since the burden on the government of remedying an unconstitutional situation depends largely upon whether effective remedial measures are readily available to it.
Defendants have mounted a comprehensive challenge to the notion that there is any way to get independent psychiatrists in Dutchess County to complete their evaluations of involuntarily hospitalized patients in less than three to four weeks. Defendants rely principally on excerpts from depositions of the three Dutchess County psychiatrists who have been available to accept § 35(4) appointments in the past year. Defendants argue, with support from affidavits and depositions, (i) that independent psychiatrists in Dutchess County have commitments to their private patients such that the average practitioner requires four weeks to be ready to testify in court; (ii) that ordering independent psychiatrists to complete their § 35(4) appointments faster would simply make it harder to find psychiatrists willing to accept such appointments; (iii) that contrary to plaintiffs' assertions, psychiatrists have regularly received remuneration in excess of the statutory minimum for their § 35(4) appointments; (iv) that notwithstanding plaintiffs' allegation that shortages of psychiatrists have led to delays, there has never been any problem in obtaining a psychiatrist to perform a § 35(4) evaluation; and (v) that there are simply not enough psychiatrists in Dutchess County to supply an enlarged § 35(4) panel, as envisioned in one of plaintiffs' affidavits. Indeed, the record shows that recently two of the psychiatrists on the § 35(4) panel have withdrawn, citing the heavy caseload from their private patients.
Plaintiffs do not dispute that psychiatrists in Dutchess County can receive, and have received, more than the statutory maximum. However, they point out that the language of § 35(4) that the statutory maximum can be exceeded only in "extraordinary circumstances" has a depressing effect upon the willingness of psychiatrists who accept appointments. They also point out that in New York City there are apparently a number of psychiatrists available to accept appointments and that they turn out reports more rapidly than they do in Dutchess County. However, they are quite vague about what this court can or should do about these situations. Indeed, plaintiffs' position is that it is not up to them to determine how the situation can be altered. Rather, it is up to the court to declare it a constitutional violation and to compel the State or the County to find some way to improve the situation. (The only thing certain that such a ruling would accomplish is to allow plaintiffs' counsel to receive a fee as a prevailing party.)
However, in light of the second and third prongs of due process analysis, we are unlikely to declare a situation unconstitutional when, due to the lack of effective remedial measures, such a declaration would place a considerable burden on the government. We turn, then, to the question of what can be done about the allegedly unconstitutional delays in obtaining independent psychiatric testimony.
Plaintiffs have submitted an affidavit from a public defender pointing out that the county has psychiatrists "under contract" who are used to perform psychiatric examinations of criminals pursuant to New York's Criminal Procedure Law, Article 730. These psychiatrists complete their evaluations within twenty-four hours of notification, and submit their reports the day after the evaluation. Plaintiffs imply that there is no reason why the state cannot have such psychiatrists for purposes of conducting the independent psychiatric evaluations at issue in this case. Defendants' affidavits establish, however, that the so-called "contract" psychiatrists are, in fact, independent contractors, who are specifically stated not to be officers or employees of the county, and who conduct examinations for a fee of $ 150 with apparently no extra payment for "extraordinary circumstances." Moreover, defendants have established that the reason Article 730 examinations can be completed so much quicker and less expensively that § 35(4) evaluations is that determination of competency to stand trial presents a much simpler medical issue than determining whether a patient should remain involuntarily committed to a mental institution. In short, there is little to suggest that Article 730 evaluations present a model for lessening the delays in obtaining § 35(4) testimony.
In another of plaintiffs' affidavits, a psychiatrist suggests that if "the court" were to set the fee for § 35(4) examinations at a sufficiently high level there would be more psychiatrists willing to perform the examinations and to do them more rapidly. We have no doubt that this is true. However, "the court" (be it the state court or this court) has no authority to set compensation rates. Indeed, if the Supreme Court of Dutchess County were to set different rates, it would have no funds for which to pay them unless the state legislature were to appropriate them.
By virtue of the earlier Court of Appeals decision, this court is left in an almost untenable position. If we were to hold a trial at this time, we might well determine that independent psychiatric evaluations can be concluded and hearings held in a week or two less time in New York City than in Dutchess County. Assuming that we determined that this week or two difference is a due process violation, we still do not see this court as having any powers by which to convert bucolic Dutchess County into a metropolitan center like New York City with a large concentration of psychiatrists, some of whom would be willing to undertake this sort of work. Nor do we see how Dutchess County could speed up independent psychiatric evaluations without undue burden.
The opinion of Judge Van Grafeilland, who concurred on the primary issue but dissented as to the remand on the issue considered herein, perceives some of the problems that this remand might produce. He notes:
As I understand the plan proposed by my colleagues, it calls into question not only the appointment of a third expert, who is interested, but also the amount of his remuneration, and perforce the remuneration of the section 35 experts, which presently has a $ 200-$ 300 cap. In addition, the district court, upon remand, will have to take into account the alleged shortage of independent psychiatrists in Dutchess County, the likely duration of such shortage, and its effect on the $ 200-$ 300 statutory cap. A federal court is ill-equipped to determine what adjustments, if any, should be made, and is ill-advised to force such adjustments on the State of New York as being mandated by the United States Constitution.
967 F.2d at 38. That is precisely the position that we are in. Neither the majority opinion nor the concurring opinion indicate what, if anything, we should do in the present circumstances.
We have no authority to alter the statutory rates for compensating independent psychiatrists, and we will not declare a situation unconstitutional when plaintiffs have failed to demonstrate that there are any readily available governmental remedies. Consequently, we deny the plaintiffs' motion for summary judgment and grant the defendants' motion for summary judgment.
Dated: White Plains, New York.
November 23, 1993.
GERARD L. GOETTEL