Supreme Court, Onondaga County, July 26, 2023

Mental Hygiene Legal Service, Fourth Judicial Department (Emily M. North of counsel), for respondent.

Costello, Cooney & Fearon, LLP (Robert Connolly of counsel) for petitioner.

On June 16, 2023, petitioner St. Joseph's Hospital Health Center (the petitioner or St. Joseph's) filed an emergency application to retain respondent B.V. (the respondent) as a patient and provide treatment pursuant to Mental Hygiene Law § 9.33 (see petition, Doc No. 1). By notice of motion dated June 26, 2023, Emily M. North of Mental Hygiene Legal Service, Fourth Judicial Department (MHLS) as counsel for respondent seeks an order of the court directing that the proceedings in this matter be conducted in-person (Doc No. 7). MHLS has made virtually identical motions in other Mental Hygiene Law proceedings and the court directed that all of the motions be adjourned to July 20, 2023, for consideration together (see letter, Doc No. 11). The court converted the pending appearance for final relief to an appearance for temporary relief pending the outcome of the instant motion (ibid.). On June 21, 2023, the court held a virtual hearing and granted temporary relief to petitioner (Doc No. 14). Petitioner opposes the motion seeking an order requiring an in-person hearing.

MHLS submitted the affirmation of Emily M. North, Esq. in support of the instant motion (Doc No. 9). North asserts that the court may only require a virtual proceeding via Microsoft Teams where there are exceptional circumstances or upon consent of the parties (see Matter of State of New York v Robert F., 25 NY3d 448, 454 [2015]). "Live televised testimony is certainly not the [*2]equivalent of in-person testimony, and the decision to excuse a witness's presence in the courtroom should be weighed carefully. Televised testimony requires a case-specific finding of necessity; it is an exceptional procedure to be used only in exceptional circumstances" (People v Wrotten, 14 NY3d 33, 40 [2009]). North asserts there are no exceptional circumstances in these matters as "there has been no suggestion that any witness is unable to travel to the courthouse due to age, infirmness, or any other legitimate reason. Further, the public health crisis created by COVID-19 has subsided, as is evidenced by the court system's return to in-person proceedings{**80 Misc 3d at 1013} in all respects" (see affirmation, Doc No. 9 ¶ 10). North notes that a COVID-19-era administrative order which mandated virtual hearings for Mental Hygiene Law proceedings involving a party confined to a hospital or other treatment facility was rescinded on June 5, 2023, by Administrative Order of the Chief Administrative Judge of the Courts AO/162/23 (ibid. ¶ 11). As there is no administrative order mandating a virtual proceeding, North argues that the case law set forth in Robert F. and Wrotten requires an in-person hearing absent exceptional circumstances and prays the court grant the requested relief.

Petitioner opposes the relief sought and submitted the affirmation of Robert Connolly, Esq. (Doc No. 20). Connolly notes that the cases cited predate the COVID-19 emergency declaration and associated administrative orders (ibid. ¶¶ 5-6). Connolly argues that a close reading of Wrotten ultimately stands for the proposition that a court may use its discretion in determining whether video testimony is appropriate in a particular case (see Wrotten at 38, 40). Connolly further asserts that contrary to this case-by-case approach, MHLS has made similar motions across the state in all Mental Hygiene Law proceedings for treatment over objection (see affirmation, Doc No. 20 ¶ 8). Missing from MHLS's motions before this court are any affidavits or evidence indicating the desires of particular patients (ibid.). In at least three of the preliminary hearings this court has held, no patient has appeared, thus waiving their right to appear virtually or otherwise (ibid. ¶ 9). Connolly argues that the first step in a case-by-case analysis commanded by Wrotten is to ascertain the desires of the subject respondent (ibid. ¶ 11). If, as in this case, the specific respondent has not asserted a desire to appear in-person, there can be no justiciable controversy as he or she waived the right to appear (ibid. ¶ 10).

