commonwealth of massachusetts supreme judicial court · suleyken d. walker, bbo # 654933 assistant...
TRANSCRIPT
UNIMPOUNDED
COMMONWEALTH OF MASSACHUSETTS
Supreme Judicial Court
SUFFOLK COUNTY, SS. No. SJC-12481
SOLOMON CARTER FULLER MENTAL HEALTH CENTER,
Petitioner-Appellee,
v.
M.C., Respondent-Appellant.
APPEAL FROM A JUDGMENT OF THE BOSTON MUNICIPAL COURT, CENTRAL DIVISION
BRIEF OF THE PETITIONER-APPELLEE
MAURAHEALEY Attorney General
Suleyken D. Walker, BBO # 654933 Assistant Attorney General Government Bureau One Ashburton Place Boston, Massachusetts 02108 (617) 963-2981 email: suleyken. [email protected]. us
TABLE OF CONTENTS
TABLE OF AUTHORITIES ............................... iii
QUESTIONS PRESENTED .................................. 1
STATEMENT OF THE CASE ................................ 2
Nature of the Case .............................. 2
Prior Proceedings ............................... 3
LEGAL FRAMEWORK AND STATEMENT OF FACTS ............... 6
Legal Framework ................................. 6
Statement of Facts .............................. 9
1. The February 1 Civil Commitment Hearing .............................. 10
2. The Recording Devices ................ 12
3. M.C.'s Rule 60(b) Motion ............. 13
SUMMARY OF THE ARGUMENT ............................. 14
ARGUMENT ............................................ 17
I. Appellant's argument that the condition of the transcript amounts to a due process violation is moot, has been waived, and in any event lacks merit ...... 17
A. Claims based on the recording devices should be dismissed as moot without reaching their merits . . ............................. 17
B. By failing to attempt to reconstruct the record, M.C. has waived any claim arising out of the recording device's malfunction .......................... 20
C. The Recording and Transcript of the February 1 Hearing Provide M.C. With an Opportunity for Meaningful Appellate Review .......... 25
II. Holding the Hearing at Solomon Carter Was Neither a Denial of Equal Protection of the Laws Nor an Abuse of Discretion. . .............................. 30
III. M.C. Has Failed to State a Claim Under the Americans with Disabilities Act Because the Boston Municipal Court Did Not Deny M.C. Access to Its Service or Programs and Non-Disabled Individuals Are·Not Entitled to Choose the Location of a Hearing. . ............................ 35
A. The Service the Court Provides is a Fair and Impartial Hearing and Therefore the Court Did Not Deny M.C. Access to the Service ........... 36
B. No Litigant Has the Right to Choose the Location of a Hearing, and Therefore the Court Did Not Discriminate Against M.C. by Denying Him a Benefit Provided to Non-Disabled Individuals ............. 38
IV. Requiring the Court to Allow a Respondent to Choose the Location of the Hearing Would Impose an Undue Administrative Burden and Would Fundamentally Alter the Court's Service ................................... 40
CONCLUSION .......................................... 49
ii
TABLE OF AUTHORITIES
Cases
A. Leo Nash Steel Corp. v. S. New England Steel Erection Co., 9 Mass. App. Ct. 377 (1980) .................... 41
Acting Sup't of Bournewood Hosp. v. Baker, 4 31 Mass . 1 0 1 ( 2 0 0 0 ) . . . . . . . . . . . . . . . . . . . . . . . 18 , 2 0
Attorney Gen. v. Comm'r of Ins., 4 0 3 Mass . 3 7 0 ( 19 8 8 ) . . . . . . . . . . . . . . . . . . . . . . . . . . . 18
BayRidge Hosp. v. Jackson, 2010 Mass. App. Div. 12 (2010) ................. 19
Borkowski v. Valley Cent. Sch. Dist., 63 F.3d 131 (2d Cir. 1995) ..................... 43
Charpentier v. Commonwealth, 3 7 6 Mass . 8 0 ( 19 7 8 ) . . . . . . . . . . . . . . . . . . . . . . . . 2 4 , 2 5
Cleburne v. Cleburne Living Ctr., Inc., 473 u.s. 432 (1985) ............................ 31
Commonwealth v. DeBrosky, 3 6 3 Mas s . 7 18 ( 19 7 3 ) . . . . . . . . . . . . . . . . . . . . . . . . . . . 3 7
Commonwealth v. Chatman, 10 Mass. App. Ct. 228 (1980) ............... 24, 25
Commonwealth v. Bottiglio, 3 57 Mass . 5 9 3 ( 19 7 0 ) . . . . . . . . . . . . . . . . . . . . . . . . . . . 2 3
Commonwealth v. Flint, 81 Mass. App. Ct. 794 (2012) ............... 23, 25
Commonwealth v. Harris, 3 7 6 Mass . 7 4 ( 1 9 7 8 ) . . . . . . . 21 , 2 2 , 2 2 n, 2 3 , 2 4 , 2 5
Commonwealth v. Hunt, 22 Mass. App. Ct .. 932 (1986) ................... 23
Commonwealth v. Knowlton, 3 7 8 Mass . 4 7 9 ( 19 7 9 ) .......................... 2 2 n
iii
Commonwealth v. McWhinney, 20 Mass. App. Ct. 444 (1985) .................. 27n
Commonwealth v. Sheffield, 16 Mass. App. Ct. 342 (1983) ................... 26
Crowell v. Massachusetts Parole Bd., 4 7 7 Mass . 1 0 6 ( 2 0 17 ) . . . . . . . . . . . . . . . . . . . . . . . . . . . 3 6
Currie v. Grp. Inx. Comm'n, 147 F.Supp. 2d 30 (D. Mass. 2001) .............. 31
Disabled in Action v. Bd. of Elections in City of New York, 752 F.3d 189 (2d Cir. 2014) ....................................... 42-43
Fisher v. Oklahoma Health Care Auth., 335 F.3d 1175 (lOth Cir. 2003) ................ SOn
Foley v. Com., 429 Mass. 496 (1999) ............ 16, 37, 38, 39-40
Guardianship of Doe, 3 91 Mass . 614 ( 19 8 4 ) . . . . . . . . . . . . . . . . . . . . . . . . 19-2 0
Superintendent of Worcester State Hosp. v. Hagberg, 374 Mass. 271 (1978) ................ 9,20
Hardy v. United States, 375 u.s. 277 (1964) ............................ 25
Hashimi v. Kalil, 3 8 8 Mass . 6 0 7 ( 19 8 3 ) . . . . . . . . . . . . . . . . . . . . 7 , 2 0, 3 5
Henrietta D. v. Bloomberg, 331 F.3d 261 (2d Cir. 2003) ................ 43, 43
Kirk v. Commonwealth, 4 59 Mass . 6 7 ( 2 0 11 ) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
Matter of E.C., 4 7 9 Mass . 113 ( 2 0 18 ) . . . . . . . . . . . . . . . . . . . . . . . . 6, 19
Matter of F. C., 479 Mass. 1029 (2018) .......................... 20
Murphy v. Comm'r of Dep't of Indus. Aces., 415 Mass . 2 318 ( 19 9 3 ) . . . . . . . . . . . . . . . . . . . . . . . . . . 31
iv
Newton-Wellesley Hosp. v. Magrini, 4 51 Mass . 7 7 7 ( 2 0 018) .......................... 18
Olmstead v. L.C. ex rel. Zimring, 527 U.S. 5 81 ( 19 9 9) ................................ 4 8, 4 9n
Radaszewski et rel. Radaszewski v. Maram, 383 F.3d 599 (7th Cir. 2004) .............. 49n-50n
Rodriguez v. City of New York, 197 F. 3d 611 (2d Cir. 1999) ............... 37, 39
Tennessee v. Lane, 541 U.S. 509 (2004) .......... 43, 44
Thompson v. Commonwealth, 3 8 6 Mass . 811 ( 19 8 2 ) . . . . . . . . . . . . . . . . . . . . . . . 3 4 , 4 8
Townsend v. Quasim, 328 F.3d 511 (9th Cir. 2003) .................. SOn
Weaver v. Massachusetts, 137 S. Ct. 1899 (2017) ......................... 25
Williams v. Sec. of Exec. Office of Hum. Serv., 414 Mass. 551 (1993) .................... 31
Federal Statutes
42 U.S.C.A 12132 (2013) ............................. 36
State Statutes
G.L. c. 123 ................................. 43, 45, 49
G.L. c. 123, § 5 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1, 7, 33
G.L. c. 123, § 7 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7, 8n
G.L. c. 123, § 7 (c) . . . . . . . . . . . . . . . . . . . . . . . 3, 7, 35, 46
G.L. c. 123, § 8 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7, 8n
G.L. c. 123, § 8 (a) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
G.L. c. 123, § 9 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 35
G.L. c. 123, § 9 (a) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
G.L. c. 123, § 9 (b) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 43n, 46 v
G.L. c. 123, § 12 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
G.L. c. 123, § 12(e) . . . . . . . . . . . . . . . . . . . . . . . . ... . . . . . 8n
G.L. c. 123, § 13 . . . . . . . . . . . . . . . . . . . . . ... . . . . .. . . 7, 8n
G.L. c. 123, § 15 . . . . . . . . .. . . . . . . . . . . . . . . . . . . . . . 8n, 45
G.L. c. 123, § 15(a) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
G.L. c. 123, § 15(b) . . . . . . . . . . . . . . . . . . 1, 3, 6, 4 5' 46n
G.L. c. 123, § 16 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8n, 45
G.L. c. 123, § 16 (a) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
G.L. c. 123, § 16(b) . . . . . . . . . . 1, 2, 3, 4, 6, 9, 11, 36
G.L. c. 123, § 18 . . . . . . . . . . . . . . . . . . . . . . .. . . . . . . . . . . . 8n
G.L. c. 218, § 38 . . . . . . . . . . . . . . . . . . . . . . .. . . . . . . 33n, 39
G.L. c. 218, § 43A . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 33n
G.L. c. 220, § 5 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 33n, 39
Federal Rule and Regulations
28 C.F.R. § 35.130 (b) (7) ...................... 49n, SOn
28 C.F.R. § 35.150(a) ............................... 42
28 C.F.R. § 35.150 (a) (3) ............................ 42
28 C.F.R. § 35.150(b) (1) ............................ 42
State Rules and Regulations
Dist/Mun.Cts. R.A.D.A., Rule 3 ....................... 9
Dist/Mun.Cts. R.A.D.A., Rule SA ...................... 9
Dist/Mun.Cts. R.A.D.A., Rule 8C ............... 9, 22,23
Dist/Mun.Cts. R.A.D.A. 8C(b) ......................... 4
Dist/Mun.Cts. R.A.D.A. 8C(c) (4) ..................... 22
Dist/Mun.Cts. R.A.D.A. 8C(e) ........................ 22
vi
Mass. R. App. P. 8 (b) (5) . ................. . . . . . . . . . .
Mass. R. App. P. 8 (c) . .... . . . . . . . . . . . . . . . . . . . . . . . . . . Mass. R. App. P. 16(a) ( 4) . ................ . . . . . . . . . . Mass. R. Civ. P. 60(b) ....................... 5, 14,
Miscellaneous
Standards of Judicial Practice: Civil Commitment and Authorization of Medical Treatment for Mental Illness (Dec.
22
23
41
44
2011), § 4.00 ................................... 8
Standards of Judicial Practice: Civil Commitment and Authorization of Medical Treatment for Mental Illness (Dec. 2011), § 4.02 ............................. 8, 31n,
vii
QUESTIONS PRESENTED
The Boston Municipal Court held a hearing on a
G.L. c. 123, § 16(b) petition for the civil commitment
of appellant M.C., who at the time was confined to the
Solomon Carter Fuller Mental Health Center ("Solomon
Carter") under id., § 15(b). Over M.C.'s objection,
the court held the hearing at Solomon Carter pursuant
to id., § 5. After the hearing began, the clerk
notified the presiding judge that the court's
recording device had stopped operating. The judge
then authorized the use of alternative recording
devices so that the hearing could proceed in a timely
manner.
The questions presented are:
(1) Whether M.C.'s claim that an incomplete
transcript resulting from an inoperable recording
device violates due process, should (a) be
dismissed as moot, where the unusual fact pattern
is unlikely to recur; (b) is waived, where M. C.
failed to attempt to reconstruct the record
below; or (c) fails on the merits, where the
record shows that the resulting transcript of the
hearing was substantially complete and that the
alternative recording devices were functional
throughout the hearing.
(2) Whether holding M.C.'s hearing at Solomon Carter
rather than at a courthouse violated equal
protection of the laws or was an abuse of
discretion.
(3) Whether M.C. stated a claim under the Americans
with Disabilities Act where the court did not
deny him its services or programs, and where no
litigant enjoys the right to choose the location
of a hearing.
(4) Whether the ADA requires the court to allow all
respondents to choose the location of their
hearings where doing so would be unduly
burdensome and would fundamentally alter the
service provided by the court.
STATEMENT OF THE CASE
Nature of the Case
This case is here on direct appellate review from
the Appellate Division of the Boston Municipal Court
following its dismissal as moot of appellant
respondent M.C.'s appeal from an order of civil
commitment entered pursuant to G.L. c. 123, § 16(b).
2
M.C. challenges the dismissal of his case as
moot, and argues that the court violated his right to
due process and equal protection of the laws, and his
rights under the Americans with Disabilities Act.
Prior Proceedings
On December 6, 2016, M.C. appeared in the
Brockton Division of the District Court on a default
warrant. RA. 133. After observing M.C., the court
ordered a competency evaluation under G.L. c. 123,
§ 15(a) by the court's resident psychologist. Id.
The court then ordered a further evaluation by Solomon
Carter, which is a mental health facility operated by
the Department of Mental Health, under id., § 15(b).
RA. 134.
On January 20, 2017, upon receipt of Solomon
Carter's evaluation report, the court found M.C.
incompetent to stand trial and entered an order
requiring M.C. to remain at Solomon Carter for further
observation and examination under id., § 16(a). RA.
3, 134. On that same day, Solomon Carter filed a
petition for civil commitment of M.C. under id., §
16(b). RA. 3, 15-17. Pursuant to id., § 7(c), a
court must hold the hearing within 14 days.
Accordingly, the court scheduled the hearing for
3
January 27, 2017, but on January 25, M.C. moved for a
continuance. The court allowed the motion and
scheduled the hearing for February 1, 2017, 12 days
into the 14-day period. RA. 3.
The day before the hearing was scheduled to
begin, on January 31, 2017, M.C. filed a motion to
hold the hearing at the courthouse rather than at
Solomon Carter. RA. 3, 26-32. M.C. did not file a
motion for an additional continuance. Solomon Carter
opposed the motion, RA. 34-39, and the court denied it
as "inter alia, untimely." RA. 3, 26.
The court held a hearing on the§ 16(b) petition
on February 1, 2017, and issued the commitment order
on that same day. RA. 4, 41. The order was to expire
on April 3, 2017. Id. As explained further below,
the court's recording device became inoperable during
the hearing. M.C. objected to continuing the hearing
with alternative devices and renewed his motion to
move the proceeding to the courthouse, but the court
overruled the objection and denied the renewed motion
during the hearing. RA. 66.
On February 13, 2017, M.C. filed a notice of
appeal under Dist/Mun.Cts. R.A.D.A 8C(b), to proceed
with his appeal to the Appellate Division on the
4
record. RA. 4, 8-9. 1 Approximately two months later,
on April 7, 2017 (a few days after the February 1
commitment order had expired) , M. C.'s appel.late
counsel filed a "Motion for Relief From Judgment or
Order," under Mass. R. Civ. P. 60(b). RA. 43.
Solomon Carter opposed the motion. RA. 79. Following
a hearing on April 25, 2017, the court (McKenna, J.)
denied the motion. RA. 5, 89; Tr.II, p.36. 2
Meanwhile, on April 3, 2017 (the day the previous
commitment expired), Solomon Carter filed another
petition to commit M.C., alleging inter alia that he
"continues to be at risk of self-injurious behaviors."
RA. 118-20. After a hearing on April 25 and May 1,
2017, RA. 114, the cou~t on May 1, 2017 ordered that
M.C. be committed for three months, until August 2,
2017. RA. 105. M.C. did not appeal that order.
In July of 2017 both parties filed their briefs
with the Appellate Division. RA. 6. However, on
August 2, 2017, upon the expiration of the May 1, 2017
commitment order and before the Appellate Division had
1 Rule 8C of the District/Municipal Court Rules for Appellate Division Appeals is provided in the Addendum at p. 46. 2 Solomon Carter will cite to the transcript of the February 1, 2017 hearing as "Tr.I" and the transcript for the April 25, 2017 hearing as "Tr.II".
5
considered the appeal, Solomon Carter discharged M.C.
RA. 140, 149. Accordingly, Solomon Carter filed a
motion to dismiss the appeal as moot. RA. 138-141.
The Appellate Division held a hearing on Solomon
Carter's motion on September 19, 2017, and dismissed
M.C.'s appeal as moot on October 19, 2017. RA. 7,
147-52.
M.C. filed his-Notice of Appeal to the Appeals
Court on November 14, 2017. RA. 13. This Court
granted M.C.'s application for direct appellate review
on February 15, 2018.
LEGAL FRAMEWORK AND STATEMENT OF FACTS
Legal Framework
Under G.L. c. 123, § 15(b), a facility such as
Solomon Carter has twenty days to complete an
evaluation to determine "whether mental illness or
mental defect has so affected a person that he is not
competent to stand trial or is not criminally
responsible for the crime or crimes with which he has
been charged." G.L. c. 123, § 15(b). During this
period of time, the facility "may petition the court
having jurisdiction of the criminal case for the
[civil] commitment of the person to a facility or to
6
the Bridgewater state hospital." G.L. c. 123, § 16(b);
Matter of E.C., 479 Mass. 113, 116-17 (2018).
Respondents to a § 16(b) petition for civil
commitment are entitled to counsel, an independent
medical evaluation, and a hearing. G.L. c. 123, § 5.
The court must hold the hearing within 14 days,
"unless a delay is requested by the person or his
counsel." Id., § 7(c). Because civil commitment
imposes a restraint on liberty, the time limits are
strictly enforced. See Hashimi v. Kalil, 388 Mass.
607' 609-10 (1983).
Under G.L. c. 123, § 5, the court may hold a
hearing on the petition at the courthouse or at the
mental health facility, but in either event, the
hearings are presumptively open to the public. Kirk
v. Commonwealth, 459 Mass. 67, 75 (2011).
The Judicial Standards governing civil commitment
cases brought in the District Court under G.L. c. 123,
§§ 7 & 8, 12, 13, require that
commitment hearings [] be electronically recorded on an appropriate sound recording device under court control, or alternatively on a recording device under the control of a party and made available to opposing counsel.
Add., p.16, Standards of Judicial Practice: Civil
Commitment and Authorization of Medical Treatment for
7
Mental Illness (Dec. 2011)3 ("the Standards") § 4.02. 4
The Standards require that a clerk be present,
maintain custody of the court records and exhibits,
and swear in witnesses. Id. § 4.00. The commentary
to the Standards further states that the
hearing room must reflect and be conducive to the dignity of the court and the formality and impartiality of judicial proceedings. The physical setting must not convey, especially to the respondent, any suggestion that the hearing is merely an administrative proceeding in which the court is somehow subordinate to the facility's authority rather than a neutral and independent guardian of constitutional rights."
Add., p.11 (Commentary, ~ 2).
Following a hearing on a§ 16(b) petition, and a
finding of incompetence to stand trial, the court may
order civil commitment after finding, beyond a
reasonable doubt, that the person is mentally ill, and
that "the discharge of such person from a facility
would create a likelihood of serious harm." G.L. c.
3 There appears to be no written equivalent for cases arising under G.L. c. 123, §§ 15 & 16, but the standards are nonetheless instructive because §§ 15 & 16 incorporate § 8.
4 The Standards can be found at http://www.mass.gov/courts/docs/forms/district/mentalhealth-standards.pdf, but relevant sections are contained in the Addendum.
8
123, §§ B(a) & 16(b). Superintendent of Worcester
State Hosp. v. Hagberg, 374 Mass. 271, 276 (1978).
"Matters of law arising in commitment hearings .
may be reviewed by the appellate division of the
district courts in the same manner as civil cases
generally." G.L. c. 123, § 9(a). Accordingly, a
respondent may: (1) take an expedited appeal under
Rule BA of District/Municipal Court Rules for
Appellate Procedure, or (2) appeal under Rule BB on an
Agreed Statement of the Case, or (3) appeal under Rule
BC on the Record of Proceedings. The clerk, upon
receipt of a notice of appeal that "includes a request
for a cassette copy of the electronic recording of the
proceedings and the fee therefor, . shall
forthwith order such cassette copy and shall notify
the requesting party immediately upon its
availability." Dist/Mun.Cts. R.A.D.A., Rule 3(d).
Statement of Facts
M.C. is a 32-year old man with a diagnosis of
schizophrenia. RA. 19; Tr.I, p.17. M.C. has a
history of homelessness and courts have committed him
to a psychiatric facility several times. RA. 15, 20;
Tr.I, p. 39. During M.C.'s civil commitment to
Solomon Carter, he hallucinated and exhibited
9
paranoia, Tr.I, pp. 18-19, 33, threw food and coffee
on the walls, spat on the kitchen tables, spat "into
his hand and rubb[ed] the spigot" of the water
fountain, Tr.I, p. 19, and clogged a toilet with socks
and towels. Id.
M.C. also attempted to harm both himself and
others by punching himself in the eye, id., p. 20,
punching windows and doors, id., p. 24-25, throwing a
hamper, id., p. 23, spitting on staff, and attempting
to assault a staff member. Id., p. 26. M.C.'s
actions were sufficiently dangerous that restraints
were sometimes necessary. Id., pp. 23, 26, 67.
M.C.'s behavior also indicated an inability to
care for himself. Id., p. 32. M.C. defecated on
himself and then refused to shower, he frequently ate
only 20-30% of his meals and, for a period of time, he
declined fluid intake. Id., pp. 21-22, 28, 32.
1. The February 1 Civil Commitment Hearing
The hearing on Solomon Carter's § 16(b} petition
commenced on February 1, 2017, at Solomon Carter. The
presiding judge (McKenna, J.) and the clerk brought a
recording device with them to the hearing (which, as
described below, malfunctioned). RA. 66. The hearing
room contained two rectangular tables for counsel,
10
which faced another long table for the presiding
judge. RA. 66. There was "a chair at the end of the
judge's table for the clerk . [and] an American
flag behind the judge's table." RA. 66. The clerk
called the case and identified counsel, and Solomon
Carter's attorney identified the witness, Dr. Karen
Kwok. Tr.I, pp. 4, 9.
Dr. Kwok, an inpatient psychiatrist at Solomon
Carter, had observed M.C. five days a week and met
with M.C. on several occasions. Id., p. 14. She
testified as an expert witness. Id., p. 10. During
the hearing, M.C.'s attorney cross-examined Dr. Kwok,
id., p.39-55, and both parties delivered a closing
statement. Id., pp. 55-64.
At the conclusion of the hearing, the court
ordered that M.C. be committed for two months.
RA. 41. The court found that M.C. did suffer from the
mental illness of schizophrenia. Tr.I, p. 67. The
court then considered the possibility of remanding
M.C. to the custody of the Plymouth County sheriff,
but was "fearful that if he was in a public setting in
the jail in front of other prisoners, [and] he
exhibited this type of behavior down in the area ...
11
that hi~ conduct would pose a significant risk to
himself as well as to others." Tr.I, p. 69.
2. The Recording Devices
At the beginning of the hearing, the clerk
noticed that the court's recording device was not
operating. 5 The clerk therefore began recording the
proceedings on his iPhone instead. Tr.II, p.22. The
iPhone recording begins during argument of some
preliminary motions, see Tr.I, p. 4, and records
approximately 29 minutes of the proceedings. Rec.I,
0:57-29:26. 6 At that point, following a colloquy with
counsel which was not recorded, RA. 78, 7 the judge
authorized the clerk to use Solomon Carter's cassette
5 M.C. appears to acknowledge that the clerk noticed the recording problem "near the inception of the trial[.]" Blue Brief, p. 46.
6 Solomon Carter has filed a motion to expand the record on appeal to include the recording of the proceedings. Although M.C. objects to such an expansion, Dkt. #21, No. SJC-12481, this brief will proceed on the assumption that the court will allow the motion and that the recording is before the Court. "Rec.I" refers to the audio file called "1290 1701MH21" and corresponding to Tr.I, pp. 4-37; "Rec.II" refers to the file called "1286 1701MH21" and corresponding to Tr.I, pp. 37-75. Citations to both audio files will be by timestamps. 7 The colloquy, which M.C.'s trial counsel asserts took approximately 20 minutes, RA. 78, occurred at the point marked "(End of tape 2)" at page 37 of the hearing transcript. Tr.I, p. 37.
