2019 Mass. App. Div. 10

October 19, 2018 - February 11, 2019

Appellate Division Southern District

Court Below: District Court, Plymouth Division

Present: Hand, P.J., Finnerty & Kirkman, JJ.

No brief filed for the petitioner.

Susan Stefan for the respondent.

FINNERTY, J. On October 19, 2017, Pembroke Hospital petitioned for G.P.'s commitment pursuant to G.L. c. 123, §§ 7 and 8. That event started the clock on the requirement under § 7(c) that the hearing be held within five days or by October 26, 2017. A hearing was scheduled for October 25, 2017. Prior to that date, counsel for G.P. filed a motion to dismiss the petition pursuant to Mass. R. Civ. P. 12(b) for abuse or misuse of the commitment process. [Note 1] The petitioner filed an opposition to that motion on October 24, 2017.

On October 25, 2017, the date of the scheduled hearing on the petition, the court heard the parties' arguments on the motion to dismiss. The court advised the parties that it would take the motion under advisement and then ordered the hearing continued over G.P.'s objection. The court later denied the motion to dismiss. The hearing on the petition, which resulted in the involuntary commitment of G.P., was heard by a different judge on November 3, 2017. The court on that date also denied a second motion by G.P. to dismiss for lack of jurisdiction based on exceeding the deadline under G.L. c. 123, § 7(c). In this appeal, G.P. contends that the court was without jurisdiction after the fifth day following the filing of the petition and that the commitment order should therefore be vacated. We agree.

Although G.P. has since been discharged from the commitment, appeals from expired or terminated commitment and treatment orders that no longer have operative effect should not be dismissed as moot, and the court should consider the merits of the underlying order. Matter of F.C., 479 Mass. 1029 (2018).

General Laws c. 123, § 7(c) provides that "the hearing shall be commenced within 5 days of the filing of the petition, unless a delay is requested by the person or his counsel. The periods of time prescribed or allowed under the provisions of this section shall be computed pursuant to Rule 6 of the Massachusetts Rules of Civil Procedure." [Note 2] This time requirement is strictly construed, and

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exceeding it deprives the court of jurisdiction over the commitment. Hashimi v. Kalil, 388 Mass. 607, 609-610 (1983); Matter of Molina, 2007 Mass. App. Div. 21, 22. See also Commonwealth v. DeBella, 442 Mass. 683, 688 (2004). Absent extraordinary circumstances that would justify a very brief delay, dismissal is the appropriate remedy for any violation of the statutory deadline. Commonwealth v. Parra, 445 Mass. 262, 263 (2005).

A hearing is commenced when a witness is sworn or some evidence is taken. Melrose-Wakefield Hosp. v. H.S., 2010 Mass. App. Div. 247, 250. The mere calling of the case and the hearing on the motion to dismiss did not constitute "commencement" for purposes of this time limit. Id. A delay beyond the required time period for the illness of a petitioner's counsel was found not to be a circumstance justifying failure to commence the hearing within the required time period. Matter of Molina, supra at 22. Delay because the petitioner-hospital did not feel it safe to bring the respondent, who expressly wished to be present, to the hearing was also found not to be such an extraordinary circumstance. Melrose-Wakefield Hosp., supra at 250.

In light of our recognition that "[c]onfinement without legal justification is never innocuous," Matter of Molina, supra at 22, quoting Commonwealth v. Kennedy, 435 Mass. 527, 530 (2001), consideration of the motion to dismiss was not the sort of extraordinary circumstance justifying even a brief delay. "The statute's deadlines are mandatory to protect a defendant's liberty interest . . . ." Melrose-Wakefield Hosp., supra at 249, quoting Commonwealth v. Parra, supra at 263 (2005).

The trial court's denial of the respondent's motion to dismiss is reversed, and a new order shall enter vacating the order of commitment.


[Note 1] The motion itself is not part of the record appendix, but it is clear from the record that such a motion was so filed. The motion argued that there was no jurisdiction for the petition because G.P.'s detention under G. L. c. 123, § 12(a) was invalid and therefore she could not be detained under G.L. c. 123, § 12(b).

[Note 2] Rule 6 of the Mass. R. Civ. P. provides that the day of the act after which the designated period of time begins to run shall not be included, and that for allowed time periods less than seven days, intermediate Saturdays, Sundays, and legal holidays are excluded from the calculation.