In re M.M.
| Decision Date | 25 May 2022 |
| Docket Number | 54,481-CA |
| Parties | IN RE: Judicial COMMITMENT OF M.M. (Edward Brossette Contempt Proceeding) |
| Court | Court of Appeal of Louisiana — District of US |
BUREAU OF LEGAL SERVICES, LA DEPT. OF HEALTH, By: Fernin F. Eaton, Neal R. Elliott, Jr., Baton Rouge, Krystal Airs Brown, Counsel for Appellant, Edward M. Brossette
RONALD J. MICIOTTO, Shreveport, JUSTIN P. SMITH, Counsel for Appellee, Hon. Robert Waddell
Before MOORE, STONE, and ROBINSON, JJ.
Edward Brossette, an attorney with the Louisiana Department of Health ("LDH"), Office of Behavioral Health ("OBH"), appeals a judgment that found him in constructive contempt of court for disobeying two portions of a rule in a judicial commitment case: to include another arm of LDH, the Office for Citizens with Developmental Disabilities ("OCDD"), in the action, and to return the patient, MM, to Caddo Parish for a placement hearing. For the reasons expressed, we affirm.
In a previous opinion, In re Commitment of MM , 53,577 (La. App. 2 Cir. 9/23/20), 303 So. 3d 1095, this court set aside an earlier finding of contempt on grounds that Brossette was entitled to have the contempt rule heard by a judge other than the one who accused him of contempt. For purposes of clarity, we will restate the essential facts.
The patient, MM, was a 57-year-old woman in the Lafayette area with the dual diagnosis of schizoaffective disorder
(a mental illness) and intellectual disability (a developmental disability). She was receiving daily assistance from OCDD for the latter condition. At some point, the mental illness flared up, she became dangerous to herself and to others, and OCDD felt it could no longer meet her needs. MM was admitted to Brentwood Hospital, in Shreveport, on July 25, 2019, as no psychiatric beds were available in the Lafayette area.
Brossette, an experienced attorney but relatively new to LDH, filed a petition for judicial commitment under La. R.S. 28:54, et seq., the behavioral health law (notably, not the developmental disability law). The case was assigned to Judge Robert Waddell (now retired), who appointed a Mental Health Advocacy Service attorney, Mr. Sale, to represent MM, and a psychiatrist, Dr. Ogundeji, to examine her. Mr. Sale immediately argued that the commitment should be handled under the developmental disability law. At a hearing on August 7, Brossette did not submit the doctor's report, and Judge Waddell upbraided him about this. Two days later, Brossette amended his petition, to require Dr. Ogundeji to issue a report three days before the next hearing.
At that hearing, August 14, Judge Waddell told Brossette that OCDD was a necessary party. Brossette, however, replied that OCDD's services would be "available" to MM once her psychiatric issues had been resolved. Dr. Ogundeji testified that MM was dangerous to herself and to others, and qualified for judicial commitment. Judge Waddell fixed a commitment hearing for August 28.
Before that date, however, a space opened at Northlake Behavioral Health System, in Mandeville. Brossette emailed Judge Waddell and Mr. Sale about this on August 27, and, getting no objection from Judge Waddell, had MM transferred there promptly. Mr. Sale, however, objected.
At the placement hearing, August 28, Brossette called two OCDD witnesses who testified that MM really needed to be handled through the behavioral health process, not the OCDD system; however, Mr. Sale argued that she needed OCDD services. Judge Waddell told Brossette that he had not intended for MM to be placed until the placement hearing could be held, and he refused to sign the proposed placement judgment.
Judge Waddell ordered Brossette to have MM returned to Caddo Parish for that hearing (as well as for further evaluation). Judge Waddell also reminded Brossette that he (Brossette) needed to make OCDD a party to the action. Brossette replied, "We're not going to amend the petition to proceed under OCDD." Later, Brossette filed a motion to dismiss the commitment petition, and obtained a physician's emergency certificate to allow MM to stay at Northlake.
At the next hearing, September 9, Brossette called Ms. Landry, an LDH regional attorney in Lafayette, to try to explain LDH's approach to cases like this: mental health treatment must come before developmental disability services. Brossette also offered a letter from MM's psychiatrist at Northlake saying that it was not safe for her to make the trip from Mandeville to Shreveport, in her current condition. Judge Waddell said the case was "fouled up from the first" and denied Brossette's motion to dismiss; however, he declared MM "mentally ill" and committed her to LDH custody for 180 days maximum. He added that he was considering citing Brossette and LDH for contempt of court, and fixed a hearing on this for September 11.