12
recorder to record the remainder of the hearing.
Tr.II, p. 23; Rec.II 0:07-44:06.
In light of M.C.'s allegations on appeal, it
appears the parties are not in agreement on other
issues concerning the recording devices. For
instance, the parties are not in agreement on the
following facts alleged by M.C.:
• That the court authorized the use of a "malfunctioning recorder." Blue Br. p. 20.
• The clerk began recording the hearing with his iPhone "before he received judicial authorization to do so." Blue Br., p. 20.
• The court authorized the use of counsel's personal recording device. Blue Br. p. 20.
• There were "significant portions" of the hearing omitted from the transcript due to malfunctioning recorders. Blue Br., p. 17.
Accordingly, the remainder of the discussion
concerning the devices will not be addressed here.
3. M.C.'s Rule 60(b) Motion
Four days after the February 1 commitment order
expired, M.C. filed a Motion for Relief from Judgment
under Mass. R. Civ. P. 60(b). RA. 43. Judge McKenna
heard the motion, and made the following findings on
the record:
• The clerk had alerted him that the recorder was not working and the court authorized the clerk to use other devices "to keep the hearing
13
progressing," so that the hearing "could occur in a timely and fair manner." Tr.II, p. 22-23.
• Both devices were used "openly and with the sole intent to see to it that the proceeding was substantially recorded as best as possible under the circumstances." Id., p. 23.
• The court authorized the alternative devices because the "primary device to record the proceedings had failed." Id., p. 24.
• "The use of the iPhone and the use of the cassette were effective recording devices. They were adequate alternative recording devices, needed to confront the failure of a new piece of equipment." Id., p. 28.
After noting that the system of recording hearings in
a courthouse is not flawless, and that earlier in the
day the courthouse's "brand-new FTR system had
failed," the court denied M.C.'s motion. Tr.II, p.
24, 36.
SUMMARY OF THE ARGUMENT
M.C.'s claimed violation of his right to Due
Process based on the recording devices should be
dismissed as moot because the unusual facts here are
unlikely to be repeated, and M.C. was recommitted
following the February 1 commitment. M.C.'s argument
is also waived because he made no effort below to
reconstruct the transcript. Finally, M.C.'s Due
Process argument is also without merit because he has
failed to identify any prejudicial consequence to the
14
missing information. The structural error doctrine
does not apply here. Pp. 17-25.
The recording devices used as alternatives to the
court's recorder produced a substantially complete
transcript. While there were breaks in the recording,
the missing information was largely inconsequential;
only 12 seconds of actual testimony appears to be
missing. Moreover, the inaudibility of certain
testimony, and the "pauses" noted by the transcriber,
were not a result of malfunctioning recording devices.
Listening to the recording reveals that the "pauses"
were recorded pauses, and that testimony was inaudible
because the witnesses and counsel were difficult to
understand, or due to cross-talk. Pp. 25-30.
The court did not deny M.C. equal protection of
the laws. No litigant is entitled to a flawless
recording, and the court did not provide M.C. with an
inadequate courtroom as compared to rooms provided to
litigants in a courthouse. There is no uniform
quality to a "courthouse" courtroom and the room at
Solomon Carter met the standards set forth in the
Judicial Standards governing civil commitment-hearings
in the District Courts, and the standards discussed by
this court in Foley v. Corn., 429 Mass. 496, 499
15
(1999). And, the legislature had a rational basis for
authorizing courts, in their discretion, to hold civil
commitment hearings at facilities. Pp. 30-35.
Title II of the Americans with Disabilities Act
("ADA") exists to ensure that a public entity does not
deny individuals with disabilities access to the
entity's service or programs. The service provided by
the court is a fair and impartial hearing before the
court, not a fair and impartial hearing in a
courthouse. Because the court provided M.C. with a
fair and impartial hearing, M.C. has failed to state a
claim under the ADA. Pp. 35-38.
The ADA does not grant the right to a benefit or
service that the public entity does not provide to
anyone. No litigants in the Commonwealth have the
right to choose the location of their hearing. The
Legislature has provided courts with the discretion to
choose the location of their sessions. Therefore, for
this reason as well, M.C. has failed to state a claim
under the ADA. Pp. 38-40.
Even if the court's "service" or "program" was a
hearing in a courthouse, the ADA permits a public
entity to ensure accessibility by changing the
location of the service. The court, by changing the
16
location from the courthouse to Solomon Carter, met
its obligation under the ADA. Pp. 40-42.
M.C. argues that the only permissible method of
accommodating the inaccessibility of the courthouse is
to permit the respondent to choose the location of the
hearing. But a public entity's obligation to ensure
accessibility does not include implementing changes
that, impose an undue administrative burden, or would
fundamentally alter the nature of the program or
service at issue. Allowing the respondent to choose
the location of the hearing on a petition for civil
commitment would violate these precepts. Pp. 42-49.
ARGUMENT
I. Appellant's argument that the condition of the transcript amounts to a due process violation is moot, has been waived, and in any event lacks merit.
A. Claims based on the recording devices should be dismissed as moot without reaching their merits.
It is undisputed that the case before the
Appellate Division was moot: the commitment arising
out of the Feb. 1, 2017 hearing expired two months
later, and following another hearing on May 1, 2017,
M.C. was recommitted to Solomon Carter and was
discharged three months later. RA. 148-49. This
Court has recognized that "issues involving the
17
comrni tment and treatment of mentally ill persons ...
present classic examples of issues that are capable of
repetition, yet evading review." Newton-Wellesley
Hosp. v. Magrini, 451 Mass. 777, 782 (2008) .s However,
that exception to the mootness doctrine only applies
when the issue "is very likely to arise again in
similar circumstances." Acting Sup't of Bournewood
Hosp. v. Baker, 431 Mass. 101, 103 (2000) (quoting
Attorney Gen. v. Comrn'r of Ins., 403 Mass. 370, 380
(1988)). Accordingly, moot cases presenting unique
facts unlikely to recur may be dismissed without
reaching the merits. See, e.g., BayRidge Hosp. v.
Jackson, 2010 Mass. App. Div. 12, 12 (2010)
(dismissing moot appeal as to fact-specific issues
"unlikely to be repeated," but addressing broader
issue "that may easily recur, with respect not only to
BayRidge, but also to hospitals throughout the
Commonwealth") .
To the extent that appellant's claims depend on
the faulty recording device and the steps thereafter
taken to remedy the situation, they arise from facts
that are unique and unlikely to recur. Although
8 Citations and internal quotation marks are omitted from all case quotations unless otherwise noted.
18
recording devices do malfunction from time to time,
the unusual confluence of a malfunctioning courthouse
recording device, a substitution of the clerk's
iPhone, and the use of a third device supplied by one
of the parties, is a sufficiently peculiar set of
facts to take this case outside the "capable of
repetition yet evading review" exception. Even in
mental health cases, that exception typically applies
in cases involving the interpretation or validity of a
statute, see, e.g., Matter of E.C., 479 Mass. 113, 114
n.1 (2018) (noting that "the case involves an
important question of statutory interpretation");
Guardianship of Doe, 391 Mass. 614, 619 (1984) ("[T]he
validity of a statute which permits the Commonwealth
to commit someone involuntarily to an institution is a
question of public importance."), or the validity of
"procedures [that] are 'repeated with regularity,'"
Acting Sup't of Bournewood Hosp., 431 Mass. at 103, or
otherwise where "[t]he issue is one of public
importance." Hagberg, 374 Mass. at 274. The highly
unusual facts here take this case outside any of those
categories.
This Court's decision in Matter of F.C., 479
Mass. 1029 (2018), is not to the contrary. There,
19
this Court emphasized that cases involving the
mentally ill "should not be dismissed as moot" where
the respondent "had a continuing personal stake in the
expired order," such as the possibility of "removing a
stigma from his name and record." Id. at 1029 & n.1.
This is not such a case. After the events at issue
here, M.C. was recommitted to Solomon Carter following
a hearing on May 1, 2017, and he did not file an
appeal. RA. 105. Therefore, vacating the February 1
commitment order will not remove any stigma associated
with a civil commitment. The Appellate Division
properly dismissed M.C.'s appeal as moot. RA. 149.
B. By failing to attempt to reconstruct the record, M.C. has waived any claim arising out of the recording device's malfunction.
M.C. claims that, because of the equipment used
at the Feb. 1 hearing, he has not "receive[d] an
accurate transcript to which he was constitutionally
entitled to preserve his appellate rights." Blue Br.
22. The problem of incomplete transcripts is well
known to Massachusetts courts, and procedures have
been in place for decades to deal with it. By
declining to avail himself of them, M.C. has waived
any claim based on the transcript.
20
In Commonwealth v. Harris, this Court held that
"the fact that the transcript is unavailable through
no fault of the parties does not warrant a new trial
unless the trial proceedings cannot be reconstructed
sufficiently to present the defendant's claims." 376
Mass. 74, 78 (1978). This Court further explained
that, in such cases, "a hearing should be held ... to
attempt to reconstruct the proceedings sufficiently to
present any claims of the defendant." Id. at 79. The
Court instructed that "[a]t this hearing all evidence
and testimony relevant to reconstructing the events at
trial should be received. All those with such
relevant evidence ... are under an affirmative duty to
use their best efforts to ensure that a sufficient
reconstruction is made if at all possible." Id. 9
This procedure, now codified in Mass. R. App. P.
8 (b) (5) and (c), and Dist./Mun. R.A.D.A. 8C(c) (4) and
(e), was readily available here. Indeed, had M.C.
invoked it, reconstruction would likely have been
straightforward, as the trial judge found: 10 relatively
9 Harris is a criminal case, but the protections for persons in civil commitment proceedings parallel those in criminal cases. See, e.g., Commonwealth v. Knowlton, 378 Mass. 479, 487 (1979). 10 Judge McKenna explained that he "know[s] how easy it is to get responsible lawyers and a judge to
(footnote continued)
21
little time had passed since the Feb. 1, 2017 hearing
at issue, all necessary witnesses (the judge, the
clerk, the expert witness, and trial counsel for both
parties) were available, much of the hearing is
accurately recorded and transcribed, and there is no
controversy over the items M.C. identifies as missing.
Having not even tried to reconstruct the record,
M.C. cannot now be heard to complain that the
transcript is inadequate for meaningful appellate
review. Where material missing from the transcript is
relevant to a point an appellant wishes to raise,
"[i] t is incumbent upon ... the appealing party to put
enough in the record pertinent to the point to enable
[the court] to decide it without resort to
speculation." Commonwealth v. Bottiglio, 357 Mass.
593, 597 (1970) (addressing situation where "[t]he
arguments of counsel were not taken by the
stenographer and we do not know what was said"); see
also, ~' Commonwealth v. Hunt, 22 Mass. App. Ct.
932, 933 (1986) (where defendant "submitted no
affidavit which either outlines steps taken to
(footnote continued) reconstruct a three- to four-week trial, let alone an hour-long hearing," and referred to the "easily discoverable reality of what happened here." Tr.II, p. 27.
22
formulate her own reconstruction under Mass. R. App.
P. 8(c) or demonstrates the impossibility of such a
task under Harris," court "conclude[d] that the
defendant's inability to articulate additional issues~
after ample opportunity to reconstruct, amounts to a
waiver of additional claims") . Even when the
omissions in the transcript are the fault of the
Commonwealth, "it does not automatically warrant a new
trial and does not excuse the defendant from
participating in an effort to reconstruct the record."
Commonwealth v. Flint, 81 Mass. App. Ct. 794, 802
(2012).
M.C. claims that Charpentier v. Commonwealth, 376
Mass. 80 (1978), establishes the proposition that "a
complete record and verbatim transcript" are always
required. Blue Br. 34-35. But Charpentier itself
rejects that proposition in the case of
unavailability, holding instead that "[w]here the
stenographic record is unavailable through no fault of
the parties, the principles of Commonwealth v. Harris,
[376 Mass.] 74 (1978), apply." 376 Mass. at 86 n.6;
see also Commonwealth v. Chatman, 10 Mass. App. Ct.
228, 232 (1980) (holding that absolute right to
complete transcript "seems to us to be foreclosed by
23
the Harris case, read together with the Charpentier
case"). Charpentier simply held that where a complete
transcript is available, an indigent defendant is
statutorily entitled to receive it. 376 Mass. at 88.
Its express reference to Harris, see id. at 86 n.6.,
indicates its recognition that the reconstruction
process, when necessary, is normally sufficient.
M.C. suggests that the problem with the recorder
resulted in "structural error" as to whic~ no
prejudice need be shown.' Blue Br. 45-48. The Appeals
Court has flatly rejected that argument, holding that
"to demonstrate denial of a fair appeal, an appellant
must show prejudice resulting from the absence o~ the
transcripts at issue." Flint, 81 Mass. App. Ct. at
801. And rightly so: the structural error doctrine
recognizes "basic, constitutional guarantees that
should define the framework of any criminal trial."
Weaver v. Massachusetts, 137 S. Ct. 1899, 1907-08
(2017). Even assuming that the structural error
doctrine applies in this civil setting, a transcript
is not part of the "framework" of a trial (in contrast
to the right to a public trial or to an impartial
judge). A transcript is a "tool" that enables an
advocate to identify "an error." Hardy v. United
,24
States, 375 U.S. 277, 288 (1964) (Goldberg, J.,
concurring) . As Charpentier and Harris recognize, a
reconstructed transcript will normally be an adequate
tool for that purpose. It follows that the
circumstances resulting in an incomplete transcript do
not constitute structural error.
Thus, courts recognize "the requirement that the
defendant come forward with articulable claims with
reference to which the reconstruction can be judged."
Chatman, 10 Mass. App. Ct. at 232. Where, as here,
"counsel makes no specific claims of error based on
the missing material," Commonwealth v. Sheffield, 16
Mass. App. Ct. 342, 349 (1983), there is no basis to
overturn the proceedings below.
C. The recording and transcript of the February 1 hearing provided M.C. with an opportunity for meaningful appellate review.
Even if this Court were inclined to consider on
the merits M.C.'s claims based on the recording
devices, it should reject them. The recording of the
February 1 hearing includes the court's identification
of the case and the parties, Rec.I 0:10-0:37, almost
all of Solomon Carter's direct examination of the only
25
witness, Dr. Kwok, Rec.I 5:05-27:52, 11 and all of
M.C.'s cross-examination, Rec.I 28:14-29:26, Rec.II
0:10-19:46, the redirect and recross examinations,
Rec.II 19:50-21:40, the parties' closing statements,
Rec.II 21:50-30:15, a colloquy between the court and
the parties, Rec.II 30:15-30:59, additional
examination of Dr. Kwok, Rec.II 31:00-33:10, and the
court's findings. Rec.II 33:14-43:58. In fact, on at
least two occasions, the transcript indicates a gap in
the recording, but the recording itself reflects no
gap and contains readily intelligible words that are
missing from the transcript. 12
11 Approximately 12 seconds of Dr. Kwok's direct examination appear to be missing at Rec.I 20:15-20:21, and 20:33-20:39. See Tr.I, p. 27 (11. 16-17, 23). 12 First, in the direct examination of Dr. Kwok, what was transcribed as "He went a couple days without (end of tap~ 1) his food int~ke is small," Tr.I 32 (11. 4-5), should actually, according to the recording, read: "He went a couple days without drinking fluids either. When we were able to change the packaging he was able to drink some of it. His food intake is small." Rec.I 24:15-24:28. Second, in M.C.'s counsel's closing statement, what was transcribed as "there were three incidents in December, Your Honor. (End of tape 3.) MS. KEALEY: .. if Your Honor had heard the story," Tr.I 57 (11. 18-22), should actually, according to the recording, read: "there were three incidents in December, Your Honor. That they lasted for five minutes. That in none of those incidents was anyone harmed. If Your Honor had heard the story." Rec.II 24:15-24:33.
26
There is no indication that any significant part
of the hearing is missing from the recording. 1 3 M.C.'s
trial attorney only noted the following missing
information:
• M.C. was present at the beginning of the hearing, and this was not reflected in the transcript.
• M.C.'s trial counsel was present when the court swore Dr. Kwok in as a witness.
• The record did not reflect trial counsel's "renewed objection" to the court's earlier finding of incompetency.
• The transcript did not reflect a 20-minute break from the hearing during which time counsel and the court conferred over what to do about the recording device, and M.C.'s renewed motion to conduct the hearing at the courthouse.
RA. 77-78. None of this information is testimony, nor
is it in dispute. M.C. never explains how these minor
omissions could prevent consideration on appeal of
whether the court erred in ordering M.C.'s civil
corrunitment.
13 This case is thus in stark contrast to the reconstruction found inadequate in Corrunonwealth v. McWhinney, 20 Mass. App. Ct. 444 (1985), which involved "a gravely incomplete record" for which "[t]apes of approximately one half of the testimony at the trial had been stolen, including the entire testimony of twelve witnesses and partial testimony of four witnesses [and] the opening remarks of both the prosecutor and defense counsel." 20 Mass. App. Ct. at 446-47.
27
M.C.'s trial counsel also averred that the
inaudibility of some of the testimony resulted in the
loss of "critical" evidence. RA. 78. M.C.'s failure
to attempt to reconstruct the record should doom this
argument, as explained supra Part I-B. In any event,
the argument fails both because M.C. makes no effort
to identify what "critical" evidence was lost, and
because there is no causal relationship between the
recording devices and the inaudibility. Notably,
M.C.'s appellate counsel concedes that she has never
listened to the recording, although she has had a copy
of it since March 21, 2017. See Dkt. 31, ~ 3; RA. 71.
It is apparent, when listening to the recording,
that the inaudibility was not the fault of the
recording device. Rather, both Dr. Kwok and M.C.'s
trial counsel were soft spoken, see~, Tr.I, pp. 37
(Rec.II 0:15-0:39), 39 (Rec.II 3:14-3:25), 40 (Rec.II
3:45-4:13), 45 (Rec.II 9:54-10:27), 49 (Rec.II 14:30-
14:55), and counsel for Solomon Carter spoke very
quickly. See, e.g., Tr.I, pp. 53 (Rec.II 19:50-
20:10), 62 (Rec.II 28:35-28:58). And, at least twice,
cross-talk rendered testimony inaudible. Tr.I, pp. 29
(Rec.I 21:44-21:48), 32 (Rec.I 25:08-25:13).
28
In addition, although the transcript does note a
"pause" on several occasions, these are mostly
recorded pauses during which the recorder is
functioning, but nobody is speaking. 14 There are only
four points at which a marked "pause" or "interruption
in recording" results in a portion of the proceedings
being unavailable: Tr. I, p. 4 (1. 14: "Pause") (Rec.I
0:40-0:57); Tr.I, p. 6 (1. 9: "Pause") (Rec.I 2:28-
2:54); Tr. I, p. 8 (1. 3: "interruption in recording")
(Rec.I 4:14-4:20); and Tr. I, p. 27 (11. 16-17, 23:
"interruption in recording") (Rec.I 20:15-20:21,
20:33-20:39). Of these, only the 12 seconds of
interruptions at p. 27 of the transcript reflect
missed testimony; the others occurred during
statements by counsel.
Moreover, two of the pages M.C. cites as showing
"an incomplete or insufficient recording," Blue Br. 18
(citing RA. 78), in fact show the opposite. These are
the "end of tape" notations at Tr.I pp. 32 & 57, where
the transcript incorrectly reflects missing testimony
14 For example, the "pauses" at Tr.I, p. 66 (11. 7 &
12) are recorded at Rec.II 31:33-31:42 & 31:46-32:03, and seem to reflect counsel showing documents to the witness; contrary to M.C.'s counsel's affidavit, they do not "reflect[] that the recording is incomplete or insufficient." RA. 78.
29
but the recording in fact is complete, as described
supra pp. 26-27. Finally, it is undisputed that a 20-
minute unrecorded colloquy regarding the recording
devices occurred at Tr.I, p. 37, 11. 12-13 ("Pause"
and "End of tape 2"), but there is no dispute as to
its contents, see RA. 66, and Solomon Carter agrees
that M.C.'s objections to continuing the hearing are
preserved.
In sum, the trial court's finding that "the
iPhone and ... the cassette ... were adequate alternative
recording devices," Tr.II, p. 28, is well supported by
the record and is not clearly erroneous. The
transcript that resulted from the use of the iPhone
and Solomon Carter's cassette recorder is
substantially complete and more than adequate to allow
for meaningful appellate review.
II. Holding the hearing at Solomon Carter was neither a denial of equal protection of the laws nor an abuse of discretion.
The Equal Protection Clause "essentially mandates
that 'all persons similarly situated should be treated
alike.'" Murphy v. Comm'r of Dep't of Indus. Aces.,
415 Mass. 218, 226 (1993) (quoting Cleburne v.
Cleburne Living Ctr., Inc., 473 U.S. 432, 439 (1985)).
Thus, to prevail on his Equal Protection argument,
30
M.C. must identify what right he was denied that
other, similarly situated individuals, are provided -
and he must further show that there was no rational
basis for doing so. See, e.g., Currie v. Grp. Ins.
Comm'n, 147 F. Supp. 2d 30, 38 (D. Mass. 2001)
(rational basis standard applies to equal protection
challenges by the disabled); Williams v. Sec. of Exec.
Office of Hum. Serv., 414 Mass. 551, 564 (1993).
To the extent M.C. argues he was denied the right
to the same quality recording device as non-disabled
litigants, Blue Br., p. 37 the argument is without
merit. No litigant has a right to flawless recording
devices, and courthouse recording devices also fail,
as Judge McKenna noted. Tr.II, p. 24.
M.C. also argues that the denial of his motion to
hold the hearing at the courthouse deprived him of an
"adequate courtroom." Blue Br., p. 36. But M.C. does
not specify what was inadequate about the courtroom -
he simply states that it was "makeshift." Id. M.C.'s
trial counsel did not describe a makeshift courtroom.
Rather, she described a layout that is akin to a
courtroom in a courthouse: separate tables for counsel
that faced a table where the judge presided; space for
31
the clerk next to the judge; a space for witnesses;
and an American flag.
It is worth noting that, beyond the features
. described above, courtrooms in a courthouse are not
identical to one another, and may need repair and
modernization . 15 M. C.'s "adequacy" argument rests on
the false premise that courthouses in the Commonwealth
uniformly offer a degree of recording perfection and
formality that he was denied.
Finally, M.C. appears to argue that, irrespective
of whether the hearing room was adequate and had
functioning recording equipment, the relevant statute
which allows civil commitment hearings to be held at
mental health facilities, G.L. c. 123, § 5, treats the
mentally disabled differently than the non-disabled. 16
15 In the 2017 draft "Executive Summary of the Massachusetts Courts Capital Master Plan," the authors reported: "Of the 97 facilities statewide, 65% are over 50 years old and at the juncture of needing substantial repairs and modernization." (Add., p. 34) Notably, the Trial Court has recently supervised the modernization and improvement of hearing rooms at mental health facilities. (Add., p. 30-31) 16 It is worth noting, however, that under G.L. c. 218, § 43A, all district courts have the discretion to hold sittings at the courthouse "or elsewhere." Similar discretion is granted by G.L. c. 218, § 38 (all district courts) and G.L. c. 220, § 5 (all courts). Therefore, G.L. c. 123, § 5 is redundant and does not constitute a statute that treats respondents differently than other litigants.
32
This argument fails because the statute easily
survives rational basis review.
The record in this very case demonstrates the
rationality of the legislature's determination that
civil commitment hearings may be appropriately held at
facilities rather than courthouses. At the time M.C.
filed his motion, there was a pending criminal case
and he was being held without bail at Solomon Carter.
RA. 134. Therefore, as Solomon Carter pointed out in
its opposition to M.C.'s first motion, the sheriff of
Plymouth County would have to transport M.C. to a
courthouse, and would have to do so unaccompanied by
any mental health professional. RA. 34. M.C.'s
behavior at ~he facility suggested it would be unsafe
for him to travel unaccompanied by a mental health
professional who could assist with deescalating
potentially self-harming or assaultive behavior. RA.
34-35. 17 The legislature could reasonably have
concluded that circumstances such as these are not
17 M.C. argues that the court made its decision based on stereotypical assumptions about the mentally ill. In support of this argument, M.C. cites to statements made by Judge McKenna to explain his general opinion that it was best to have civil commitment hearings held at the facility. Judge McKenna made no statement suggesting that he believed M.C. was heavily medicated or would have seizures on the way to the courthouse. Tr.II, pp. 32-33.
33
uncommon in this context, and justify holding these
hearings at facilities, in the judge's discretion.
That thousands of these hearings occur each year, see
infra p. 45, further supports the rationality of the
legislature's determination. Cf., e.g., Thompson v.
