J.L. v. Miller

J.L. v. Miller (2000-430); 174 Vt. 288; 817 A.2d 1

[Filed 18-Oct-2002]


       NOTICE:  This opinion is subject to motions for reargument under
  V.R.A.P. 40 as well as formal revision before publication in the Vermont
  Reports.  Readers are requested to notify the Reporter of Decisions,
  Vermont Supreme Court, 109 State Street, Montpelier, Vermont 05609-0801 of
  any errors in order that corrections may be made before this opinion goes
  to press.


                                No. 2000-430


  J.L.	                                         Supreme Court

                                                 On Appeal from
       v.	                                 Washington Superior Court


  Sutherland Miller, et al.	                 January Term, 2002


  Mary Miles Teachout, J.

  John J. McCullough III, Vermont Legal Aid, Inc., Waterbury, for
    Plaintiff-Appellee J.L.

  O. Whitman Smith of Mickenberg, Dunn, Kochman, Lachs & Smith, PLC,
    Burlington, for Plaintiffs-Appellees R.B., S.H. and Vermont 
    Protection and Advocacy, Inc.

  Robert Appel, Defender General, Montpelier, for Plaintiff-Appellee R.B.

  William Sorrell, Attorney General, Montpelier, and Jennifer L. Myka,
    Assistant Attorney General, and Sean Brown, Law Clerk (On the Brief), 
    Waterbury, for Defendants-Appellants.


  PRESENT:  Morse, J., and DiMauro, D.J., Allen, C.J. (Ret.) and 
            Gibson J. (Ret.), Specially Assigned

        
       MORSE, J.   Defendants Sutherland Miller, Commissioner, Vermont
  Department of Developmental and Mental Health Services; Rodney Copeland,
  Superintendent, Vermont State Hospital; Brij Sarran, Staff Psychiatrist,
  Vermont State Hospital; Nancy Belle Collett, Staff Psychiatrist, Vermont
  State Hospital; and Rafael E. Garcia, Staff Psychiatrist, Vermont State
  Hospital, appeal the denial of a motion for relief from judgment under
  V.R.C.P. 60(b)(5).  

 

  Defendants had asked the superior court to vacate the "J. L. Consent
  Decree," entered into in May 1985, because in 1998 the Legislature adopted
  legislation expressly stating that "the J. L. v. Miller consent judgment
  [is] no longer applicable."  1997, No. 114 (Adj. Sess.), § 1 (codified as
  18 V.S.A. § 7629(d)).  We hold that the legislative enactment of Act 114
  supercedes the J.L. Consent Decree by operation of law, compelling us to
  reverse the trial court's ruling and grant the motion for relief from
  judgment.

       The underlying case dates back to May 28, 1985, when the Washington
  Superior Court approved a consent decree entered into by J.L. and the
  Vermont Department of Developmental and Mental Health Services.  The decree
  was intended to provide both procedural and substantive protections to
  members of a class of individuals who had been committed to the Vermont
  State Hospital at Waterbury and were facing involuntary, non-emergency
  medication.  The rules established by that decree have effectively
  withstood continued challenges and provided the controlling regulations for
  involuntary mental health treatment since its entry in 1985.  See, e.g., 
  J.L. v. Miller, 158 Vt. 601, 614 A.2d 808 (1992) ("J.L. I").
   
       Both expressly and in substance, Act 114 replaced the decree.  The
  Legislature's primary purpose in passing Act 114 was to provide a judicial
  process through which "the right of a legally competent person to determine
  whether or not to accept medical treatment" would be protected.  18 V.S.A.
  § 7629(a).  However, while Act 114 provides a new and different set of
  procedures for the treatment of individuals facing involuntary medication,
  it also has some substantial similarities to the J.L. Consent Decree.  For
  instance, both Act 114 and the J.L. Consent Decree provide for the patient
  to receive representation, as well as an independent psychiatric
  evaluation, 18 V.S.A. § 7625(a); J.L. v. Miller, No. 5-418-84-WnC, at 8
  (Vt. Sup. Ct. Washington County, May 28, 1985) 

 

  ("J. L. Consent Decree"), and each requires a demonstration of proof by
  clear and convincing evidence in their respective hearings.  18 V.S.A. §
  7625(b); J. L. Consent Decree, at 8.

