Advocacy Ctr. for Elderly and Disabled v. La. Dept. of Health and Hospitals

Decision Date09 August 2010
Docket NumberCivil Action No. 10-1088
Citation731 F.Supp.2d 603
CourtU.S. District Court — Eastern District of Louisiana

Marjorie Press Lindblom, Adam T. Humann, Emily C. Lee, Maura Martin Klugman, Kirkland & Ellis, LLP, New York, NY, Barry James Gerharz, Katharine Murphy Schwartzmann, American Civil Liberties Union Foundation, New Orleans, LA, Ellen Bentley Hahn, Lafayette, LA, for Advocacy Center for the Elderly and Disabled, et al.

Neal Risley Elliott, Jr., Neal R. Elliott, Jr., Attorney at Law, Adrienne T. Bordelon, Douglas L. Cade, Stephen Robert Russo, Louisiana Department of Health & Hospitals, Baton Rouge, LA, for Louisiana Department of Health and Hospitals, et al.


SARAH S. VANCE, District Judge.

Before the Court are plaintiffs' Motion for Preliminary Injunction (R. Doc. 22), and defendants' Motion to Strike Declarations of Adam Humann and Barry Gerharz (R. Doc. 43). For the following reasons, the motion for a preliminary injunction is GRANTED IN PART and DENIED IN PART and the motion to strike is DENIED. The Court orders injunctive relief as described at the end of this Order.

I. Introduction

Plaintiffs in this matter are W.B., who brings this suit through his mother and next friend, Charrie Butler, and also the Advocacy Center for the Elderly and Disabled. The Advocacy Center is part of a network of organizations established under federal law to advocate on behalf of people with disabilities.1

Defendants are three Louisiana state officials who are sued in their official capacities.2 These officials include Alan Levine, the Secretary of the Department of Health and Hospitals; Mark Anders, the Chief Executive Officer of the Eastern Louisiana Mental Health System, which is a component of the Department of Health and Hospitals; and Michelle Duncan, the Director of the Forensic Services Division of the Eastern Louisiana Mental Health System.

The essence of plaintiffs' challenge is this: Louisiana law dictates that criminal defendants in Louisiana courts who are found incompetent to stand trial are to be transferred to the Feliciana Forensic Facility ("Feliciana") if they require inpatient restorative treatment. Plaintiffs contend that Feliciana is the only inpatient facility where these detainees can receive adequate mental-health treatment. But Feliciana is full. It can accept no more patients, and under Louisiana law it must reject any new patients once it has reached full capacity. The consequence of this, plaintiffs claim, is that incompetent pretrial detainees awaiting a vacancy at Feliciana simply languish in parish jails for extended periods of time without having been convicted of any crime.3 They allege that, as of October of 2009, more than one hundred Detainees had been held for an extended period of time, despite having been found incompetent to stand trial and having been committed, but not yet transferred, to Feliciana.

The merits of this claim involve the entanglement and effect of several state statutes. In Louisiana, a defendant may be adjudged mentally incapacitated and unable to stand trial "when, as a result of mental disease or defect, a defendant presently lacks the capacity to understand the proceedings against him or to assist in his defense." 4 The issue of the defendant's mental incapacity may be raised at any time by the defense, the prosecution, or the court, and the criminal prosecution comes to a halt once the issue is raised.5 If the court "has reasonable ground to doubt the defendant's mental capacity to proceed," it is required to order an examination into the defendant's mental health.6 To assist in this inquiry, the court appoints a sanity commission that consists of two or three qualified physicians or, in lieu of one physician, a qualified clinical or medical psychologist with experience or training in forensic evaluations.7 This commission examines the defendant and issues a report. The court then holds a contradictory hearing in which the sanity commission's report is admissible into evidence and the members of the commission may be called as witnesses and cross-examined by the defense, the prosecution, or the court.8

Article 648 of the Louisiana Code of Criminal Procedure governs what happens next. If the court determines, by a preponderanceof the evidence, that a defendant lacks the capacity to proceed, this incapacity determination suspends all proceedings, and the court may make one of several dispositions depending on the defendant's characteristics. One such disposition concerns defendants who are charged with a felony or a misdemeanor violation of domestic abuse battery, who are likely to commit crimes of violence, and who are not likely to have their mental health restored within ninety days.9 If inpatient treatment is recommended for such an individual, "the court shall commit the defendant to the Feliciana Forensic Facility." 10