Commonwealth, 386 Mass. 811, 818 (1982) (noting
"[i]ntolerable fiscal and administrative burdens" in
considering "the State's interest" in procedures under
G.L. c. 123, § 9).
Other aspects of this case make clear that Judge
McKenna did not abuse his discretion in denying M.C.'s
motions to move the hearing. The court reasonably
found M.C.'s first motion to hold the hearing at the
courthouse to be "untimely." RA. 26. Courts must
hold civil commitment hearings within 14 days of the
petition's filing. G.L. c. 123, § 7(c). M.C. filed
his first motion the day before the hearing date,
which was 12 days into the 14 day limit, unaccompanied
by any motion for a continuance. The court therefore
had ample reason to deny a motion that required a last
minute change in location, particularly where other
hearings may have been scheduled to take place at
Solomon Carter on the same day.
34
With respect to M.C.'s renewed motion during the
hearing, the court had a legitimate concern that
suspending the hearing to change the location would
have needlessly delayed the proceeding. Tr.II, p. 23.
This Court has made clear that delay should be avoided
unless there is good cause. Hashimi, 388 Mass. at
610. In this case, where the court expressly found
that "the iPhone and the ... cassette were ... adequate
alternative recording devices," Tr.II, p. 28, and all
parties and the only witness were already present, the
court acted well within its discretion in denying the
renewed motion to relocate to the courthouse.
III. M.C. has failed to state a claim under the Americans with Disabilities Act because the Boston Municipal Court did not deny M.C. access to its service or program and non-disabled individuals are not entitled to choose the location of a hearing.
The Americans with Disabilities Act ("ADA")
prohibits a state from excluding a disabled person
from participating in, or denying him the benefit of,
a state service, program, or activity by reason of his
disability; nor may the state otherwise discriminate
against the individual by reason of his disability.
42 U.S.C.A. 12132 (2013); Crowell v. Massachusetts
Parole Bd., 477 Mass. 106, 111 (2017). Solomon Carter
agrees that M.C. is disabled within the meaning of the
35
ADA, and that the hearing on its petition for civil
commitment constitutes a public service or program.
But the court did not deny M.C. the benefit of the
service or program at issue in this case - namely, a
hearing on the § 16(b) petition. Nor did the court
otherwise discriminate against M.C., because no
litigant has the right to choose the location of a
judicial proceeding. "The ADA requires only that a
particular service provided to some not be denied to
disabled people." Rodriguez v. City of New York, 197
F. 3d 611, 618 (2d Cir. 1999). Accordingly, M.C. has
failed to state a claim under the ADA.
A. The Service the Court Provides is a Fair and Impartial Hearing and Therefore the Court Did Not Deny M.C. Access to the Service.
There is no question that M.C. had both a
constitutional and statutory right to a fair and
impartial hearing prior to entry of an order of civil
commitment. But M.C. cites to no legal authority
stating that litigants are entitled to a hearing in a
courthouse.
So long as the physical condition of the
alternative location is suitable and protects a
litigant's rights, the law does not preclude a court
from scheduling its sitting someplace other than a
36
courthouse. See, e.g., Foley v. Com., 429 Mass. 496,
499 (1999) (finding arraignments held at Plymouth
County correctional facility lawful where room used
reflected formality of a courtroom, room was
accessible to the public, space was made for attorney
client communications, and the proceeding required no
jury); Com. v. DeBrosky, 363 Mass. 718, 721-722 (1973)
(permissible to convene court at a hospital so the
witness could testify without jeopardizing her health
where condition had no impact on ability of defendant
to perform forceful cross-examination) .
The Boston Municipal Court provided M.C. with a
courtroom that was consistent with Judicial Standards
applicable to the District Courts. See supra p.11.
The physical layout of the hearing room was not
"makeshift" or informal. Blue Brief, p. 36. A clerk
of the court swore in witnesses and recorded the
session, and Judge McKenna formally presided over the
hearing.
Moreover, like the arraignments at issue in
Foley, the hearing on Solomon Carter's petition did
not require jurors. Foley, 429 Mass. at 797-798. Nor
was Dr. Kwok (a licensed psychiatrist) likely to be
37
intimidated by a hearing held in a psychiatric
facility. Foley, 429 Mass. at 797.
In sum, the court provided M.C. with the service
courts provide - a fair and impartial hearing before a
member or members of the judiciary. Accordingly, M.C.
has failed to state a claim under the ADA.
B. No litigant has the right to choose the location of a hearing, and therefore the court did not discr~inate against M.C. by denying h~ a benefit provided to nondisabled individuals.
The state does not "unlawfully discriminate[]
against [M.C.] by denying [him] a benefit that it
provides to no one." Rodriguez, 197 F.3d at 618. The
General Laws reflect a clear legislative intent to
leave the location of court proceedings to the
discretion of the judiciary. See G.L, c. 218, § 38
("Sittings of the court shall be held at the
courthouses or other places provided therefor by the
judicial branch .... "); id. § 43A (chief justice "may
authorize any justice or special justice to hold a
session of any division at another division or
elsewhere, in order to promote the speedy dispatch of
the court's business").
Courts have exercised that discretion to hold
sessions in a location other than a courthouse in a
38
variety of circumstances other than where the hearing
concerns a petition for civil commitment. In Foley,
this Court upheld the District Courts' "economically
and administratively efficient system" of handling
arraignments at the Plymouth County correctional
facility rather than in a courthouse. 429 Mass. at
497. And, in the interest of making the court more
accessible to homeless individuals whose circumstances
may create barriers to accessing the courthouse, the
District Court and the Boston Municipal Court have
established locations in homeless shelters and
churches. (Add., p.17-20) .18
Finally, the Boston Municipal Court has, in the
past, conducted a "Fugitive Safe Surrender Program,"
to reduce the number of outstanding warrants in
Boston. The program involved holding a court session
in the Jubilee Christian Church in Mattapan "to
encourage individuals with open warrants to present
themselves to the court in an environment where many
18 For instance, the Cambridge District Court holds a "homeless court" at the First Parish Church in Cambridge in order to help the homeless appear for a judicial proceeding that would otherwise be held at a courthouse in Medford. Add., p.l8. Similarly, the Boston Municipal Court holds a homeless court session at the Pine Street Inn to increase the likelihood that homeless individuals will appear for a court hearing or trial. (Add. p. 17)
39
individuals may feel less threatened." Boston
Municipal Court Department, Annual Report, 2010, p.
13. (Add., pp. 25-26) . 1 9 Thus, whether the decision is
driven by administrative needs, public safety needs,
or access to justice concerns, civil commitment cases
are not the only cases in which the District Courts
and the Boston Municipal Court choose to schedule
sessions in a location other than the courthouse.
In sum, M.C.'s argument incorrectly conflates a
courthouse with a court, and incorrectly assumes that
non-disabled litigants enjoy the right to choose the
location of the hearing. The legislature has clearly
authorized the court to determine the location of its
sittings, and so long as the court is providing all
litigants - irrespective of the location - with a fair
and impartial hearing, it is permissible for a court
to conclude that the best location for a session is
where the litigant or witnesses are.
IV. Requiring the court to allow a respondent to choose the location of the hearing would ~pose an undue administrative burden and would fundamentally alter the court's service.
Even if this Court finds that the service or
program provided by courts is a hearing at the
1 9 See also "Fugitives seek another chance," Shelley Murphy, Boston Globe, October 7, 2010. (Add., p.20).
40
courthouse, M.C.'s ADA argument ~falls short of
anything that can properly be called an argument
within the meaning of Mass.R.A.P. 16(a) (4) ."A. Leo
Nash Steel Corp. v. S. New England Steel Erection Co.,
9 Mass. App. Ct. 377, 385 (1980). In the three pages
devoted to the topic, Blue Br. 42-45, M.C. simply
describes significant cases and quotes from them at
length. But M.C. fails to identify what provision in
the complex statute and related regulations require
the court to allow M.C. to dictate the location of his
hearing.
M.C. seems to argue that the court did not comply
with the ADA's ~reasonable accommodation" requirement.
Given that M.C. was confined at the time of his
hearing, the question is whether it was permissible
for the court to address the accessibility barrier by
bringing the court to M.C. rather than bringing M.C.
to the courthouse. 28 C.F.R. § 35.150(a) (~A public
entity shall operate each service . . so that the
service ... , when viewed in its entirety, is readily
accessible to and usable by individuals with
disabilities") (Add. p. 55).
The regulations promulgated for the purpose of
implementing the ADA provide public entities with a
41
non-exclusive range of options to achieve compliance
with the ADA's mandates. 28 C.F.R. § 35.150(b) (1)
(Add., pp. 55-56). Among the options is to provide
the service at an alternate site, id., so long as, as
a practical matter, the individual is able to access
the benefit to which he is legally entitled. Disabled
in Action, 752 F.3d at 199 (quoting Henrietta D. v.
Bloomberg, 331 F.3d 261, 273 (2d Cir. 2003)). See
also, Tennessee v. Lane, 541 U.S. 509, 532 (2004)
(public entity may satisfy the ADA's requirements by
providing the inaccessible service at a different
location). Thus, the holding of a hearing at the
facility satisfies a court's duty under the ADA.
M.C.'s position appears to be that the only
permissible accommodation is one that allows the
respondent to choose the location of the hearing.2°
Thus, M.C. proposes that individuals committed to a
facility under G.L. c. 123 may dictate the location of
20 M.C. is apparently not arguing that all hearings must be held at the courthouse irrespective of the wishes of the respondent. And in fact, such a proposal would certainly violate the ADA. 28 C.F.R. 35.130 (e) (1) ("Nothing in this part shall be construed to require an individual with a disability to accept an accommodation") (Add. p. 53); Olmstead v. L.C. ex rel. Zimring, 527 U.S. 581, 602 (1999) (there is no federal requirement that accommodation be imposed on those who do not desire it) .
42
a hearing on a petition for civil cornmitment.21 But
the cost of this accommodation clearly exceeds its
benefits, and should therefore be rejected. Henrietta
~' 331 F.3d at 280 (quoting Borkowski v. Valley ent.
Sch. Dist., 63 F.3d 131, 138 (2d Cir. 1995)) (plaintiff
must "suggest the existence of a plausible
accommodation, the costs of which, facially, do not
clearly exceed its benefits").
It is well established that the ADA does not
require the public entity to "employ any and all means
to make judicial services accessible." Tennessee, 541
U.S. at 511. Under 28 C.F.R. § 35.150(a) (3), a public
entity need not take an action that would impose an
"undue financial and administrative burden" or result
in a "fundamental alteration" of its service. (Add.
p. 55) Because M.C.'s request would impose an undue
administrative burden on the court system, and would
21 In a letter, the Mental Health Litigation Division of the Committee for Public Counsel Services has advocated for a change in court policy that would hold civil commitment trials at courthouses, unless the respondent requests that the trial be held at the facility. RA. 76. Of course, such a rule would also mean that in cases held in the Superior Court under G.L. c. 123, § 9(b), the individual petitioning for release from confinement could demand that the hearing be held at the facility.
43
fundamentally alter the court's service, this court
should reject M.C.'s proposed accommodation.
M.C.'s proposed policy would eliminate the
flexibility that is necessary for the courts to manage
the scheduling of all hearings and trials, some of
which may be required on short notice. Equally
important is that the court must have the ability to
determine how best to protect the public safety and
the safety of the respondent in light of the
particular circumstances of each case, the physical
condition of the courthouse, and the staffing at the
courthouse.
Individuals committed under G.L. c. 123, § 15(b)
have been criminally charged and are under observation
to determine whether they are incompetent to stand
trial. Some respondents may also have been deemed in
need of strict security and placed at Bridgewater
State Hospital. G.L. c. 123, §§ 15, 16.
There are 62 District Courts located across the
Commonwealth, in both rural and urban locations. In
2016, psychiatric hospitals, the Department of Mental
Health, and Bridgewater State Hospital together filed
over 5,400 mental health petitions under G.L. c. 123.
Add., p. 28. The medical director of the Bridgewater
44
State Hospital filed approximately 1,000 of these
petitions, which means that in approximately 1,000
cases, the respondent had already been deemed in need
of strict security. Id.
The superintendents of the five Department of
Mental Health state facilities, which provide forensic
evaluations, 22 filed approximately 1,700 of the 5,400
petitions. Id. This means that many of these 1,700
petitions are naming respondents who will need to be
transported to the courthouse by a sheriff and
potentially placed in lock-up. 2 3 While a small
fraction of these petitions are filed in the Superior
Court, see G.L. c. 123, § 9(b), the vast majority of
these thousands of petitions are filed in the Boston
Municipal Court and in the District Courts.
These thousands of hearings must be held within 5
or 14 days, unless the respondent requests an
extension of time. G.L. c. 123, § 7(c). Allowing the
respondent to choose the location of the hearing would
2 2 Forensic evaluations are the§ 15(b) evaluations conducted to determine whether an individual is incompetent to stand trial or is not criminally responsible by reason of mental illness.
2 3 The 67 behavioral hospitals located in the Commonwealth filed the remaining 2,700 petitions. Add., p. 28.
45
therefore place the courts in the position of trying
to schedule hearings on numerous petitions, within 5
or 14 days, where respondents in the same facility
(e.g., Bridgewater) may have different opinions on
where they want the hearing held. Those respondents
may also be und~r the observation and treatment of the
same physicians, psychiatrists, and/or social workers,
who are likely to be witnesses in the case.
In testimony submitted on behalf of the Executive
Office of the Trial Court, Judge Rosemary Minehan
explained the complexity of the scheduling process and
the need for judicial discretion:
The judge may consider many factors when deciding whether to have the hearing at the hospital or the court, including the available judicial staffing at the particular court on the day of the hearing, the availability and location of expert medical and forensic witnesses, the potential of having the Department of Correction, sheriffs or private ambulance transport the psychiatric patient to and from the court for the hearing and whether that patient will be permitted to wait in the public area of the courthouse prior to the commencement of the hearing. The judge may also consider whether public safety issues are presented if the patient is placed in the courthouse lock-up, including whether there is adequate space and security given that the same lock-up space is also used for persons under arrest for crimes or held on criminal detention.
Add., pp. 27-28. Notably, Judge McKenna, at the
conclusion of the hearing on M.C.'s Rule 60(b) motion,
46
spoke to this need for flexibility. Judge McKenna
shared his experience working in the Concord Division
of the District Court, and noted that small courts
face staffing and geographic challenges that may
prevent a hearing from being held at the facility.
Tr.II, pp. 33-34.
The holding of hearings at a courthouse would
also negatively impact the treatment of other
residents in mental health facilities, which is a
permissible factor for the court to consider.
Olmstead v. L.C. ex rel. Zimring, 527 U.S. 581, 584
(1999) (fundamental alteration analysis may take into
account that "immediate relief for the plaintiffs
would be inequitable, given the responsibility the
State has undertaken for the care and treatment of a
large and diverse population of persons with mental
disabilities"); cf. Thompson v. Com., 386 Mass. 811,
818 (l982) (noting harm of psychiatrists spending
"substantially more time preparing for and attending
judicial hearings instead of caring for patients").
If the respondent is entitled to dictate the location,
then psychiatrists and other staff involved with a
respondent's care will be forced to spend
substantially more time travelling to and from the
47
courthouse, sometimes needing to appear in different
locations on the same day, which will undermine their
ability to observe and treat patients.
Finally, M.C. simply has not shown that hearings
in a courthouse are the ·only means by which a
respondent may receive the "fair and impartial
administration of justice." Blue Br., p. 43. Indeed,
by conceding that his "due process rights ... would have
been preserved" if the court "had stopped the hearing
to obtain functional recording equipment," Blue Br.,
p. 22, M.C. appears to agree that fair and impartial
trials do not require a courthouse setting.
For all of these reasons, this Court should
reject M.C.'s argument that the ADA requires the
courts to allow a respondent who has been committed to
a facility under G.L. c. 123 to choose the location of
a hearing on a civil commitment petition. Such a
requirement would impose an undue administrative
burden on the courts, and would fundamentally alter
the nature of the service provided. 24
24 M.C. has not argued that the court's decision to hold hearings at a facility violates the ADA's integration mandate, but even if he had, this argument would also fail. The ADA's integration mandate requires that a public entity "administer [its] services, programs, and activities in the most
(footnote continued)
48
CONCLUSION
For the foregoing reasons, the judgment below
should be affirmed.
(footnote continued) integrated setting appropriate to the needs of qualified individuals with disabilit~es." 28 C.F.R. §
35.130 (d) (1998). "A public entity's obligation under Olmstead [and the ADA] to provide services in the most integrated setting is not unlimited. A public entity may be excused in instances where it can prove that the requested modification would result in a 'fundamental alteration' of the public entity's service system." Statement of the Department of Justice on Enforcement of the Integration Mandate of Title II of the American with Disabilities Act (2011), p.3 (Add., p.41); see also Radaszewski ex rel. Radaszewski v. Maram, 383 F.3d 599, 607 (7th Cir. 2004) (integration mandate does not apply where public agency "can show 'that making the modifications would fundamentally alter the nature of the service, program, or activity"') (quoting 2 8 C. F. R. §
35.130(b)(7)); Townsend v. Quasim, 328 F.3d 511,517 (9th Cir. 2003) (same); Fisher v. Oklahoma Health Care Auth., 335 F.3d 11.75, 1181 (lOth Cir. 2003) (same). Thus, for all the reasons discussed supra pp. XX-XX, the courts are not obligated to grant a respondent's request for a hearing at the courthouse.
49
Date;-..)~ 2~ "ZA>\...~
Respectfully submitted,
SOLOMON CARTER FULLER MENTAL HEALTH CENTER,
By its attorney,
MAURA HEALEY ATTORNEY GENERAL
su~rWJ~ Assistant Attorney General Government Bureau One Ashburton Place Boston, Massachusetts 02108 (617) 963-2981 BBO # 654933 [email protected]
CERTIFICATION PURSUANT TO MASS. R. APP. P. 16(k)
I, Suleyken D. Walker, hereby certify that the foregoing brief complies with all of the rules of court that pertain to the filing of briefs, including, but not limited to, the requirements imposed by Rules 16 and 20 of the Massachusetts Rules of Appellate Procedure.
As~r~~ Suleyken D. Walker
50
ADDENDUM
Standards of Judicial Practice: Civil Commitment and Authorization of Medical Treatment for Mental Illness (Dec. 2011) ......................................... A-1
Pine Street Inn I Homeless Court, Homeless Court Program: A Way Forward ................ A-17
Cambridge District Court Homeless Session Relocated to Harvard Square .................. A-18
Fugitives seek another chance, The Boston Globe, dated October 7, 2010 ................. A-20
Boston Municipal Court Department, Annual Report Fiscal Year 2010 ...................... A-22
Trial Court Testimony to the Joint Committee on Mental Health and Substance Abuse, Delivered by Judge Rosemary Minehan, Tuesday, July 11, 2017 ....................... A-27
Executive Summary of Draft Report, Massachusetts Courts Capital Master Plan ......................................... A-32
Supreme Judicial Court Hears Oral Arguments in Special Sitting in Lawrence, ............. A-40
Statement of the Department of Justice on Enforcement of the Integration Mandate of Title II of the Americans with Disabilities Act and Olmstead v. L.C ......... A-41
Dist./Cts.R.A.D.A. Rule 8C ........................ A-46
28 C.F.R. § 35.130 ................................ A-51
28 C.F.R. § 35.150 ................................ A-55
51
L
COMMONWEALTH OF MASSACHUSETTS DISTRICT COURT DEPARTMENT OF THE TRIAL COURT
STANDARDS OF JUDICIAL PRACTICE
CIVIL COMMITMENT AND AUTHORIZATION OF MEDICAL TREATMENT
FOR MENTAL ILLNESS
Revised December, 2011
ADMINISTRATIVE OFFICE OF THE DISTRICT COURT
A-1
DISTRICT COURT ADMINISTRATIVE REGULATION . .
No.4-79 ·
(Amended December 29, 2011)
PROMULGATION OF STANDARDS OF JUDICIAL PRACTICE,
CI.VI.L GO!t1MJTMENT AND AUTHORIZATION OF MEDICAL TREATMENT
FOR MENTAL ILLNESS
(R~vised December, 2011)
APministrati:ve Regulation. 4-79 is hereby amended as follows:
The provisions of the Standards of Judicial. Practice7. Civil Commitment and Authorization of Medicr:d Treatment for Menta{ Illness, as revi~d, are hereby promulgat¢.furuse in the District Court Department.
Lyn Connolly Chief Justice of the District
Effective.: Janu:azy 3, 1012
TI:I.e CN# CQmm.itrM-ni Standards were first promulgated by Chief JU$1ice SamJiel E. Zoll in 1979. They were developed by the District Court_ Committee on Mental Health, consisting of Han. George N. Covett (Brockton), Chair,. H'on. Moms N. Gould (Worcester), Hon. Arlyne F. Hassett (Waltham.), lion. George N. Hurd (Brockton), Han. Walter J. Moosia (W estborough).,Jion.Alvertus l Morse (NorthamptQn), William.t O'Neil, Esq., ExecutiveDirector,.MentU Health Legal Advisors Commi~ Em.d Hon..Maurice a Richardson (Dedham), with the assistance of Jamei A Robbins;; Esq.; A.~ve Attorney in~ Administrative Office of the District Court.
A-2
The Committee dedicated their work to Chief Justice Franklin N. Flaschner, who had died untimely before its completion, and to Committee member Hon. Morris N. Gould, who had since retired. As the Committee noted,
"Judge Flaschner recognized the unique problems which these sensitive and often complex cases present for judges and other personnel in the context of a sometimes hectic community court system in which the court's time and attention are in demand by great numbers of litigants, most of whom are far more able to assert their positions than is the typical respondent in a psychiatric commitment case. The late Chief Justice was a nationally recognized leader and prolific writer in this area .... His leadership and his commission of the District Court Committee on Mental Health have served and continue to serve to improve the performance of the District Courts in this as in other areas of law and judicial administration.
"Judge Gould was a charter member and a primary member of the Committee which produced these standards . . . . His contributions were invaluable. He administered and heard most of the civil commitment cases in central Massachusetts, and did so in a way which brought great credit to our system in the eyes of all involved, in no small measur.e because of the great human concern which he exhibited toward the less fortunate members of society. His decisions and opinions in this area, both as a trial judge and as a :nlember of the Appellate Division, have provided us with a proud legacy."
Three decades of experience and many significant appellate decisions and statutory amendments have made a comprehensive revision of the Standards necessary, as well as their expansion to include the District Court's responsibility since 1986 for substituted judgment decisions concerning medical treatment of mental illness for incompetent civiliy committed persons. I am grateful to Hon. Rosemary B. Minehan (Plymouth), Regional Administrative Judge for Region 1 and Chair of the District Court Committee on Mental Health and Substance Abuse, for undertaking this complex task. Thanks are also due Hon. Michael J. Brooks (Natick), Regional Administrative Judge for Region 4; Michael H. Cohen, Esq., Supervising Counsel at Bridgewater State Hospital; Hon. Kevan J. Cunningham (Frrst Justice, Taunton); Hon. Paul F. LoConto (Worcester), Regional Administrative Judge for Region 5; and Debra A Pinals, M.D., Assistant Commissioner of Forensic Mental Health Services, Massachusetts Department of Mental Health, for their thoughtful review and suggestions. A special word of thanks to Lester Blumberg, Esq., General Counsel, Massachusetts Department ofPublic Health; Stan Goldman, Esq., Director, Mental Health Litigation Division, Committee for Public Counsel Services; Michael T. Porter, Esq., of Connor & Hilliard, P.C.; and John M. Connors, Esq., former Deputy Court Administrator in the Administrative Office of the District Court , for their contnbutions of expertise, thoughtful input, and extensive drafting.
Unlike rules of court, the Standards of Judicial Practice are not mandatory in application. They represent a qualitative judgment as to best practices in each of the various aspects of the civil commitment procedure. As such, each court should strive for compliance with the Standards and should treat them as a statement of desirable practice to be departed from only with good cause. In addition, many references are made throughout the Standards to provisions ofStatutory and case law which, of course, must be observed.
2 A-3
These Stan®ds may be amended from. time to time. Comments and sugge~tions on how they may be improved are always welcome: and should be seni tQ the: AdiilWistrative O;ffice of the District Court.
A-4
4:kb . Lyn · • Connolly Chief Justice of the District BostPn,MA
· December 29, 2011
3.