Connolly asserts that the right to live testimony is mainly a criminal right to confront witnesses (see Matter of Doe, 13 Misc 3d 497, 499 [Sup Ct, Oneida County 2006]). In Matter of Doe, the court ultimately found that a treating physician could testify remotely (ibid. at 501-502). Connolly cautions: "The Respondent's exercise of [in-person testimony] may not actually gain any meaningful benefit to the Respondent and may in fact do practical harm to them with their right to 'confront a witness' " (see affirmation, Doc No. 20 ¶ 15). Connolly claims that virtual hearings "provide ease of access, cost savings, {**80 Misc 3d at 1014}court efficiencies and improved dockets, all without any shown adverse impact on fairness" (ibid. ¶ 17). Petitioner prays the court deny the relief sought.

In a related proceeding (index No. 007025/2023, Doc No. 8 ¶ 19), Connolly cited a recent report issued by the Pandemic Practices Working Group of the Commission to Reimagine the Future of New York's Courts (New York Courts' Response to the Pandemic: Observations, Perspectives, and Recommendations, A Report of the Pandemic Practices Working Group [Jan. 2023], https://nycourts.gov/LegacyPDFS/press/pdfs/NYCourtsPandemicPracticesReport.pdf). The Working Group, chaired by the Honorable Craig J. Doran, J.S.C., found that "virtual proceedings demonstrated significant benefits for many court users" (ibid. at 19). One observation noted by the report was that "remote meetings can be less intimidating to attend as well as allow litigants in residential treatment to participate in appearances without leaving the treatment facility" (ibid. at 17). In fact, the very first recommendation by the report is to expand and [*3]encourage the use of virtual proceedings (ibid. at 37).

MHLS replied and reiterated their arguments (Doc No. 22).

On July 20, 2023, the court held oral arguments on the instant motion. Counsel Jimmie C. McCurdy for the State indicated that he had spoken with the directors of the subject public hospitals and stated that all three preferred the virtual hearings (see tr at 15-16). He further stated that the Court of Appeals has not addressed this issue post-COVID-19 (ibid. at 16). McCurdy also gave his personal opinion that in 10 years doing Mental Hygiene Law cases he saw more participation by patients in the virtual hearings versus the in-person proceedings (ibid. at 59-60).

Counsel for St. Joseph's noted the irony that MHLS was arguing for in-person hearings so that respondents could confront the doctors testifying in favor of treatment over objection, then at the same time argued that in the virtual hearings doctors and respondents should be placed in separate rooms so that respondents would not be uncomfortable with hearing the doctors' testimony (see tr at 30). Counsel for St. Joseph's further represented that in pre-COVID-19 hearings, he did see patients become agitated and confrontational to the point they needed to be restrained, but he has never seen similar behavior in the virtual conferences held on Microsoft Teams (see tr at 32).{**80 Misc 3d at 1015}

Counsel for MHLS asserts that the waiver argument proffered by petitioner St. Joseph's is without merit, arguing that as respondents have never been afforded the opportunity for an in-person hearing, they could not have waived it (see tr at 36).

Discussion:

MHLS on behalf of respondent moves for an order mandating an in-person hearing on the petition for treatment over objection pursuant to Mental Hygiene Law § 9.27. The argument proffered by MHLS is that with the rescission of COVID-19-era administrative orders mandating virtual appearances in Mental Hygiene Law article 9 proceedings, the court must hear such matters in-person. The reliance on Wrotten by MHLS is misplaced for a blanket rule. The Court of Appeals specifically noted that a case-by-case analysis concerning the use of video testimony is required (Wrotten at 40). The sole issue in Wrotten was "whether Supreme Court had authority to utilize a procedure 'necessary to carry into effect the powers and jurisdiction possess by it' " (Wrotten at 40, citing Judiciary Law § 2-b [3]). It is unquestionable that this court has the authority to utilize video technology to facilitate a virtual proceeding.

