Appellate ruling draws attention to pros and cons of civil commitments

After the Britney Spears conservatorship saga, the country is having renewed conversations about the mentally ill and the state’s mechanisms for controlling their behavior to keep them and the public safe.

In Minnesota, some mentally ill individuals have severe enough situations to lead to a commitment against their will. The standards for civil commitment are determined by statute, but the person will have a trial and it will be ordered by the court. Civil commitment can be ordered for those who are mentally ill, chemically dependent, developmentally disabled, or sexually dangerous.

On Nov. 15, the Court of Appeals issued a decision on In the Matter of the Civil Commitment of Jackie Barritt. It affirmed the ruling of the Hennepin County District Court.

Appellant was found by police passed out in her car at 2 in the morning. In her lap, her 5-month-old son was sleeping in a diaper filled with feces and allegedly his body was also covered in feces. The police woke appellant who appeared confused and disoriented. She also denied that she even had a baby. Appellant was uncooperative and threatened to run away. Further in the conversation, appellant told police that she wanted to “drive her vehicle into a brick wall.” At this point, paramedics restrained her and took her to the hospital. It was clear that appellant was suffering with mental illness and did not have an understanding about how severe her condition really was.

At the district court, appellant was determined to be suffering from a mental illness. Due to her statement about wanting to drive into a brick wall, and her agitation requiring restraint, the court determined that she posed a substantial likelihood of causing physical harm to others or herself. Consequently, appellant was civilly committed as a person who poses a risk of harm due to mental illness.

At the Court of Appeals, the decision of the District Court was affirmed. Appellant made two arguments in support of her release. First, she argued that her verbal threats were insufficient in showing that substantial likelihood of physical harm to others or herself. However, the court was unpersuaded because appellant’s argument relied on nonprecedential opinions which were also factually distinguishable. Second, she argued that the fact that her child was apparently not being taken care of was perhaps reason to pursue a child protection matter but not commitment proceedings. The court disagreed, asserting that the condition her child was found in provided context for the circumstances but were not cited as a reason for appellant to be committed.

Daniel Repka is a Twin Cities criminal defense attorney. While Repka was not involved in the Barritt proceeding, he is a seasoned practitioner in the area of civil commitments in Minnesota. He is also acutely aware of how some proceedings can result in unjust civil commitments, largely stemming from a dearth of practitioners, insufficient understanding of mental illness, and not enough resources to give complete analysis to the case.

Repka first notes that there are not a lot of lawyers in Minnesota who do this work. Googling “Minnesota civil commitment attorneys” yields just a handful of results. He wonders whether the overall commitment population would decrease if more attorneys practiced civil commitment law.

“The odds of beating an unjust commitment really depend on how much time the attorney spends on a case,” he said, as well as their overall knowledge of the proceedings and advocacy.

As a result, those facing civil commitment — and their families — are at the mercy of whether there is an attorney in their area who handles civil commitments and whether they can afford it, said Repka. Having a reputable attorney who understands the law is crucial. That’s because, as Repka explains, some district courts only allot 30 minutes to a commitment trial.

“How can 30 minutes possibly be enough time for the District Court to receive evidence and make such an important decision?” said Repka.

During a civil commitment trial, the court must hear evidence including testimony of one or two court-appointed examiners, testimony from the hospital physician supporting the civil commitment petition, and occasionally respondent’s testimony. While courts can get it right, they can get it wrong too, Repka said.

Unjust commitments happen when “judges don’t follow the law, defense attorneys, county attorneys, and social workers lose sight of the purpose of the law and their respective roles in the civil-commitment system,” he said. “Physicians don’t understand the ‘least restrictive program’ requirement of our civil commitment law; or a combination of the three.”

Repka has had his share of unjust commitments. In one case, a client was ordered to attend a residential treatment program against her wishes. The client petitioned to end the commitment, and before the decision was to have been made, a social worker was supposed to file what’s called a 60/90-day report. The report gives information such as the most recent diagnosis, substantiation of need for further treatment and need for continued commitment. If it is not filed within the timeline, then the commitment will be terminated, and the patient will be discharged. Repka then filed a motion on behalf of his client to terminate the commitment based on the statutory violation. Still, the county attorney’s office opposed the motion.

“Thankfully, the judge granted the motion, but only after my client was unjustly committed for weeks after the commitment should have terminated,” he said. “Had we not filed a motion to dismiss, the commitment would have continued.”

Another case really highlighted that outcomes depend on the expertise of the practitioner. In that case, Repka’s client was committed for being mentally ill. The commitment was continued, which is allowed under Minnesota law, but cannot be continued again. Petitioner must instead file what’s called a “recommitment petition” before the continued commitment period expires. In this case, the petition was aware that it could not file the petition in time, so it filed a motion to extend the time to file the recommitment petition. Repka’s client had a county-appointed attorney at the time, and that attorney did not object to the extension. Fortunately for the client, they hired Repka, who then filed a motion to dismiss as the petition had not abided by the statute.

“Had we not [filed a motion to dismiss], then my client likely would have been recommitted under the new petition,” Repka said.

While civil commitments serve their purpose — keeping the public and the committed safe from harm — the law requires the state to do so in the least-restrictive way possible. For now, Repka is part of a very small contingent of Minnesota lawyers ensuring that everyone involved in these emotionally charged cases acts in accordance with the procedures and spirit of the law.