T.L. v. F.M.

• Decision Date: 13 March 2019
• Docket Number: Case No. 2D18-1089
• Citation: 289 So.3d 494
• Court: Florida District Court of Appeals
• Parties: T.L., Petitioner, v. F.M., Respondent.

289 So.3d 494

T.L., Petitioner,

v.F.M., Respondent.

Case No. 2D18-1089

District Court of Appeal of Florida, Second District.

Opinion filed March 13, 2019

Ita M. Neymotin, Regional Counsel, Fort Myers, and Ngozi C. Acholonu, Assistant Regional Counsel, Clearwater, for Petitioner.

F.M., pro se.

Ashley Moody, Attorney General, Tallahassee, and Caroline Johnson Levine, Assistant Attorney General, Tampa, for the State of Florida.

PER CURIAM.

T.L. petitioned for a writ of prohibition or a writ of habeas corpus quashing the circuit court's ex parte order authorizing law enforcement to transport her to a treatment facility for involuntary substance abuse assessment and stabilization under Florida's Marchman Act. See §§ 397.6811 – 397.6822, Fla. Stat. (2017). We denied her petition in a prior order on May 8, 2018, indicating that an opinion would follow. However, since that time T.L. has unfortunately passed away. We therefore vacate our previous denial and now dismiss the case as moot.

NORTHCUTT and CASANUEVA, JJ., Concur.

LUCAS, J., Concurs specially with an opinion in which CASANUEVA, J., Concurs in part with opinion.

LUCAS, Judge, Concurring separately.

A written accusation by an itinerant houseguest friend followed by a judge's review of that piece of paper is all it would have taken under the Marchman Act to deprive a young woman of five or more days of her liberty. It is difficult for me to reconcile the constitutionality of such a drastic deprivation of freedom with the patina of procedure that precedes it. Therefore, while I must concur with the dismissal of T.L.'s case because it has become moot, I write to address the due process arguments her attorney has raised in her petition. They merit attention—and in the right case, perhaps, some action on the part of a court.

I.

A.

On March 19, 2018, F.M. filed a petition in the circuit court of Pinellas County to have T.L. involuntarily assessed and stabilized under Florida's Marchman Act, §§ 397.301–.998, Fla. Stat. (2017).¹ He alleged that T.L. "has no control over the urge to use drugs," that she sometimes suffered from convulsions related to her drug use, and that she was engaged in prostitution in order to maintain her drug addiction. F.M. described himself in his petition as T.L.'s friend, an occasional houseguest of hers, and an emergency contact. The same day as the petition's filing, the circuit court entered an ex parte order finding that the allegations in the petition presented a good-faith basis to believe that T.L. met the criteria for involuntary admission and stabilization under section 397.675. In that order, the court also appointed regional counsel to represent T.L., issued a summons to T.L., and authorized law enforcement to take T.L. into custody and deliver her to a licensed substance abuse service provider in Tampa.

On March 21, T.L.'s appointed attorney filed a petition for writ of prohibition (or habeas corpus in the event that she was taken into custody) seeking to quash the circuit court's order on three bases: (1) F.M. was not a qualified petitioner under the Marchman Act, so his petition did not properly invoke the circuit court's jurisdiction; (2) the ex parte procedure that the circuit court employed violated T.L.'s right to due process because it did not provide her with a hearing and an opportunity to be heard; and (3) the assessment and stabilization statute as a whole is unconstitutionally vague because it does not provide enough guidance to courts regarding when to hold a predeprivation hearing and when to employ the ex parte procedure. Although the State was not a formal party to this petition, our court ordered it to file a response addressing the constitutional issues raised. See Fla. Carry, Inc. v. Univ. of N. Fla., 133 So.3d 966, 991 (Fla. 1st DCA 2013) (Makar, J., concurring) (opining that the State should be given an opportunity to be heard when constitutional issues arise); cf. § 86.091, Fla. Stat. (2017) (requiring that the State be served and given an opportunity to be heard when a constitutional challenge is made in an action for declaratory relief).

The State's initial response to T.L.'s petition was remarkable. At first, the State conceded that T.L. "had established grounds for this Court to grant the petition" and allowed that if T.L. were entitled to relief, our court "should rule accordingly." Later, however, the State filed an amended response, which raised arguments that focused almost entirely on what the State perceived to be procedural shortcomings with T.L.'s petition—the petition's mootness, the impropriety of seeking habeas relief when T.L. had not been taken into custody, the unavailability of a writ of prohibition in this case, and the fact that T.L.'s counsel did not file a written motion with the circuit court. With respect to T.L.'s due process argument, the State had relatively little to say. According to the State, the Marchman Act did not violate T.L.'s due process rights as it "is not a state law which seeks to unfairly imprison individuals, rather, it authorizes the courts to provide medical treatment to individuals in need of substance abuse treatment."