Standard
1:00
1:01 1:02
CIVIL COMMITMENT AND AUTHORIZATION OF MEDICAL TREATMENT
FOR MENTAL ILLNESS
TABLE OF CONTENTS
GENERAL
Introduction to District Court Mental Health and Addiction Proceedings ...... 8 Consent Decree on Transfers to Bridgewater State Hospital ............ 9 Intellectually Disabled Persons ..•............................... 10
Definitions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .. . . . . . . 11 Privacy of Court Records . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14
CIVIL COMMITMENT FOR MENTAL ILLNESS
LEGAL STANDARDS
2:00 Requirements for Civil Commitment ................................ 16 Mental Illness . . . . . . . . . . . • . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17 "Substantial" or ''Very Substantial" Likelihood of Physical Harm . . . . . . . . 17 Least Restrictive Alternative . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18 Strict Custody . : . ..........•................ · ................ 19
INITIAL PROCEDURES
3:00 F:iling the Petition .............................................. 20 3:01 Time Limits for Filing Petition ..................................... 22 3:02 Right to a Hearing ............................•... , ....... : . .... 23 3:03 Right to Counsel ............................................... 24
Indigency ........................................ .- ......... 25 Subsequent Revocation of Ind.igency Fmding ....................... 25 Waiver of Counsel & Appointment of Standby Counsel ............... 25 Withdrawal by Counsel ....................................... 26 Pending Criminal Charges ..................................... 26 Attorney Performance Standards ................................ 26
3:04 Time Limits for Hearing ......................................... 28 Hearings Beyond the Statutory Time Limit ........................ 30
3:05 Notice of Hearing ......... · ..................................... 32 3:06 Continuances .................................................. 33
4 A-5
3:07 Independent Clinical Examination .................................. 34 lndigency .................................................. 35 Need for Independent Examination .............................. 35 Amount Authorized ................................. ~ ........ 36 Choice of Examiner ................... · ....................... 37 Results of Independent Clinical Examination ....................... 38
3:08 Discovery ............ .- ....................................... 39
HEARING
4:00 Location of Hearings ................... : . ....................... 40 4:01 Public Access to Hearings ........................................ 42 4:02 Electronic Recording ............................................ 45 4:03 AdversarialNature of Hearings ............................... ; .... 46 4:04 Respondent's Presence ........................................... 47 . 4:05 Decision and Order ......................... ; ................... 49 4:06 Judicial Reviews ............................................... 50 4:07 Appeal ....................................................... 51
EVIDENCE
5:00 Standard of Proof ............................................. A 52 5:01 Rules of Evidence .............................................. 53 5:02 Hearsay ...................................................... 54
Statements by Party-Opponent .................................. 54 Hospital Records ............................................ 54
5:03 Expert Opinion Testimony ....................................... ·.57 Qualification as an Expert ..................................... 57 Opinion on Ultimate Issue ..................................... 58 Validity of Expert's Methodology ................................ 58 Foundation of Opinion ........................................ 58
5:04 Privileged Communications to Clinicians ............................. 59 §. 20B(a) Exception for Placing or Retaining a Person
in a Mental Health Facility ............... · ................... 61 § 20B(b) Exception for Court-Ordered Examinations
after a Lamb Warning and Waiver ........ ; ................... 62
EMERGENCY PROCEEDINGS
6:00 Emergency 3-Day Commitments ................................... 65 Conditional Voluntary Admissions(§§ 10 & 11) ..................... 66 Involuntary Admissions by Medical or Mental Health Professional
or by Police Officer(§ 12[a]-[b]) ............................. 66 6:01 Emergency Hearings on Whether 3-Day Admission Resuhed
from Abuse or Misuse ........................................ 68
5 A-6
·•s :
AUTHORIZATION OF MEDICAL TREATl\ffiNT FOR MENTAL ILLNESS
LEGAL STANDARDS
7:00 Overview ofG.L. c. 123, § 8B Proceedings ........................... 70 Introduction ................................................ 70 § 8B Procedures ............................................ 71 Pretrial Criminal Defendants ................................... 72 Medical Intervention without District Court Authorization ............. 73
7:01 Related Probate and Family Court Proceedings ........................ 74 7:02 Competency to Make Informed Treatment Decisions .................... 76 7:03 Substituted Judgment for Treatment with Antipsychotic Drugs ............ 78
Overriding State Interest ...................................... 81 7:04 Authorizing Treatments Other than Antipsychotic Drugs ................. 83 7:05 Incompetent Patients Who Agree to Proposed Treatment ................ 85
INITIAL PROCEDURES
8:00 Filing a§ 8B Petition ............................................ 86 8:01 Time Limits for Filing§ 8B Petitions ................................ 88 8:02 Right to a Hearing in § 8B Proceedings .............................. 89 8:03 Right to Counsel in§ 8B Proceedings ................................ 91 8:04 Time Limits for § 8B Hearings ...................................... 92 8:05 Notice of§ 8B Hearings ......................................... 94 8:06 Continuances of§ 8B Hearings .................................... 95 8:07 Independent Clinical Examination in § 8B Proceedings .................. 96 8:08 Discovery in § 8B Proceedings .................................... 97
IIEARING
9:00 Location of§ 8B Hearings ......................................... 98 9:01 Public Access to § 8B Hearings .................................... 99 9:02 Electronic Recording of§ 8B Hearirigs ............................. 100 9:03 Adversarial Nature of§ 8B Hearings ............................... 101 9:04 Fmdings, Decision and Order in§ 8B Proceedings ..................... 102 9:05 Appeal of§ 8B Orders .......................................... 104
EVIDENCE
10:00 Standard of Proof in§ 8B Hearings ................................ 105 10:01 Rules of Evidence in§ 8B Hearings ............................. · ... 106 10:02 Hearsay in§ 8B Hearings ....................................... 107 10:03 Lay and Expert Witnesses in§ 8B Hearings .......................... 108 10:04 Privileged Communications to Clinicians in § 8B Hearings . . . . . . . . . . . . . . . 109
6 A-7
AUTHORiZATION OF TREATMENT PLAN
11:00· 11:01 11:02 11:03 11:04
Contents of§ 8B Treatment Plan .................................. 110 Scope and Duration of Authorized § 8B Treatment Plan . . . . . . . . . . . . . . . . 111 Modifying or Vacating § 8B Treatment Authorizations . . . . . . . . . . . . . . . . . 112 Transfer of § 8B Patient to Different Facility ............... : . . . . . . . . . 113 Monitoring § 8B Treatment Plan . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 114
APPENDICES
Appendix A Outline of District Court Mental Health and Addiction Proceedings under G.L. c. 123 .......................................... 116
Appendix B Excerpt fromDistrict Court Transmittal No. 945, Scheduling Civil Commitment Hearings (G.L c. 123, §§ 7-8) and Emergency Hearings(§ 12[b]) (February 23, 2007) ............. 119
Appendix C Committee for Public Counsel Services, Performance Standards Governing the Representation of Indigent Persons in Civil Commitment Cases ................... 128
Appendix D Committee for Public Counsel Services, Performance Standards Governing the Representation of Indigent Adults in Guardianship Proceedings under G.L c. 190B and in Authorization to Treat Proceedings under G.L c. 123 ......... 131
7 A-8
3:04 Time limits for hearing
For an initial commitment petition under G.L. c. 123, §§ 7 & 8, the hearing must be commenced within five days after the date of filing, unless a continuance is granted at the request of the respondent or respondent's counseL G.L. c. 123, § 7(c).
For a subsequent recommitment petition under G.L. c. 123, §§ 7. & 8, the hearing must be commenced within 14 days after the date of filing, unless a continuance is granted at the request of the respondent or respondent's counseL I d.
For purposes of these time limits, a hearing is not "commenced" when the court and parties gather and the case is called, but only when a witness is sworn or some evidence taken. The statute does not require that the hearing be concluded within the specified five or 14 days.
In scheduling the hearing, the clerk-magistrate's office must allow the respondent and his or her counsel at least two days after the appearance or assignment of counsel to prepare for the hearing. G.L. c. 123, § 5.
Commentary
Persons involuntarily held in psychiatric· facilities pending a hearing suffer a significant loss of liberty. For that reason, the time requirements set out in G.L. c. 123, § 7(c) are mandatory, and a petition for commitment must be dismissed if the hearing is not commenced within the 5-day or 14-day period. See Hashimi v. Kalil, 388 Mass. 607, 609 (1983); Matter of Molina, 2007 Mass. App. Div. 21, 22 (N. Dist.); Myers v. Saccone, 1999 Mass. App. Div. 305 (Boston Mun. Ct). The mere calling of a case in court does not constitute "commencement" for purposes of this time limit, but only when a witness is sworn or some evidence taken. MelroseWakefield Hosp. v. H.S., 2010 Mass. App. Div. 247, 250 (N. Dist)
For criminal defendants and sentenced prisoners, hearings on both initial or subsequent forensic commitment petitions filed under G.L. c. 123, §§ 15(e), 16 or 18 must be commenced within 14 days after the date of :filing, unless a continuance is granted at the request of the respondent or respondent's counsel G.L. c. 123, § 7(c).
Although the Massachusetts Rules of Civil Procedure are not generally applicable to civil commitment proceedings (see Mass. R. Civ. P. 81), G.L. c. 123, § 7(c) provides that the period of time within which.the hearing on a petition for commitment must be commenced shall be computed in accordance With Mass. R. Civ. P. 6. This means that the day on which the petition is filed is excluded from the computation, and (for time periods of less than seven days) intermediate Saturdays, Sundays and legal holidays as well, but the day of hearing is included. If the deadline falls on a Saturday, Sunday or legal holiday, the hearing must be held on the next court business day.
CNU.. COMMITMENT 28
A-9
The Administrative Office of the District Court has provided courts with the charts below to determine how to schedule initial § § 7 & 8 hearings, whiCh are subject to the 5-day limit:
TIME LIMITS FOR 3-DA Y PETITIONS AND 5-DAY CIVIL COMMITMENT HEARINGS
Involuntarily Petition must be filed Earliest date when Late&t date when hearing can be scheduled hearing can be scheduled
hospUa/ized on no later than (if filed on date in column 2) (if filed on date in column 2)
Monday (Week I) Thw;sday (Week I) Tuesday (Week 2) Thursday (Week 2)
Tuesday (Week I) Friday (Week I) Wednesday (Week 2) Friday (Week 2)
Wednesday (Week I) Monday (Week 2) Thursday (Week 2) Monday (Week 3)
Thursday (Week I) Tuesday (Week 2) Friday (Week 2) Tuesday (Week 3)
Friday (Week I) Wednesday (Week 2) Monday(Week2) Wednesday (Week 3)
Saturday (Week I) Wednesday (Week 2) Monday(Week2) Wednesday (Week 3)
Sunday (Week I) Wednesday (Week 2) Monday (Week 2) Wednesday (Week 3)
Courts may observe both the 2-day minimum period and the 5-day maximum period by scheduling commitment hearings on the same two days of each week. Any of the following five combinations of days will satisfy both statutory requirements:
POTENTIAL COURT SCHEDULES FOR 5-DAY CIVIL COMMITMENT HEARINGS
Hearings held on Petitions to be heard
Monday& . on Mondays, court may hear petitions filed on Monday, Tuesday or Wednesday of prior week
Wednesday .. on Wednesdays, court may hear petitions filed on Wednesday, Thursday or Friday of prior week
Monday& . on Mondays, court may hear petitions filed on Monday, Tuesday or Wednesday of prior week
Thursday . on Thursdays, court may hear petitions filed on Thursday or Friday of prior week, or Monday of this week .
Tuesday& . on Tuesdays, court may hear petitions filed on Tuesday, Wednesday or Thursday of prior week Friday . on Fridays, court may hear petitions filed on Friday of prior week, or Monday or Tuesday of
this week
Tuesday& . on Tuesdays, court may hear petitions filed on Tuesday, Wednesday or Thursday of last week Thursday . on Thursdays, court may hear petitions filed on Thursday or Friday of prior week, or Monday
ofthisweek
Wednesday . on Wednesdays, court may hear petitions filed on Wednesday, Thursday or Friday of prior &Friday week . on Fridays, court may hear petitions filed 9n Friday of prior week, or Monday or Tuesday of
this week
See Appendix B, Excerpt from District Court Transmittal No. 945, Scheduling Civil Commitment Hearings (G.L c. 723, §§ 7-8) and Emergency Hearings(§ 12[b]) (February 23, 2007).
CNIL COMMITMENT 29
A-10
4:00 Location of hearings
. Hearings may be conducted away from the courthouse and at the petitioning mental health facility or Bridgewater State HospitaL G.L. c. 123, § 5. Normally it is desirable to do so if appropriate decorum, security, recordation and public access are available. ·
All court hearings should be held in rooms of adequate size and appropriate condition for a dignified and impartial judicial hearing. The physical setting must be sufficient to provide for appropriate security, permit public access, and elicit the customary respect accorded court proceedings and parties before the court.
Hearings must be electroniCany recorded.
The judge should be accompanied by a court officer, if available, who should open and conclude the hearing with a traditional call. In addition, or as an alternative, the facility may provide security personneL An assistant clerk or sessions clerk should be present to maintain custody of court records and exhibits, including the audio recording of the proceedings, to swear witnesses, to docket the proceedings, and to prepare any court forms or written orders necessary.
Commitment hearings must be conducted at the courthouse if an adequate setting is not available at the facility.
Commentary
Unlike virtually all other judicial matters, G.L. c. 123 commitment hearings may be conducted away from the courthouse and at the petitioning facility or Bridgewater State Hospital G.L. c. 123, § 5. Nevertheless, the respondent's potential loss of liberty is a significant matter, and the court, the respondent, counsel. and facility staff are entitled to a formal and dignified hearing.
When the hearing is held at the facility, the hearing room must reflect and be conducive to· the dignity of the court and the formality and impartiality of judicial proceedings. The physical setting must not convey, especially to the respondent, any suggestion that the hearing is merely an administrative proceeding in which the court is somehow subordinate to the facility's authority rather than a neutral and independent guardian of constitutional rights.
Whenever possible, the court should use the same hearing room, with an appropriate private robing area and toilet facilities, each time proceedings are held at a facility. The facility should provide adequate parking for the judge and attorneys. At minimum, the hearing room must be of adequate size, clean and properly maintained, with adequate lighting and ventilation. It must allow for public access, but should be in a quiet area of the facility. No other function or foot traffic, and no food or drink, is permissible in the hearing room during proceedings.
Civn.. CoMMITMENT 40 A-11
The room should contain the furnishings normally found in a courtroom, including the reqtrired federal and state flags. G .L. c. 220, § 1. There should be ~ separate desk or table for the judge, with a suitable chair, and a separate chair nearby to serve as a witness stand. The litigants and counsel should be seated at separate tables, facing the judge. In most physical settings, having the judge, counsel and witnesses seated around the same conference table will prove too informal and should be avoided. The judge must wear a robe, District Court Administrative Regulation No. 7-74 (October 1, 1974), and attorneys and witnesses should be in attire appropriate for a formal court proceeding. The judge should direct that audi'ble ·cellphones and pagers be silenced during court proceedings.
Proceedings must be electronically recorded. District Court Special Rule 211. See Standard 4:02 (Electronic Recording). If necessary, the facility must provide the recorder, recording tape and microphones.
The purpose of such formality is not to inhl'bit the participants, but to remind them that a formal hearing is being conducted. Informal settings in mental health proceedings may easily foster other procedural informalities which are unacceptable in court proceedings. The court should not permit participants to dispense with proper courtroom practice because they are outside the traditional physical setting of a courtroom
Sufficient security is essential at commitment hearings. The court must not, of course, draw any adverse inferences from extensive protective measures or perceived staff concerns, but must base its commitment decision solely on the evidence presented at the hearing.
Where hearings are normally conducted at the facility, the court should give careful consideration to any reasons advanced by a respondent who requests that the hearing be held at the courthouse. However the court rules on the request, the respondent may have identified legitimate concerns with deficiencies in the hospital setting that should be corrected.
Civn. COMMITMENT A-12
41
4:01 Public access to hearings
Civil commitment proceedings are presumptively open to the public.
riley may be closed only if:
1. the party seeking to close the proceedings shows an overriding interest that is likely to be prejudiced absent closure;
2. the closure is no broader than necessary to protect that interest;
3. the court considers reasonable alternatives to closui-e; and
4. the court makes particularized findings supported by the record that are adequate to justify t~e closure.
Commentary
It is well established that criminal proceedings are presumptively open to the public, even when conducted outside the usual courtroom setting. See, e.g., Richmond Newspapers, Inc. v. Virginia, 448 U.S. 555, 5&0 n.17 (1980) ("[H]istorically both civil and criminal trials have been presumptively open"); Boston Herald, Inc. v. Superior Ct. Dept., 421 Mass. 502 (1995) (criminal arraignment held in hospital intensive care unit presumptively open).
However, most courts had a longstanding tradition of denying public access to civil commitment proceedings, except for good cause showri, out of privacy concerns arising from the highly personal nature of the subject matter and evidence at such hearings. While there is no express statutory authority for this, it was often assumed to be implicit in the requirements of G.L. c. 123, § 36A that the records of such proceedings be kept confidential and separate from other court documents.
However, Kirkv. Commonwealth, 459 Mass. 67, 75 (2011), found that§ 36A:
"does not, by its terms, provide for the closure of the court room in commitment proceedings. It applies only to the privacy of reports, papers, and dockets. The absence of such a closure provision is particularly notable given that the Legislature has elsewhere provided for closure explicitly. Where the Legislature has intended to express a preference for closure, it has thus done so explicitly'' (citations omitted).
Kirk held that the "long-standing presumption in Massachusetts common law that, as a general matter, the public has a right to attend civil trials" applies also to civil recommitment hearings under G.L. c. 123, § 16(c) for persons acquitted by reason of mental illness and that such hearings are presumptively open to the public.
Crvn.. COMMITMENT
A-1 .. 3 42
''Early cases in the Commonwealth illustrate that civil commitment proceedings were not formerly afforded the publicity that has, as a general matter, been characteristic of civil trials in Massachusetts. It is equally clear, however, that lawmakers and courts have moved decisively away from this prior informality and now provide in commitment cases procedural protections characteristic of criminal trials and other civil trials ....
''The trajectory of the law as it relates to civil commitment demonstrates that commitment hearings have been increasingly clothed with the procedural protections and formality typical of other dvil (and criminal) trials. As such trials are generally open to the public, this supports a conclusion that proceedings pursuant to G. L. c. 123, § 16(c), are also, as a general proposition, open to the public.
''Public access to the commitment proceedings underscores the seriousness of a potential deprivation of hberty and combats tendencies toward informality that may threaten an individual's due process rights. Commitment hearings are a matter of public interest. Likewise, closure encourages skepticism and distrust among the public- and, indeed, among those whose corin:nitment is sought -regarding posttrial proceedings after persons have been acquitted by reason of mental illness. We conclude that both the legal evolution of civil commitment proceedings and the likely beneficial effects of public access to such proceedings support a conclusion that civil recommitment hearings held pursuant to G. L. c. 123, § 16(c), are presumptively open to the public .... " Id. at 71-73 (citations omitted).
The Kirk decision is expressly limited to§ 16(c) recommitment hearings, Id. at 73 n.9, and it does not discuss the privacy interests of respondents in purely civil commitments under §§ 7 & 8. However~ its holding is based onthe general presumption of public access to civil trials, and the opinion nowhere implies that any special considerations apply to § 16( c) petitions because such respondents have related criminal charges. While Kirk does not directly address other civil commitment hearings, the Standard suggests that the Kirk rule should be applied in all civil commitment proceedings for mentally ill persons.
Kirk offered the following guidance on how courts should determine whether the presumption of openness has been overcome in indiyidual situations:
"Given the presumption that G. L. c. 123, § 16(c), proceedings are open to the public in Massachusetts, as they are in criminal trials,' we conclude that the Waller [v. Georgia, 467 U.S. 39, 48 (1984),] standard should likewise be applied in such proceedings.
"Thus, closure may occur where four requirements are met: '[1] the party seeking to close the hearing must advance an overriding interest that is likely to be prejudiced, [2] ~e closure must be no broader than necessary to protect that interest, [3] the trial court must consider reasonable alternatives to closing the proceeding, and [ 4] it must.make findings adequate to support the closure.' The essence of the Waller standard is thus that a moving party's position must be sufficiently
CiviL COMMITMENT A-14
43
"' .,
compelling to overcome a presumption of openness. The findings required for closure must be 'particularized and supported by the record .... '
''In adopting the Waller standard, we recognize that the public disclosure of medical information has the potential to prejudice the therapeutic treatment of a patient. Accordingly, in determining whether the moving party has shown an overriding interest likely to be prejudiced, the judge should take account of any alleged prejudice to a patient's therapeutic treatment that could come about by virtue of a public proceeding. The [moving party] has the burden of demonstrating that prejudice is likely to occur. We emphasize also that it is within the judge's discretion to close a limited portion of a proceeding if the Waller standard is satisfied as to that portion ....
· "[Kirk] also asserts that, to succeed in the recommitment proceeding, she 'will have to provide detailed evidence descnbing her progress in treatment.' That argument, expressed as it is in general terms, would likely be true of most recommitment hearings. If sufficient, it would allow closure almost as a matter of course, and thus cannot succeed. [Her] argument that the dissemination of personal information disclosed in treatment 'may have a devastating effect on her treatment,' while a legitimate and serious concern, is not supported by expert opinion or any other evidence. The judge was warr.anted in finding these assertions insufficient to warrant closure of the proceeding.
"The final question is whether the judge was required· to make findings in denying the plaintiff's motion. Explicit in the Waller standard is a requirement that the judge make findings if he or she concludes that closure is warranted. Where a judge denies a motion for closure, findings are also n~ssary. The reviewing court must be able to determine the basis for the denial." Id. at 73-76 (citations omitted).
Civn.. COMMITMENT A-15
44
4:02 Electronic recording
The commitment hearing must be electronically recorded on an appropriate sound recording device under court control, or alternately on a recording device under the control of a party and made available to opposing counseL District Court Special Rule 211. Recordings must be preserved in accordance with Special Rule 211, usually for at least one year.
H a recording device is not available at the mental health facility and counsel objects, the court should conduct the hearing at a courthouse where a proper recording may be made in accordance with the mle.
Commentary
Like other court records related to civil commitment petitions, court-controlled electronic recordings of proceedings are not available for public inspection without a court order. G.L. c. 123, § 36A They are available to the parties and their counsel See Standard 1:02 (Privacy of Court Records).
OVIL COMMITMENT 45 A-16
6/22/2018 Pine Street Inn I Homeless Court
HOME I CAREERS I CONTACT
Pine Street Inn Ending Homelessness
About Us Our Programs Get Involved News & Events Donate
Home » Our Programs » Homeless Court
Homeless Court Program: A Way Forward The Homeless Court Program was established In 2011 in partnership with:
• WeSt Roxbury Division of the Boston Municipal CQurt
• Suffolk County District Attorney's Office
• Committee for Public Council Services • Pine Street Inn
The Court Of Second Chances Homeless Court is an alternative court session designed
to resolve misdemeanor offenses, non-violent felonies
and outstanding warrants for homeless Individuals who have shown a strong commitment to recovery and
stability.
Employers, landlords and others are reluctant to engage
applicants with a criminal history, especially those with open charges. M the same time, fear of the court
process and the need to cope with the immediate
challenges that homelessness presents, make it difficult
to resolve legal issues.
Homeless Court is the court of second chances. It provides participants an opportunity to remove default warrants
and have criminal cases dismissed with fines and court costs remitted. As a result, legal barriers that prevent them
from securing permanent housing, employment, education, drivers' 6censes and other government benefits are
eliminated, and individuals are able to move forward with their lives.
I "The goal of Homeless Court is to restore and affirm the dignity, self-worth and identity if homeless
individuals whose lives have been fractured by substance abuse, mental health challenges and
economic hardships." - Judge Kathleen Coffey, Chief Justice, West Roxbury District Court
EUGIBILl'IY
Homeless Court Is open to any homeless Individual who meets the following criteria:
• A warrant (for a missed court date or violation of probation)ln Massachusetts
• The case must be a misdemeanor or a non-violent felony.
• The c6ent be homeless or at risk of homelessness • The client must be receiving services or working with a case manager
COURT SESSIONS
Court is held at 11 :00 a.m on the third Thursday of each month at Pine Street Inn.
TO REFER A CLIENT OR FOR MORE INFoRMATION, PLEASE CONTACT
E6zabeth Condron
Pine Street Inn
http://www.pinestreetinn.org!our_programs/homeless_court A-17
PU'ITING THE PIECES BACK TOGETHER A STORY OF HOPE
Homelessness has hit Maureen and her family hard,
with their Jives coming apart, piece by piece. But
since coming to Pine Street Inn, they are beginning
to feel hopeful again.
Read More
Get News From The Inn! Sign up with your email address to stay connected
to Pine Street Inn news and events.
sigu up today ~;;,
0 -~ lir.l ,-1 ~ lr! ___ !~_
1/2
6/22/2018 Cambridge District Court Homeless Session relocates to Harvard Square. I Harvard Square
HARVARD SQUARE(/)
( Search
...... --Go J
CAMBRIDGE DISTRICT COURT HOMELESS SESSION RELOCATES TO HARVARD SQUARE. The Homeless Session of the Cambridge District Co_urt has been relocated from 'the Salvation Army in Central Square to the First Parish Church in Harvard Square commencing on December 11, 2017.
