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In re Detention of J.N.

Court of Appeals of Washington, Division 1

August 28, 2017

In the Matter of the Detention of: J.N., Appellant.

          Dwyer, J.

          J.N. appeals from a trial court's order denying his motion to be physically present at his mental illness civil commitment hearing. On appeal, J.N. contends that King County Superior Court Local Mental Proceeding Rule (LMPR) 1.8(b), which requires all civil commitment respondents[1] at certain hospitals to appear by video for their hearings, violates his statutory right to be physically present at such hearings. We agree and reverse.

         I

         Pursuant to the involuntary treatment act (ITA), codified at chapter 71.05 RCW, individuals who pose a risk of harm to themselves or others may, following a hearing, be involuntarily committed for treatment. The King County Superior Court holds such hearings at its designated ITA court, located in the Harborview Medical Center.

         Historically, respondents have been transported to and from the ITA court by van or, if the respondent requires a gurney for medicalor safety reasons, by ambulance. In 2012, King County Crisis and Commitment Services (CCS) contracted with a private ambulance provider to secure transportation and monitoring services for respondents. However, in March 2015, the ambulance provider notified CCS that it was terminating the contract and would no longer provide transportation of respondents by ambulance except from those hospitals for which it already had an existing contract. CCS has been unable to procure an alternative ambulance provider for these services.

         In response to the loss of ambulance services for ITA hearings, the King County Superior Court issued an emergency order establishing temporary protocols for ITA hearings by video. The emergency order permitted respondents who were hospitalized at certain facilities in King County, and who required ambulance transportation, to appear for their ITA hearing by video conference. The emergency order was extended multiple times. The superior court leadership concluded that the use of video hearings for respondents "who are unable to travel by van to ITA Court is a viable option for a temporary period until the Court, CCS, the hospitals and other stakeholders can determine if other options exist."

         Conducting some hearings in person and others via video conferencing proved not ideal. The judicial officers responsible for ITA court proceedings noted that whether a particular respondent would be transported by van to the ITA court or appear by video could change at the last minute, which in turn impacted where the respondent's attorney needed to be for the hearing.[2] The judicial officers also believed that video conferencing was often more humane than physically transporting respondents and having them wait extended periods for their hearings to commence. Finally, the judicial officers noted that they had received consistently favorable feedback from the respondents who had previously appeared by video.[3]

         To address these concerns, the superior court adopted LMPR 1.8. Unlike the emergency order, LMPR 1.8 does not differentiate between those respondents who require ambulance transportation and those who are eligible for van transportation. Rather, LMPR 1.8(b) requires that all respondents hospitalized at five specific hospitals appear via video unless the respondent files a motion to request an in-person hearing and the court finds "good cause" for granting the motion.

         J.N. was detained at Navos Mental Health Solutions in West Seattle on February 12, 2016. Navos filed a petition to detain J.N. for up to an additional 90 days of inpatient treatment, but J.N. was ultimately released on February 23, 2016, after agreeing to an order for 90 days of less restrictive involuntary mental health treatment in an outpatient setting.

         On April 21, 2016, J.N. was admitted to the Harborview Medical Center. The medical team at Harborview referred J.N. to a designated mental health professional for evaluation. The designated mental health professional then filed a petition for revocation of J.N.'s less restrictive order.

         J.N. was promptly transported to and admitted by Navos pending his revocation hearing. Navos is one of the facilities at which, pursuant to LMPR 1.8(b), all respondents are required to appear by video conference for their commitment hearings.

         On April 26, 2016, J.N. met with his attorney. J.N. and his attorney discussed and decided to request an in-person hearing at Harborview. Alternatively, J.N. requested that an in-person hearing take place at Navos with all parties, witnesses, and the judge physically present. The following day, J.N. filed a motion to bar the hearing by video.

         The trial court heard argument on J.N.'s motion. The trial court denied the motion. J.N.'s revocation hearing was conducted by video conference. The trial court ordered 90 days of inpatient hospitalization.[4]

          II

          J.N. contends that he has a statutory right to be physically present at his revocation hearing.

         A

         The parties have spent significant time addressing the public policy concerns surrounding this issue. But these concerns are better addressed to the legislature. Indeed, "[i]t is the role of the legislature, not the judiciary, to balance public policy interest and enact law." Rousso v. State, 170 Wn.2d 70, 92, 239 P.3d 1084 (2010). "Article 2, section 1, of the Washington State Constitution vests all legislative authority in the legislature and in the people." In re Chi-Dooh Li, 79 Wn.2d 561, 577, 488 P.2d 259 (1971); see Const, art. II, § 1.

         "The courts are not in a position to agree or disagree with our legislature's balancing of public policy interests." Nw. Animal Rights Network v. State, 158 Wn.App. 237, 246, 242 P.3d 891 (2010).

Indeed, the judiciary's making such public policy decisions would not only ignore the separation of powers, but would stretch the practical limits of the judiciary. See Brown v. Owen,165 Wn.2d 706, 718-19, 206 P.3d 310 (2009) (recognizing the separation of powers implicit in the Washington Constitution and the relevance of justiciability concerns like those addressed by the federal political question doctrine (citing Baker v. Carr, 369 U.S. 186, 217, 82 S.Ct. 691, 7 L.Ed.2d 663 (1962))). This court is not equipped to legislate what constitutes a "successful" regulatory scheme by balancing public policy concerns, nor can we determine which risks are acceptable and which are not. These are not questions of law; we lack the tools. [The plaintiff], "in order to succeed in this action, ask[s] the ...

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