In other words, so long as her confinement would have been for her own good, we ought not to worry too much about due process for those in T.L.'s circumstances.

B.

The arguments underlying T.L.'s due process challenge pose vitally important questions concerning the validity of the ex parte involuntary assessment and stabilization procedures outlined under the Marchman Act. Those procedures, in essence, authorize courts to issue ex parte orders for "the involuntary assessment and stabilization" of a respondent whenever a written petition sufficiently alleges that the respondent meets the criteria of section 397.675, and to order involuntary commitment in a hospital, licensed detoxification facility, or addictions-receiving facility "for a period of 5 days" in order to assess and stabilize the respondent. §§ 397.6811–.6822. The written petition instigating this involuntary assessment and stabilization procedure may be filed by any adult "who has direct personal knowledge of the respondent's substance abuse impairment." See § 397.6811(1). A court issuing an ex parte order under this procedure does not convene a hearing of any kind prior to or immediately after the order's issuance; the court is instead directed to "rely[ ] solely on the contents of the petition." See § 397.6815(2). In conjunction with issuing its order, the court need not notify any other person, such as a spouse or family member, who might intervene on a respondent's behalf. Although a respondent is supposed to be assessed by a "qualified professional"² within seventy-two hours of his or her involuntary commitment for the purpose of determining whether he or she meets the criteria for involuntary admission pursuant to section 397.675, under section 397.6821 a service provider may request additional time to assess and stabilize an individual in its care, on which the court may (again, without a hearing) grant additional time for the confinement "not to exceed 7 days after the date of the renewal order." Section 397.6821 further provides that such an extension "constitutes legal authority to involuntarily hold the individual for a period not to exceed 10 days in the absence of a court order to the contrary." The length and location of one's prehearing confinement may vary, but there is no provision for a judicial hearing at any time during the initial five-day assessment and stabilization confinement under the Marchman Act.

In her petition, T.L. contended that this statutory procedure violates the procedural due process protections afforded under the Fifth and Fourteenth Amendments to the United States Constitution.³ Her argument can be stated succinctly: a court may not deprive a person of his or her physical liberty without meaningful notice and an opportunity to be heard; the ex parte involuntary assessment and stabilization procedure under the Marchman Act authorizes a court to order a person to be seized and involuntarily confined for five or more days without a meaningful opportunity to be heard by the court at a hearing; therefore, the statutory procedure is unconstitutional.

I am inclined to agree with T.L.'s argument.

II.

To begin, it is important to identify the type of review T.L.'s constitutional challenge would have implicated, as that would necessarily dictate the kind of constitutional analysis needed to resolve the arguments in her petition. See Kuvin v. City of Coral Gables, 62 So.3d 625, 629 (Fla. 3d DCA 2010) ("The first issue in every case considering the constitutionality of a statute or ordinance is which standard applies. Not only is the applicable standard the threshold determination in any constitutional analysis; it is often the most crucial. In this case, it has made all the difference." (quoting State v. J.P., 907 So.2d 1101, 1120 (Fla. 2004) (Cantero, J., dissenting) ) ). Because section 397.6815(2) directly impacts the fundamental right of physical liberty, and it does so without the imprimatur of a judicial hearing, I believe a court should review this section under strict scrutiny. See, e.g., Fla. Dept. of Children & Families v. F.L., 880 So.2d 602, 607 (Fla. 2004) ("When a statute impinges on a fundamental liberty interest, we analyze the statute's constitutionality under a strict scrutiny standard." (citing Beagle v. Beagle, 678 So.2d 1271, 1276 (Fla. 1996) ) ); J.P., 907 So.2d at 1109 ("When a statute ... impairs the exercise of a fundamental right, then the law must pass strict scrutiny." (first citing Reno v. Flores, 507 U.S. 292, 302, 113 S.Ct. 1439, 123 L.Ed.2d 1 (1993) ; and then citing Mitchell v. Moore, 786 So.2d 521, 527 (Fla. 2001) ) ); cf. T.M. v. State, 784 So.2d 442, 444 (Fla. 2001) (accepting State's concession that the constitutionality of a juvenile curfew ordinance would be subject to strict scrutiny).⁴

In order for this ex parte initial...