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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

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Page 1: COMMONWEALTH OF MASSACHUSETTS Supreme Judicial Court · Suleyken D. Walker, BBO # 654933 Assistant Attorney General Government Bureau One Ashburton Place Boston, Massachusetts 02108

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

Page 2: COMMONWEALTH OF MASSACHUSETTS Supreme Judicial Court · Suleyken D. Walker, BBO # 654933 Assistant Attorney General Government Bureau One Ashburton Place Boston, Massachusetts 02108

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

Page 3: COMMONWEALTH OF MASSACHUSETTS Supreme Judicial Court · Suleyken D. Walker, BBO # 654933 Assistant Attorney General Government Bureau One Ashburton Place Boston, Massachusetts 02108

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

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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

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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

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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

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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

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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

Page 9: COMMONWEALTH OF MASSACHUSETTS Supreme Judicial Court · Suleyken D. Walker, BBO # 654933 Assistant Attorney General Government Bureau One Ashburton Place Boston, Massachusetts 02108

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

Page 10: COMMONWEALTH OF MASSACHUSETTS Supreme Judicial Court · Suleyken D. Walker, BBO # 654933 Assistant Attorney General Government Bureau One Ashburton Place Boston, Massachusetts 02108

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

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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

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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

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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

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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

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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

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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

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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

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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

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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 ...

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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.

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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

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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

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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

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(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

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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

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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.

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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,

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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.

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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)

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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.

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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

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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

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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

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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.

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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.

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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).

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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.

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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,

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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

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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.

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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.

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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.

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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

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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

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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

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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

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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)

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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).

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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

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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) .

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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.

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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

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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.

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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,

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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

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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)

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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.

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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

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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

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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

Page 61: COMMONWEALTH OF MASSACHUSETTS Supreme Judicial Court · Suleyken D. Walker, BBO # 654933 Assistant Attorney General Government Bureau One Ashburton Place Boston, Massachusetts 02108

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.

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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.

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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.

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4:kb . Lyn · • Connolly Chief Justice of the District BostPn,MA

· December 29, 2011

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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

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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

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·•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

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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

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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.

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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).

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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.

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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.

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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.

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''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

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"' .,

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).

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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).

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6/22/2018 Pine Street Inn I Homeless Court

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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.

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Page 77: COMMONWEALTH OF MASSACHUSETTS Supreme Judicial Court · Suleyken D. Walker, BBO # 654933 Assistant Attorney General Government Bureau One Ashburton Place Boston, Massachusetts 02108

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

Page 78: COMMONWEALTH OF MASSACHUSETTS Supreme Judicial Court · Suleyken D. Walker, BBO # 654933 Assistant Attorney General Government Bureau One Ashburton Place Boston, Massachusetts 02108

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

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Page 79: COMMONWEALTH OF MASSACHUSETTS Supreme Judicial Court · Suleyken D. Walker, BBO # 654933 Assistant Attorney General Government Bureau One Ashburton Place Boston, Massachusetts 02108

.. Fugitives seek another chance - The Boston Globe Page 1 of3

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,:.~:::::. ::..'::m::~~=M·:~ ~-=-====-1 Fugitives seek another chance ADVERTISEMENT ;

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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.

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•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.

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I http://archive. boston.com/news/loca1Jmassachusetts7Jt~cles/20 10/10/07 /fugitives _seek_ an... 6/22/2018

Page 80: COMMONWEALTH OF MASSACHUSETTS Supreme Judicial Court · Suleyken D. Walker, BBO # 654933 Assistant Attorney General Government Bureau One Ashburton Place Boston, Massachusetts 02108

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.

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Page 81: COMMONWEALTH OF MASSACHUSETTS Supreme Judicial Court · Suleyken D. Walker, BBO # 654933 Assistant Attorney General Government Bureau One Ashburton Place Boston, Massachusetts 02108

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 -

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Honorable Charles R. Johnson Chief Justice

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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. -

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.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

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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

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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

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Page 86: COMMONWEALTH OF MASSACHUSETTS Supreme Judicial Court · Suleyken D. Walker, BBO # 654933 Assistant Attorney General Government Bureau One Ashburton Place Boston, Massachusetts 02108

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

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Page 87: COMMONWEALTH OF MASSACHUSETTS Supreme Judicial Court · Suleyken D. Walker, BBO # 654933 Assistant Attorney General Government Bureau One Ashburton Place Boston, Massachusetts 02108

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

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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

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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

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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.

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EXECUTIVE SUMMARY OF DRAFT REPORT

App. B-1

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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

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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

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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

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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

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EX-4

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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

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• 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

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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

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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

[email protected]

Erika Gully-Santiago

Deputy Public Information Officer

[email protected]

Phone: 617-557-1114

Fax: 617-742-1807

Share On:

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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

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A-40

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.... . ' 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

Page 101: COMMONWEALTH OF MASSACHUSETTS Supreme Judicial Court · Suleyken D. Walker, BBO # 654933 Assistant Attorney General Government Bureau One Ashburton Place Boston, Massachusetts 02108

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,

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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

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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

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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)

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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

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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

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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.

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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.

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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.

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§ 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;

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§ 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.

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§ 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.

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§ 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.

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., § 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§

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§ 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.

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§ 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. ·

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•. § 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.

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