In an effort to address the needs of Cambridge's large homeless population and their skyrocketing default rate, due to the relocation eight years ago of the Cambridge district Court to Meqford, First justice Roanne Sragow, brought the criminal justice system back to Cambridge.
The unique problems confronting this segment of the population, compelled judge Sragow to convene a group of treatment providers, specializing in alcohol and drug addiction, Cambridge city officials offering assistance in attaining housing, social workers from Rosie's Place and Caspar, Cambridge Hospital emergency physicians, probation officers, public defenders and prosecutors.
Cambridge Police officers Eric Helberg and Matthew Price, members of the Cambridge police department's homeless outreach unit, have been instrumental in the success of this session. This impressive group of court officials, social service providers and police officers meet before each court session, which takes place once a month, to discuss each case individually and address the problems specific to that particular defendant.
judge Sragow reported that over the past year, the recidivism rate has decreased and housing and assistance has been provided for every participant. Denise Jillson, executive director of the Harvard Square Business Association said the business community witnesses on a daily basis, the challenges confronting homeless individuals. jillson.said, "Homelessness is a complicated societal issue that affects our businesses, ~esidents, students and visitors to the Square in a variety of ways. We see the problems firsthand. It is our responsibility to be part of the solution." .
. judge Sragow stated, "I am grateful to Pastor Adam Dyer, the First Parish church and the Harvard Square Business Association for their assistance in relocating the Court session."
http://www.harvardsquare.com/articles/cambridge-district-court-homeless-s~~!~ocates-harvard-square 1/3
6/22/2018 Cambridge District Court Homeless Session relocates to Harvard Square. I Harvard Square
Harvard Square Business Association 18 Brattle Street, Suite 352 Cambridge, Massachusetts 02138
Tel: (617) 491-3434 Fax: (617) 491-6976 Email: [email protected] (mailto:[email protected])
Staff: Denise Jillson (mailto:[email protected]), Executive Director William Manley (mailto:[email protected]), Marketing and Events Manager Amanda Henley, (mailto:[email protected]) Communications and Office Administrator
A-19 http://www.harvardsquare.com/articles/cambridge-clisbict-court-homeless-session-relocates-harvard-square 2/3
.. Fugitives seek another chance - The Boston Globe Page 1 of3
1 Sign In I Register now
L ............................. -·············································································-···················································································································· .................. i
· boston.com . . ,
I Local Search SHe Search GO '
,:.~:::::. ::..'::m::~~=M·:~ ~-=-====-1 Fugitives seek another chance ADVERTISEMENT ;
········································-··································-·····························-······························ ! 50 people tum themselves in, hoping surrender program leads to a fresh start
By Shelley Murphy
Globe Staff t October 7, 201 0
E-mail I Print I Reprints J Textsize - +
In desperation, a 26-year old pregnant woman wrote a letter to Mayor Thomas M. Menino saying she was on the run from larceny charges, feared going to jail, and needed help getting her life back on track.
l ~ 28 people like this. Sign Up
! .................. ~ .. ~.~~:.:.~~~~~~~ ..... . i ...... ~:~' .. ~.~ .. ~~.~~.~-~~~.~;".: .. .. I Yahoo I Buzz Share This
•rm tired of running and sleeping at house to house," she wrote. "Please, if there is anything you can do to help me get my life back ••. and be a better mom to my kids, I would surely appreciate it"
! Yesterday, at the urging of authorities, the woman was among so people who ! turned themselves in at Jubilee Christian Church in Mattapan on the first day of l Fugitive Safe Surrender, a program aimed at helping people in Suffolk County 1 with outstanding warrants for nonviolent offenses resolve their cases, with the l chance of avoiding jail. It runs through Saturday.
I Many of those who surrendered looked nervous as they arrived at the church, 1 where brightly colored nursery school classrooms were converted into makeshift l courtrooms. They were assigned a number, were fitted with yellow paper i ... ·· bracelets, and waited while court officials ran their records.
Lawyers from the state public defender agency met with them, then huddled with ' county prosecutors and probation officers in an effort fo reach an agreement on l each case before bringing them before district court judges holding court in the ! basement.
The program, sponsored by the US Marshals Service, does not promise amnesty, but those who surrender are given special consideration.
CONNECT WITH BOSTON.COM
Be the first of your friends to like this I
! ..... :: .. :~~=-~--~:.~:.~.:.".~:~:~~:.~:=.~:.~:~.:~.::~-~:............................ I ~.?.~.~.~.~~~~.~~.~.~ ........................................................................................... I 1. ..~~~~-~:.~~-~~-~.~s.=~~-~-~~:..~~~!~.:~ .. ~:.~~~r........................................ I
' 2. ..~~~-~~.~.~~~::r.~~~·o·~-:..~.~.:~.~.~~~.:s................... ................................. !
; :~Ji§~i~~~~~==: I ····························~································································································!
6. --~~~-~--~!-~~: .. ~::~--~~~~~--~-~~~~~~---·······················-······································· I 7. ..:~~~~~~--~~~--~-~~-~~~~~-~-~-~~-~~-~~-~~-~-~~~--~~1•1••••.••••••••••••••••.••••• i
FOLLOWTHISL!STON1WlTI'ER: @BOSTONPOPULAR ! '
·········································································································-·······-···-·················· !
i
I
I i
I http://archive. boston.com/news/loca1Jmassachusetts7Jt~cles/20 10/10/07 /fugitives _seek_ an... 6/22/2018
Fugitives seek another chance - The Boston Globe
Douglas Millington, 66, of Dorchester said he had been wanted for six years for violating his probation on drug charges and was tired of worrying that he might be arrested. The warrants also led the state to cut off his disability payments.
"I was kind ofleery," he said. "But I figured they aren't going to arrest you in a church, and it gave me confidence."
After waiting a couple of hours, Millington was escorted into a classroom, where child-size chairs had been replaced by tables for the judge, prosecutors, defense lawyers, and defendants.
Judge Tracy-Lee Lyons lifted two warrants against Millington and allowed him to go free. She ordered him to report today to Dorchester District Court, then Brookline District Court tomorrow to resolve probation issues.
Joanna Sandman, the public defender who represented Millington, handed him a . sheet of paper and said: "That says no more warrant. Good luck."
Millington said he had hoped to resolve the cases yesterday without going to court, but left saying: "fm satisfied. fm happy at least I can start over again."
The woman who is five months pregnant with her second child and wrote to the mayor had to wait about four hours as officials pulled records from several courts where she had failed to appear to face charges oflarceny by check.
"It's scary," said the woman, who declined to give her name, biting her fingernails as she waited to hear whether three warrants that had been pending against her for about a year would be dropped.
"I was scared to turn myself in," she said, adding that she knew she had to resolve her cases before giving birth. "I didn't want to raise my baby like this."
After listening to a prosecutor describe how the woman had repeatedly failed to show up in court, Judge Robert Tochka asked her "Why did you default?"
"I was scared," she said.
The judge dismissed a case against her in Roxbury District Court that had remained open because she had not paid $215 in court costs. He dismissed the warrants for her arrest, but gave her dates to appear in courts in Dorchester, Brookline, and Cambridge to resolve the charges.
He warned her that the warrants would be reissued if she fails to show up in court.
"fm relieved," she said.
Alison Hodgkins, a supervisory deputy US marshal, said no one who surrendered was arrested, and 11 had no warrants.
"Fifty came in, and so went home," Hodgkins said.
Shelley Murphy can be reached at [email protected]. •
II:> Copyright 2010 Globe Newspaper Company.
Page 2 of3
::::::::::::::==::::::::=:::::::::B.~~:!:::!~~Y.:~:~!i~!T~~I:F.~~~~~~I~i.?.~:LP.!!~~~::~:::~~I::~!~~~:!~:E.?.:i::J.~~~!:!::§~~::CJ.~~~L:~~!:~~(~i.L~~!:~!~~::::::::::::::::::::::::==::::::::: CONTACT BOSTON.COM I Help I Advertise I Work here I Privacy Policy I Your Ad Choices I Terms of Service! Newsletters! Mobile I RSS feeds I Sltemap
CONTACT THE BOSTON GLOBE I Subscribe I Manage your subscription I Advertise! Boston Globe Insiders I The Boston Globe Gallery I @ 2018 Boston Globe Media Partners, LLC
http://archive.boston.com/newsllocal/massachuse~s7Jdcies/20 I 0/10/07 /fugitives _seek_ an... 6/22/2018
018-06-22 15:24 BMC~dmin 6177888747 >> 6177275785
Boston Municipal Court Department
Annual Report Fiscal Year 2010
Given our unique responsibility to advance the fair administration of justice, the Boston Municipal Court Department is devoted to the rule of law through the
conscientious and expeditious resolution of disputes, with a commitment to restoring the hum.an spirit through correction, education,.respect and compassion.
- M"t.c;sion Statement -
A-22
Honorable Charles R. Johnson Chief Justice
p 2/16
018-06-22 15:24 BMC_Admin 6177888747 >> 6177275785 p 3/16
EXecutive Summary & Overview
• Focus ofFY 2010 Priorities, Initiatives and Accomplishments
In a significant way, diminished court resources shaped the priorities of the Boston Municipal Court Department during Fiscal Year 2010. Although meeting the department's fundamental purpose and responsibility-the fair and efficient delivery of justice-was an every day challenge, ensuring access to justice to the victims of crimes, business owners, consumers, and landlords and tenants seeking justice or to resolve their disputes was our primary objective. We continue to take the necessary steps to meet our constitutional responsibility to deliver justice in each and every case despite the Commonwealth's economic crisis.
The Boston Municipal Court Department has a long-standing commitment not only to the .delivery of justice but to enhancing access to justice for the citizens of Suffolk County. Consistent with this philosophy, this department strove to improve access to justice and the public's tmst and confidence in our courts through a number of initiatives. Recogni:dng the hardships faced by people of limited economic resources to seal their criminal records, Standing Order 1-09, "Establishing Pilot Initiative on Sealing Multiple Criminal Records," was extended for an additional year.
In response to the increasing number of individuals litigating cases without counsel, the Boston Municipal Court Department recognized the importance of expanding and enhancing our efforts for those litigants. As such, Standing Order 1-10 implemented Limited Assistailce Representation in all civil matters in all court divisions. Limited Assistance Representation allows an attorney to represent or assist a self-represented in a legal matter before the court on a limited basis.
This department continued its specialized court se.c;sions in the areas of substance abuse and mental health as an innovative approach to addressing the "root cause" of criminal behavior that result~ from chronic substance abu.qe and mental illne.c;s. Similarly, the prioritized f~rearm -disposition session, established to address the significant public safety risk associated with the proliferation of unlawful firearms, continued to expedite these matters for final disposition consistent with due process.
Managing the budget crisis required the identification of costs savings and improved efficiencies. The use of MassCoUitS technology (MassCourts is the Trial Court's web-based case management system) presented an opportunity to improve caseload management even with reduced resources. The Boston Municipal Court Department availed itself of th.e t~hnology improvements through Lhe int.erpreter interface with the Office of Coun Interpreter Services, the continued interface with the Registry of Motor V chicles. the Board of Bar Overseers and the Committee for Public Counsel Services. The rollout of MassCourts Civil/Financial in the Brighton. Charlestown, Ease Boston. South Boston and West Roxbury divisions not only took courts one step fw:ther toward a complete and uniform case management system, but it integrated fiscal procedures into a single cashiering system. -
2
A-23
.018-06-22 15:24 BMC_Admin 6177888747 >> 6177275785
Because outstanding warrants carry a risk to public safety and disrupt a person's life, the Boston Municipal Court Department partnered with the U.S. Marshals Service in the Fugitive Safe Surrender program. The Fugitive Safe Surrender Program, managed by the U.S. Marshals Service as a community re-entry program, provided a safe and non-violent environment for individuals with warrants for non-violent offenses to voluntarily tum themselves in to law enforcement.
The public will only have trust and confidence in our courts if they perform well. To this end, we focused on improving the timely disposition of our civil and c.:riminal caseloads through better performance in each of the following four Trial Court metrics measuring the timeliness and expedition of case management: clearance rate, time to disposition, age of pending caseload, and trial date certainty. Despite diminished resources throughout the department, we made consistent progress in achieving the goals associated with each of these measures. The Boston Municipal Cowt Department took a similar approach with respect to the utilization of our jurors in order to improve the public's perception of our jury system and in sensitivity to local employers.
• Highlights of Plans for FY 2011
This department rejects the notion that having fewer resources means that our obligations to the bar and the public must necessarily diminish. Instead, we will. use the current fiscal challenge as an opportunity to reevaluate scheduling and court procedures in order to create efficiencies, streamline processes, and exchange resources in order to maintain access to justice and to provide the same levels of service provided in the past.
Cross-training employees to competently undertake a variety of functions will become a necessity in every divic;ion. The scheduling of court sessions will be reassessed to account for the caseload of a pa1.ticular session and the availability of coun staff. Cowt managers will need to support staff morale and reafflrm the value of each employee's contribution. Despite all this, our intentions as a court department remain unchanged: to resolve disputes in a fair. timely, and efficient manner and to treat every individual who enters our doors with fairness, respect, and pmfcssionalism .
Access & Quality Justice
• Departmental and Local Court Initiatives
In Fiscal Year 2010, the Boston Municipal Court Department continued to strive to increase public trust and confidence in the judicial system by implementing the following administrative initiatives:
Standing Order 1-10 Limited Assistance Representation Cl..AR)
In Apri12009, the Supreme Judicial Court issued a Standing Order permitting the
3
A-24
p 4/16
018-06-22 15:26 BMC_Admin 6177888747 >> 6177275785
All judges of the Boston Municipal Comt Department participate in our Cross-Judicial Enhancement Observation program. Since 2006, each judge of the Boston Municipal Cowt Department has been observed by at least one judicial colleague while presiding over a busy court session. Currently, every judge continues to be observed by a colleague while presiding over various court sessions, and, likewise, every judge continues to act as an observer of another judge. After observation, both judges meet to discuss what was observed and what could be done to improve their work on the bench. Our judges have profited greatly from the confidential, informed, and meaningful comments provided by colleagues. We continue to build upon this enhancement effort by requiring the participation of our new judges in this o~scrvation program.
Each new judge is assigned a judicial mentor and paired with a more ~enior judge who offers him or her insight and guidance specific and unique to the judicial mentee. Some of our new judges have been assigned judicial mentors from this court department and, more recently, from the Land Court Department Our new judges also participate in our on-going Cross-Judicial Observation Program. In addition, we recently commenced a second round of judicial videotaping intended to capture our associate judges who joined the court department after 2006.
-Judicial Appointments
We arc pleased by the appointment of Judge David Weingarten as First Justice of the Roxbury Division. The Roxbury court and community will be well served by this appointment. We are also fo1tunate to have two new judges appointed to the depa:rtment, Judge Pamela Dashiell and Judge Shannon Frison, each of whom will greatly enhance the judicial complement of this department.
Community Partnerships & Outreach
• Legal Community and Bar Partnership·
Fumtive Safe Surrender Boston
Outstanding criminal warrants present security risks to both the public and law enforcement officers. Many individuals who have open warrants experience difficulty fmding employment or place their lives on hold for fear that they may be arrested. In response to this concern and the significant nwnber of OUL~tanding active warrants in Suffolk County (over 57,000), the Boston Police Department, in conjunction wilh the U.S. Marshals Service, approached t:hi~ court department with the proposal of conducting a Safe Surrender Program (FSS). to encourage individuals wjth open warrants to present themselves to the court in an environment where many individuals may feel less threatened. The program is intended to
13
A-25
p 14/16
:018-06-22 15:26 BMC_Admin 6177888747 >> 6177275785
reduce the number of outstanding warrants in urban areas and had been conducted by the U.S. Marshals Service in sixteen U.S .cities before its introduction here in Suffolk. County. While FSS is not an amnesty program, it preserves the discretion of judges to consider the defendant's surrender to the court in contex.t with the criminal matters underlying the warrant.
The FSS Program was held at the Jubilee Cluistian·Church located at 1500 Blue Hill Avenue in Mattapan on October 4- 9Cb, 2010. The church was converted into a courthouse requiring e~tensive cooperation from several governmental agencies as well as religious and community leaders. Cooperation within the Trial Court was also impressive: the Office of Commissioner of Probation, Court Security. Trial Court Information Services, Human Resources, Legal Department and Fiscal Department all contributed considerable time and cooperation in ensuring that FSS was conducted with safety, fairness and efficiency.
p 15/16
· Approximately 240 individuals surrendered themselves during the four:-day program and a total of 450 warrants were cleared. This department remains committed to continuing effmts of this kind intended to address public safety issues in our community courts.
·Pretrial Conference Program
The Boston Municipal Court Department has established a unique partnership with the Boston Bar Association in order to focus on civil case resolution. ·As a result of this collaborative effort, over 175 volunteer attorneys provide services as case conferencers. Last fiScal year, seventy-eight volunteer attomeys conducted more than six hundred case conferences. Through this program, we are able to effectively resolve many more cases filed in our courts through the use of alternative dispute resoluLion services, enabling us to utilize judicial and other court resources to resolve other cases.
ABA Law School Mock Trial Program
The Boston Municipal Court Department hosted the law school mock trial program of the American Bar Association. Judges and court staff participated in rhis program and helped to provide a realistic courtroom trial experience for all participants. ·
Educational Programs
Judges from the Boston Municipal Court Department served as lecturers in several legal educational seminars, ranging from topics such as probation violation proceedings, sentencing, and domestic violence. Their participation reaffirms the department's commitment to the
14
A-26
Paula Carey
THE COMMONWEALTH OF MASSACHUSETTS EXECUTIVE OFFICE OF THE TRIAL COURT
John Adams Courthouse One Pemberton Square, Floor 1M
Boston, Massachusetts 02108 617-878-0203
Chief Justice of the Trial Court
Trial Court Testimony to the Joint Committee on Mental Health and Substance Abuse
Delivered by Judge Rosemary Minehan Tuesday, July 11, 2017
Chairpersons Senator Jennifer Flanagan and Representative Denise Garlick and Members:
Thank you for the opportunity to speak with you today.
The Trial Court opposes H2410 which amends G.L. c. 123, § 5 to require hearings on petitions for civil commitment and administration of antipsychotic medication to be held at the courthouse unless a motion is filed by the petitioner requesting the hearing to occur at the facility. Our perspective is as follows:
Current Statute:
G.L. c. 123, § 5 authorizes the court to hold hearings at either the courthouse or at the psychiatric facility, with no requirement that either party tHe a motion. However, should either party have a preference for the location of the hearing, a motion may be filed and heard. Whether or not a motion is filed, in its present form, G.L. c. 123, § 5 provides judges with flexibility by allowing the use of judicial discretion to schedule the hearing in either location. The judge may consider many factors when deciding whether to have the hearing at the hospital or the court, including the available judicial staffing at the particular court on the day of the hearing, the availability and location
A-27
of expert medical and forensic witnesses, the potential of having the Department of Correction, sheriffs or private ambulance transport the psychiatric patient to and from the court for the hearing, and whether that patient will be permitted to wait in the public area of the courthouse prior to the commencement of the hearing. The judge may also consider whether public safety issues are presented if the patient is placed in the courthouse lock-up, including whether there is adequate space and security given that the same lock-up space is also used for persons under arrest for crimes or held on criminal detention.
Volume of Cases:
In 2016, over 5400 mental health petitions under G.L. c. 123 were filed by psychiatric hospitals, the Department of Mental Health and Bridgewater State Hospital. Specifically, nearly 1000 petitions were filed by the medical director of Bridgewater State Hospital, over 1700 petitions were filed by the superintendents of five Department of Mental Health state hospitals and over 2700 petitions were filed by the sixty-seven (67) behavioral hospitals across Massachusetts that treat persons with acute mental illness.
Bridgewater State Hospital and the Department of Mental Health:
With regard to Bridgewater State Hospital and the Department of Mental Health, r:nany of the respondents who are the subject of petitions filed under G.L. c. 123 are also concurrently charged with crinies. H241 0 would require that every respondent who is the subject of one of the 2700 petitions filed by Bridgewater State Hospital, Worcester Recovery Center, Shattuck State Hospital, Taunton State Hospital, Tewksbury State. Hospital and SolomanCarter-Fuller Mental Health Facility be transported to a courthouse unless, in each case, a motion is timely filed and heard prior to the hearing date. ·
It is important to note that because of the expedited hearing schedule ·tor civil commitment cases, the time limits for the filing of motions is significantly shorter than in most civil cases. Consequently, H241 0 would impose an added burden the Trial Court and litigants by
2
A-28
requiring the expedited filing, scheduling and hearing of motions for hospital hearing locations in thousands of cases.
Further, with specific regard to the state hospital system, the current statute affords flexibility in the judicial assignment scheduling because the hearings occur on specific days during regularly scheduled hospital hearing sessions. H2419 would not only disrupt judicial assignment scheduling but would also add a significant burden on litigants and witnesses, including DOC and DMH state forensic psychiatrists, psychologists and social workers who would inevitably receive short notice of the location for the hearing and who may then be required to travel to long distances to courts across Massachusetts. ·
Once at the courthouse, those witnesses and litigants would be required to wait at the courthouses for the hearings to take place as the mental health hearings would necessarily be scheduled with the docket of regular court business including criminal trials, restraining orders, landlord/tenant cases and probation violation hearings. The
· complexity and volume of scheduling of these cases imposed by H241 0 would predictably result in further delays in the mental health hearings.
Additionally, as to the state hospital cases, HB2410 would require the patients to be transported by sheriff or Department of Correction to one of the 62 divisions of the District Court, the 8" divis!ons of the Boston Municipal Court or the appropriate sitting of the Superior Court. Once at the courthouse, the patient would likely be held in th~ .. local courthouse lock-up in general population with other inmates and prisoners until the case is brought before the court for hearing.
Private Acute-Psychiatric Behavioral Hospitals:
Similar to cases filed by Bridgewater State Hospital and DMH state hospitals, in each of the 2700 petitions filed by the 67 private behavioral hospitals, H241 0 would require that each hearing be presumptively located at the courthouse in the absence of a timely filed motion and argument by the petitioner and a ruHng by a judge. Transportation from each of the 67 acute behavioral hospitals to the local courthouses would often require the use of private ambulance
A-29
3
as the 14 Massachusetts sheriffs presently do not provide transportation to and from private behavioral hospitals. Further, many of the patients exhibit symptoms of acute mental illness, having been recently discharged directly from emergency rooms where they were held pending emergency psychiatric admission. Pursuant .to the terms of G.L. c. 123, § 12(b), each patient is held pending the hearing. Therefore, once transported to the courthouse, court officers .would be required to maintain the safety and security of the patient as he/she may mingle with the public and litigants. Some patients may require restraint and may be placed in the lock-up with persons charged with crimes while the predictable delays would occur as other court business is conducted and the patient and psychiatric staff of the behavioral hospital wait for the case to be called .
. Potential Added Trauma to Patients:
By removing the flexibility of the existing statute and requiring all mental health hearings to take place at courthouses across Massachusetts absent the timely filing, scheduling and hearing of a motion by the petitioner, H241 0 would force psychiatric patients into courthouses and court-lock-up locations throughout the Commonwealth. Most notably, while H241 0 contains language allowing the petitioner to request that the hearing take place at the hospital, H241 0 contains no such language allowing the patient to file a similar motion to request that the hearing occur at the hospital. Given the nature and volume of the criminal and Civil business throughout the four (4) departments of the Trial Court that would be implicated by the passage· of H241 0, psychiatric patients would be exposed to unnecessary trauma by being forced be transported by DOC, DMH, sheriff or ambulance across significant distances to and from the court location and, once at the courthouse, would be required to be restrained in public areas or the lock-up at the courthouse while waiting for the hearing to commence.
Hospital Cou~rooms in State Hospital and Behavioral Hospital Locations:
Within the last year, Chief Justice Paula Carey, Chief Justice Paul Dawley, Chief Justice Roberto Ronquillo and others from the Trial Court have met with representatives CPCS, Bridgewater State Hospital, the Department of Mental Health, the Executive Office of
A-30
4
Health and Human Services, the Massachusetts Health and Hospital Association and the Massachusetts Association of Behavioral Health Systems (MAaHS) to insure that each facility is equipped with dignified courtroom space and recording devices.