At the September 11 hearing, Judge Waddell found that Brossette "just did not do what I said," held him in contempt, and imposed a fine of $500 and 24 hours in jail, suspended. Brossette objected and requested a hearing on the matter; Judge Waddell set this for October 15.
Before that hearing, Judge Waddell filed a rule nisi against Brossette for contempt, citing his (1) failure to timely file Dr. Ogundeji's report, (2) failure to include OCDD in the matter, (3) transferring MM to Northlake without court authority, and (4) failure to transport her back to Caddo Parish after being specifically ordered to do so.
Brossette filed a motion for an impartial judge to hear the contempt rule; at the hearing, October 15, Judge Waddell denied this. He then found Brossette in contempt, fining him $100 and sentencing him to four hours in Caddo Correctional Center – not suspended.
Brossette applied for a writ, which this court converted to an appeal. In re Commitment of MM , supra . We reversed and set aside the judgment and remanded the case to be heard by a different, impartial judge. Back in the First JDC, the matter was assigned to Judge Karelia Stewart and, eventually, the parties submitted the case on the record.
Ruling from the bench, Judge Stewart carefully summarized the facts, recognizing that there had been "some confusion" in the commitment procedure. As to Count 1, failure to timely file the doctor's report, she found no intent to violate the court's order; as to Count 3, transporting MM to Northlake without the court's permission, she found the attorneys "acknowledged confusion."
As to Count 2, however, she found that Judge Waddell directed Brossette to "bring in/include OCDD" three times on August 7, once on August 14, and again on August 28, but then Brossette replied that he was not going to amend the petition to do so. Judge Stewart found that this proved intent to defy the authority of the court.
As to Count 4, she found that there was conflicting evidence whether carrying MM back to Shreveport would have been safe, but Brossette himself created the whole problem when he moved her there in the first place, and there was "much" he could have done to cure the issue; thus, there was willful disobedience of the court's order. She also observed that a judge is entitled to rely on an attorney as an officer of the court; if the attorney disagrees, his remedy is to take a writ, not to disobey the court's order. She imposed a $100 fine, to be stayed until the matter is fully appealed, and no jail time. Brossette appealed suspensively.
Brossette designates three assignments of error:
By way of background, Brossette urges that most attorneys and judges are simply not familiar with the commitment processes for dually diagnosed patients. The distinction, he asserts, is explored in the series of cases culminating in Matter of Commitment of Cole , 18-1760 (La. App. 1 Cir. 4/17/19), 276 So. 3d 601 : persons with developmental disability are handled through the developmental disability law, La. R.S. 28:451.1 – 455.2 (the domain of OCDD); those with mental illness are handled through the behavioral health law, La. R.S. 28:1 – 237, especially R.S. 28:54 (the domain of OBH, Brossette's agency).1 The crux of the issue is that when a person already receiving OCDD assistance develops a sudden mental illness, she must be placed pursuant to the behavioral health law (OBH) until she is restored to her baseline functioning, at which time the services of OCDD can be recommenced. Brossette contends that this is where Judge Waddell went totally wrong: he simply failed to grasp that MM's psychiatric condition could not be addressed by OCDD, but only by OBH, and this is why he (Brossette) refused to bring OCDD into the suit.
Brossette shows that constructive criminal contempt must be proved beyond a reasonable doubt, Billiot v. Billiot , 01-1298 (La. 1/25/02), 805 So. 2d 1170.2 He concedes that he was accused of "willful disobedience of any lawful judgment, order, mandate, writ, or process of the court," La. C.C.P. art. 224 (2), and with conduct "intended to obstruct or interfere with the orderly administration of justice, or to impair the dignity of the court or respect for its authority," La. C.C.P. art. 224 (10). He contends that there was reasonable doubt and justifiable excuse for his conduct.
As for Assignment 1, Brossette restates the grand, interlocking scheme of OBH and OCDD services provided in Title 28, as interpreted in Commitment of Cole , supra , and asserts the "overwhelming evidence" that MM needed inpatient mental health commitment. Even though he told Judge Waddell, "We're not going to proceed under OCDD," he contends this did...
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