifth Amendment privilege against self-incrimination. See Goetz v. Crosson, 728 F. Supp. 995 (S.D.N.Y. 1990). Therefore, we will not revisit the entire history of this case.

 FACTS

 Under New York law, the state may involuntarily hospitalize a person alleged to be mentally ill and in need of care upon the certification of two examining physicians. N.Y. Mental Hyg. Law § 9.27(a). The constitution also requires clear and convincing proof that the mentally ill person poses a substantial threat of physical harm to him or herself or to others. Goetz, 967 F.2d at 31. This period of involuntary hospitalization may not exceed sixty days without court approval. N.Y. Mental Hyg. Law § 9.33(a). At any time during this period, the person involuntarily admitted may request a hearing on the need for continued involuntary care, which must be held within five days of the request. New York Mental Hyg. Law § 9.31.

 The institution must, absent further proceedings, release the patient within sixty days of the involuntary commitment or thirty days after the denial of an application for release, whichever is later. New York Mental Hyg. Law § 9.33(a). If the institution's director determines that further involuntary hospitalization is required, he may apply to the state court for a retention order, which is effective for an additional six months. New York Mental Hyg. Law § 9.33(a), (b). The patient may request a hearing to challenge the requested detention order, which must be held within five days of the request. New York Mental Hyg. Law § 9.33(a), (c). When the six months have expired, the institution may obtain another retention order effective for up to an additional year. New York Mental Hyg. Law § 9.33(d). The institution may obtain further retention orders, each effective for up to two years. Id. All of these retention orders may be similarly challenged by the patient. Id.

 The involuntarily admitted patient may request a rehearing and review of any retention order by a judge other than the one who signed the original order. The patient also has the right to a jury trial. N.Y. Mental Hyg. Law § 9.35. A patient has the right to counsel during all these proceedings for involuntary commitment or retention, including court-appointed counsel if the patient is financially unable to obtain representation. N.Y. Judiciary Law § 35(1)(a). During these proceedings, the court may appoint up to two psychiatrists to examine the patient and testify at the hearing. N.Y. Judiciary Law § 35(4). Psychiatrists employed at a state institution are not eligible for such appointment. N.Y. Court Rules § 822.3. The Second Circuit has labelled psychiatrists so appointed "independent psychiatrists." Goetz, 967 F.2d at 31.

 Independent psychiatrists "receive reimbursement for expenses reasonably incurred and reasonable compensation for such services." N.Y. Judiciary Law § 35(4). Such compensation may not exceed $ 200 for one psychiatrist or $ 300 for two psychiatrists, although in "extraordinary circumstances" the court can exceed these limits. Id.

 Both parties agree that the appointment of an independent psychiatrist generally results in a delay of at least a month in the affected court proceeding (four to six weeks, in the words of the plaintiffs; four to five weeks, in the words of the defendants), while disagreeing on the causes and legal import of the delay.

 THE DECISION OF THE SECOND CIRCUIT

 In affirming this court's conclusion that indigent patients contesting their commitment or retention have no necessary or absolute right to a psychiatrist to act as their expert witness, the Second Circuit emphasized the role of independent psychiatrists: "Appellants' right to a testifying psychiatrist, therefore, is fulfilled so long as constitutionally adequate procedures exist for the appointment of an independent psychiatrist." 967 F.2d at 35.

 The court went on to describe the problems with obtaining independent psychiatrists alleged by plaintiffs in their appeal:

 
In their complaint, appellants allege numerous deficiencies in the way Section 35(4) has been applied in Dutchess County. These include allegations that: (i) independent psychiatrists are infrequently used; (ii) only one psychiatrist is available to act as a court-appointed expert in Dutchess County, causing long delays in commitment hearings; and (iii) limitations on the compensation to be paid to court-appointed ...

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