       It is in those hearings that the differences are found.  While the
  Consent Decree provided that a hearing prior to any involuntary
  nonemergency medication occur in front of an officer appointed by agreement
  between the Human Services Board and the Commissioner of Developmental and
  Mental Health Services, J. L. Consent Decree, at 7,  Act 114 requires a
  comparable hearing to take place in family court, after the filing of a
  petition by the same commissioner.  18 V.S.A. § 7625(a).  That petition
  requires certification by a treating physician which describes the person's
  mental illness, the necessity of involuntary medication, a list of proposed
  medications, a statement of risks and benefits, the person's prognosis with
  and without medication, the current state of the person's health, the
  current relevant facts concerning the individual, what alternate treatments
  were proposed and why they were ruled out, and whether the person has
  executed a durable power of attorney for health care.  Id. §
  7624(c)(1)-(7). 
   
       Under the J.L. Consent Decree, an application for a hearing must
  include the original request to pursue involuntary treatment, the approval
  and recommendation of the Medical Director of the Vermont State Hospital,
  and the facts relied on in the assertion of incompetence.  J. L. Consent
  Decree, at 9.  Included in the last consideration must be: the nature of
  the mental illness, the effect of the mental illness on the ability to
  assimilate information, the information provided to the patient prior to
  refusal, an assessment of specific areas in which the patient may lack the
  capacity to make or communicate informed decisions, the individualized
  treatment plan, the reasons for refusal, a description of alternative
  remedies and the likelihood of success, a description of any past side

 

  effects experienced by the patient from the proposed treatment, and a
  statement of any potential benefits and risks to the patient if treatment
  proceeds. Id.

       At the hearing, if the presiding officer finds that the patient is
  incompetent, the officer's decision on whether to administer medication is
  based upon a "substituted judgment" standard. Id. at 10.  That standard
  requires the officer to consider whether a patient would voluntarily
  consent to medication if competent, and relies on previously expressed
  preferences, religious convictions, the impact of the decision on the
  patient, other patients and staff, the patient's family, and the possible
  risks and benefits of treatment in making that determination.  Id.  In
  contrast, Act 114 requires that a different standard be applied.  Under the
  statute, upon a finding of incompetence, the family court is required to
  determine whether involuntary medication is supported by the factors
  enumerated in § 7627(c).  18 V.S.A. § 7627(e).  Those factors are similar
  to those considered under the J. L. Consent Decree, and mentioned above.

       However great we may believe the differences are between the J.L.
  Consent Decree and Act 114, the most significant connection between the two
  is enunciated in 18 V.S.A. § 7629(d).  In that provision, the Legislature
  recorded its specific intention to "render the J. L. v. Miller consent
  judgment no longer applicable."  Id.
   
       When defendants' motion was first filed, many members of the original
  class did not oppose it.  However, certain individual intervenors and a
  subclass represented by plaintiff-appellees S.H. and R.B. contested the
  motion, seeking continued application of the terms of the original decree. 
  They were joined shortly thereafter by another plaintiff, R.B., on behalf
  of a subclass of prison inmates subject to involuntary medication.  After
  granting the motions to intervene and certifying the subclasses, the
  superior court heard arguments from all parties.  Following the court's
  denial of 

 

  their motion for relief from judgment and after an unsuccessful motion for
  reconsideration, defendants appeal.