As to the 67 behavioral hospitals, in 2016, the Trial Court deployed its performance analyst employees to visit each and every psychiatric hospital across Massachusetts. The performance analysts inspected and photographed each facility hearing location and, working with CPCS input, oversaw the improvement renovation of the facilitycourtrooms. With regard to Bridgewater State Hospital, the Executive Office of Public Safety has expended $65,000 of state funds to completely renovate the courtroom at Bridgewater State Hospital with additional upgrades to the recording equipment being currently installed by the Trial Court. All DMH facilities including Worcester Recovery Center, Shattuck State Hospital, Taunton State Hospital, Tewksbury State Hospital and Soloman-Carter-Fuller Mental Health Facility currently offer courtroom space and recording equipment for hearipgs.
Americans with Disabilities Act Compliance (ADA):
It is important to note that no state or federal court has determined · that G. L. c. 123, § 5 violates the ADA. As referenced above, in response to a request from CPCS to discuss compliance with ADA, Chief Justice Paula Carey and departmental Chief Justices met with CPCS and other stakeholders to discuss ADA compliance. Following multiple meetings and at the request of CPCS, the Trial Court conducted an extensive inventory of facility courtrooms across Massachusetts and, where necessary, upgrades and improvements were conducted. Further, unlike the present flexibility of G.L. c. 123, § 5, it is important to note that while H241 0 provides a remedy to the petitioning hospital to adjourn the hearing to the facility, by its terms provides no such option for the patient.
Conclusion: The Massachusetts Trial Court opposes H241 0 and urges this Committee not to advance this legislation. Thank you for your consideration.
A-31
5
EXECUTIVE SUMMARY OF DRAFT REPORT
App. B-1
A--32
EX-1
EXECUTIVE SUMMARY OF DRAFT REPORT
INTRODUCTION
Started in the summer of2014, the Courts Capital Master
Plan (CCMP) is the result of a focused planning effort by
the Massachusetts Trial Court, assisted by the Division of
capital Asset Management and Maintenance (DCAMM)
and consultants with national expertise in courthouse
planning, design and operations. It was developed
through a comprehensive planning process involving:
consensus planning considerations, facility condition
assessments, and regular stakeholder workshops. Data·
collection regarding staffing, courtroom utilization, court
user geographic data, caseload, and financial analysis
provided key information for establishing priorities.
The cumulative. effect of these Initiatives is a court
system that is more responsive to both public users and
partner agencies. They allow the Trial Court to be more
flexible in terms of capital investment alternatives and
more agile in its responsiveness. In the fall of 2016,
the Trial Court completed the Strategic Plan 2.0 which
continues to raise the performance bar for the Judiciary.
BACKGROUND
The majority of the courthouses in Massachusetts are
in a state of disrepair due to inadequate major repairs
and capital investment over the past few decades. While
attentive management has improved the maintenance
The CCMP builds upon and complements the Trial Court's of the courthouses in the past three years, this alone is
Strategic Plan 1.0 issued in 2013. It seeks to remedy the proving insufficient to eliminate the backlog of facility
varying levels of deterioration and risk fOund across the issues. Public court users and staff regularly conduct the
State's 97* court facilities, and to align these buildings business of the Massachusetts Judiciary in circumstances
with the operational goals and priorities of the Strategic that prompt significant liability risk and contradict the
Plan. Together, these two plans provide a comprehensive· assertion that we are a Commonwealth honoring the rule
approach for a more sustainable and efficient Trial Court of law and access to justice. Leaking building envelopes,
system for the future of the Commonwealth. water damage, failing building systems, unsafe operating
conditions, inadequate fire safety, prisoner holding and
circulation: these are the issues which impede judicial
Over the past five years, the Trial Court has been processes statewide and need capital investment.
actively implementing initiatives through technology
to greatly improve operational efficiency while
expanding judicial services to the public, including:
• video conference hearings and bail reviews
• state of the art digital court recording
• phased implementation of e-filing
• The establishment of six court service centers to
assist pro se litigants
• archive and records digitization
• expansion of Specialty Courts as an alternative to
incarceration
• updating the statewide database of facility
statistics
AGE OF MASsAOIUSETTS COURTHOUS£5
• increasing utilization of existing Regional Justice
Centers •1 Currently, there are 100 courthouses. With the completion of Greenfield
and Lowell projects, there will be 97 courthouses.
CGLR.Icc!GREENE Executive Summary of Draft Report 4/10/2017 Massachusetts Courts Capital Master Plan I 2017
App. B-2
A-33
Existing CourthouseCaseloads
EXISTING FACILITY CONDITIONS
Over the past 20 years, with changing governing
structures, the state has assumed ownership and
maintenance of the majority of county-owned facilities,
which historically were not well-maintained, while the
volume and nature of court business has expanded
greatly throughout the state. Due to the comprehensive
nature of problems in many of these buildings, a variety
of state and federal code thresholds are triggered,
thus mandating significant capital investment as part
of any repair or renovation. In many cases, even with
comprehensive renovations, the facilities will likely still
be unable to meet modern court security and safety
standards due to layouts from a historic judicial era.
Rather than investing in these outdated facilities that
may or may not have workable solutions, the planning
group focused on replacing aging facility clusters with
modern Regional Justice Centers (RJC). RJC's are a
national design standard for justice systems that result
in multiple court departments consolidating into one
building, thus providing more efficiency for staffing and
security, while bringing public access to government
services up to modern trial court standards for safety,
technology and access. It also streamlines the system
into fewer buildings, which improves facility operations.
While these RJC's have greatly improved the statewide
infrastructure in strategic locations, the lack of
investment in the remaining courthouses has left the
system with serious infrastructure needs.
EXECUTIVE SUMMARY OF DRAFT REPORT
Caseload • <Hl.OOO cases (~', lO,ooo-25,000 cases ~ >25,000 cases · .
As part of the CCMP, Facility Assessments were
developed to provide a planning-level evaluation of
overall condition, building systems, space adequacy,
security, code compliance, barrier-free accessibility, and
life safety. These assessments were used to prioritize the
urgency of the repairs, determine which require major
repair, modernization or replacement, and identify
critical issues that could pose a life safety risk or result in
emergency building closure.
Of the 97 facilities statewide, 65% are over SO years
old and at the juncture of needing substantial repairs
and modernization. These older facilities provide
significant challenges to court operations due to
intractable layouts, high costs to renovate, lack of secure
circulation, lack of accessibility, inadequate space,
poor adjacency of functions, and confusing wayfinding.
Investing piecemeal capital into builidings that may
still not lend themselves to modern justice standards
results in ongoing inefficiencies which drive up staffing
and operating costs, create security risks, and frustrate
the public users who are already appearing at the
courthouse under stress.
Massachusetts Courts Capital Master Plan I 2017 Executive Summary of Draft Report 4/10/2017 CGlRrcctGKE'ENE EX-2
App. B-3
A-34
EX-3
EXECUTIVE SUMMARY OF DRAFT REPORT
PLANNING CONSIDERATIONS
While Facility Condition Assessments provide a
foundation for establishing investment priorities, the
following items are integral to the mission of the Trial
Court and were considered in the development of the
CCMP design and construction solutions:
Access to Justice - the planning process ensured
court users will not be adversely affected by any court
location changes, and in fact access will improve for the
system as a whole. Particular consideration was given
to courthouses and vulnerable populations in Gateway
Cities and those repairing public transportation access.
Regional Equity-the nature and volume of court business
Is directly proportional to population demographics;
the highest caseloads tend to be in population centers.
However, investments have been phased such that
they are spread across the state, without one particular
region benefiting disproportionately per capita.
Justice Trends - Evolution of court practices and
laws have facility impacts. These include increasing
case complexity, growth of Specialty Courts, victim
I I
__ ..... '* __
and juvenile rights mandated by federal statutes,
and significant growth in the number of pro se (self
represented) litigants who need assistance, among
others. New and modernized facilities have very flexible
layouts that lend themselves to adaptation as judicial
services continue to evolve.
Historic Properties- A number of courthouses represent
centuries of presence in their communities and occupy
architecturally significant buildings. However, the
challenges to renovating these intractable structures
to modem standards within reasonable budgets must
be considered. Where feasible, monumental historic
structures have been maintained in the system with
planning for non-criminal business.
Totals
CCMP Phase 1 Phase 2 Phase3 #Projects 2015 Cost
(TPC)
>-. --~-~- \- _· : .--·-4 .,:< :t~::~6_--_ .•:>-- ',,{'2·:': :::_~:_;_ .•. ; .... ,-- - '•.
·.. ·.:· - A!oci~_Jz~~ --': ~- $2. 5 .. ,0·M:_ - - . .. . -·- '.,_-: __ •. _--:_ •. __ •.:$:'_:_8·_-_~4-._-M· .. _,<._.-_·.·.~_. __ :_____ .• .. _·---~---·---_-.· __ :·_ •. _12_·-.-~---~--- :_c_·. __ •_: ' /.$5i;6~': - - - - __ \'_$2~~M~,}- : - _ __··. . . . ... __ .
Temporary Leases & Land
Total Project Cost ·
Total Courthouses I
---62 ·. · ... $266M
$56M
·$1.06~
91
6
$9BM
·_ ·-$1As8·
82
. 27 . $S29M_·
$1.048-72.
$32M $186M
.. $949M. $3.168
75
CGLR.JcclGR.EENE Executive Summary of Draft Report 4/10/2017 Massachusetts Courts Capital Master Plan I 2017
App. B-4
A-3_5
EXECUTIVE SUMMARY OF DRAFT REPORT
Existing Courthouse Conditions -~ ~~---r-_____ J;- ~\
I
I co ~ l. '] O m .. ~ z t1'ESSEX ~,._fl.x. I FRAN~LIN 0; 0 -;-, .:J9f"
I ~j 1-t ~~ o ~ diQ1 I~ IH:-~\) 0
II ..,5 )r--"1 l..tpstfllfl lA WORCESTER '-9;
I 0 tr-J?-;-6? • • o Oe
I 1-b" M P'tE N
Space and Courtroom Utilization - Over time, court activity has shifted in volume and geographic location, leaving some facilities overcrowded in urban areas, while others remain considerably underutilized (often in smaller, geographically remote locations). Maximizing utilization of all RJC's is an important goal for the Trial Court.
State/County Building Triage Score • Good .-;, Fair
• Poor
o Private Lease
"Q ¥ ..~ N lll C ET
Technological Transformations -Technology advances continue to have a big impact on court operations and space needs. While forecasting the nature of technology over twenty years is not possible, extrapolating the current trends for likely outcomes is one method to integrate technological transformations in the judiciary. The capacity for existing buildings to adapt to new developments in technology, including electronic filing and case processing, video conferencing and arraignments, ~igital record storage, digital presentation of evidence in courtrooms, real-time language translation, online jury call, and other transformative changes varies significantly across the court system.
Occupied Buildings- Renovating occupied courthouses poses significant added costs in the form of limited work days, extended schedules, limited bid competition, overtime costs for court security/ facility personnel, and difficult site staging. To avoid interruption of jud.icial proceedings, repair and renovation projects often result in relocating courts to costly temporary leases. To avoid added costs, the Trial Court has worked to relocate court business within existing jurisdictions, however, this is not
feasible at all locations or where the existing caseload volume is high. Where replacement vs. renovation costs were similar, replacement and consolidating is favored in the CCMP due to simplified logistics and schedules, as well as providing operational efficiency.
Consolidations and Co-locations - Two types of consolidations: Several smaller facilities in the same city/ town consolidated into one larger facility in the same city/town ("colocated"), or, a small facility consolidated and relocated into a larger facility in a nearby city/town. Consolidation from ·97 facilities to approximately 75, as outlined in the CCMP solution framework, provides much greater operational efficiency and allows the Trial Court to more effectively manage state assets. With fewer, larger facilities, each location can offer more robust and complete services to court users, efficient staffing, and greater utilization.
Massachusetts Courts Capital Master Plan I 2017 Executive Summary of Draft Report 4/10/2017 CGlRICCI GREENE
App. B-5
A-36
EX-4
EX-5
EXECUTIVE SUMMARY OF DRAFT REPORT
Total System Cost - detailed financial analyses were
performed to evaluate multiple options for capital.
investment and included operating budget impacts
to ensure the development of a long-term, financially
sustainable system.
THE COURTS CAPITAL MASTER PLAN
The CCMP is first and foremost a statement of need
and urgency for the judiciary. It provides a framework
for the repair, modernization, and replacement of state
assets system-wide to bring the court infrastructure
into the 21st century. The framework presents one
approach, based on extensive stakeholder input and
financial analysis, to address security, life-safety,
work environment, and modern court operational
standards. The approach outlines phased colocation
and consolidation into Regional Justice Centers over
twenty years; thus maximizing existing state assets and
replacil)g those that are obsolete, low volume, in need
of major capital investment, or where repair alone
cannot correct risk, security and liability. The primary
purpose of the plan is to clearly outline the statement
of need for Trial Court facilities; the proposed solutions
contained in the framework are flexible with alternative
approaches integrated (e.g. renovate a facility in lieu
of replacement) based on available capital, legislative
and executive considerations, and competing capital
interests statewide.
Key Features
Full implementation of the CCMP would:
• Significantly reduce or eliminate liabilities
(including life safety and security risks) and address
physical needs at all deficient facilities, including
universal design.
• Prioritize and phase capital investment based on
investment urgency, public users and business
volume.
• Consolidate the court system from 97 to 75
facilities, locating courthouses where the caseloads
are being generated. Potential consolidations that
would have significant negative access implications
to the public were rejected. Facility closures are
under the direct control of the Legislature and the
CCMP remains flexible to adapt to these decisions.
• Provide a mix of new, modernized, and repaired
courthouses, facilitating increased consolidation/
replacement of deficient buildings.
• Retain the most significant historic buildings,' but
consider their limitations for criminal business,
particularly regarding security and circulation.
• Spread investment over three phases stretching
twenty years, balancing the scope and cost for
each phase with planned investment. The most
urgent projects are also the largest; the planning
group did a focused analysis to phase large projects
over the three phases to stabilize spending.
o Improve the overall dignity of court facilities
o Provide flexibility in the solution framework
and cost analysis to adapt to changes in funding
and capital planning priorities, demographics,
technology and populations that shift over time.
o Update the Court's Design Guidelines using
national "benchmarks" for best practices & provide
consistency throughout the system.
Cost & Phasing
All construction costs contained in the CCMP were
professionally estimated to ·anticipate funding
requirements. At the commencement of a Project Study,
the scope and budget will need to be detailed, validated
and updated, and utilization analyses performed to
establish final space and staffing needs. The complete
implementation of~he CCMP as outlined in the proposed
solution framework would require approximately $3.16
Billion Total Project Cost (TPC).
CGLRrcciGl!.HNE Executive Summary of Draft Report 4/10/2017 Massachusetts Courts Capital Master Plan I 2017
App. B-6
A-37
• J ..
EXECUTIVE SUMMARY OF DRAFT REPORT
PHASE 1: The first phase ($1.06 B) prioritizes building
two new high-urgency courthouses in Quincy and
Boston; provides forthe-modemization of approximately
5 locations; and stabilizes the rest of the system with
renovations, critical repairs, life-safety and accessibility
improvements. The major projects in Phase 1 are
prioritized because they address the most deficient and
overcrowded buildings in the system.
PHASE 2: This phase ($1.15 B) outlines investment to
address the next layer of critical facility improvements. A
new facility in Southern Middlesex County would permit
consolidation of several facilities in the immediate
vicinity, while addressing critical infrastructure
improvements. A new medium-sized courthouse in
Springfield would address operational issues between
the Springfield Hall of Justice and the historic Springfield
courthouse.
Completion of the CCMP as outlined in the solution
framework would result in safe, accessible, and dignified
facilities across the Commonwealth. The primary
goal for the Massachusetts Trial Court is a long-term,
operationally sustainable court system with fewer,
more efficient and flexible buildings. Where costs for
new/replacement facilities and modernization in the
CCMP were similar, the group analyzed the return on
both capital and operating investments and selected
'replacement' as the solution to enable the continued
use of existing facilities during construction, and
to consolidate failing buildings into fewer modern
justice centers. Alternative construction solutions can
be assessed in the Building Study phase with input
and direction from the Legislature and Executive
Administration.
The Trial Court recognizes the current competing
interests and capital spending constraints across the
Commonwealth and has spent the past year reviewing
PHASE 3: Projects planned in this phase ($949M) the plan, assessing alternative solutions, implementing
complete construction of the long-range needs. Solutions operational shifts, and updating statewide judicial data
in Fitchburg, New Bedford and Barnstable stabilize in order to verify investment priorities.
state assets that maintain steady caseload volumes
in substandard facilities. The listed renovation and
modernization projects address overcrowding issues,
while the repairs anticipate completing maintenance for
newer courthouses and large justice centers built after
1988, which will be over 40 years old in this later phase.
PHASE 1A DETAIL
Should the spending capacity of the Commonwealth not
accommodate the full cost of Phase 1, the Trial Court has
worked diligently with DCAMM to sub-phase the scope.
Therefore, this "Phase 1A" prioritizes the most critical
sites but also allows for forward planning at other
strategic locations.
The major projects included in the CCMP Phase lA,
totaling $SOOM, are necessary to address critical issues
in the highest volume state assets, and these sites
remain priorities for the Trial Court. While the specific
construction solution and scale of investment are
flexible based on available capital, the assessed need,
risk and vulnerability are not.
The goals for the Trial Court investment strategy are:
• data-driven ranking of capital investment priorities
for effective management of state assets
• address public safety and security in high volume
locations for both public and staff
• improve government services and performance
• continue to foster collaboration with partner
agencies
Massachusetts Courts Capital Master Plan I 2017 Executive Summary of Draft Report 4/10/2017 CGLRICCIGR.EENf
App. B-7
A-38
EX-6
EX-7
EXECUTIVE SUMMARY OF DRAFT REPORT
Using data-driven ran kings of critical issues in the system
allows the Trial Court and DCAMM to efficiently define
those larger projects with feasible solutions. and the
scope for further building study. In support of this effort,
the Trial Court operational database was updated from
FY12 to FY16 data so that usage statistics, populations,
and caseloads are up to date and reflect current justice
tren~s.
Phase 1 A: FY18-22 replaced or expanded facility . facility repairs- (3) levels ~._.,..._ .. ........,.._ .... "·~. -. '~--::-····-~----:-,-~~---;--'~'- ... ·~ ,_ -·-··-.-. ·-··· ·--:· . . -·~-·,.... •"-'"''""":"' .. ~-----.~ . ,..·-···-~ ~-i .. ·· · ·· · · · · · ·. .. · · ... Defer.r~d
Re~lac~in,e,n.~ M~dei~i~~tion Renovation. l· Renovation :z M-. t ..... >
.Mk!1ag_
Quiricy/Norfolk
· E~asibilitx ~tudx.
Suffolk Hi Rise
S. Middlesex
Charlestown
~ f
r,:~\~~ ss M _·, . i -........... .
CGLR..rcctGlUEN£
· :. · · . ·. ·· · ·. · . I est. $10-$15M ea) .( est. $2-$ H)M ea) . ··. A~~;e;~~~~e,, l ..
Malden DC Fitchburg DC Concord DC
Brockton SC . · Framingham DC Cambridge Third
L)'nn DC East Soston . West Roxbury
Attleboro DC Pittsfield DC South Boston
Northamptc;m Hingham DC WobumDC
Wareham DC
Dudley DC
. .... :·.-~·· ·, ---or;-.;-..:-·."'-:·
.·.·${5~M· $60M.
Executive Summary of Draft Report 4/10/2017 Massachusetts Courts Capital Master Plan I 2017
App. B-8
A-39
it Massachusetts Court System > News & Publications > Press Releases > 2016 Press Releases > SJC Hears Oral Arguments In Special Sitting in Lawrence
PUBLIC INFORMATION OFFICE SUPREME JUDICIAL COURT
Media Contact
Jennifer Donahue
Public Information Officer
Erika Gully-Santiago
Deputy Public Information Officer
Phone: 617-557-1114
Fax: 617-742-1807
Share On:
I] Facebook
ti Google+
1m Llnkedln
~
C 2018 Commonwealth of Massachusetts.
For Immediate Release- December 06, 2016
Supreme Judicial Court Hears Oral Arguments in Four Cases in Special Sitting in Lawrence
LAWRENCE, MA - Massachusetts Supreme Judicial Court Chief Justice Ralph D. Gants and the six Associate Justices
today heard oral arguments in four cases in a special sitting at the Lawrence District Court. The special sitting provided an
opportunity for students, residents of the local community and the media to view the work of the highest court of the
Commonwealth ou1side of the John Adams Courthouse in Boston, where cases are normally heard.
As part of the special sitting, Essex County Superior Court Clerk Thomas H. Driscoll, Jr., and Lawrence District Court Clerk
Keith E. McDonough, acted as clerks to the Justices for the day. Students from Lawrence High School, Greater Lawrence
Technical High School and Central Catholic High School attended the special sitting. Following oral arguments, Chief
Justice Gants and the Associate Justices answered questions from students.
"It was a great pleasure for all the Justices to 'take our court on the road' and bring ~to Lawrence," said SJC Chief Justice
Ralph Gants. 'We thank all those who worked so hard to make our visit a success- the judges, clerks, court officers, bar
association leaders, teachers, and students, and the court maintenance staff who demonstrated extraordinary
craftsmanship and ingenuity in building a removable bench that could seat the seven Justices and can be used for Mure
ou1side sittings."
The seven Justices hear appeals on a broad range of criminal and civil cases from September through May. The Associate
Justices sit as Single Justices each month on a rotation schedule. Single Justices consider certain petitions pertaining to
cases on trial or on appeal, bail reviews, bar discipline proceedings, petitions for admission to the bar, and a variety of
other statu1ory proceedings. The full bench renders approximately 200 written decisions each year; the Single Justices
decide approximately 600 cases annually.
The Justices heard oral arguments in the below cases:
• SJC-12125 Commonwealth vs. Douglas Garcia
• SJC-12114 Commonwealth vs. Joel D. Morgan
SJC:12186 Commonwealth vs. Heather Dragotta
SJC-12195 Guardianship of K.N.
Following oral arguments, SJC Chief Justice Gants delivered remarks as guest speaker at a luncheon pu1 together and
hosted by the Lawrence Bar Association, Haverhill Bar Association and the Essex County Bar Association, where he
addressed court leaders, bar leaders and Essex County officials.
###
Contsct Us About Massachusetts Courts Site Policies
Mass.Gov® Is a registered service mark of the Commonwealth of Massachusetts.
A-40
.... . ' 6/20/2018 Statement of the Department of Justice on Enforcement of the Integration Mandate of Title II of the Americans with Disabilities Act and 01...
U.S. Department of Justice Civil Rights Division
Statement of the Department of Justice on Enforcement of the Integration Mandate of Title II of the Americans with
Disabilities Act and Olmstead v. L.C.
In the years since the Supreme Court's decision in Olmsteadv. L.C, 527 U.S. 581 (1999), the goal of the integration mandate in title II of the
Americans with Disabilities Act- to provide individuals with disabilities opportunities to live their lives like individuals without disabilities - has yet
to be fully realized. Some state and local governments have begun providing more integrated community alternatives to individuals in or at risk of
segregation in institutions or other segregated settings. Yet many people who could and want to live, work, and receive services in integrated settings
are still waiting for the promise of Olmstead to be fulfilled.
In 2009, on thetenth anniversary of the Supreme Court's decision in Olmstead, President Obarna launched "The Year of Community Living'' and
directed federal agencies to vigorously enforce the civil rights of Americans with disabilities. Since then, the Department of Justice has made
enforcement of Olmstead a top priority. As we commemorate the 12th anniversary of the Olmstead decision, the Department of Justice reaffirms its
commitment to vindicate the right of individuals with disabilities to live integrated lives under the ADA and Olmstead. To assist individuals in
understanding their rights under title II of the ADA and its integration mandate, and to assist state and local governments in complying with the
ADA, the Department of Justice has created this technical assistance guide.
The ADA and Its Integration Mandate
In 1990, Congress enacted the landmark Americans with Disabilities Act "to provide a clear and comprehensive national mandate for the elimination
of discrimination against individuals with disabilities." 1 In passing this groundbreaking law, Congress recognized that "historically, society has
tended to isolate and segregate individuals with disabilities, and, despite some improvements, such forms of discrimination against individuals with
disabilities continue to be a serious and pervasive social problem." ~ For those reasons, Congress prohibited discrimination against individuals with
disabilities by public entities:
[N]o qualified individual with a disability shall, by reason of such disability, be excluded from participation in or be denied the benefits of the
services, programs, or activities of a public entity, or be subjected to discrimination by any such entity. 1
As directed by Congress, the Attorney General issued regulations implementing title II~ which are cased on regulations issued under section 504 of
the Rehabilitation Act ~ The title II reguiations require public entities to "administer services; programs, and activities in the most integrated setting
appropriate to the needs of qualified individuals with disabilities." 2 The preamble discussion of the "integration regulation" explains that "the most
integrated se~g" is one that "enables individuals with disabilities to interact with nondisabled persons to the fullest extent possible .... " 2
In Olmstead v. L.C, 527 U.S. 581 (1999),the Supreme Court held that title II prohibits the unjustified segregation of individuals with disabilities.