The court further distinguishes Robert F. and Wrotten by noting that technology has evolved. Applications like Zoom, FaceTime, and Skype were barely known and mostly an idea when those decisions were rendered. The application of the law must recognize the progress of technology in the same way that the protections of the First Amendment are not limited to quill pens and movable-type printing presses. This court is not the first to note the change in technology since Robert F. and Wrotten:

"The court further notes that, while not dispositive of this issue, the technology available at this time exceeds the technology available when People v Wrotten was decided in 2009. In fact, even prior to the People v Wrotten decision, the United States Supreme Court had determined that even one-way live, closed-circuit television testimony could satisfy the Confrontation Clause of the Federal Constitution under certain circumstances (Maryland v Craig, 497 US 836, 850 [1990]) and where the essential safeguards of testimonial reliability were present, specifically, where evidence presented against a criminal defendant was subject to rigorous{**80 Misc 3d at 1016} testing in the context of an adversary [*4]proceeding before the trier of fact" (C.C. v A.R., 69 Misc 3d 983, 991 [Sup Ct, Kings County 2020]).

Since the onset of COVID-19, this court has conducted many motion arguments, hearings, and non-jury trials via Microsoft Teams without significant issue. Those issues that have arisen mostly involve matters which would occur with in-person appearances, namely timeliness and outside noises. As counsel for St. Joseph's pointed out, it is not an uncommon occurrence for an emergency siren or exterior shouts or air conditioning turning on to be so loud as to interrupt a witness testifying or attorney arguing (see tr at 30). In both cases, virtually or in-person, the court or court reporter have simply asked the individual to repeat themselves and the proceedings moved on.

Due process does not command that the hearing be conducted in-person either.

"More precisely, our prior decisions indicate that identification of the specific dictates of due process generally requires consideration of three distinct factors: First, the private interest that will be affected by the official action; second, the risk of an erroneous deprivation of such interest through the procedures used, and the probable value, if any, of additional or substitute procedural safeguards; and finally, the Government's interest, including the function involved and the fiscal and administrative burdens that the additional or substitute procedural requirement would entail" (Mathews v Eldridge, 424 US 319, 334-335 [1976]).

It is unquestionable that the private interests of the respondents are significant, namely the treatment over objection sought by petitioners. But the second and third factors weigh in favor of permitting a virtual hearing. It has not, nor can it be argued that a virtual hearing would lead to an erroneous determination. As stated within this decision, the fiscal and administrative burdens, as exemplified in transportation and security (below at 1018), weigh in favor of virtual proceedings and have the added benefit of safety to the respondents and those around them. A further example of the administrative burdens is the time it takes for an in-person proceeding versus virtual. Attorney Connolly noted that an in-person proceeding could take as much as four hours for a doctor to leave the facility, appear in court, testify, and return to work with patients (see tr at 14). Conversely, a virtual appearance would only take{**80 Misc 3d at 1017} about 20 minutes (ibid.). The additional three-plus hours robs other patients of meaningful treatment. The scale becomes even greater when one considers that potentially each patient has a different doctor testifying about their needs. Respondents' due process rights are not infringed by a virtual proceeding.

Most stunning is the fact that of the more than 42 cases which have come before this court during this term, only six cases were heard and only one patient appeared. The court takes judicial notice of those statistical facts. Even more shocking is the admission by MHLS that they have not sought their purported client's opinion on whether to appear in-person or virtually. In response to questioning on this point at oral arguments, learned counsel for MHLS stated: "So in full honesty to the Court, no, that is not part of my prep with the client. I will advise my client when and where court is scheduled" (see tr at 37-38). As noted by petitioner, in these related proceedings, no respondent has appeared to [*5]demand an in-person appearance (see affirmation, Doc No. 20 ¶ 9). This basic precept is incorporated in rule 1.1 of the Rules of Professional Conduct, where a "lawyer shall not intentionally . . . prejudice or damage the client during the course of the representation except as permitted or required by these Rules" (see Rules of Prof Conduct [22 NYCRR 1200.0] rule 1.1 [c] [2]). Further:

"Subject to the provisions herein, a lawyer shall abide by a client's decisions concerning the objectives of representation and, as required by Rule 1.4, shall consult with the client as to the means by which they are to be pursued. A lawyer shall abide by a client's decision whether to settle a matter. In a criminal case, the lawyer shall abide by the client's decision, after consultation with the lawyer, as to a plea to be entered, whether to waive jury trial and whether the client will testify" (ibid., rule 1.2 [a]).