       The parties maintain that the question before the Court is whether the
  superior court erred in applying the standard established by the United
  States Supreme Court in Rufo v. Inmates of Suffolk County Jail, 502 U.S. 367 (1992).  If the Rufo standards apply, the issue is whether the
  enactment of Act 114, effective July 1, 1998,  constituted a sufficient
  change in circumstances to warrant granting defendants' Rule 60(b)(5)
  motion requesting termination of the previously controlling consent decree. 
  In Rufo, the Sheriff of Suffolk County, Massachusetts and the Massachusetts
  Commissioner of Corrections sought to modify a consent decree requiring
  construction of a new jail capable of providing inmates with their own
  cells. They alleged that unanticipated prison overcrowding prevented them
  from providing inmates with their own cells.  Id. at 376.  The rule adopted
  in that case states that "a party seeking modification of a consent decree
  bears the burden of establishing that a significant change in circumstances
  warrants revision of the decree.  If the moving party meets this standard,
  the court should consider whether the proposed modification is suitably
  tailored to the changed circumstance." Id. at 383.  

       Relying on Rufo, the superior court held that defendants had failed to
  demonstrate that termination of the J.L. Consent Decree would not result in
  diminished constitutional protections for members of the J.L. classes.  In
  failing to meet that burden, defendants failed to show a change in
  circumstances warranting revision of the decree.  Additionally, the court
  held that termination of the entire Consent Decree was not suitably
  tailored to address the change in circumstances raised by the passage of
  Act 114.  
   
 

       Rufo, however, is immaterial to this case.  A Rule 60(b)(5) motion
  seeking modification of a consent decree based on a change in factual
  circumstance is only tenuously analogous to the situation at hand.  Here,
  defendants did not seek modification of a consent decree, they sought
  termination of a consent decree.  Defendants' motion in this case was not
  based on a change in factual circumstance, as was the case in Rufo.  Nor
  did they seek a modification based on new case law, as was the situation in
  J.L. I. (FN1)  In its current iteration, defendants' motion sought to
  terminate prospective application of the J.L. Consent Decree based on
  legislative enactment of a statute specifically intended to terminate
  application of that decree.  See 18 V.S.A. § 7629(d). 	In light of
  the passage of Act 114, the sole issue presented by this case is whether
  there is a justiciable controversy.  In Article III of the United States
  Constitution, the jurisdiction of the federal courts is limited to actual
  cases or controversies.  U.S. Const. art. III. § 2.  The State of Vermont
  has adopted the same limitation. Parker v. Town of Milton, 169 Vt. 74,
  76-77, 726 A.2d 477, 480 (1999); see also Agency of Natural Resources v.
  U.S. Fire Ins. Co., ___ Vt. ___, ___, 796 A.2d 476, 479 (2001) ("Vermont
  has adopted [the federal] requirement").  The presence of an actual
  controversy "turns on whether the plaintiff is suffering the threat of
  actual injury to a protected legal interest, or is merely speculating about
  the impact of some generalized grievance."  Town of Cavendish v. Vt. Pub.
  Power Supply Auth., 141 Vt. 144, 147, 446 A.2d 792, 794 (1982). 
  Furthermore, the requirement that an actual controversy exist at all times
  is jurisdictional, and not subject to waiver by either party.  

 

  Id.  Absent an actual controversy, any decision of the judicial branch is
  merely an advisory opinion, and is consequently beyond the authority vested
  in the judicial branch by the Vermont State Constitution.  See Anderson v.
  State, 168 Vt. 641, 644, 723 A.2d 1147, 1149 (1999) (mem.) (claim based on
  anticipated voter reaction was too speculative to be justiciable);  see
  also In re Opinion of the Justices, 115 Vt. 524, 529, 64 A.2d 169, 172
  (1949) ("The judicial power, as conferred by the Constitution of this State
  upon this Court, is the same as that given to the Federal Supreme Court by
  the U.S. Constitution.").

       The J. L. Consent Decree was entered for the purpose of addressing the
  absence of procedural safeguards against the forced medication of mental
  health patients.  According to the original complaint, before the decree
  was entered, the decision to medicate a member of plaintiff's class was
  made after a short administrative process, conducted entirely within the
  Vermont State Hospital, and consisted of a unilateral determination by
  defendants based on the recommendation of an internal hearing officer.  In
  the course of that process, it was alleged that defendants failed to
  consider or make any determination of plaintiff class member's ability to
  consent to treatment.  However significant the shortfalls of that process
  may seem, they were addressed first by the Consent Decree, and now by Act
  114.
   