The Supreme Court held that public entities are required to provide community-based services to persons with disabilities when (a) such services are
appropriate; (b) the affected persons do not oppose community-based treatment; and (c) community-based services can be reasonably accommodated,
taking into account the resources available to the entity and the needs of others who are receiving disability services from the entity. z The Supreme
Court explained that this holding "reflects two evident judgments." First, "instit\ltional placement of persons who can handle and benefit from
community settings perpetuates unwarranted assumptions that persons so isolated are incapable or unworthy of participating in community life."
Second, "confinement in an institution severely diminishes the everyday life activities of individuals, including family relations, social contacts, work
options, economic independence, educational advancement, and cultural enrichment" !
To comply with the ADA's integration mandate, public entities must reasonably modify their policies, procedures or practices when necessary to
avoid discrimination. lt The obligation to make reasonable modifications may b~ excused only where the p~blic entity demonstrates thai the
requested modifications would "fundamentally alter" its service system. 10
In the years since the passage of the ADA and the Supreme Court's decision in Olmstead, the ADA's integration mandate has been applied in a wide
variety of contexts and has been the subject of substantial litigation. ThA £1;tment of Justic~ has created this technical assistance guide to assist
https://www.ada.gov/olmstead/q&a_olmstead.htm 1/6
6/20/2018 Statement of the Department of Justice on Enforcement of the Integration Mandate of Title II of the Americans with Disabilities Act and 01 ...
individuals in understanding their rights and public entities in understanding their obligations under the ADA and Olmstead. This guide catalogs and
explains the positions the Department of Justice has taken in its Olmstead enforcement It reflects the views of the Department of Justice only. For
questions about this guide, you may contact our ADA Information Line, 800-514-0301 (voice), 800-514-0383 (TIY).
Date: June 22, 2011
Questions and Answers on the ADA's Integration Mandate and Olmstead Enforcement
1. What is the most integrated setting under the ADA and Olmstead?
A: The "most integrated setting" is defined as "a setting that enables individuals with disabilities to interact with non-disabled persons to the fullest
extent possible." 11 Integrated settings are those that provide individuals with disabilities opportunities to live, work, and receive services in the
greater community, like individuals without disabilities. Integrated settings are located in mainstream society; offer access to community activities
and opportunities at times, frequencies and with persons of an individual's choosing; afford individuals choice in their daily life activities; and,
provide individuals with disabilities the opportunity to interact with non-disabled persons to the fullest extent possible. Evidence-based practices that
provide scattered-site housing with supportive services are examples of integrated settings. By contrast, segregated settings often have qualities of an
institutional nature. Segregated settings include, but are not limited to: (1) congregate settings populated exclusively or primarily with individuals
with disabilities; (2) congregate settings characterized by regimentation in daily activities, lack of privacy or autonomy, policies limiting visitors, or
limits on individuals' ability to engage freely in community activities and to manage their own activities of daily living; or (3) settings that provide
for daytime activities primarily with other individuals with disabilities.
2. When is tt:Je ADA's integration mandate implicated?
A: The ADA's integration mandate is implicated where a public entity administers its programs in a manner that results in unjustified segregation of
persons with disabilities. More specifically, a public entity may violate the ADA's integration mandate when it (1) directly or indirectly operates
facilities and or/programs that segregate individuals with disabilities; (2) finances the segregation of individuals with disabilities in private facilities;
and/or (3) through its planning, service system design, funding choices, or service implementation practices, promotes or relies upon the segregation
of individuals with disabilities in private facilities or programs. 12
3. Does a violation of the ADA's integration mandate require a showing of facial discrimination?
A: No, in the Olmstead context, an individual is not required to prove facial discrimination. In Olmstead, the court held that the plaintiffs could
make out a case under the integration mandate even if they could not prove ''but for'' their disability, they would have received the community-based
seivices they sought. It was enough that the state currently provided them services in an institutional setting that was not the most integrated setting
appropriate. 13 Additionally, an Olmstead claim is distinct from a claim of disparate treatment or disparate impact and accordingly does not require
proof of those forms of discrimination.
4. What evidence may an individual rely on to establish that an integrated setting is appropriate?
A: An individual may rely on a variety offorms of evidence to establisb that an integrated setting is appropriate. A reasonable, objective assessment
by a public entity's treating professional is one, but only one, such avenue. Such assessments must identify individuals' needs and the services and
supports necessary for them to succeed in an integrated setting. Professionals involved in the assessments must be knowledgeable about the range of
supports and services available in the community. However, the ADA and its rt?gulations do not require an individual to have had a state treating
professional make such a determination. People with disabilities can also present their own independent evidence of the appropriateness of an
integ:ra!:ed setting, including, for example, that individuals with similar needs are living, working and receiving services in integrated settings with
appropriate supports. This evidence may come from their own treatment providers, from community-based organizations that provide services to
people with disabilities outside of institutional settings; or from any other relevant source. Limiting the evidence on which Olmstead plaintiffs may
rely would enable public entities to circumvent their Olmstead requirements by failing to require professionals to make recommendations regarding
the ability of individuals to be served in more integrated settings.
5. What factors are relevant in determining whether an individual does not oppose an integrated setting?
A: Individuals must be provided the oppo~ty to make an informed decision. Individuals who have been institutionalized and segregated have
often been repeatedly told that they are not capable of successful community living and have been given very little information. if any, about how
they could successfully live in integrated settings. ~sa result, individuals' and their families' initial response when offered integrated options may
be reluctance or hesitancr. Public entities must take affirmative steps to remedy this history of segregation and prejudice in order to ensure that
individuals have an opportunity to make an informed choice. Such steps include providing information about the benefits of integrated settings;
facilitating visits or other experiences in such settings; and offering opportunities to meet with other individuals with disabilities who are living,
. A-42 https:llwww.ada.gov/olmsteadlq&a_olmstead.htm 2/6
6t2ot2o18 Statement of the Department of Justice on Enforcement of tbe Integration Mandate of Trtle II of the Americans with Disabilities Act and 01. ..
working and receiving services in integrated settings, with their families, and with community providers. Public entities also must" make reasonable
efforts to identify and addresses any concerns or objections raised by the individual or another relevant decision-maker.
6. Do the ADA and Olmstead apply to persons at serious risk of institutionalization or segregation?
A: Yes, the ADA and the Olmstead decision extend to persons at serious risk of institutionalization or segregation and are not limited to individuals
currently in institutional or other segregated settings. Individuals need not wait until the harm of institutionalization or segregation occurs or is
imminent. For example, a plaintiff could show sufficient risk of institutionalization to make out an Olmstead violation if a public entity's failure to
provide community services or its cut to such se~ices will likely cause a decline in health, safety, or welfare that would lead to the individual's
eventual placement in an institution.
7. May the ADA and Olmstead require states to provide additional services, or services to additional individuals, than are
provided for in their Medicaid programs?
A: A state's obligations under the ADA are independent from the requirements of the Medicaid program. 14 Providing services beyond what a state
currently provides under Medicaid may not cause a fundamental alteration. and the ADA may require states to provide those services, under certain
circumstances. For example, the fact that a state is permitted to "cap" the number of individuals it serves in a particular waiver program under the
Medicaid Act does not exempt the state from serving additional people in the community to comply with the ADA or other laws. 15
8. Do the ADA and Olmstead require a public entity to provide services in the community to persons with disabilities when it
would otherwise provide such services in institutions?
A: Yes. Public entities cannot avoid their obligations under the ADA and Olmstead by characterizing as a "new service" services that they currently.
offer only in institutional settings. The ADA regulations make clear that where a public entity operates a program or provides a service, it cannot
discriminate against individuals with disabilities in the provision of those services.1§. Once public entities choose to provide certain services, they
must do so in a nondiscriminatory fashion. 17
9. Can budget cuts violate the ADA and Olmstead?
A: Yes, budget cuts can violate the ADA and Olmstead when significant funding cuts to community services create a risk of institutionalization or
segregation. The most obvious example of such a risk is where budget cuts require the elimination or reduction of community services specifically
designed for individuals who would be institutionalized without such services. In making such budget cuts, public entities have a duty to take all
reasonable steps to avoid placing individuals at risk of institutionalization. For example, public entities may be required to make exceptions to the
service reductions or to provide alternative services to individuals who would be forced into institutions as a result of the cuts. If providing
alternative services, public entities must ensure that those services are actually available and that individuals can actually secure them to avoid
institutionalization.
10. What is the fundamental alteration defense?
A: A public entity's obligation· under Olmstead to provide services in the most integrated setting is not unlimited. A public entity may be excused in
instances where it can prove that the requested modification would result in a "fundamental alteration" of the public entity's service system. A
fundan1ental alteration requires the public entity to prove "that, in the allocation of available resources, immediate relief for plaintiffs would be
inequitable, given the responsibility the State [or local government] has taken for the care and treatment of a large and diverse population of persons
with [ ] disabilities." M It is the public entity's burden to establish that the requested modification wou!d fundamentally alter its service system.
11. What budgetary resources and costs are relevant to determine if the relief sought would constitute a fundamental alteration?
A: The relevant resources for purposes of evaluating a fundamental alteration defense consist of all money the public entity allots, spends, receives,
or could receive if it applied for available federal funding to provide services to persons with disabilities. Similarly, all relevant costs, not simply
those funded by the single agency that operates or funds the segregated or integrated setting, must be considered in a fundamental alteration analysis.
Moreover, cost comparisons need not be static or fixed. If the cost of the segregated setting will likely increase, for instance due to maintenance,
capital expenses, environmental modifications, addressing substandard care, or providing required services that have been denied, these incremental
costs should be incorporated into the calculation. Similarly, if the cost of providing integrated services i.s likely to decrease over time, for instance
due to enhanced independence or decreased support needs, this reduction should be incorporated as well. In determining whether a service would be
so expensive as to constitute a fundamental alteration. the fact that there may be transitional costs of converting from segregated to integrated settings
can be considered, but it is not determinative. However, if a public entity decides to serve new individuals in segregated settings ("backfilling"),
rather than to close or downsize the segregated settings as individuals in the plaintiff class move to integrated settings, the costs associated with that
decision should not be included in the fundamental alteration analysis.
12. What is an Olmstead Plan?
A: An Olmstead plan is a public entity's plan for implementing its obligation to provide individuals with disabilities opportunities to live, work, and
be served in integrated settings. A comprehensive, effectively working plan must do more than provide vague assurances of future integrated options . A-43
https:l/www.ada.gov/olmstead/q&a_olmstead.htm 3/6
6/20/2018 Statement of the Department of Justice on Enforcement of the Integration Mandate of Title II of the Americans with Disabilities Act arid bl ...
or describe the entity's general history of increased funding for community services and decreased institutional populations. Instead, it must reflect
an analysis of the extent to which the public entity is providing services in the most integrated setting and must contain concrete and reliable
commitments to expand integrated opportunities. The plan must have specific and reasonable timeframes and measurable goals for which the public
entity may be held accountable, and there must be funding to support the plan, which may come from reallocating existing service dollars. The plan
should include commitments for each group of persons who are unnecessarily segregated, such as individuals residing in facilities for individuals
with developmental disabilities, psychiatric hospitals, nursing homes and board and care homes, or individuals spending their days in sheltered
workshops or segregated day programs. To be effective, the plan must have demonstrated success in actually moving individuals to integrated
settings in accordance with the plan. A public entity cannot rely on its Olmstead plan as part of its defense unless it can prove that its plan
comprehensively and effectively addresses the needless segregation of the group at issue in the case. Any plap. should be evaluated in light of the
length oftime that has passed since the Supreme Court's decision in Olmstead, including a fact-specific inquiry into what the public entity could have
accomplished in the past and what it could accomplish in the future.
13. Can a public entity raise a viable fundamental alteration defense without having implemented an Olmstead plan?
A: The Department of Justice has interpreted the ADA and its implementing regulations to generally require an Olmstead plan as a prerequisite to
raising a fundamental alteration defense, particularly in cases involving individuals currently in institutions or on waitlists for services in the
community . In order to raise a fundamental alteration defense, a public entity must first show that it has developed a comprehensive, effectively
working Olmstead plan that meets the standards described above. The public entity must also prove that it is implementing the plan in order to avail
itself of the fundamental alteration defense. A public entity that cannot show it has and is implementing a working plan will not be able to prove that
it is already making sufficient progress in complying with the integration mandate and that the requested relief would so disrupt the implementation
of the plan as to cause a fundamental alteration.
14. What is the relevance of budgetary shortages to a fundamental alteration defense?
A: Public entities have the burden to show that immediate relief to the plaintiffs would effect a fundamental alteration of their program. Budgetary
shortages are not, in and of themselves, evidence that such relief would constitute ·a fundamental alteration. Even in' times of budgetary constraints,
public entities can often reasonably modify their programs by re-allocating funding from expensive segregated settings to cost-effective integrated
settings. Wbether the public entity has sought additional federal resources available to support the provision of services in integrated setting~ for the
particular group or individual requesting the modification - such as Medicaid, Money Follows the Person grants, and federal housing vouchers - is
also relevant to a budgetary defense.
15. What types of remedies address violations of the ADA's integration mandate?
A: A wide range of remedies may be appropriate to address violations of the ADA and Olmstead, depending on the nature of the violations.
Remedies typically require the public entity to expand the capacity of community-based alternatives by a specific amount, over a set period of time.
Remedies should focus on expanding the most integrated alternatives. For example, in cases involving residential segregation in institutions or large
congregate facilities, remedies should provide individuals opportunities to live in their own apartments or family homes, with necessary supports.
Remedies should also focus on expanding the services a,nd supports necessary for individuals' successful community tenure. Olmstead remedies
should include, depending on the population at issue: supported housing, Home and Community Based Services ("HCBS") waivers, 19 crisis
services, Assertive Community Treatment ("ACT') teams, case management, respite, personal care services, peer support services, and supported
. employment In addition, court orders and settlement agreements have typically required public entities to implement a process to ensure that
currently segregated individuals are provided information about the alternatives to which they are entitled under the agreement, given opportunities_
that will allow them to make informed decisions about their options (such as visiting community placements or programs, speaking with community
providers, and meeting with peers and other families), and that transition plans ~ developed and implemented when individuals choose more
integrated settings.
16. Can the ADA's integration mandate be enforced through a private right of action?
A: Yes, private individuals may file a lawsuit for violation of the ADA's integration mandate. A private right of action lies to enforce a regulation
that authoritatively construes a statute. The Supreme Court in Olmstead clarified that unnecessary institutionalization constitutes "discrimination"
under the ADA, consistent with the Department of Justice integration regulation.
17. What is the role of protection and advocacy organizations in enforcing Olmstead?
A: By statute, Congress has created an independent protection and advocacy system (P&As) to protect the rights of and advocate for individuals
with disabilities. ~ Congress gave P &As certain powers, including the authority to investigate incidents of abuse, neglect and other rights
violations; access to in,di\'i.du$1, repords, and, fac;ilities; and the _authority to pursue legal, administrative or other remedies on behalf of individuals
with disabilities. n P &As have played a central role in ensuring that the rights of individuals with disabilities are protected, including individuals'
· rights under title IT's integration mandate. The Department of Justice has supported the standing ofP&As to litigate Olmstead cases.
18. Can someone file a complaint with the Department of Justice regarding a violation of the ADA and Olmstead?
A: Yes, individuals can file complaints about violations of title II and Olmstead with the Department of Justice. A title II complaint form is A-44
https://www.ada.gov/olmstead/q&a_olmstead.htm 4/6
'6t2ot2o18 Statement of the Department of Justice on Enforcement of the Integration Mandate of Title II of the Americans with Disabilities Act and 01. ..
available on-line at wv.rw.APA.gov and can be sent to:
U.S. Department of Justice
Civil Rights Division
950 Pennsylvania Avenue, NW
Disability Rights Section - NYAV
Washington, DC 20530
Individuals may also call the Department's toll-free ADA Information Line for information about filing a complaint and to order forms and other
materials that can assist you in providing information about the violation. The number for the ADA Information Line is (800) 514-0301 (voice) or
(800) 514-0383(TTY).
In addition, individuals may file a complaint about violations. of Olmstead with the Office for Civil Rights at the U.S. Department ofHealth and
Human Services. Instructions on filing a complaint with OCR are available at hnp://wv.rw.hhs.gov/ocr/civilrights/complaints/index.html.
142 u.s.c. § 12101(b)(1).
i 42 U.S.C. § 12101(a)(2).
~ 42 u.s.c. § 12132.
i See 42 U.S.C. § 12134(a); 28 C.F.R. § 35.190(a); Executive Order 12250,45 Fed. Reg. 72995 (1980), reprinted
in 42 U.S.C. § 2000d-1. Section 504 of the Rehabilitation Act of 1973 similarly prohibits disability-based
discrimination. 29 U.S.C § 794(a) ("No otherwise qualified individual with a disability ..• shall, solely by reason of
her or his disability, be excluded from the participation in, be denied the benefits of, or be subjected to discrimination
under any program or activity receiving Federal financial assistance ... ."). Claims under the ADA and the
Rehabilitation Act are generally treated identically.
i. 28 C.F.R. § 35.130(d) (the 'integration mandate').
§ 28 C.F.R. Pt 35, App. A (201 0) (addressing § 35.130).
z Olmstead v. LC., 527 U.S.at 607.
§. /d. at 600-01.
!28 C.F.R.§ 35.130(b)(7).
1Q /d.; see also Olmstead, 527 U.S. at 604-07.
n28 C.F.R. pl 35 app. A (201 0).
11 See 28 C.F.R. § 35.130(b )(1) (prohibiting a public entity from discriminating 'directly or through contractual,
licensing or oth~r arrangements, on the basis of disability'); § 35.130(b )(2) (prohibiting a public entity from 'directly,
or through contractual or other arrangements, utilizing criteria or methods of administration' that have the effect of
discriminating on the basis of disability').
g Olmstead, 527 U.S. at 598; 28 C.F.R. ~5.130(d).
H. See CMS, plmstead Update No.4, at 4 (Jan. 10, 2001), available at
h!!P.s:l/www.cms.gov/smdUdownloads/smd011 001 a.pdf.
1!/d .
.1!28 C.i=.R. § 35.130.
11 See U.S. Dept of Justice, ADA Title II Technical Assistance Manual§ 11-3.6200.
l! Olmstead, 527 U.S. at 604 .
.n HCBS waivers may cover a range of services, including residential supports, supported employment, respite,
personal care, skilled nursing, crisis services, assistive technology, suppfies and equipment, and environmental
modifications.
~ 42 U.S.C. §§ 15001 et seq. (Developmental Disabilities Assistance and Bill of Rights Act, requiring the
establishment of the P&A system to protect and advocate for individuals with developmental disabilities); 42 U.S.C.
§ 10801 et seq. (The Protection and Advocacy for Individuals with Mental Illness Act, expanding the mission of the
P&A to include protecting and advocating for individuals with mental illness)
A-45 https:llwww.ada.gov/olmstead/q&a_olmstead.htm 5/6
Rule SC. Method of Appeal: Appeal on the Record of ... , MA ST DIST AND ...
Massachusetts General Laws Annotated
Rules of the District Courts of Massachusetts and the Municipal Court of the City of Boston J
District/Municipal Courts Rules for Appellate Division Appeal
District/Municipal courts Rules for Appellate Division Appeal(Dist/Mun.Cts.R.A.D.A.) Rule SC
Rule SC. Method of Appeal: Appeal on the Record of Proceedings
Currentness
(a) In General. If an appeal is not claimed and perfected under Rule 8A or 8B, ~party may appeal based on the record of
proceedings as provided in this rule. The record of proceedings shall consist of a typewritten transcript of the electronic or
stenographic recording of the proceedings or, where no such record is available, a statement of the evidence, as provided
below. No transcript or statement of the evidence shall be required for appeal under this rule where the issue or issues
presented is raised solely by the pleadings.
(b) Filing and Contents. Within thirty days after (1) filing the notice of appeal as required by Ru1e 3 or (2) termination
of procedures under Rule 8A or 8B, an appellant appealing under this rule shall me and serve on all other parties a
document captioned" Appeal on the Record of Proceedings." Such filing and service shall be in accordance with Rule 13.
The Appeal on the Record of Proceedings shall consist of a statement that the party intends to proceed under this rule,
and, if a transcript will be necessary, shall also include a request for a cassette copy of the electronic recording of the
trial proceedings made under the control of the court under Rule 114, Dist.JMun.Supp.R.Civ.P., unless such request was
previously included with the notice of appeal. The request for the cassette copy shall be set forth on the required form
and shall be accompanied by the appropriate fee.
Upon receipt ofa request for cassette copy-the clerk shall forthwith order the cassette and shall notify the requesting
party immediately upon its availability.
(c) Obtaining Transcript of Cassette.
(1) Cassette Designation Statement; Duties of Appellant. Within fifteen days after receipt of notice from the clerk that
the cassette is available, or if the cassette was previously obtained, within fifteen days after filing of the Appeal on the
Record of Proceedings, the appellant shall me in court and serve on each appellee a document captioned "Designation
for Transcription" which shall include the date of receipt of the cassette; a designation of the parts of the cassette the appellant desires to include in the transcript; and the name, address, and telephone number of the individual or firm
selected to prepare the transcript, provided that the appellant and each appellee have agreed to this choice and the
appellant so states. If the appellant and appellees have not so agreed, the designation shall also specifically notify the
clerk to select the transcriber.
The designation of the parts of the cassette to be transcribed should be precise and include such details as the name of
the witness whose testimony has been designated and the portions to be included giving an exact quote of the beginning
words and concluding words of each designated portion.
If the selection of an individual or firm to prepare the transcript is not included, the clerk shall select the individual or
f:um in accordance with procedures promulgated by the Chief Administrative Justice. The clerk shall promptly notify
WESTLAW © 2018 Thomson Reuters. No claim to original U.S. Government Works. A-46
Rule SC. Method of Appeal: Appeal on the Record of ... , MAST DIST AND ...
all parties of the selection made by the clerk. Any individual or flrm selected to transcribe the record pursuant to this rule is hereinafter called "the transcriber."
If the appellant has designated the entire cassette for transcription, then within the same fifteen days for filing and serving the designation, the appellant shall also send or deliver the cassette· to the transcriber with a written order designating
the entire cassette for transcription. If the appellant has not designated the entire cassette, then after twenty days have expired from the service upon the appellee of appellant's designation of transcript, the appellant shall send or deliver
the cassette to the transcriber with a written order which states those parts of the cassette designated by the parties for transcription. In addition, the order, whether for all or part of the transcript, shall include a statement that the original
of the designated portions of the transcript should be sent to the clerk of the trial court, and shall indicate the number of copies, if any, to be sent to the appellant. The appellant shall promptly flle with the clerk and serve on the other parties a copy of the order placed with the transcriber. ·
The appellant shall cooperate with the transcriber by providing such information as is necessary to facilitate
transcription, and make satisfactory arrangements with the transcriber to pay for the trial court's original of the designated portions of the transcript and any copies ordered by the appellant for the appellant's own use.
(2) Duties of the Appellee. If the appellee deems it necessary to have a cassette in order to consider counter-designating,
or for any other purpose, the appellee shall, after receipt of the Appeal on the Record of Proceedings, promptly order the cassette from the clerk or promptly arrange with the appellant to use the appellant's cassette. If the appellant has not designated and ordered the entire transcript and if the appellee deems a transcript of other portions of the proceedings to be necessary, the appellee shall within fifteen days after receipt of the appellant's designation, flle in court, and serve on
the appellant, a designation of such additional parts. The designation of the parts of the cassette to be transcribed should
be precise and include such details as the name of the witness whose testimony has been designated and the speeiflc
portions to be incl'\}ded, giving an exact quote of the beginning words and concluding words of each designated portion. If the appellant shall refuse to order such parts, the appellee shall either order the parts or apply to the trial court for an
order requiring the appellant to do so upon such terms and costs as the court may direct. If the appellee desires a copy of designated portions of the transcript, the appellee shall promptly communicate to the transcriber the number of copies
wanted and make satisfactory arrangements with the transcriber for payment for the appellee's own copies.
The appellee shall cooperate with the transcriber by providing such information as is necessary to facilitate transcription.
(3) Duties of the Transcriber. The transcriber shall prepare an original typed transcript of the designated portions and the requested number of copies in accordance with the designations, and shall deliver the original to the clerk, with the following certificate of accuracy:
I, do hereby certify that the foregoing is a true and accurate transcript, prepared to the best of my ability, of the designated portions of the cassette provided to me by the appellant or appellee of a trial or hearing of the Division of the Court Department in the proceedings of v. ___ ___. case(s) no.(s) before Justice on (Day and Date)
Date: ---------------'(Transcriber's Signature)
The transcriber shall deliver legible copies to all parties who have so requested.
