Mental Hygiene Legal Serv. v. Cuomo

• Decision Date: 29 March 2011
• Docket Number: No. 07 Civ. 2935(DAB).,07 Civ. 2935(DAB).
• Citation: 785 F.Supp.2d 205
• Parties: MENTAL HYGIENE LEGAL SERVICE, Plaintiff,v.Andrew CUOMO, in his official capacity as Governor of the State of New York, et al., Defendants.
• Court: U.S. District Court — Southern District of New York

785 F.Supp.2d 205

MENTAL HYGIENE LEGAL SERVICE, Plaintiff,

v.Andrew CUOMO, in his official capacity as Governor of the State of New York, et al., Defendants.

No. 07 Civ. 2935(DAB).

United States District Court, S.D. New York.

March 29, 2011.

OPINION TEXT STARTS HEREWest CodenotesHeld UnconstitutionalN.Y.McKinney's Mental Hygiene Law § 10.06(k)N.Y.McKinney's Mental Hygiene Law § 10.07(c)N.Y.McKinney's Mental Hygiene Law § 10.07(d) Sadie Zea Ishee, Mental Hygiene Legal Service, New York, NY, Dennis Bruce Feld, Mental Hygiene Legal Service, Second Judicial Dept., Mineola, NY, Hollie Sue Levine, Mental Hygiene Legal Service, Third Dept., Binghamton, NY, for Plaintiff.Edward J. Curtis, Jr., Joshua Benjamin Pepper, New York State Department of Law, New York, NY, for Defendants.

MEMORANDUM & ORDER

DEBORAH A. BATTS, District Judge.

Plaintiff Mental Hygiene Legal Service (“MHLS”) brings this declaratory judgment action against Andrew Cuomo, in his official capacity as Governor of the State of New York,¹ Eric Schneiderman, in his official capacity as Attorney General of the State of New York, Michael Hogan, in his official capacity as Commissioner of the New York State Office of Mental Health, Courtney Burke, in her official capacity as Acting Commissioner of the New York State Office for People With Developmental Disabilities, and Brian Fischer, in his official capacity as Commissioner of the New York State Department of Correctional Services (“DOCS”), (collectively, “Defendants”) as a pre-enforcement, facial challenge to certain provisions of the New York Sex Offender Management and Treatment Act (“SOMTA” or the “Act”), codified within New York Mental Hygiene Law (MHL) Article 10. SOMTA creates a new legal regime authorizing “civil management” of certain sex offenders after completion of their prison terms, parole terms, or other period of state custody. Such civil management is predicated on the danger to society that recidivist sex offenders pose. See generally MHL Art. 10.

The Act became effective on April 13, 2007, the day after Plaintiff commenced this action, which challenges seven provisions of the Act, namely:

(A) MHL § 10.06(f), which authorizes the New York Attorney General to issue a “securing petition” to detain certain individuals beyond the completion of their term of imprisonment, in advance of a probable cause hearing, without notice or opportunity for review;

(B) MHL § 10.06(k), which mandates involuntary civil detention pending the commitment trial, based on a finding at the probable cause hearing that the individual may have a mental abnormality, without a finding of current dangerousness;

(C) MHL § 10.06(j)(iii), which forbids an individual indicted for a crime but found incompetent to stand trial to contest the commission of the acts that constituted the crime at the probable cause hearing;

(D) MHL § 10.07(d), which authorizes civil commitment for persons found incompetent to stand trial and never convicted of any offense based on a showing by clear and convincing evidence that they committed the sexual offense with which they were charged;

(E) MHL § 10.07(c), which authorizes the factfinder at the commitment trial to make a retroactive determination by clear and convincing evidence that certain non-sex crimes were committed with a “sexual[ ] motivat[ion]”;

(F) MHL § 10.05(e), which authorizes certain pre-hearing psychiatric examinations, in the absence of counsel, of individuals subject to the Act;

(G) MHL § 33.13(c)(9)(vii), which permits the release of confidential clinical and medical records of certain individuals subject to the Act under certain specified circumstances.

Plaintiff has since withdrawn its challenge to MHL § 33.13. (Pl.'s M. Sum. J. 1 n. 1.) On April 16, 2007, Plaintiff moved for preliminary injunctive relief and on May 16, 2007, Defendants moved to dismiss the Complaint. On November 16, 2007, then District Judge Gerard E. Lynch granted Defendants' Motion to Dismiss with respect to § 10.06(j)(iii), finding that as a matter of law “the probable cause established by an indictment is a sufficient showing of potential guilt to warrant pretrial detention where an individualized showing of mental abnormality and dangerousness have been made.” Mental Hygiene Legal Service v. Spitzer, No. 07 Civ. 2935, 2007 WL 4115936, at *17 (S.D.N.Y. Nov. 16, 2007). In that same order, Judge Lynch also granted Plaintiff's motion to enjoin enforcement of two of the Act's other provisions, §§ 10.06(k) and 10.07(d), finding that Plaintiff had demonstrated a substantial likelihood of success on the merits where § 10.06(k) allowed for detention without an individualized finding of dangerousness and § 10.07(d) allowed a person never convicted of a crime to be labeled a “sex offender” based on conduct proved only by “clear and convincing evidence” rather than “beyond a reasonable doubt.” Id. at **15, 21. On appeal, the Circuit Court summarily affirmed Judge Lynch's order. Mental Hygiene Legal Services v. Paterson, No. 07–5548–CV, 2009 WL 579445, at *1 (2d Cir. Mar. 4, 2009).