       The J.L. Consent Decree has already proven to be a formidable
  obstacle.  Not only did it withstand a direct assault in the superior
  court, in defendants' Rule 60(b)(5) motion for relief from judgment, but it
  withstood an attempt by mental health officials to go forward under Act 114
  in the Washington Family Court.  On July 29, 1998, that court granted four
  motions to dismiss, holding that  "[u]ntil the [J.L.] consent judgment is
  modified or vacated, it will continue to govern the 

 

  involuntary medication procedures in Vermont . . . . As a result, this
  court lacks the jurisdiction to hear the current petitions to involuntarily
  medicate the respondents ."

       Continued adherence to the provisions of the J.L. Consent Decree would
  allow a judicial decree premised on a lack of relevant legislation to
  withstand the enactment of a statutory scheme intended to cure the
  deficiency.  "[P]arties have no power to continue to insist upon the
  protection of their rights in a manner different from that chosen by
  Congress absent constitutional fault."  Williams v. Butz, 843 F.2d 1335,
  1339 (11th Cir. 1988).  Courts have a duty to refrain from interfering with
  the sovereign powers of the legislature as allocated by the state
  constitution.  See State v. Ludlow Supermarkets,  Inc., 141 Vt. 261, 267,
  448 A.2d 791, 794 (1982).  Moreover, "[i]t becomes an . . . inexcusable
  abuse of judicial power when . . . a court ignores or defies clear and
  specific legislative enactments which not only control the subject matter
  but demonstrate legislative preemption as well."  Payne v. Rozendaal, 147
  Vt. 488, 499, 520 A.2d 586, 592 (1986).  

       In the situation at hand, there can be no weighing of the equities. 
  Once the legislature has asserted its intent to supplant a consent decree,
  its intent controls until a proper case or controversy directly addresses
  the statute.  Requiring defendants to file a Rule 60(b)(5) motion prior to
  implementing Act 114 implies that a litigant can bargain away the
  legislature's right to create the relevant procedures.  Further, requiring
  that defendants' motion demonstrate the constitutionality of the
  legislatively substituted procedures before those procedures can supplant
  the Consent Decree denies them the presumption of constitutionality to
  which legislation is entitled.  See State v. Read, 165 Vt. 141, 147, 680 A.2d 944, 948 (1996) ("We accord statutes a presumption of
  constitutionality.").

 

       Plaintiffs intimate that Act 114's procedures might be
  unconstitutional. The speculative nature of plaintiffs' fears renders them
  too abstract to support a controversy.  Until and if, in a proper case, one
  or more provisions of Act 114 are successfully challenged as
  unconstitutional or otherwise invalid, Act 114 takes precedence over the
  J.L. Consent Decree.  Before Act 114 is implemented, and treatment under
  its provisions is pending, no proper controversy can arise to support a
  challenge.  The case at hand is not one in which the Court may address the
  constitutionality of the standard and procedures adopted in the
  legislation; it is merely the place in which we recognize that the parties
  to the original action no longer face the original injury they alleged. 
  The absence of a real controversy and the creation of a set of procedures
  that eclipse the standards of the J.L. Consent Decree render reliance on it
  as an ongoing remedy unjustified.

       Reversed; the order denying defendants' motion under Rule 60(b)(5) is
  vacated and defendants' motion for relief from judgment is granted.



                                       FOR THE COURT:


                                       ______________________________
                                       Associate Justice


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                                  Footnotes


FN1.  In its first look at the J.L. Consent Decree, the State filed a Rule
  60(b)(5) motion after the United States Supreme Court's decision in
  Washington v. Harper, 494 U.S. 210 (1990), clarified the procedural
  requirements necessary for the involuntary treatment of patients.  This
  Court held that because the clarification in Harper did not specifically
  identify the substantive rights in the mental health context, it did not
  warrant a modification of the consent decree.  J.L. I.,  158 Vt. at 606,
  614 A.2d  at 812.