If a defendant committed to Feliciana is still held in a parish jail 180 days after the court determined that he lacked competency to proceed, the court is required to convene a status conference with the prosecution and the defense. On motion of either party, the court may order a hearing to determine whether there has been a change in defendants' mental capacity or if the court's earlier order requires modification.11 If the defendant is still in parish jail 180 days after this status conference, the court is required to order a hearing to determine whether the defendant should be released or the state should commence civil-commitment hearings.12

According to plaintiffs, Incompetent Detainees who are awaiting transfer to Feliciana can languish for up to 360 days-nearly one year-before the state is required to take action. And these circumstances are exacerbated by Title 28, Section 25.1 of the Louisiana Revised Statutes, which governs the establishment of Feliciana and certain aspects of its operations. Specifically, the statute provides that "[t]he administrator of the Feliciana Forensic Facility shall refuse admission to any person if ... [a]dmission of the person would cause overcrowding of the facility ... [or if the] facility is unable to provide appropriate care or treatment for the person." 13

Thus, the essence of plaintiffs' challenge is that Louisiana law requires that certain defendants, after being adjudged incompetent to stand trial in Louisiana state courts, be transferred to Feliciana. But if they are not transferred, the state is not required to act for nearly a year. And Louisiana law also requires Feliciana to turn away transferees if their admission would cause overcrowding or if appropriate care would be unavailable there. As of now, Feliciana is full and can admit no new patients until additional space in the facility becomes available.

In addition, plaintiffs allege the Detainees are receiving inadequate mental-health treatment in the parish jails where they are awaiting transfer. Therefore, they claim, Incompetent Detainees are receiving substandard mental-health care that is not related to regaining capacity, and they are subjected to unconstitutional delays and extended imprisonment when they have been convicted of no crime and are not awaiting trial.14

Plaintiffs brought this suit in April of 2010 seeking declaratory and injunctive relief. They now move for a preliminary injunction ordering all of the Incompetent Detainees at issue to be transferred to Feliciana. Defendants move to strike two declarations that were submitted as evidence in support of plaintiffs' motion. The Court held a preliminary-injunction hearing on June 22, 2010, and it now rules as follows.

II. Discussion
A. Defendants' Motion to Strike

The Court first addresses defendants' motion to strike two of plaintiffs' declarations. These two declarations, one submitted by Adam Humann and another submitted by Barry Gerharz, both describe interviews with W.B. in the parish jail where he was incarcerated before his transfer. These declarations contain statements that W.B. purportedly made during the course of these interviews that concern his background and the conditions under which he was being kept. Both Humann and Gerharz are among the counsel of record for plaintiffs in this matter.15

Defendants move to strike these declarations on two grounds. First, they contend that they are submitted in violation of Louisiana Rule of Professional Conduct 3.7, which provides that "[a] lawyer shall not act as an advocate at a trial in which the lawyer is likely to be a necessary witness." 16 Second, they contend that the statements made by W.B. constitute inadmissible hearsay.

The Court holds that Rule 3.7 does not require exclusion of the testimony. The animating purpose of the rule is to avoid juror confusion, and this purpose is little served by striking these declarations. The Fifth Circuit has noted that

the only justification for the attorney testimony rule that might be viewed as affecting the rights of the opposing party is that derived from the fear that the jury will either accord such testimony undue weight, or will be unable to distinguish between the attorney's testimony, offered under oath, and his legal argument, offered in rhetorical support of his client's case.17

The justification collapses when no jury is involved.18 These declarations were submitted to the Court. No jury will make any determinations with respect to this motion. And the Court is not confusedabout where Humann's and Gerharz's testimony ends and their advocacy begins. The declarations need not be struck on account of the Louisiana Rules of Professional Conduct.

In addition, the hearsay rule does not mandate that these declarations be excluded from consideration. "[A]t the preliminary injunction stage, the procedures in the district court are less formal, and the district court may rely on otherwise inadmissible evidence, including hearsay evidence," as long as the...

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