Both parties now move for summary judgment. In addition to the parties' respective arguments on the merits, Defendants further move on the bases of standing and abstention. After the motions were fully briefed, Judge Lynch was elevated to the Second Circuit and, on October 1, 2009, the case was reassigned to this Court.

I. FACTUAL BACKGROUND

Additional facts concerning SOMTA and its specific provisions at issue in this case are set forth in Judge Lynch's Opinion and Order of November 16, 2007, and will not be reiterated fully here. See Mental Hygiene Legal Service v. Spitzer, 2007 WL 4115936, at *1–8 (S.D.N.Y. Nov. 16, 2007). Under SOMTA, when a “detained sex offender” ² nears release from confinement or parole, a “multidisciplinary staff” provides a “preliminary review” to determine whether that person should be referred for more extensive evaluation. § 10.05(d). If they determine that additional evaluation is necessary, a “case review team” of three individuals, at least two of whom must be mental health professionals, determines whether that person (termed a “respondent” upon referral to the case review team) requires additional “civil management.” § 10.06(a). Additionally, “notice of referral shall be provided to the respondent.” § 10.05(e). “Civil management” ultimately can require either indefinite civil commitment or a regimen of strict and intensive out-patient treatment and supervision. MHL § 10.03(q). As of the time the instant motions were fully submitted, the multidisciplinary staff had reviewed at least 2,892 cases and referred 507 to the case review team. (Miraglia Decl. ¶ 5.)

Under the Act, the case review team then determines whether the respondent both suffers from a “mental abnormality” and is, therefore, either “a dangerous sex offender requiring confinement” or “a sex offender requiring strict and intensive supervision.” § 10.03(i), (q). Those terms are defined in §§ 10.03(i), 10.03(e), and 10.03(r), respectively. A determination that the respondent does not require additional civil management may be made immediately upon initial review by the case review team. (Miraglia Decl. ¶ 8.) As of briefing, the case review team disposed of at least 169 of its 507 referrals in such a manner. Id. When the case review team determines that additional civil management is appropriate, however, it is authorized to “arrange for a psychiatric examination of the respondent” and to consider other extant records. § 10.05(e).

Furthermore, “if it appears that the respondent may be released prior to the time the case review team makes a determination, and the Attorney General determines that the protection of public safety so requires, the Attorney General may file a securing petition” to prevent the respondent's release from custody while review is ongoing. § 10.06(f).³

If the case review team determines that the respondent requires additional civil management, the Attorney General may file a “sex offender civil management petition” in New York State court, which, within 30 days of such a filing, must conduct a hearing to determine whether there is probable cause to believe the respondent requires civil management.⁴ §§ 10.06(a), (g), and (k). If the respondent is at liberty when the civil management petition is filed, or if he or she becomes eligible for release prior to the probable cause hearing, then “the court shall order the respondent's return to confinement” or a stay of his or her release, as the case may be, pending completion of the probable cause hearing.⁵ § 10.06(h) (emphasis added).

Upon a court's finding of probable cause that the respondent is a sex offender requiring civil management, which ultimately may require either confinement or supervision, SOMTA mandates that the respondent be committed to a secure treatment facility pending resolution of a full commitment trial. § 10.06(k).⁶

At the commitment trial, the jury (or judge if the right to a jury trial is waived) is to determine by “clear and convincing evidence” whether or not the respondent is a sex offender suffering from a “mental abnormality” and, if so, whether respondent “is a dangerous sex offender requiring confinement or a sex offender requiring strict and intensive supervision.” §§ 10.07(a), (d), (f). If the factfinder finds that confinement is required, then the respondent is committed to a secure treatment facility “until such time as he or she no longer requires confinement.” § 10.09(b). If the factfinder finds that strict and intensive supervision is required, then the respondent shall be subject to such a regimen. § 10.07(f).

Because not all “detained sex offenders” subject to SOMTA have been convicted of a sex offense, in certain cases the jury must determine additional, previously unresolved issues before finding the respondent a sex offender requiring civil management.⁷ For respondents already convicted of a sex offense, the jury need not rehear...