Rule 1.4 concerns communication and specifically requires an attorney to, inter alia, "reasonably consult with the client about the means by which the client's objectives are to be accomplished" (ibid., rule 1.4 [a] [2]). This failure to seek the client's cooperation or approval to demand an in-person appearance is alarming. To be clear, a "party" is defined as: "One by or against whom a lawsuit is brought; anyone who both is directly interested in a lawsuit and has a right to control the proceedings, make a defense, or appeal from an adverse judgment" {**80 Misc 3d at 1018}(Black's Law Dictionary [11th ed 2019], party). MHLS is not the party in this instance. The respondents are the parties. The court finds that the motions are procedurally defective for the lack of a respondent's affidavit. The respondents are the parties in these matters, not MHLS.

Turning to the best interests of the respondent and similarly situated individuals, the court finds that the benefits of virtual appearances outweigh the unspoken benefits of an in-person hearing. MHLS has focused on Robert F. and its decree that a court may utilize "live, two-way video testimony pursuant to its inherent power, but only where exceptional circumstances so require, or when all parties consent" (Robert F. at 454). By the very nature of Mental Hygiene Law § 9.27 proceedings, these respondents are in a delicate mental state and thus present an "exceptional circumstance." As argued by counsel for petitioner St. Joseph's, exceptional does not mean rare (see tr at 10, 29). As was discussed at oral argument, respondents have grown accustomed to their present surroundings. An in-person appearance would require them to be transported, along with others, from the treatment facility to the courthouse and many times in restraints. This transportation would require additional hospital staff and security to ensure the safety of respondent and others. In fact, oral argument revealed that prior to COVID-19, a patient at a private hospital, either St. Joseph's or Community General, now operated by petitioner Upstate, would be placed in a taxi with a nurse and sent to the courthouse, and if the patient wandered off, staff were instructed not to intervene or take other steps to forcibly bring the patient back (see tr at 45-47). As MHLS requests and has routinely been granted requests to close the courtroom, a respondent would be left outside the courtroom in a hallway while other matters proceed. When the attorneys were questioned by the court, the attorneys recounted instances where a respondent became disruptive, while another matter was pending, and without authorization left the courthouse. Transportation of respondents and those similarly situated often involves placing the individual in restraints, although MHLS has attempted to downplay this fact and claims it is not a common practice but nonetheless concedes that it does occur. All this results in additional stresses placed upon an individual who can ill-afford further pressure. The court does not see the benefits of requiring an individual who has failed to make a [*6]request for in-person attendance to go through the arduous trip in a fragile mental condition.{**80 Misc 3d at 1019}

MHLS raised the issue of being present with their clients during hearing. Conducting video hearings also allows MHLS to be in-person with their clients at facilities during a hearing. In an attempt to counter this point, MHLS said that due to the various facilities involved, it would be impossible to be at multiple locations in back-to-back hearings. This could easily be remedied by having temporally separate hearings for each facility, spaced out sufficiently to account for travel times or even on different days, or assignment of specific MHLS attorneys to each facility. This court wonders how many patients would then attend a video conference in the environment they are accustomed to with their attorney.

The case law does not support the demand by MHLS for in-person hearings. As noted in the report issued by the Pandemic Practices Working Group of the Commission to Reimagine the Future of New York's Courts, much has changed with the world pre- and post-COVID-19. Virtual appearances have become commonplace as technology has evolved. NYSCEF (New York State Courts Electronic Filing System) recognizes this with the addition of the Virtual Evidence Courtroom (VEC). The positive changes of COVID-19 are the ability to handle non-jury trials, motions, and hearings via video. In fact, it is this court's observation that having a witness which the camera is focused upon gives the court a greater ability to determine credibility during testimony.

The court finds that Mental Hygiene Law article 9 proceedings are inherently "exceptional circumstances" and qualify for virtual proceedings. In the future, should a particular respondent personally desire to appear at the courthouse for an in-person appearance, then that application should be supported by an affidavit of the party-patient making the request.

Now, therefore, upon reading and filing the papers with respect to the motion, and due deliberation having been had thereon, it is hereby ordered, for the reasons stated above, that the motion by MHLS for in-person Mental Hygiene Law article 9 hearings rather than virtual proceedings conducted via Microsoft Teams is denied.