(4) Unintelligible Portions of the Cassette. If portions of the cassette cannot be transcribed because they are unintelligible, the parties shall promptly use reasonable efforts to stipulate their content. If agreement cannot be reached, the parties
WE.STLAW © 2018 Thomson Reuters. No claim to original U.S. Government Works. 2 A-47
Rule BC. Method of Appeal: Appeal on the Record of ..• , MAST DIST AND ...
shall promptly present their differences as to such portions to the trial judge who heard the testimony. The trial judge shall, if possible, settle the content of the unintelligible portions, which shall then be included in the transcript.
(d) Stenographic Record Available; Duty of Appellant; Notice to Appellee. A stenographic record is one made with the permission of the trial court pursuant to Massachusetts Ru1es of Civil Procedure 80(c) by a. stenographer who, upon agreement of the parties, has been approved and designated as the "reporter" for that case by the trial judge.
Within ten days after filing the Appeal on the Record of Proceedings, the appellant shall order from the reporter a transcript of such parts of the proceedings not already on flle as he or she deems necessary for inclusion in the record. If the appellant intends to urge on appeal that a fmding or conclusion is unsupported by the evidence or is contrary to the evidence, he or she shall include in the record a transcript of all evidence relevant to such fmding or conclusion. Unless the entire transcript is to be included, the appeP.ant shall within the time above provided, file and serve on the appellee a designation of the parts of the transcript which he or she intends to include in the record. If the appellee deems a transcript of other parts of the proceedings to be necessary, he or she shall, within ten days after the service of the designation of the appellant, flle and serve on the appellant a designation of additional parts to be included. If the appellant shall refuse to order such parts as the appellee has designated, the appellee shall apply to the trial court for an order requiring the appellant to do so or requiring the appellant to order a transcript of so much of the record as the trial judge deems appropriate, and upon such costs and terms as he or she may direct. At the time of ordering, a party shall make satisfactory arrangements with the reporter for payment of the cost of the transcript, and for transmission of the original transcript to the clerk.
(e) Statement of the Evidence or Proceedings When No Report Was Made or When the Transcript Is Unavailable. If no report of the evidence or proceedings at a hearing or trial was made, or if a transcript is unavailable, the appellant may, within thirty days after the Appeal on the Record of Proceedings is flied, file a statement of the evidence or proceedings from the best available means, including his or her recollection. The statement shall be served on the appellee, who may file objections or proposed amendments thereto within ten days after service. Thereupon the statement and any objections or proposed amendments thereto shall be submitted to the trial court for settlement and approval and as settled and approved shall be included in the case flle and, as necessary, included in the appellant's appendix to the brief.
(f) Correction or Modification of the Record. If any difference arises as to whether the record truly discloses what occurred in the trial court, the difference shall be submitted to and settled by that court or, if necessary, the Appellate Division, and the record made to confo~ to the truth. If anything material to either party is omitted from the record by error or accident or is misstated therein, the parties by stipu1ation or the trial court or the Appellate Division, on proper suggestion or on its own motion, may direct that the omission or misstatement be corrected and if necessary that a supplemental record be certified and transmitted. All other questions as to the form and content of the record shall be presented to the Appellate Division.
(g) Copies, Transmission to the Appellate Division. Within thirty days after notice from the trial court clerk of receipt of the transcript from the transcriber, or within thirty days after settlement and approval of a statement of the evidence or proceedings, as the case may be, the appellant shall file six additional copies of the Appeal on the Record of Proceedings.
Upon receipt of said copies, the clerk shall transmit them along with six certified copies of the docket entries to the Appellate Division.
Credits Adopted effective Ju1y 1, 1994 . .Anlended March 22, 2013, effective May 1, 2013.
WESTLAW © 2018 Thomson Reuters. No claim to original U.S. Government Works. 3 A-48
Rule SC. Method of Appeal: Appeal on the Record of ... , MAST DIST AND ...
Editors' Notes
COMMENTARY This rule provides the third option for appeal to the Appellate Division. It can be used instead of the other two or after one or both of the other two have been tried but have failed.
Unlike the other two procedures, this procedure has a model in the Mass.R.A.P. and follows, for the most part, the
cognate provisions in those rules. It is the most detailed and costly method of appeal to the Appellant Division, but may be necessary if the issues are complex or if there is a dispute as to what the issues are or how they arose.
In general, this rule differs from its counterpart, Mass.R.A.P. 8, in that it focuses on the electronic tape recording of the proceeding (which is required in the District Court) as the source of the transcript, rather than a stenographic record.
Section (a) of the rule differs greatly from its Mass.R.A.P. counterpart. Unlike the latter, this rule does not defme a
"record on appeal" consisting of the original papers, exhibits, transcript, if any, and certified docket entries. Providing those documents to the Appellate Division is addressed in various provisions of this rule, as necessary, most notably
Rule 18(a). Rather this rule focuses on the "record of proceedings" i.e., the transcript (usually from the tape recording) or a statement of evidence or proceedings when no transcript is available.
As stated in section (a), no transcript will be necessary for appeal under Rule 8C if the issue on appeal is based solely on the pleadings. Such a case :would appear appropriate for appeal under Rule 8A. If the appellant attempted a Rule 8A
appeal but the appellee objected, such objection may be the subject of a motion for costs under Rule 26. See Rule 8A(b).
It should be noted that under section (b) of the rule the time limit for claiming this method of appeal is thirty days from
filing the notice of appeal or from termination of either of the other methods of appeal. And the document by which appeal is claimed, the "Appeal on the Record of Proceedings" must include a proper request under section (c) for a
cassette copy of the tape (unless such request was included with the notiee of appeal).
The next step in the process under section (c) is for the appellant to file and serve a "designation" of those portions of the taped record to be transcribed. The designation must be flied and served (1) within fifteen days of the filing of the "Appeal on Record of Proceedings" if the tape was previously ordered and obtained, or (2) within fifteen days after the
cassette copy is received, if it is ordered in the "Appeal on Record of Proceedings."
The requirements for the designation under section (c) are many and detailed. They closely follow the parallel provisions ·of the Mass.R.A.P. where a transcript must be obtained from a tape recording (Rule 8(b)(3)(ii)). As in the latter rule, if the appellant designates the entire cassette for transcript, he or she must send the cassette to the transcriber within the same fifteen days as for filing and serving the designation, with an order to transcribe the entire cassette. Note, however, that under this rule, the fifteen-day period may commence from the time the Appeal on Record of Proceedings was filed
(if the cassette was not previously ordered in the notice of appeal) or from the time the cassette was made available (if it was requested in the Appeal on Record of Proceedings).
The time limit for sending an order for transcription ofless than the entire cassette is the same as in the Mass.R.A.P.: The cassette and order must be promptly sent or delivered to the tranScriber "after twenty days have expired from the
service upon the appellee of appellant's designation of transcript." The appellee may designate additional portions under section (c)(2).
As in Mass.R.A.P. 8, the order to the transcriber must include the number of copies to be sent to the appellant and a copy of the order must be flied and served.
WES TLAW © 2018 Thomson R.euters. No claim to origmal U.S. Government Works. 4 A-49
Rule SC. Method of'Appeal: Appeal on the Record of .•. , MAST DIST AND •..
Note that under sections ( c )(2) and (d) of the rule, the trial court can impose terms and costs if it has to order the appellant
to order transcriptions of additional parts of the record that the appellee has designated.
Succeeding sections ofthe rule also follow parallel provisions of the Mass.R.A.P. regarding payment by the appellant to
the transcriber, the duties of the appellee, the duties of the transcriber, unintelligible portions of the cassette, obtaining
a "statement of the evidence or proceedings" when no transcript is available, and correcting or modifying the record
of proceedings.
Section (d) provides the procedure to be followed in the unusual event that the proceedings were recorded by a court
approved stenographer. It differs from the cognate rule in the Mass. R. A. P. (R. ule 8(b )(1)) by measuring time limits from
the filing of the "Appeal on the Record of Proceedings" and by allowing the court to decide what portions to transcribe
if there is a dispute and impose terms and costs thereon. A 2013 amendment to this rule deleted the citation in section (d)
to the District/Municipal Court Rules of Civil Procedure, which were repealed in 1996, and replaced it with a citation to
the Massachusetts Rules of Civil Procedure, which now govern civil proceedings in the District Court.
Section (g) of the rule requires the appellant to flle six copies of the Appeal on the Record of Proceedings after the original
transcript has been received by the clerk from the transcriber and the parties so notified. When the clerk receives these
six copies, the case is sent to the Appellate Division. This procedure differs substantially from the Mass.R.A.P., where
the case cannot be transmitted to the Appellate Division until the clerk has completed the "assembly of the record." As
discussed in the Commentary to Rule 9, below, assembly of the record is not required under these rules.
Also note that under this rule briefs are not flled in the trial court. Rather, briefs are flled in the Appellate Division after
the case is received there. See Rule 19(a). This differs from appeal under Rules 8A or 8B where briefs must be flled in
the trial court before the case is sent to the Appellate Division.
Notes of Decisions (17)
Dist./Mun. Cts. R. App. Div. Appeal (Dist./Mun. Cts. R. A. D. A.) Rule 8C, MAST DIST AND MUN CTS A DIY ARule8C
Current with amendments received through May 15, 2018.
End of Docun1ent ob> 2018 TI1omson R~uters. No claim to original U.S. Governm~nt Works.
WESTLAW © 2018 Thomson Reuters. No claim to original U.S. Government Works. 5 A-50
§ 35.130 General prohibitions against discrimination., 28 C.F.R. § 35.130 ------------------------------------------------------------
,. KeyCite Red Flag- Severe Negative Treatment
Unconstitutional or PreemptedHeld Invalid Todd v. Carstarphen, N.D.Ga., Feb. 17, 2017
Code of Federal Regulations
Title 28. Judicial Administration
Chapter I. Department of Justice
Part 35· Nondiscrimination on the Basis of Disability in State and Local Government Services (Refs & Annas)
Subpart B. General Requirements
28 C.F.R. § 35-130
§ 35.130 General prohibitions against discrimination.
Effective: October 11, 2016
Currentness
<For statute(s) affecting validity, see: 42 U.S.C.A. § 12101 et seq.>
(a) No qualified individual with a disability shall, on the basis of disability, be excluded from participation in or be
denied the benefits of the services, programs, or activities of a public entity, or be subjected to discrimination by any
public entity.
(b)(1) A public entity, in providing any aid, benefit, or service, may not, directly or through contractual, licensing, or
other arrangements, on the basis of disability--
(i) Deny a qualified individual with a disability the opportunity to participate in or benefit from the aid, benefit,
or service;
(ii) Afford a qualified individual with a disability an opportunity to participate in or benefit from the aid, benefit,
or service that is not equal to that afforded others;
(iii) Provide a qualified individual with a disability with an aid, benefit, or service that is not as effective in affording
equal opportunity to obtain the same result, to gain the same benefit, or to reach the same level of achievement as that provided to others;
(iv) Provide different or separate aids, benefits, or services to individuals with disabilities or to any class of
individ~s with disabilities than is provided to others unless such action is necessary to provide qualified individuals
with disabilities with aids, benefits, or services that are as effective as those provided to others;
(v) Aid or perpetuate discrimination against a qualified individual with a disability by providing significant
assistance to an agency, organization, or person that discriminates on the basis of disability in providing any aid,
benefit, or service to beneficiaries of the public entity's program;
WESTL;..\tl/ © 2018 Thomson Reuters. No claim to original U.S. Government Works. 1 A-51
§ 35.130 General prohibitions against discrimination., 28 C.F.R. § 35.130
(vi) Deny a qualified individual with a disability the opportunity to participate as a member of planning or advisory boards;
(vii) Otherwise limit a qu~ed individual with a disability in the enjoyment of any right, privilege, advantage, or opportunity enjoyed by others receiving the aid, benefit, or service.
(2) A public entity may not deny a qualified individual with a disability the opportunity to participate in services, programs, or activities that are not separate or different, despite the existence of permissibly separate or different programs or activities.
(3) A public entity may not, directly or through contractual or other arrangements, utilize criteria or methods of administration:
(i) That have the effect of subjecting qualified individuals with disabilities to discrimination on the basis of disability;
(ii) That have the purpose or effect of defeating or substantially impairing accomplishment of the objectives of the public entity's program with respect to individuals with disabilities; or
{iii) That perpetuate the discrimination of another public entity if both public entities are subject to common administrative control or are agencies of the same State.
(4) A public entity may not, in determining the site or location of a facility, make selections-
(i) That have the effect of excluding individuals with disabilities from, denying them the benefits of, or otherwise subjecting them to discrimination; or
(ii) That have the purpose or effect of defeating or substantially impairing the accomplishment of the objectives of the service, program, or activity with respect to indiv1duals with disabilities.
(5) A public entity, in the selection of procurement contractors, may not use criteria that subject qualified individuals with disabilities to discrimination on the basis of disability.
(6) A public entity may not administer a licensing or certification program in a manner that subjects qualified individuals with disabilities to discrimination on the basis of disability, nor may a public entity establish requirements for the programs or activities of licensees or certified entities that subject qualified individuals with disabilities to discrimination on the basis of disability. The programs or activities of entities that are licensed or certified by a public entity are not, themselves, covered by this part.
WESTLAW @ 2018 Tho111son Reuters. No claim to original U.S Gove:n,'1ent Wo•k2.. A-52
§ 35.130 General prohibitions against discrimination., 28 C.F.R. § 35.130
(7)(i) A public entity shall make reasonable modifications in policies, practices, or procedures when the
modifications are necessary to avoid discrimination on the basis of disability, unless the public entity can demonstrate that making the modifications would fundamentally alter the nature of the service, program, or activity.
(ii) A public entity is not required to provide a reasonable modification to an individual who meets the definition of "disability" solely under the "regarded as" prong of the definition of "disability" at§ 35.1 08(a)(l)(ili).
(8) A public entity shall not impose or apply eligibility criteria that screen out or tend to screen out an individual
with a disability or any class of individuals with disabilities from fully and equally enjoying any service, program,
or activity, unless such criteria can be shown to be necessary for the provision ?f the service, program, or activity being offered.
(c) Nothing in this part prohibits a public entity from providing benefits, services, or advantages to individuals with
disabilities, or to a particular class of individuals with disabilities beyond those required by this part.
(d) A public entity shall administer services, programs, and activities in the most integrated setting appropriate to the
needs of qualified individuals with disabilities.
(e)(l) Nothing in this part shall be construed to require an individual with a disability to apcept an accommodation, aid,
service, opportunity, or benefit provided under the ADA or this part which such individual chooses not to accept.
(2) Nothing in the Act or this part authorizes the representative or guardian of an individual with a disability to decline food, water, medical treatment, or medical services for that individual.
(t) A public entity may not place a surcharge on a particular individual with a disability or any group of individuals
with disabilities to cover the costs of measures, such as the provision of auxiliary ~ds or program accessibility, that are
required to provide that individual or group with the nondiscriminatory treatment required by the Act or this part.
(g) A public entity shall not exclude or otherwise deny equal services, programs, or activities to an individual or entity because of the known disability of an individual with whom the individual or entity is known to have a relationship or association.
(h) A public entity may impose legitimate safety requirements necessary for the safe operation of its services, programs, or activities. However, the public entity must ensure that its safety requirements are based on actual risks, not on mere
speculation, stereotypes, or generalizations about individuals with disabilities.
(i) Nothing in this part shall provide the basis for a claim that an individual without a disability was subject to discrimination because of a lack of disability, including a claim that an individual with a disability was granted a
reasonable modification that was denied to an individual without a disability.
WESTL A'N =~;. 2018 Thon1snn Reuters 1'-Jo claim to originF~I U.S. Government Works. 3
A-53
§ 35.130 General prohibitions against discrimination., 28 C.F.R. § 35.130
Credits [Order No. 3180-2010, 75 FR 56178, Sept. 15, 2010; Order No. 3702-2016,81 FR 53225, Aug. 11, 2016]
SOURCE: 56 FR 35716, July26, 1991; 75 FR 56177, Sept. 15, 2010; Order No. 3702-2016,81 FR 53223, Aug. 11,2016, ~ess otherwise not~.
AUTHORITY: 5 U.S.C. 301; 28 U.S.C. 509, 510; 42 U.S.C. 12134, 12131, and 12205a.
Notes of Decisions (1843)
Current through July 13, 2018; 83 FR 32749.
End of Document ·~'2018 Thomson Reutt>rs. N<> claim to ,>riginal t.r.S. G,wernmt'nt W<>rks.
WESTLAW © 2018 Thomson Reuters. No claim to original U.S. Government Works. 4 A-54
., § 35.150 Existing facilities., 28 C.F .R. § 35.150
<;ode of Federal Regulations Title 28. Judicial Administ~·ation
Chapter I. Department of Justice Part 35- Nondiscrimination on the Basis of Disability in State and Local Government Services (Refs & Annas)
Subpart D. Program Accessibility
28 C.F .R. § 35.150
§ 35.150 Existing facilities.
Effective: May 21, 2012
Currentness
(a) General. A public entity shall operate each service, program, or activity so that the service, program, or activity, when viewed in its entirety, is readily accessible to and usable by individuals with disabilities. This paragraph does not-
(1) Necessarily require a public entity to make each of its existing facilities accessible to and usable by individuals with disabilities;
(2) Require a public entity to take any action that would threaten or destroy the historic significance of an historic property; or
(3) Require a public entity to take any action that it can demonstrate would result in a fundamental alteration in the nature of a service, program. or activity or in undue financial and administrative burdens. In those circumstances where personnel of the public entity believe that the proposed action would fundamentally alter the service, program, or activity or would result in undue financial and administrative burdens, a public entity has the burden of proving that compliance with§ 35.150(a) of this part would result in such alteration or burdens. The decision that compliance would result in such alteration or burdens must be made by the head of a public entity or his or her designee after considering all resources available for use in the funding and operation of the service, program, or activity, and must be accompanied by a written state;nent of the reasons for reaching that conclusion. If an action would result in such an alteration or such burdens, a public entity shall take any other action that would not result in such an alteration or such burdens but would nevertheless ensure that individuals with disabilities receive the benefits or services provided by the public entity.
(b) Methods-
(1) General. A public entity may comply with the requirements of this section through such means as redesign or acquisition of equipment, reassignment of services to accessible buildings, assignment of aides to beneficiaries, home visits, delivery of services at alternate accessible sites, alteration of existing facilities and construction of new facilities, use of accessible rolling stock or other conveyances, or any other methods that result in making its services, programs, or activities readily accessible to and usable by individuals with disabilities. A public entity is not required to make structural changes in existing facilities where other methods are effective in achieving compliance with this section. A public entity, in making alterations to existing buildings, shall meet the accessibility requirements of§
WESTLAW © 2018 Thomson Reuters. No claim to original U.S. Government Works.
A-55
§ 35.150 Existing facilities., 28 C.F.R. § 35.150
35.151. In choosing among available methods for meeting the requirements of this section, a public entity shall give
priority to thpse methods that offer services, programs, and activities to qualified individuals with disabilities in the most integrated setting appropriate.
(2)(i) Safe harbor. Elements that pave not been altered in existing facilities on or after March 15, 2012 and that
comply with the corresponding technical and scoping specifications for those elements in either the 1991 Standards or in the Uniform Federal Accessibility Standards (UFAS), Appendix A to 41 CFR part 101-19.6 (July 1, 2002
ed.), 49 FR 31528, app. A (Aug. 7, 1984) are not required to be modified in order to comply with the requirements set forth in the 2010 Standards.
(ii) The safe harbor provided in§ 35.150(b )(2)(i) does not apply to those elements in existing facilities that are subject
to supplemental requirements (i.e., elements for which there are neither technical nor scoping specifications in the 1991 Standards). Elements in the 2010 Standards not eligible for the element-by-element safe harbor are identified
as follows-
(A) Residential facilities dwelling units, sections 233 and 809.
(B) Amusement rides, sections 234 and 1002; 206.2.9; 216.12.
(C) Recreational boating facilities, sections 235 and 1003; 206.2.1 0.
(D) Exercise machines and equipment, sections 236 and 1004; 206.2.13.
(E) Fishing piers and platforms, sections 237 and 1005; 206.2.14.
(F) Golf facilities, sections 238 and 1006; 206.2.15.
(G) Miniature golf facilities, sections 239 and 1007; 206.2.16.
(H) Play areas, sections 240 and 1008; 206.2.17.
(I) Saunas and steam rooms, sections 241 and 612.
(J) Swimming pools~ wading pools, and spas, sections 242 and 1009.
(K.) Shooting facilities with firing positions, sections 243 and 1010.
(L) Miscellaneous.
WESTLAW © 2018 Thomson Reuters. No claim to original U.S. Government Works. 2
. A-56
§ 35.150 Existing facilities., 28 C.F.R. § 35.150
(1) Team or player seating, section 221.2.1.4.
(2) Accessible route to bowling lanes, section 206.2.11.
(3) Accessible route in court sports facilities, section 206.2.12.
(3) Historic preservation programs. In meeting the requirements of§ 35.150(a) in historic preservation programs,
a public entity shall give priority to methods that provide physical access to individuals with disabilities. In cases
where a physical alteration to an historic property is not required because of paragraph (a)(2) or (a)(3) of this section,
alternative methods of achieving prograril accessibility incl¢e-
(i) Using audio-visual materials and devices to depict those portions of an historic property that" cannot otherwise
~ made accessible;
(ii) Assigning persons to guide individuals with handicaps into or through portions of historic properties that cannot
otherwise be made accessible; or
(iii) Adopting other innovative methods.
(4) Swimming pools, wading pools, and spas. The requirements set forth in sections 242 and 1009 of the 2010
Standards shall not apply until January 31, 2013, if a public entity chooses to make structural changes to existing
swimming pools, wading pools, or spas built before March 15, 2012, for the sole purpose of complying with the
program accessibility requirements set forth in this section.
(c) Time period for compliance. Where structural changes in facilities are undertaken .to comply with the obligations
established under this section, such changes shall be made within three years of January 26, 1992, but in any event as
expeditiously as possible.
(d) Transition plan.
(1) In the event that structural changes to facilities will be undertaken to achieve program accessibility, a public entity
that employs 50 or more persons shall develop, within six months of January 26, 1992, a transition plan setting forth
the steps necessary to complete such changes. A public entity shall provide an opportunity to interested persons,
including individuals with disabilities or organizations representing individuals wi¢. disabilities, to participate in the
development of the transition plan by submitting comments. A copy of the transition plan shall be made available
for public inspection.
(2) If a public entity has responsibility or authority over streets, roads, or walkways, its transition plan shall
include a schedule for providing curb ramps or other sloped areas where pedestrian walks cross curbs, giving
priority to walkways serving entities covered by the Act, including State and local government offices and facilities,
transportation, places of public accommodation, and employers, followed by walkways serving other areas. ·
WESTLAW © 2018 Thomson Reuters. No claim to original U.S. Government Works. 3
A-57
•. § 35.150 Existing facilities., 28 C.F .R. § 35.150
(3) The plan shall, at a minimum-
(i) Identify physical obstacles in the public entity's facilities that limit the accessibility of its programs or activities
to individuals with disabilities;
(ii) Describe in detail the methods that will be used to make the facilities acceSsible;
(iii) Specify the schedule for taking the steps necessary to achieve compliance with this section and, if the time period
of the transition plan is longer than one year, identify steps that will be. taken during each year of the transition
period; and
(iv) Indicate the official responsible for implementation of the plan.
( 4) If a public entity has already complied with the transition plan requirement of a Federal agency regulation
implementing section 504 of the Rehabilitation Act of 1973, then the requirements of this paragraph (d) shall apply
only to those policies and practices that were not included in the previous transition plan.
(Approved by the Office of Management and Budget under control number 119()...{)004)
Credits
[58 FR 17521, AprilS, 1993; Order No. 3180-2010, 75 FR 56180, Sept. 15, 2010; Order No. 3326-2012, 77 FR 16163, March 20, 2012; Order No. 3332-2012, 77 FR 30179, May 21, 2012]
SOURCE: 56 FR 35716, July 26, 1991; 75 FR 56177, Sept 15, 2010; Order No. 3702-2016,81 FR 53223, Aug. 11,2016, unless otherwise noted.
AUTHORITY: 5 U.S.C. 301; 28 U.S.C. 509, 510; 42 U.S.C. 12134, 12131, and 12205a.
Notes of Decisions (120) ·
Current through June 15, 2018; 83 FR 28150.
End of Document Cl2018 Thomson Reuters. No claim to original U.S. Government Works.
WESTLAW © 2018 Thomson Reuters. No claim to original U.S. Government Works. 4
A-58